American Flag Burning Laws and Regulations

You've probably seen footage of protesters burning American flags during demonstrations, and if you're like most Americans, you had a strong reaction—whether outrage, support, or confusion. But here's the question that matters: Is flag burning actually illegal? The answer might surprise you. Despite dozens of attempts to criminalize it and passionate debates spanning decades, burning the American flag is protected speech under the First Amendment. In this article, you'll discover the Supreme Court decisions that established this right, the state laws that still exist (but can't be enforced), and what the ongoing controversy reveals about the tension between free expression and national symbols.

The Landmark Supreme Court Ruling: Texas v. Johnson

In 1984, Gregory Lee Johnson burned an American flag outside the Republican National Convention in Dallas. He was arrested and convicted under Texas law, fined $2,000, and sentenced to one year in prison. But this seemingly straightforward case would fundamentally reshape how America views symbolic speech.

The Supreme Court heard Texas v. Johnson in 1989, and in a 5-4 decision, ruled that flag burning constitutes symbolic speech protected by the First Amendment. Justice William Brennan wrote the majority opinion, stating that the government cannot prohibit expression simply because society finds the idea offensive or disagreeable.

Key principles established by this ruling:

• Symbolic conduct can qualify as speech under the First Amendment when it conveys a specific message
• The government cannot restrict expression based solely on its content or the offense it causes
• Protecting unpopular speech is essential to maintaining a free society
• Statutes criminalizing flag desecration are unconstitutional content-based restrictions

This decision didn't just affect Texas—it invalidated flag desecration laws in 48 states overnight. The ruling sparked immediate controversy, with President George H.W. Bush proposing a constitutional amendment to ban flag burning.

Congressional Response: The Flag Protection Act of 1989

Determined to circumvent the Supreme Court's decision, Congress moved quickly. Within months, they passed the Flag Protection Act of 1989, which attempted to prohibit flag desecration nationwide without explicitly targeting the expressive content.

The law made it illegal to "knowingly mutilate, deface, physically defile, burn, maintain on the floor or ground, or trample upon" an American flag. Congress hoped that by focusing on the physical act rather than the message, they could avoid First Amendment issues.

They were wrong. In United States v. Eichman (1990), the Supreme Court struck down the Flag Protection Act by the same 5-4 margin. Justice Brennan again wrote the majority opinion, making it clear that the government's interest in preserving the flag as a national symbol could not justify criminalizing its destruction when done as political expression.

This decision effectively ended federal attempts to criminalize flag burning through ordinary legislation—leaving only the challenging path of a constitutional amendment.

State Laws That Can't Be Enforced

Here's where things get interesting: Many states still have flag desecration laws on their books. You might wonder how this is possible if the Supreme Court ruled such laws unconstitutional. The answer lies in the difference between validity and enforcement.

After the Supreme Court rulings, these state statutes became unenforceable, but many legislatures never formally repealed them. They remain as "zombie laws"—technically written into state codes but legally toothless.

States with unenforced flag desecration laws include:

• Florida, which prohibits defacing or showing contempt for the flag
• Illinois, which criminalizes casting contempt upon the flag through mutilation or defacement
• Michigan, which bans publicly mutilating, defiling, or defacing the flag
• New York, which prohibits placing marks on the flag or publicly defiling it

If you were charged under one of these laws today, any competent attorney would have the charges dismissed immediately based on Texas v. Johnson precedent. However, the existence of these laws creates confusion, and occasionally, law enforcement officers unfamiliar with the constitutional issues may still make arrests that don't ultimately result in convictions.

The Flag Code: Guidelines Without Penalties

The U.S. Flag Code, codified at 4 U.S.C. §§ 4-10, establishes detailed guidelines for flag display and handling. Many people cite this code when discussing flag burning, but there's a critical distinction: The Flag Code is advisory, not criminal law.

The code recommends that "the flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning." This provision recognizes burning as the proper disposal method for worn flags, creating an interesting paradox—burning can be both the respectful end of a flag's life and a form of political protest.

Important Flag Code provisions:

• The flag should not be used for advertising purposes or printed on disposable items
• It should never touch the ground or floor
• It should be displayed only from sunrise to sunset unless properly illuminated
• During the national anthem, people should face the flag and place their right hand over their heart

However, violating these guidelines carries no legal penalties. The Flag Code itself states that no enforcement mechanism exists. When you see flags printed on napkins, clothing, or advertisements, those uses technically violate the Flag Code—but they're completely legal.

Constitutional Amendment Attempts

Since the Texas v. Johnson decision, Congress has repeatedly attempted to pass a constitutional amendment specifically authorizing flag desecration laws. The proposed "Flag Desecration Amendment" has been introduced in nearly every congressional session since 1989.

The amendment has come remarkably close to passage. In 2006, it passed the House of Representatives with the required two-thirds majority but failed in the Senate by just one vote—66 to 34, with 67 needed. This represents the closest Congress has ever come to amending the Constitution to restrict First Amendment protections.

Supporters argue that the flag deserves special protection as the nation's most important symbol, representing the sacrifices of veterans and service members. Opponents counter that the freedom to dissent, even through offensive symbolic speech, embodies the very principles the flag represents.

The debate touches on fundamental questions about American democracy: Should national symbols be protected from desecration? Does preventing flag burning honor or dishonor the freedoms veterans fought to defend? These questions remain unresolved, though amendment efforts have lost momentum in recent years.

When Flag Burning Could Lead to Legal Consequences

While flag burning as political expression is constitutionally protected, certain circumstances can still result in legal trouble—not because of the flag burning itself, but due to other violations.

You could face charges if your flag burning involves:

• Arson or fire code violations: Burning anything in prohibited areas, creating dangerous fires, or burning property that doesn't belong to you remains illegal regardless of what you're burning
• Inciting imminent lawless action: If your speech directly incites immediate violence and lawless action is likely to occur, it falls outside First Amendment protection
• Destruction of others' property: Burning someone else's flag constitutes theft or vandalism
• Violation of protest permit conditions: Many jurisdictions require permits for demonstrations, and violating those terms can lead to arrest
• Disturbing the peace or disorderly conduct: If your actions create a genuine public safety hazard or immediate breach of peace, you might face charges unrelated to the flag burning itself

The key distinction is this: You're protected when expressing political views through flag burning, but you must do so lawfully in all other respects. Buy your own flag, burn it in a safe location where fires are permitted, follow local ordinances about open flames, and ensure you're not creating genuine safety hazards.

Public Opinion and Cultural Considerations

Legal protection doesn't equal social acceptance. Polls consistently show that most Americans disapprove of flag burning, even while understanding it's constitutionally protected speech. A 2019 YouGov poll found that 55% of Americans believe flag burning should be illegal, demonstrating the disconnect between public sentiment and constitutional law.

This tension reflects a broader truth about free speech: We protect it most vigorously precisely when it's unpopular. The First Amendment doesn't exist to protect speech everyone agrees with—that speech needs no protection. It exists to safeguard dissent, protest, and expression that challenges the majority.

If you choose to burn a flag as political expression, understand that you're exercising a constitutional right that many find deeply offensive. You may face social consequences, public criticism, or heated confrontations, even though you cannot be legally punished for the act itself. This is the marketplace of ideas in action—your right to speak doesn't shield you from others' right to respond with their own protected speech.

Conclusion

American flag burning laws present a fascinating paradox: Despite widespread public support for criminalization and numerous state statutes remaining on the books, burning the flag as political protest is firmly protected under the First Amendment. The Supreme Court's decisions in Texas v. Johnson and United States v. Eichman established that the government cannot criminalize flag desecration simply because it offends public sensibilities. While you can't be prosecuted for burning your own flag as symbolic speech, you must still follow fire safety laws, respect others' property, and avoid creating genuine public hazards. Perhaps the ultimate irony is this: The freedom to burn the flag—however offensive many find it—demonstrates the very liberties that make the flag worth honoring in the first place.