Flag Burning Laws: The History of U.S. Laws Against Flag-Burning

Is It Legal to Desecrate the American Flag?

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Head, Tom. "Flag Burning Laws: The History of U.S. Laws Against Flag-Burning." ThoughtCo, Aug. 5, 2017, thoughtco.com/united-states-flag-burning-laws-history-721207. Head, Tom. (2017, August 5). Flag Burning Laws: The History of U.S. Laws Against Flag-Burning. Retrieved from https://www.thoughtco.com/united-states-flag-burning-laws-history-721207 Head, Tom. "Flag Burning Laws: The History of U.S. Laws Against Flag-Burning." ThoughtCo. https://www.thoughtco.com/united-states-flag-burning-laws-history-721207 (accessed September 22, 2017).
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Flag-burning or desecration isn't unique to the 21st century. It first became an issue in the U.S. after the Civil War and it's had a colorful and storied legal history since that time. 

The Establishment of State Flag Desecration Laws (1897-1932)

Many felt that the trademark value of the American flag was threatened on at least two fronts in the years immediately following the Civil War: once by the preference of white Southerners for the Confederate flag, and again by the tendency of businesses to use the American flag as a standard advertising logo.

Forty-eight states passed laws banning flag desecration to respond to this perceived threat. 

The First U.S. Supreme Court Ruling on Flag Desecration (1907)

Most early flag desecration statutes prohibited marking or otherwise defacing a flag design, as well as by using the flag in commercial advertising or showing contempt for the flag in any way. Contempt was taken to mean publicly burning it, trampling on it, spitting on it or otherwise showing a lack of respect for it. The U.S. Supreme Court upheld these statutes as constitutional in Halter v. Nebraska in 1907. 

The Federal Flag Desecration Law (1968)

Congress passed the Federal Flag Desecration Law in 1968 in response to a Central Park event in which peace activists burned American flags in protest against the Vietnam War. The law banned any display of contempt directed against the flag, but it didn't address the other issues dealt with by the state flag desecration laws.

Verbal Disparagement of Flag is Protected Speech (1969)

Civil rights activist Sydney Street burned a flag at a New York intersection in protest against the shooting of civil rights activist James Meredith in 1968. Street was prosecuted under New York's desecration law for "defy(ing)" the flag. The Court overturned Street's conviction by ruling that verbal disparagement of the flag — one of the reasons for Street's arrest — is protected by the First Amendment, but it didn't directly address the issue of flag-burning.

The Supreme Court Rules Against Laws Banning "Contempt" of the Flag (1972)

After a Massachusetts teenager was arrested for wearing a flag patch on the seat of his pants, the Supreme Court ruled that laws that simply ban "contempt" of the flag are unconstitutionally vague and that they violate the First Amendment's free speech protections.

The Peace Sticker Case (1974)

The Supreme Court ruled in Spence v. Washington that affixing peace sign stickers to a flag is a form of constitutionally-protected speech. Most states revised their flag desecration laws in the late 1970s and early 1980s to meet the standards set in Street, Smith and Spence.

The Supreme Court Strikes Down All Laws Banning Flag Desecration (1984)

Gregory Lee Johnson burned a flag in protest against President Ronald Reagan's policies outside the Republican National Convention in Dallas in 1984. He was arrested under Texas' flag desecration statute. The Supreme Court struck down flag desecration laws in 48 states in its 5-4 Texas v. Johnson ruling, stating that flag desecration is a constitutionally protected form of free speech.

The Flag Protection Act (1989-1990)

The U.S. Congress protested the Johnson decision by passing the Flag Protection Act in 1989, a federal version of the already-struck state flag desecration statutes.

Thousands of citizens burned flags in protest of the new law, and the Supreme Court affirmed its previous ruling and struck down the federal statute when two protesters were arrested. 

The Flag Desecration Amendment (1990 through 2005)

Congress made seven attempts to overrule the U.S. Supreme Court from 1990 through 2005 by passing a constitutional amendment that would make an exception to the First Amendment. This would have allowed the government to ban flag desecration. When the amendment was first brought up in 1990, it failed to achieve the necessary two-thirds majority in the House. It has consistently passed the House but failed in the Senate since the Republican congressional takeover of 1994. 

Some Quotes About Flag Desecration and Flag Desecration Laws

Justice Robert Jackson from his majority opinion in West Virginia v. Barnette (1943), which struck down a law requiring schoolchildren to salute the flag: 

"The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own ... But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 

From Justice William J. Brennan's 1989 majority opinion in Texas v. Johnson: 

"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." 

Justice John Paul Stevens from his dissent in Texas v. Johnson (1989): 

"The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration." 

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Head, Tom. "Flag Burning Laws: The History of U.S. Laws Against Flag-Burning." ThoughtCo, Aug. 5, 2017, thoughtco.com/united-states-flag-burning-laws-history-721207. Head, Tom. (2017, August 5). Flag Burning Laws: The History of U.S. Laws Against Flag-Burning. Retrieved from https://www.thoughtco.com/united-states-flag-burning-laws-history-721207 Head, Tom. "Flag Burning Laws: The History of U.S. Laws Against Flag-Burning." ThoughtCo. https://www.thoughtco.com/united-states-flag-burning-laws-history-721207 (accessed September 22, 2017).