, 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.
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A History of Prosecutions in the 20th Century
In the 1960s, a World War II veteran was convicted of setting fire to an American flag during a protest. Sydney Street burned an to the murder of a civil rights activist in the South.
He was convicted, and later had his conviction overturned in the United States Supreme Court case Street v. New York.
Street v. New York – striking down New York state law
Street’s burning of a flag was viewed as an act of protest, and therefore was considered an expression of his First Amendment rights according to the Supreme Court ruling.
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 .
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 New York State law was struck down as a result of this ruling.
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.
