Criminal Law

Free Speech: Can Protestors Be Arrested for Flag Burning?

By E.A. Gjelten, Author and Editor
The U.S. Supreme Court has repeatedly held that burning the U.S. flag to make a political statement is a form of free speech protected under the First Amendment.

Shortly after the 2016 election, then-President-elect Trump suggested in a Twitter post that protesters who burn the U.S. flag should face consequences like jail or losing their citizenship. He certainly wasn’t alone. Many Americans—including elected officials and pundits—think that burning or defacing the flag is illegal, or should be. With his tweet, Trump reignited a debate that raged in this country nearly 30 years earlier, after the U.S. Supreme Court held that flag burning was a form of free speech under the First Amendment.

When Flag Burning Was Illegal

It wasn’t until the early 20th century that states began passing laws that made it a crime to burn, deface, mutilate, or disrespect the American flag. Beginning in 1969, the U.S. Supreme Court started chipping away at those laws—first by overturning provisions outlawing verbal contempt for the flag as a violation of the First Amendment. A few years later, the Court reversed the conviction of a college student who hung a flag upside down with a peace symbol attached to it.

Then, in 1989, the Supreme Court held that burning the flag as a political protest—without any words—was “expressive conduct” entitled to constitutional protection. In that case (Texas v. Johnson, 491 U.S. 397 (1989)), the Court explained that actions can qualify as “symbolic speech” under the First Amendment when:

  • the person intended to send a particular message through the action, and
  • it’s very likely that the viewers would understand that message.

Like other examples of expressive conduct that were recognized in earlier cases—including sit-ins at segregated lunch counters during the civil rights movement—the protestor in Johnson clearly meant to communicate his political views by burning a flag during a demonstration against then-President Reagan’s policies. Because of that, his conviction (under a Texas law making it a crime to desecrate a “venerated object”) was unconstitutional. As the Court emphasized, government may not stop someone from expressing an idea just because other people find that idea offensive.

Congress Tries Again—and Again

In a quick response to the Johnson decision, Congress passed the Flag Protection Act (FPA) of 1989, which made it a federal crime to consciously burn, mutilate, defile, or trample a U.S. flag or leave it on the ground. Any actions to dispose of worn or dirty flags were exempted under the law. The new law prompted a rash of flag-burning protests—and arrests. The Supreme Court promptly struck down the FPA because it was clearly meant to outlaw the free expression of critical opinions about what the flag stands for (U.S. v. Eichman, 496 U.S. 310 (1990)).

After Johnson and Eichman, there were several attempts to pass a constitutional amendment to allow restrictions on burning or defacing the flag. So far, none of those attempts has succeeded. But that’s not to say our representatives won’t renew the issue and try again.

Questions for Your Attorney

  • My state still has a law on the books that makes it illegal to burn or mutilate the flag. Can I sue to challenge the law if I haven’t been charged with that crime?
  • My school told me I can’t wear my jeans with a flag sewn upside down on the seat. Isn’t that a violation of my free speech rights?
  • Some friends and I were arrested and cited after we got drunk and egged each other on to climb a flagpole in front of the courthouse and rip down the flag. Can we fight the charges on First Amendment grounds?
  • When I set a flag on fire at a demonstration in a very conservative neighborhood, onlookers tried to stop me and then attacked me when I resisted. But I was the one charged with a crime for provoking the violence. Is that constitutional?

Go to main FAQ page on the First Amendment and free speech.

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