The History of U.S. Laws Against Flag-Burning

Flag-burning is a potent symbol of protest in the United States, conveying sharp criticism of the state and stirring a deeply emotional, nearly religious fury in many of its citizens. It treads one of the most difficult lines in U.S. politics, between the love of the country's most cherished symbol and the freedom of speech protected under its Constitution. But flag-burning or desecration isn't unique to the 21st century. It first became an issue in the U.S. during the Civil War.

After the war, many felt that the trademark value of the American flag was threatened on at least two fronts: once by the preference of white Southerners for the Confederate flag, and again by the tendency of businesses to use the American flag as a standard advertising logo. Forty-eight states passed laws banning flag desecration to respond to this perceived threat. Here's a timeline of events.

History of Flag Burning Chronology

Most early flag desecration statutes prohibited marking or otherwise defacing a flag design, as well as using the flag in commercial advertising or showing contempt for the flag in any way. Contempt was taken to mean publicly burning it, trampling on it, spitting on it, or otherwise showing a lack of respect for it.

1862: During the Civil War-era Union occupation of New Orleans, resident William B. Mumford (1819–1862) is hanged for tearing down a U.S. flag, dragging it through the mud, and tearing it to shreds.

1907: Two Nebraska businesses are fined $50 apiece for selling bottles of "Stars and Stripes" brand beer, a violation of Nebraska state flag desecration law. In Halter v. Nebraska, the U.S. Supreme Court finds that even though the flag is a federal symbol, states have the right to create and enforce local laws.

1918: Montanan Ernest V. Starr (born 1870) is arrested, tried, convicted, and sentenced to 10–20 years of hard labor for failing to kiss the flag, calling it a "piece of cotton" with a "little bit of paint."

1942: The Federal Flag Code, which provided uniform guidelines for the proper display and respect shown to the flag, is approved by Franklin Roosevelt.

The Vietnam War

Many antiwar protests occurred in the last years of the Vietnam War (1956–1975), and many of them included incidents of the flag being burned, decorated with peace symbols, and worn as clothing. The Supreme Court only agreed to hear three of the numerous cases.

1966: Civil rights activist and World War II veteran Sidney Street burns a flag at a New York intersection in protest against the shooting of civil rights activist James Meredith. Street is prosecuted under New York's desecration law for "defy(ing)" the flag. In 1969, the Supreme Court overturned Street's conviction (Street vs. New York) by ruling that verbal disparagement of the flag—one of the reasons for Street's arrest—is protected by the First Amendment, but it didn't directly address the issue of flag-burning.

1968: Congress passes the Federal Flag Desecration Law in 1968 in response to a Central Park event in which peace activists burned American flags in protest of the Vietnam War. The law bans any display of contempt directed against the flag but doesn't address the other issues dealt with by the state flag desecration laws.

1972: Valerie Goguen, a teenager from Massachusetts, is arrested for wearing a small flag on the seat of his pants and is sentenced to six months in jail for "contempt of the flag." In Goguen v. Smith, the Supreme Court ruled that laws that ban "contempt" of the flag are unconstitutionally vague and that they violate the First Amendment's free speech protections.

1974: Seattle college student Harold Spence is arrested for hanging a flag upside down and decorated with peace symbols outside his apartment. The Supreme Court ruled in Spence v. Washington that affixing peace sign stickers to a flag is a form of constitutionally-protected speech.

Court Reversals in the 1980s

Most states revised their flag desecration laws in the late 1970s and early 1980s to meet the standards set in Street, Smith, and Spence. The Supreme Court decision in Texas v. Johnson would ramp up citizen outrage.

1984: Activist Gregory Lee Johnson burns a flag in protest against President Ronald Reagan's policies outside the Republican National Convention in Dallas in 1984. He is arrested under Texas' flag desecration statute. The Supreme Court struck down flag desecration laws in 48 states in its 5-4 Texas v. Johnson ruling, stating that flag desecration is a constitutionally protected form of free speech.

1989–1990: The U.S. Congress protests the Johnson decision by passing the Flag Protection Act in 1989, a federal version of the already-struck state flag desecration statutes. Thousands of citizens burn flags in protest of the new law, and the Supreme Court affirmed its previous ruling and struck down the federal statute when two protesters were arrested.

A Constitutional Amendment

Between 1990 and 1999, dozens of flag desecration events were subject to formal actions by criminal justice systems, but the Johnson decision prevailed.

1990–2006: Congress makes seven attempts to overrule the U.S. Supreme Court by passing a constitutional amendment that would make an exception to the First Amendment. Had it passed, it would have allowed the government to ban flag desecration. When the amendment was first brought up in 1990, it failed to achieve the necessary two-thirds majority in the House. In 1991, the amendment passed in the House overwhelmingly but was defeated in the Senate. The last attempt was in 2006, in which the Senate failed to confirm the amendment by one vote.

Flag Desecration and Laws Quotations

Justice Robert Jackson from his majority opinion in West Virginia v. Barnette (1943), which struck down a law requiring schoolchildren to salute the flag: 

"The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own...But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
"If there is any fixed star in our constitutional constellation, it is 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."

Justice William J. Brennan from his 1989 majority opinion in Texas v. Johnson:

"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial.
"We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Justice John Paul Stevens from his dissent in Texas v. Johnson (1989): 

"The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for—and our history demonstrates that they are—it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."

In 2015, Justice Antonin Scalia explained why he cast the deciding vote in Johnson:

"If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."

Sources and Further Reading

• Goldstein, Robert Justin. "Saving Old Glory: The History Of The American Flag Desecration Controversy." New York: Westview Press, 1995. 
• Rosen, Jeff. "Was the Flag Burning Amendment Unconstitutional?" Yale Law Journal 100 (1991): 1073–92.
• Testi, Arnaldo. "Capture the Flag: The Stars and Stripes in American History." New York: New York University Press, 2010.
• Welch, Michael. "Flag Burning: Moral Panic and the Criminalization of Protest." New York: Aldine de Gruyter, 2000.