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

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The American flag flying over the U.S. Capitol building.

The American flag flying over the U.S. Capitol building.

Image courtesy of the U.S. Senate.

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

In the years immediately following the Civil War, many felt that the trademark value of the American flag was threatened on at least two fronts: by many white Southerners' preference for the Confederate flag, and by business' tendency to use the American flag as a standard advertising logo. To respond to this perceived threat, 48 states passed laws banning flag desecration.

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

Most early flag desecration statutes prohibited marking or otherwise defacing a flag design, using the flag in commercial advertising, and showing "contempt" for flag in any way--by publicly burning, trampling on it, spitting on it, or otherwise showing a lack of respect for it. In Halter v. Nebraska (1907), the U.S. Supreme Court upheld these statutes as constitutional.

Federal Flag Desecration Law (1968):

In 1968, Congress passed the Federal Flag Desecration Law 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 did not address the other issues dealt with by state flag desecration laws.

Supreme Court Rules That Verbal Disparagement of Flag is Protected Speech (1969):

Civil rights activist Sydney Street, who had burned a flag at a New York intersection in protest against the shooting of civil rights activist James Meredith, 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 did not directly address the issue of flag burning.

Supreme Court Rules Against Laws Banning "Contempt" of 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 vaguely banning "contempt" of the flag are unconstitutionally vague and violate the First Amendment's free speech protections.

The Peace Sticker Case (1974):

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

Supreme Court Strikes Down All Laws Banning Flag Desecration (1989):

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

Flag Protection Act (1989-1990):

In 1989, the U.S. Congress protested the Johnson decision by passing the Flag Protection Act, a federal version of the already-struck state flag desecration statutes. Thousands burned flags in protest of the new law, and when two protesters were arrested, the Supreme Court affirmed its previous ruling and struck down the federal statute.

Flag Desecration Amendment (1990, 1995, 1997, 1999-2000, 2001, 2003, 2005-2006):

Congress has made seven attempts to overrule the U.S. Supreme Court by passing a constitutional amendment making an exception to the First Amendment in order to allow the government to ban flag desecration. In 1990, when the amendment was first brought up, it failed to achieve the necessary two-thirds majority in the House. After the Republican congressional takeover of 1994, it has consistently passed the House but failed in the Senate.

Quotes About Flag Desecration and Flag Desecration Laws:

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.

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

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