Flag burning has been deemed by the Supreme Court to be a form of symbolic expression covered by the Constitution’s First Amendment, although highly contentious. State regulations that forbid such behavior still exist but are rarely implemented.
There are many more regulations relating to the flag and bans on burning flags. Burning the American flag appears prohibited, but because it is a national emblem, it is protected as a kind of symbolic speech under the First Amendment.
The burning of the American flag is typically done as a sign of opposition to a rule that the American people disagree with and that the country’s government has imposed.
Can Anyone Disparage the American Flag?
According to the Supreme Court, any person can publicly criticize the flag. As long as the speech does not fall under an unprotected speech category, such as a threat or statements that could incite a riot, people have the right to free speech under the First Amendment and are free to express themselves however they like regarding the American flag.
Is it Legal to Use the American Flag in Advertising?
According to the Supreme Court’s ruling over 100 years ago, the flag should not be depicted in commercial advertising. Laws created in response to this decision are, however, rarely applied. A lot of people fly the American flag as a sign of patriotism.
Can the American Flag be Changed in Any Way?
The Supreme Court has ruled that attaching or superimposing pictures, symbols, or other extraneous content on the flag is acceptable. The American flag is frequently flown upside down. A political protest started as a military distress signal when the American flag was flown upside down. The flag is flown in this manner to express distress in civic, political, and other spheres and to show serious risk to life or property.
What Does “Desecration” Mean in This Context?
The word “desecration” appears in numerous state statutes. Congress has occasionally tried to modify the Constitution to make it illegal to burn or desecrate property in any other way. Such an amendment, however, would be in direct conflict with the First Amendment.
Furthermore, the government might be violating the principle of the separation of church and state because the word “desecration” suggests that something is holy.
Texas v. Johnson
Gregory Lee Johnson’s actions were the subject of Texas v. Johnson. Johnson set fire to an American flag that had been taken from a neighboring flagpole during a demonstration outside the 1984 Republican National Convention. Even though nobody was hurt, the incident received coverage in the international media.
Johnson was given a year in prison and a $2,000 fine at the time for his acts, which were against Texas law. Asserting that “the ability to differ is the core of our First Amendment freedoms, a government cannot impose by fiat a feeling of togetherness in its citizens,” the Texas Criminal Court of Appeal overturned this decision. As a result, the same government cannot designate a symbol of unity and lay forth a list of authorized messages to be linked with it.
The case continued to the United States Supreme Court, where it became the first time they had to consider whether the First Amendment protected a non-speech act like burning the flag. The Supreme Court declared in 1989 that while an actor’s intention to convey a message does not always make it protected, it is protected when there is:
- A desire to do so through an act, and
- Evidence that the message was comprehended by most of those who saw it. They concluded that Johnson’s act of burning the flag sent a loud and unambiguous statement that warranted First Amendment protection.
Additionally, they determined that while speech may fall outside the scope of the First Amendment’s protection if it inspires others to commit violent crimes immediately, this was not the case in this instance.
Flag-burning laws in forty-eight states were declared unconstitutional due to this ruling, which significantly impacted American legal systems nationwide.
U.S. v. Eichman
The Texas v. Johnson decision drew a prompt reaction. Congress enacted the Flag Protection Act in the same year as the judgment. Under this law, it is now illegal to burn or disrespect the American flag under federal law. The Flag Protection Act was at issue in the case of U.S. v. Eichman, which was heard by the Supreme Court the next year in 1990.
Charges against protestors resulted from flag burning at demonstrations by the anti-war organization Vietnam Veterans Against the War Anti-Imperialist in two different states. Charges against the demonstrators in both instances were dropped, and the Flag Protection Act’s validity was then contested in an appeal to the Supreme Court. U.S. v. Eichman resulted from the combination of these two instances.
The Supreme Court was unequivocal this time. It categorically declared that any state or federal law forbidding the flag’s desecration was unlawful. Although some people may be deeply outraged by the act of burning a flag, the court held that the government could not censor expression just because some people find it unpleasant. Furthermore, the government is not permitted to censor speech to stifle its ideas.
The Legal Disputation Is Still Active
Despite these judgments, numerous attempts have proposed a constitutional amendment that would make it unlawful to desecrate the American flag. For such a constitutional amendment, 41 such proposals have been made since 1991. Some of the votes on these proposals have been incredibly close; in 2006, a constitutional amendment proposal was defeated by a mere one vote.
Despite the unconstitutionality of laws against flag burning, there are some circumstances in which it may be unlawful to burn a flag. The person who burned the flag, for instance, may still be held accountable for another offense if it was discovered that someone else had owned the burned flag. Furthermore, a law is constitutional if it does not restrict the manner, location, or substance of speech while regulating those things. So, even if a law prohibiting burning in a National Park other than in a fire pit is upheld, it would still be unlawful to burn a flag there unless you did it in a fire pit.
Flag burning is and probably always will be a contentious matter due to the intense feelings on both sides. Any regulation that makes it a felony to burn the flag, let alone to punish someone by denying them citizenship, will be unlawful, absent a constitutional amendment. Burning a flag conveys a severe dissatisfaction with the American government and everything it stands for. To others, this may be objectionable. But the act is given the protection it does because it conveys such a strong, divisive political message.
Should I Seek Legal Advice?
You should consider contacting a government attorney if you believe that your constitutionally granted freedom of expression or the press has been violated.
Your rights will be explained to you, and any potential legal remedies you may have will be preserved when you speak with an attorney who is qualified and knowledgeable about your constitutional protections.
Your attorney can provide you with representation in court, and can update you if there are any changes to the law that might affect your legal rights.
