Burning an American flag as political protest is not illegal in the United States. The Supreme Court has twice held that flag burning is expressive conduct protected by the First Amendment, and no federal or state statute prohibiting it can be constitutionally enforced against someone using the act to communicate a political message. That protection has been settled law since 1990.
Why Flag Burning Is Protected Speech
The First Amendment covers more than words. Conduct intended to send a message that an audience is likely to understand can qualify as symbolic speech and receive the same protection as a written editorial or a spoken address.1Constitution Annotated. Amdt1.7.16.1 Overview of Symbolic Speech
Two Supreme Court decisions, both 5-4, established that flag burning falls squarely inside that protection.
In Texas v. Johnson (1989), Gregory Lee Johnson had been convicted under a Texas statute for burning a flag outside Dallas City Hall during a protest at the 1984 Republican National Convention. He was sentenced to a year in prison and fined $2,000. The Court reversed. Justice Brennan wrote for the majority that Texas’s interest in protecting the flag as a national symbol was tied directly to suppressing the message flag burners were sending, which made the law unconstitutional. The opinion produced one of the most quoted sentences in First Amendment law: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”2Justia U.S. Supreme Court Center. Texas v. Johnson, 491 U.S. 397 (1989)
Congress responded within months by passing the Flag Protection Act of 1989, codified at 18 U.S.C. § 700, which criminalized burning, defacing, or physically destroying an American flag regardless of the actor’s motive.3Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties Protesters immediately burned flags to test it. In United States v. Eichman (1990), the same five justices struck the federal statute down for the same reason: the government’s interest in preserving the flag’s symbolic value was itself an interest in suppressing dissent, because the symbol is damaged only when someone uses it to disagree.4Justia U.S. Supreme Court Center. United States v. Eichman, 496 U.S. 310 (1990)
What About the Flag Desecration Laws Still on the Books?
At the time Johnson was decided, 48 of 50 states had some form of flag desecration statute. Many of those laws are still in state codes. The federal statute at 18 U.S.C. § 700 has never been repealed either.3Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties
None of them can be constitutionally applied to a person burning a flag as political expression. Any prosecution on those grounds would face immediate challenge under Johnson and Eichman and would not survive. The statutes are dead letters as applied to symbolic speech, even though their text remains.
What You Can Still Be Charged With
The constitutional protection covers using the flag as a vehicle for political expression. It does not cover every consequence of setting something on fire in public. Depending on how and where the act happens, other charges may apply:
- Arson or reckless burning, if the fire endangers people or damages property that isn’t yours.
- Theft, if the flag belongs to someone else.
- Disorderly conduct or breach of the peace, if the act is calculated to provoke an immediate violent confrontation rather than to communicate a message. The Court in Johnson found no such evidence in that case, but the category exists.
- Local fire code or open-burning violations, which apply to any outdoor fire regardless of what’s being burned.
The distinction is between the expressive act, which is protected, and the physical circumstances around it, which are governed by ordinary laws that apply to everyone.
Burning Is Also the Proper Way to Retire a Flag
One source of confusion is worth clearing up. The federal Flag Code, at 4 U.S.C. § 8(k), states that a flag no longer fit for display “should be destroyed in a dignified way, preferably by burning.”5Office of the Law Revision Counsel. 4 USC 8 – Respect for Flag Veterans’ organizations and civic groups hold flag retirement ceremonies specifically for this purpose. Burning a worn flag is the recommended method of disposal, not a violation of anything.
The Flag Code itself is advisory. It uses “should” throughout and carries no penalties. Wearing a flag as clothing, letting it touch the ground, or displaying it after dark without illumination all cut against the Code’s guidelines, but none of those acts is punishable.
Could the Law Change?
Because Eichman closed off ordinary legislation, the only remaining path to banning flag burning would be a constitutional amendment. Congress has considered one repeatedly. It has passed the House with the required two-thirds majority multiple times but has never cleared the Senate. The closest attempt was on June 27, 2006, when the Senate voted 66-34 in favor, one vote short of the supermajority needed to send the amendment to the states.6United States Senate. Roll Call Vote 109th Congress – 2nd Session Later resolutions introduced in 2019 and 2021 did not come as close.
Unless and until such an amendment is ratified, the answer stays the same. Burning an American flag to make a political point is protected speech, and a prosecution based on that act alone would not stand.