Burning the American Flag: Legal, Controversial, and Protected by Free Speech

The Supreme Court ruled in 1989 that burning the U.S. flag is a form of free speech protected by the First Amendment.

On July 24, Israeli Prime Minister Benjamin Netanyahu gave a speech at a joint congressional meeting which ignited large protests outside the U.S. Capitol, where footage showed protesters burning the American flag.

The videos sparked online debates about the legality of flag burning, with one user asserting that such actions should be punishable by jail time. VERIFY reader John inquired whether burning the American flag is illegal.

Question:

Is it illegal to burn the American flag?

Answer:

No, it’s not illegal to burn the American flag.

What We Found:

Burning the American flag is not federally illegal, as the Supreme Court has ruled it a form of symbolic speech under the First Amendment.

In 1984, Gregory Lee Johnson was arrested for burning a flag at the Republican National Convention in Dallas, Texas. His conviction was overturned by the Texas Court of Criminal Appeals, and upheld by the Supreme Court, which cited that flag burning is protected under free speech.

The Supreme Court determined that free speech includes actions that might offend society but cannot be suppressed solely due to public outrage. This underscores the First Amendment’s role in protecting symbolic speech.

The Texas law against flag desecration not only targeted expressive actions but also penalized the respectful disposal of worn flags. This overreach further highlighted the complexity of legally regulating flag burning.

Even though Congress has tried to implement a federal ban on flag burning, these efforts either failed to pass or were overturned by the Supreme Court. For instance, the Flag Protection Act of 1989 was invalidated by the Supreme Court a year later.

Some states maintain laws against flag burning, but such laws would be overturned if enforced. Additionally, flag burning can result in legal issues if it involves other crimes, such as theft or creating a fire hazard.

This story is also available in Spanish / Lee este artículo también en español: No, no es ilegal quemar la bandera estadounidense.

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