Flag Burning in America: Legal or a Criminal Offense?

 Posted on July 29, 2024 in Criminal Defense

In today’s political landscape, many Americans pride themselves on exercising their freedom of expression. Whether their displeasure is with a specific policy, elected official, or law, they can voice their unhappiness as loudly as they want, as long as they are not hurting or harming anyone else. Over the past year, with political protests generally stopping short of physical violence, questions have been asked about what is legal in the context of political protest and self-expression.  This article will review the legality of flag burning in America. If you are arrested at a protest and believe you were simply realizing your freedom of expression, contact a seasoned Jefferson County, WI criminal defense attorney who can build a strong defense and advocate for your rights.

Overview of Legal Precedent for Flag Burning

The First Amendment of the Constitution of the United States protects a person’s right to burn a flag, specifically the American flag. Several decisions have been made over the years on this topic, with the Supreme Court consistently confirming that the act of burning flags falls under the greater category of free speech, which is therefore, protected by law. Some of these decisions include:

• Texas v. Johnson (1989): This decision by the Supreme Court is crucial for understanding the legal nature of flag burning. The defendant was convicted during a political protest in Texas for desecrating the American flag. The defense claimed that his flag burning was a form of political expression, and the Supreme Court agreed, ruling in his favor and declaring that his flag burning was protected by the First Amendment. The court added that the government cannot prohibit someone from expressing an idea simply because it might be considered disagreeable or offensive.
• Flag Protection Act (1989): Following Texas v. Johnson, Congress tried to criminalize flag burning and other forms of flag desecration with a law called the Flag Protection Act of 1989. However, in the United States v. Eichman (1990), the Supreme Court struck down the 1989 act, arguing that it violated the First Amendment.

Some state and local jurisdictions might have laws about flag desecration that contradict the Supreme Court’s rulings, but these are typically unenforceable and do not override federal decisions. Therefore, if you get arrested for flag burning in a state with local laws prohibiting it, you can still have a strong defense using Supreme Court precedent to protect your rights.

Schedule a Free Consultation with a Dodge County, WI Criminal Defense Lawyer

Based on constitutional protections for the freedom of speech, it is not illegal to burn the American flag in America. If you get arrested for doing it in a state that has its own laws prohibiting it, speak with a skilled Racine County, WI defense attorney. You are likely protected from conviction by Supreme Court Rulings. Call Bucher Law Group, LLC at 262-303-4916 to schedule a free consultation so we can get started building a strong defense.