Sources
- https://www.oyez.org/cases/1968/5
Oyez provides authoritative summaries of Supreme Court cases, including Street v. New York, which is directly referenced in the blog post as a key case protecting verbal expression about the flag under the First Amendment. - https://www.law.cornell.edu/supremecourt/text/491/397
Cornell Law School's Legal Information Institute offers the full text of the Texas v. Johnson Supreme Court decision, which is central to the blog post's argument that flag burning is protected symbolic speech. - https://www.aclu.org/other/flag-burning-qa
The ACLU's Q&A on flag burning provides a clear, authoritative explanation of the legal status of flag desecration in the U.S., aligning with the blog post's discussion of First Amendment protections. - https://www.supremecourt.gov/opinions/boundvolumes/496bv.pdf
The official Supreme Court website provides the full text of United States v. Eichman, the case that struck down the Flag Protection Act, which is discussed in the blog post as a failed attempt to outlaw flag burning. - https://www.congress.gov/bill/101st-congress/house-bill/2978
Congress.gov provides the official text and legislative history of the Flag Protection Act of 1989, which the blog post mentions as a congressional attempt to ban flag desecration that was later ruled unconstitutional.
Key Points
- Flag desecration, defacing, and burning is protected speech under the First Amendment in the U.S.
- The Supreme Court ruled in Street v. New York (1969) that verbal contempt toward the flag is protected speech.
- Spence v. Washington (1970) upheld that altering a flag as protest is protected expression.
- Texas v. Johnson (1989) established flag burning as protected symbolic speech under the First Amendment.
- Congress passed the Flag Protection Act in 1989, but it was struck down as unconstitutional in U.S. v. Eichman (1990).
- State laws banning flag desecration are unconstitutional due to federal protections for free speech.
- While flag burning is legal, individuals can still face charges for property damage or vandalism related to the act.
- Popular and governmental support for outlawing flag burning has waned over time.
- Protesters engaging in flag burning should seek legal counsel if arrested for related offenses.
- The Supreme Court has consistently ruled that acts of protest, including flag burning, are protected under the First Amendment.
Summary
Flag burning and desecration are protected forms of free speech under the First Amendment, as upheld by Supreme Court rulings like *Texas v. Johnson* (1989) and *U.S. v. Eichman* (1990). Despite repeated attempts by Congress and states to outlaw it, courts have consistently struck down such laws, affirming that symbolic protest is constitutionally protected. However, flag burners may still face legal consequences if their actions involve property damage or other violations unrelated to free speech.
, defacing, and burning is not illegal in the United States and it is largely considered to be protected according to the First Amendment.
While it is thought of as offensive by some, so long as the act of burning the does not harm another person, it remains a legal of .
Many attempts have been made to outlaw and prohibit , but it remains a protected right under the law.
A History of Prosecutions in the 20th Century
In the 1960s, a World War II veteran named Sydney Street was arrested after making critical remarks about the American flag in response to news that someone else had burned one.
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He was convicted under a New York law prohibiting contemptuous speech about the flag. The Supreme Court overturned that conviction in Street v. New York (1969), ruling that the First Amendment protected his verbal expression.
Street v. New York – striking down New York state law
Although Street did not burn a flag himself, the Supreme Court ruled that expressing contempt toward the flag through speech was protected under the First Amendment.
In the case of Street v. New York, the State of New York had a law on its books that made it a crime to desecrate the United States flag.
This law was at the heart of the case against Street and was considered in opposition to the First Amendment of the United States Constitution in a Supreme Court decision.
The Supreme Court struck down the application of the New York law in this case because it punished spoken words, not actions, which are clearly protected by the First Amendment.
Spence v. Washington – overturning the Washington State
In 1970, a student named Harold Omand Spence at the University of Washington hung an upside-down American flag with peace symbols taped to it to protest the murders of Kent State students by the Ohio National Guard.
While Spence was convicted of altering an , the ultimately ruled that his act of counted as a protected act of .
This ruling overturned a previous Washington State that made defacing an an offense.
Texas v. Johnson – upholding freedom of
In 1984, United States citizen Gregory Lee Johnson burned an American flag outside of the Republican National Convention in Dallas to protest the policies of then-president Ronald Reagan.
He was arrested and convicted of defacing a , but the conviction was later overturned in the case Texas v. Johnson and his burning of the was considered ““.
This meant that although this was an act of and not written or spoken words, the act itself was considered protected .
In spite of state-level attempts to outlaw the act of burning or defacing an , both the and also popular opinion are aligned – should remain as both protected and protected .
The has repeatedly ruled to protect acts of as expressions of .
Each of these rulings has affirmed that burning or defacing the is considered an act of and is therefore a right according to the First Amendment.
Attempts To Make Illegal in the 20th Century
Congress has tried numerous times to prohibit American citizens from desecrating or defacing the , but the has consistently sided with American citizens and has overruled these attempts.
According to the rulings, the right to , the act of , and the of an idea supersedes any other citizen’s perception of an act as offensive.
This right, however, is neither permanent nor guaranteed and there have been many attempts to prohibit at the federal level.
The
Following the case of Texas v. Johnson in the 1980s, Congress initially passed the which would have prosecuted anyone who defaced or damaged an .
This act was later struck down by the in U.S. v. Eichmann, which ruled it as unconstitutional. Congress would continue to attempt to pass protection laws without success over the next two decades.
Congressional attempts to outlaw
The House of Representatives has repeatedly tried to pass measures to render illegal, but it has run into opposition in the Senate where it has continually failed to earn the two thirds majority necessary for passing any law.
It should also be noted that while amendments to prohibit have come to the floor for a vote in the House and have passed in the House many times, the margins for passing have been steadily shrinking since the 1990s.
While it is possible that Congress could try again to pass laws against , the attempts to outlaw are less and less popular with the population at large.
Popular support for legislation has continued to wane in recent years, with many Americans acknowledging that freedom of comes before their distaste for individual acts of .
How Legal Is It To Burn an ?
While the direct burning of an is still technically legal, any person can still be charged with other offenses.
If, for example, the burning of a also results in damage to private or public property, this could result in a charge of vandalism, even if vandalism was not the intent.
A business could also in theory take someone to civil court for violating their due to damage arising from a on their premises.
These arrests and convictions may be used as a way to skirt the rulings that is protected , though it is unclear if this would act as a deterrent.
is a long-held American tradition, and many American citizens are reluctant to overturn centuries of tradition, even if they may disagree over the methods of .
Interest in prohibiting continues to wane at the governmental level. Some of these arrests and convictions may be legitimate if the charge is not about burning the .
Though there are many legal protections for burning an , any citizen engaging in this form of should seek legal counsel should their act of result in an arrest or conviction.
Yes. The U.S. Supreme Court has ruled that flag burning is a form of protected symbolic speech under the First Amendment. This was established in Texas v. Johnson (1989) and reaffirmed in United States v. Eichman (1990).
In Texas v. Johnson (1989), Gregory Lee Johnson was arrested for burning a U.S. flag during a protest outside the Republican National Convention. The Supreme Court ruled 5–4 that his actions were protected speech, as they were expressive conduct intended to convey a political message.
The Flag Protection Act of 1989 was passed by Congress after Texas v. Johnson to criminalize flag desecration. However, it was struck down as unconstitutional in United States v. Eichman (1990). Therefore, the law is no longer in effect.
No. The Supreme Court has ruled that state laws banning flag desecration are unconstitutional if they punish individuals for expressive conduct. Federal constitutional protections for speech override state legislation in this area.
Yes, but not for the flag burning itself if it’s expressive conduct. However, they may be held civilly liable or criminally charged for violating property rights, committing vandalism, or posing a fire hazard.
