Is Burning the American Flag Illegal, and What Are the Laws and Penalties?

Burning the American flag has been a notable form of protest since as far back as the mid-1900s. This has raised concerns and garnered discussions on whether such an action should be protected as a form of expression or criminalized because of what the flag represents.

As it stands, flag burning is not illegal in the United States. Over the years, the Supreme Court has established that it is a protected form of expression under the First Amendment and laws aimed at criminalizing the conduct have been deemed unconstitutional. 

This being the case, it does not mean that flag burning is legal under every circumstance. In some cases, it may be illegal to do so. Understanding the legal rules and development of flag burning is essential to ensuring that you do not do anything illegal in exercising your First Amendment right, should you choose to do so. 

Is It Against the Law to Burn the American Flag?

Flag burning is widely considered a disrespectful and unpatriotic act due to the symbolism that the flag represents. Despite this sentiment, flag protection movements could not secure federal legislation criminalizing or prohibiting flag desecration until the mid-1900s. However, by the early 1930s, states had flag desecration laws prohibiting all forms of flag desecration.

By 1968, partly due to the flag burning at Central Park to protest the Vietnam War, congress approved a Federal flag desecration law mirroring the key provisions of state desecration laws but with an emphasis on intent.

In many cases relating to flag desecration or disrespect, the Supreme Court held that the alleged offenders were exercising their rights to expression and could not be penalized. However, in the 1989 case of Texas v. Johnson, the Supreme Court spelled out that the burning of the American flag was a form of expression protected under the First Amendment, and a law to criminalize it would be deemed unconstitutional.

The Texas v. Johnson case was an appeal from Texas, where Johnson was initially convicted for violating Texas’ flag desecration law by burning the American flag in protest of President Reagan’s policies. The Texas Court of Criminal Appeals overturned his conviction and this was affirmed by the Supreme Court in a contested 5 - 4 decision. The action was considered a form of “symbolic expression” that ought to be protected unless it incites imminent lawless action.

Following the Texas v. Johnson case, Congress passed the Flag Protection Act, attempting to modify the elements of the offense of flag desecration to align with the Supreme Court’s ruling. However, in United States v. Eichman, the Supreme Court reiterated the unconstitutionality of the Flag Protection Act as it ultimately aimed to curtail symbolic speech.

When Is Burning the American Flag Illegal?

The act of flag burning is not illegal. However, how and where it is done may make it illegal. There are federal burning restrictions applicable to federally controlled areas. Likewise, each state has burning restrictions that anyone seeking to burn must comply with.

For example, in the State of Washington, most burning is illegal in an urban growth area and you may require a burn permit. Likewise, in Delaware, most open burning is prohibited from May 1 through September 30, and it is illegal to burn anything within 150 feet of any woodland or brushland between certain hours in Kentucky during the fire season.

Violating any such restrictions when burning a flag may make such action illegal. Also, despite the symbolism a flag represents, it is also deemed to be property. If you unlawfully obtain a flag belonging to someone else (such as stealing it from their flag post), burning the flag may be considered destruction of another person’s property, which is unlawful. 

What States Is It Illegal to Burn the American Flag?

Most states still have flag desecration laws in place. These include Arkansas, West Virginia, Missouri, and most other states. Only Alaska, Wisconsin, and Wyoming currently have no flag desecration laws.

However, these states' flag desecration laws are largely unenforceable in light of the Supreme Court’s decision in Texas v. Johnson and similar cases since. In the United States legal system, states are generally at liberty to make laws regulating statewide affairs, but such laws must conform with the United States Constitution and the decisions of the United States Supreme Court on the issue.

Therefore, an attempt by a state to enforce any flag desecration laws may be successfully challenged as unconstitutional. For example, Wisconsin has since repealed its flag desecration law following the state’s Supreme Court decision that the law is unconstitutional and should be struck down. 

What Are the Penalties for Burning the American Flag?

Since burning the American flag is not itself illegal, there are no direct legal penalties for doing so. However, due to the contentious and sentimental nature of flag burning, it is possible to experience societal outrage and reputational loss. 

You should note that if the flag burning violates any other state law, such as burning restrictions or property laws, there may be separate legal consequences. 

Can You Get Arrested for Burning the American Flag?

You may get arrested for burning the American flag if the action violates other state laws. Examples include burning a flag belonging to someone else, causing harm to someone else due to the flag burning, or causing a fire hazard. 

Bearing in mind that flag burning is a sentimental issue, you may face public confrontation and a possible arrest for disturbing the peace. However, unless an offense is indirectly committed by burning the American flag, you cannot be charged for burning the flag. If you are arrested, ensure to contact and engage a licensed attorney immediately.

Is There a Law Against Burning the American Flag?

Some states have laws against burning the American flag. However, these laws are rarely enforced, as an attempt to enforce them is likely impossible, following the Supreme Court’s decision that flag burning is protected under the First Amendment.

Historically, there have been attempts to criminalize desecrating the American flag. The first of these attempts was in the late 1800s, which aimed to stop the political and commercial exploitation of the flag. While this did not result in a federal law, some states passed flag desecration laws to outlaw mutilating or defacing the American flag, using it in advertisements, or placing any markings on the flag.

By 1907, the Supreme Court in Halter v. Nebraska held that states had the power to pass flag desecration laws within their powers to safeguard public welfare, even if the flag was a federal creation. However, by 1931, the Supreme Court began deviating from this view, holding that state prohibition of certain conduct relating to the American flag infringes the First Amendment.

In 1942, the federal government released a Federal Flag Code to guide how the American flag may be treated, handled, and respected. It was merely a guideline and did not contain penalties. By the 1960s, the government approved a Federal Flag Desecration Law, which contained penalties.

Over the years, the Supreme Court ruled against flag desecration laws generally, with the 1989 Texas v. Johnson decision being one of the notable decisions. The government attempted to modify the federal flag desecration law by passing the Flag Protection Act. It was met with the same reaction by the Supreme Court.

There have been attempts at a Constitutional Amendment to exclude flag desecration from the First Amendment. By doing this, the Supreme Court will be unable to rule against flag desecration laws, as it will be provided in the Constitution. However, the proposed Constitutional Amendment has not received the required legislative votes and has not been passed into law.

What Are the Flag Burning Laws in the U.S.?

Besides existing state laws, there are no flag-burning laws in the United States. There are currently attempts at amending the Constitution to allow the federal and state governments to validly pass and enforce flag desecration laws. However, the proposed amendments have yet to receive the required legislative votes.

Is Flag Burning Protected by the First Amendment?

Yes, flag burning is protected by the First Amendment. The First Amendment generally protects free speech and the freedom of expression. This protection extends to expressive actions such as “symbolic speech”, which actions like burning the flag fall under. 

The legal reasoning behind the protection of flag burning, as in the case of Texas v. Johnson, is that it expresses a viewpoint, and unless the action may likely incite imminent lawless action, it is protected by the First Amendment. However, flag burning remains a controversial and sentimental issue. There is a continuous debate about whether the protection of free speech should trump the protection of a national symbol, like the flag.

Despite its controversial nature, flag burning is not illegal in the United States, as it is considered symbolic speech and protected under the First Amendment. The major caveat to this protection is if the flag burning incites imminent lawless action. However, it may be difficult to prove this, in light of the expansive nature of the First Amendment protection.

This being the case, it should be noted that flag burning may be illegal if it violates other valid laws. Therefore, it is crucial to understand the limits of how you may express yourself through flag burning and ensure that you do so within the boundaries of your First Amendment rights.