Disrespect as a Vital Right: Why Desecrating the Flag is Legal

On multiple occasions, President Donald Trump has declared intentions to make burning the American flag a criminal offense, with its most recent mention being in 2024.  The legality of burning the American flag has been a contentious issue in the United States, sparking debates on patriotism and respect for national symbols.

The scope of the First Amendment is often lost in these debates. The First Amendment protects the right to free speech amongst other fundamental rights. The Supreme Court has set and enforced a legal precedent time and time again making the action of flag burning a protected form of expression. In this article, I will discuss the framing of this legal precedent through the landmark cases of Texas v. Johnson (1989) and United States v. Eichman (1990), which will display why the protection of the controversial action is crucial to the fundamental principles of free expression in the United States.

On Major Supreme Court Rulings

Texas v. Johnson (1989)

During a 1984 Republican National Convention in Dallas, Texas, the defendant Robert Lee Johnson took part in protests that led him to burn an American flag. The act was done as a “protest [against] the policies of the Reagan administration and some Dallas-based corporations.” The action did not cause any injuries, and Johnson was arrested for violating Tex.Penal Code Ann. § 42.09(a)(3) (1989), a law prohibiting the desecration of a “public monument, a place of worship[, or] a state or national flag.”

When appealed, the Supreme Court ruled in favor of Johnson in a vote of 5-4. Both Johnson’s arrest and the Texas law were unconstitutional because the prohibition punished the content of the action expressed rather than the action itself. Without a narrower justification, such as the prohibition of the action on the grounds of inciting anger or violence, the law was solely unconstitutional. The ruling would void any state-sanctioned prohibitions regarding desecrating the American flag as a result.

United States v. Eichman (1990)

In response to the Texas v. Johnson case ruling, Congress created the Flag Protection Act of 1989. Similar to the Texas law, this federal law forbid any action that “knowingly mutilates, defaces, physically defiles, burns, [tramples or maintains the U.S. flag on the ground].” 

After multiple people were prosecuted for violating the act, multiple appeals were consolidated to judge the constitutionality of the act. Arguing for affirming the law, the government emphasized the law’s divergence from the previous Texas law because the law didn’t refer to the content expressed through the flag’s desecration. Paralleling the Johnson ruling, the Flag Protection Act was deemed unconstitutional for infringing on First Amendment rights; no part of the act gave adequate justification for the action’s criminalization other than the consensus that “society finds the idea [it represents] offensive or disagreeable.”

The First Amendment and Symbolic Speech 

In both Johnson and Eichman, the main point of contention was the extent to which forms of expression are protected by the First Amendment. The First Amendment of the U.S. Constitution safeguards freedoms concerning religion, expression, assembly, and the right to petition. Any laws regarding limits on expression face strict scrutiny to ensure the law is absolutely necessary and constitutional. In the cases of Johnson and Eichman, scrutiny is judged based on the Brandenburg test. This test was established following the ruling in Brandenburg v. Ohio (1969) and consists of two parts: 1) the intention to incite an “imminent lawless action” and 2) a likeliness to incite said action. 

In the aforementioned cases, flag burning was considered a form of symbolic expression that is subject to the First Amendment. The expressive conduct in both cases involved burning the flag as a political statement. Despite any deep offense caused by the controversial action, anyone burning the flag did not intend to incite or incite anyone to commit illegal actions. This being the case, any law restricting the desecration of the American flag unnecessarily suppresses a form of expression, and is deemed unconstitutional. 

The Importance of Protecting Controversial Speech 

In shifting the scope of the expressive conduct that is protected by the First Amendment, the government is fundamentally shifting what its citizens are able to express. The Supreme Court has repeatedly emphasized that the government cannot impose restrictions on speech merely because it is deemed offensive. This goes against the essence of the First Amendment, a protection there not only to protect popular ideas, but also dissenting or unpopular ones. 

A move to punish anyone for an act like burning an American flag, a clear dissent from the idealized symbolism of the object, not only forbids the desecration of a national symbol. Exceptions made for flag burning represent a willingness to forbid acts of expression based on their content rather than based on the dangerous actions the expression could incite. Ultimately, the ability to express oneself without government interference is a fundamental right, one that if restricted, undermines what the flag itself symbolizes.

Image Source: The Foundation for Individual Rights and Expression