Under federal flag desecration law, it is a crime to knowingly burn, tear, deface, trample, or otherwise physically mistreat an American flag, with penalties reaching one year in prison and a $100,000 fine. That is what the statute says. What the statute does is another matter: the Supreme Court has twice held that damaging a flag to make a political statement is protected speech, and no one has been successfully prosecuted for expressive flag burning in more than three decades.
What 18 U.S.C. § 700 Actually Prohibits
The federal statute targets intentional physical mistreatment of the flag. It is an offense to knowingly burn, tear apart, physically dirty, deface, or stomp on a U.S. flag, and keeping a flag on the floor or ground also qualifies.1Office of the Law Revision Counsel. 18 USC 700 Desecration of the Flag of the United States; Penalties The current version focuses on the physical act itself, regardless of where it happens or what the person intends to communicate. Congress rewrote the law in 1989 to remove earlier language requiring that the act be done “publicly” and to “cast contempt” on the flag, trying to make the prohibition read as content-neutral.
The protected object is defined broadly. A “flag of the United States” includes any flag, or any part of one, made of any material and in any size, so long as it takes a form commonly displayed as the American flag.1Office of the Law Revision Counsel. 18 USC 700 Desecration of the Flag of the United States; Penalties A small paper flag or a large banner can qualify. Flag-themed clothing, artwork, or merchandise that does not take the form of an actual displayable flag falls outside the statute.
Penalties on Paper
A violation is a Class A misdemeanor, the most serious misdemeanor category under federal sentencing rules.2Office of the Law Revision Counsel. 18 USC 3559 Sentencing Classification of Offenses The maximum sentence is one year in prison, a fine, or both.1Office of the Law Revision Counsel. 18 USC 700 Desecration of the Flag of the United States; Penalties The fine cap for a Class A misdemeanor that does not result in death is $100,000.3Office of the Law Revision Counsel. 18 US Code 3571 – Sentence of Fine
Those numbers look severe. They almost never come into play. A prosecution under this statute for expressive flag burning would run into a constitutional wall.
Why Prosecutions Almost Never Succeed
Two Supreme Court decisions removed most of the statute’s practical force. In Texas v. Johnson (1989), the Court threw out a state flag desecration conviction after Gregory Lee Johnson burned a flag outside the Republican National Convention in Dallas. The Court held that the act was expressive conduct protected by the First Amendment, and that the government cannot prohibit the expression of an idea simply because society finds it offensive.4Legal Information Institute. Texas v. Johnson, 491 US 397
Congress responded by passing the Flag Protection Act of 1989, rewriting the federal statute in the hope that a law focused on the physical act rather than the protester’s message would survive review. It did not. In United States v. Eichman (1990), the Court struck down prosecutions under the amended statute, finding that the law still targeted expression based on its communicative impact and that the government’s interest in protecting the flag’s symbolic value could not justify restricting First Amendment rights.5Legal Information Institute. United States v. Eichman, 496 US 310
Section 700 remains in the U.S. Code. A prosecutor could theoretically bring charges, but a defendant engaged in expressive conduct would almost certainly prevail on First Amendment grounds. The law could in principle apply to someone who destroyed a flag for reasons unconnected to any message, but those situations rarely arise and are hard to distinguish from protected conduct.
Retiring a Worn Flag Is Lawful
One carve-out written into the statute matters for anyone worried about proper disposal: getting rid of a flag that has become worn or soiled is not a violation.1Office of the Law Revision Counsel. 18 USC 700 Desecration of the Flag of the United States; Penalties The U.S. Flag Code takes the same position, saying a flag no longer fit for display should be destroyed in a dignified way, preferably by burning.6Office of the Law Revision Counsel. 4 USC 8 Respect for Flag Retirement ceremonies conducted by veterans’ groups and Boy Scout troops are lawful under both the criminal statute and the Flag Code.
The Flag Code Is Not a Criminal Law
The U.S. Flag Code at 4 U.S.C. § 8 is a separate set of rules that is often confused with the criminal statute. The Flag Code says the flag should not be used for advertising, should not be printed on disposable items like paper napkins or boxes, and should never be worn as clothing or used as bedding or drapery. It also says no part of the flag should be used as a costume or athletic uniform, though flag patches on the uniforms of military members, firefighters, police officers, and patriotic organizations are specifically allowed.6Office of the Law Revision Counsel. 4 USC 8 Respect for Flag
The important part: the Flag Code carries no criminal penalties. It reads like an etiquette manual. You will not be prosecuted for wearing a flag-themed shirt or flying a faded flag. Courts have consistently treated the Code’s provisions as advisory customs.
State Laws Face the Same Ceiling
The federal statute preserves state authority to prosecute flag desecration under state law.1Office of the Law Revision Counsel. 18 USC 700 Desecration of the Flag of the United States; Penalties Many states still have their own desecration statutes, with penalties that vary. Those state laws face the same constitutional barrier as the federal one. After Johnson and Eichman, any state prosecution for flag burning as political expression would be subject to the same First Amendment analysis and almost certainly fail.
Could the Law Change?
Because the Supreme Court’s rulings rest on the First Amendment itself, only a constitutional amendment could make flag desecration laws enforceable against political protesters. Members of Congress have introduced such amendments repeatedly. The most recent, H.J.Res.101 in the 119th Congress, would give Congress the power to prohibit physical desecration of the flag; it was introduced in June 2025 and referred to the House Judiciary Committee, where it has not advanced.7Congress.gov. Actions – H.J.Res.101 – 119th Congress (2025-2026)
A constitutional amendment requires a two-thirds vote in both the House and Senate, followed by ratification from three-fourths of state legislatures. The Senate came closest in 2006, falling one vote short of the two-thirds threshold. No proposed flag amendment has cleared both chambers, and until one does, the First Amendment continues to shield flag burning as political protest from criminal prosecution.