By Jason Newell:

There seems to be a whole bunch of misleading information hitting the airwaves and blogosphere in regards to the legality of the right to burn the American flag. Therefore, I found it fitting to provide the legal background of anti-flag desecration statutes in order to prove the illegality of instituting said statutes. This blog will elucidate the history of flag desecration laws, and thus, push back against those who attack an individual’s right to free speech by criminalizing the burning of a symbol.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”



Cases involving the 1st Amendment right to free speech are quite abundant in American Supreme Court jurisprudence, however, cases specifically involving flag desecration are far and few. The development for the perception of the flag being a form of symbolic speech was put forth in Stromberg v. California. In sum, the treatment of a flag, whether it be burned, not properly placed on display, or even negatively spoken of, are protected forms of an individual’s right to free speech.



States, during the late-1800s and early-1900s, started to institute laws pertaining to the treatment of the American flag in response to a growing, and apparently unpatriotic commercial use of the symbol. In Halter v. Nebraska, the US Supreme Court granted a state’s right to pass laws dictating the treatment of the American Flag if its passage derived from the need to protect the public. Subsequent developments involving the treatment of the flag, however, only further bolstered an individual’s right to free speech: in West Virginia Board of Education vs. Barnette, the Court set down a precedent that allowed children to reject saluting the flag because free speech is infringed upon in a scenario where it falls into the category of compulsory speech.



Now, fast forward to the historically tumultuous ‘60s and ‘70s, where public displays of disapproval directed toward American foreign policy arguably reached all time highs primarily due to the continuation of the Vietnam War. Those darn “hippies,” commonly referred to as “tree humpers” by conservative warhawks of the time, took to the streets in order to practice their 1st Amendment right to assemble. One such form of speech – which has now once again come to the forefront because of Donald Trump’s hyper-nationalistic philosophy – is the right to desecrate or disrespect the flag through supposedly unpatriotic alterations. And again – but with a more stringent approach – approximately 20 states passed robust anti-desecration laws.



As should be assumed, more challenges came from plaintiffs who invoked 1st Amendment free speech protections. The two final cases, final in regards to settling the issue for the time being, were Texas v. Johnson and United States v. Eichman. In the formerly mentioned case, an outspoken Communist burned the American flag outside of the 1984 Republican National Convention. The plaintiff was subsequently charged with flag desecration under a Texas statute. However, the Court invalidated the charge in a hotly contested 5-4 decision as the Court reasoned that flag burning is an expression of symbolic speech (continuing the precedent set forth in United States v. O’Brien). Most important, the State of Texas couldn’t sufficiently provide a compelling state interest in order to justify the codified statute. The most recent case, United States v. Eichman, only affirmed the ruling provided in Johnson.



All the aforementioned cases reveal one constant legal theme: flag burning is a protected right granted by the 1st Amendment. So, any attempt to construct stringent anti-flag desecration laws should be considered mostly futile. And really, the most important question is, why is the flag immune to individualized critique and expression? In a nation that prides itself on liberal discourse and discussion, the flag should be considered peripheral to core rights. Furthermore, why is it that after nationalistic strongmen are elected to the office of the presidency that flag desecration becomes the evil of all evils?



As I recall, the Confederate flag’s creator described it as a symbol of White Supremacy. And even more important, the Civil War’s primary catalyst was the institution of slavery present in the South. Any attempt to rewrite history in a Foucauldian Fashion does a disservice to those veterans who died preserving this fine Union. It’s quite simple really, at its core, Confederate History represents the perpetuation of an immoral system which saw the mass importation of about 12 million innocent slaves. Arguing otherwise is just simply not accurate from an historical standpoint.



American’s must remember that the American flag doesn’t only represent veterans. Rather, the flag represents veterans, citizens, immigrants, men, women, varying ethnicities, religious affiliations, and much, much more. But remember, there were times when being a minority, or a woman, meant that you were a second-class citizen who lacked fundamental human rights and the dignity that coincides with embodying these rights.



And, let’s not forget that the 14th Amendment, i.e., Equal Protection Before the Law, is applied to the states – not only the Federal Government – through due process incorporation. Given this legal reality, states must construct statutes that don’t target a certain demographic group in a negative way, or, states must prevent laws that enhance protections for some demographics only. Therefore, a person who resides under states with anti-flag desecration laws still has the legal right, under 1st Amendment protections, to burn the flag, stomp on it, or use it as his underwear.



It’s essential to judge the flag through a bipartisan lense. Without a balanced perspective, the flag becomes an unjustifiably untouchable symbol, protected by unapologetic jingoism. However, this point of view is the antithesis of American reasoning, which is what makes this country great because we have the right to question authority. Without in-depth critiques from its citizenry, a country falls within the category of an autocracy, similar to what we currently see in North Korea – a country whose values we should probably not align with.



