Flag burning is protected by the First Amendment because the Supreme Court has ruled that setting a flag on fire in protest is a form of political expression, and the government is not allowed to punish an idea just because most people find it offensive. The core decision came in Texas v. Johnson in 1989, and the Court reaffirmed it a year later when it struck down a federal law written specifically to get around the ruling. Neither statute nor executive order has changed that basic protection since.
Conduct Can Be Speech
The First Amendment protects more than words. It also protects conduct meant to communicate a message, which courts call symbolic speech. The test comes from Spence v. Washington, a 1974 case involving a college student who hung an American flag upside down with a peace symbol taped to it to protest the Vietnam War and the Kent State shootings. The Court asked two questions: did the person intend to communicate a particular message, and were observers likely to understand it? If both answers are yes, the conduct counts as expression the First Amendment covers.1Justia. Spence v. Washington, 418 U.S. 405 (1974)
An earlier case set the tone for how the Court thinks about flags and forced patriotism. In West Virginia State Board of Education v. Barnette (1943), the Court ruled that public schools could not force students to salute the flag or recite the Pledge. Justice Robert Jackson wrote 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.”2Justia. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) If the government cannot compel respect for the flag, the reasoning goes, it also cannot punish disrespect.
Texas v. Johnson and the Bedrock Principle
The flag-burning question itself reached the Supreme Court through Gregory Lee Johnson, who burned an American flag outside the 1984 Republican National Convention in Dallas as part of a protest against Reagan administration policies. Texas convicted him of desecrating a venerated object, sentenced him to a year in prison, and fined him $2,000.3Legal Information Institute. Texas v. Johnson
The Supreme Court reversed the conviction 5-4. Justice William Brennan wrote for the majority: “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.”4Justia. Texas v. Johnson, 491 U.S. 397 (1989)
The majority acknowledged the flag’s unique place in American life. It still concluded that the government’s interest in preserving the flag’s symbolic value could not justify criminalizing political expression. The Texas statute was targeting Johnson’s message, not any real danger posed by the fire, and that was exactly what the First Amendment forbids. The decision invalidated flag desecration laws in 48 states.4Justia. Texas v. Johnson, 491 U.S. 397 (1989)
Why Congress Couldn’t Undo It
Public anger at the ruling was intense, and Congress responded within months by passing the Flag Protection Act of 1989. The law made it a federal crime to knowingly burn, deface, or trample an American flag, punishable by up to a year in prison.5Office of the Law Revision Counsel. 18 U.S. Code 700 – Desecration of the Flag of the United States; Penalties Congress tried to draft around Johnson by making the statute apply to all flag destruction regardless of motive, and by exempting the disposal of worn flags.
It did not work. Protesters burned flags on the Capitol steps to test the new law, and the resulting case, United States v. Eichman, reached the Court in 1990. The same five-justice majority struck down the federal statute. However Congress framed it, the real purpose was to suppress the expressive content of flag burning, and that purpose could not survive strict First Amendment review.6Justia. United States v. Eichman, 496 U.S. 310 (1990) The Court said the federal act “suffers from the same fundamental flaw” as the Texas law.7Legal Information Institute. United States v. Eichman
After Eichman, no ordinary statute could criminalize flag burning as protest. The only remaining route would be a constitutional amendment, and none has passed. The closest attempt came in 2006, when a Senate joint resolution fell one vote short of the two-thirds majority needed to send it to the states.8Congress.gov. S.J.Res.12 – 109th Congress (2005-2006) A new version, H.J.Res.101, was introduced in June 2025 and referred to committee, where it has not advanced.9Congress.gov. H.J.Res.101 – 119th Congress (2025-2026)
What Protection Does and Does Not Cover
The First Amendment protects the message. It does not immunize every act that might accompany the message. A person burning a flag can still be charged for conduct that would be illegal no matter what was being burned.
- Stealing someone else’s flag to burn it is a property crime.
- Setting the fire on private property without permission is trespass.
- Local fire ordinances that restrict open burning apply the same way they apply to burning anything else, and areas under fire restrictions can prohibit the fire itself.
- Under Brandenburg v. Ohio, speech loses protection when it is both directed at producing imminent lawless action and likely to do so. A flag burning staged specifically to trigger an immediate violent response, in circumstances where violence really is about to break out, could cross that line.10Justia. Brandenburg v. Ohio, 395 U.S. 444 (1969)
What makes these limits constitutional is that they are content-neutral. A fire ordinance does not care what is on fire. A trespass law does not care what the trespasser is doing. The government keeps its power to protect property and public safety; what it loses is the power to punish the idea a flag burning communicates.
The 2025 Executive Order
In August 2025, the White House issued an executive order titled “Prosecuting Burning of the American Flag,” directing the Attorney General to prioritize enforcement of existing criminal and civil laws against flag desecration that involves breaking content-neutral laws or causing harm unrelated to expression.11The White House. Prosecuting Burning of The American Flag The order does not attempt to overrule Texas v. Johnson. It relies on the argument that the Supreme Court has “never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.”
In practice, the order tells federal prosecutors to look for other charges attached to a flag burning, such as property destruction, trespass, arson, or incitement, and to pursue them. It also directs immigration agencies to treat flag desecration by foreign nationals as grounds for visa denial, deportation, or denial of naturalization.11The White House. Prosecuting Burning of The American Flag The immigration provisions have not been tested in court.
An executive order cannot overturn a Supreme Court interpretation of the Constitution. Flag burning as pure political expression remains protected after the order, exactly as it was before. The order shifts prosecutorial priority; it does not shift the constitutional line.
Why the Rule Holds
The through-line from Barnette to Spence to Johnson to Eichman is a single idea: government cannot dictate what citizens must revere, and cannot criminalize the symbols they choose to reject. The Court has treated that principle as central enough to survive a hostile Congress, decades of proposed amendments, and now an executive order aimed at the edges of the doctrine. Whether people admire flag burning or despise it, the reason it stays legal is the same reason the First Amendment protects speech no one likes in the first place.