Why it is Legal to Disrespect the United States Flag

Mar 18th, 2016

The American flag has been a symbol of the United States strength and unity, and the source of inspiration and pride of its citizens, for over 200 years. Today, the right to burn, mutilate, stomp on, and otherwise disrespect the American flag is legal in all states. That has not always been the case.


Washington Flags


When the United States Congress authorized the creation of the American flag as the official flag of the United States, it dictated the design of the flag. Congress did not address the issue of flag desecration.


U.S. Flag Desecration Laws and Lawsuits


In the latter part of the 1800s, citizens became concerned that political and commercial misuse of the flag was occurring and a protection movement was organized. That movement attempted to get federal legislation passed that would prohibit such actions. When that failed, states began to adopt their own flag desecration laws. Illinois, Pennsylvania, and South Dakota were the first states to enact desecration statutes. All of the states had adopted desecration laws by 1932. In general, those laws prohibited placing any kind of marking on the flag; using the flag for advertising; and from publicly mutilating, defacing, defiling or trampling, and from casting contempt or defying the flag by word or by actions.


In 1897, two business salesmen were convicted of desecration of the American flag for selling a brand of beer they called “Stars and Stripes” that had the U.S. flag on the bottle labels in the State of Nebraska. The salesmen argued that the statute they were convicted under was illegal since it infringed upon liberties that were guaranteed to them by the Fourteenth Amendment of the United States Constitution.  After conviction, they filed a writ of error that made its way to the Supreme Court of the United States; that court held that the statute did not violate any rights guaranteed by the Constitution. The Supreme Court stated “[o]n the contrary, it may reasonably be affirmed that a duty rests upon each State in every legal way to encourage its people to love the Union with which the State is indissolubly connected.”


The Federal Flag Code was approved by President Roosevelt in 1942. The Code’s function is as a civilian guide for the display and respect of the flag, it does not include penalties for violation of the guidelines.


In 1968, the Federal Flag Desecration Law was enacted as a result of Vietnam War protests that included the burning of the U.S. flag. That law made it illegal to show contempt for the flag by publicly mutilating, defacing, defiling, burning or trampling.


Numerous criminal convictions found their way to the U.S. Supreme Court in the following years. In 1969, the court held that New York could not convict a person based on remarks that were disparaging to the U.S. flag. The First Amendment of the U.S. Constitution was not mentioned in that Court opinion. That same year, the U.S. Supreme Court held that Massachusetts’ desecration law was unconstitutional “for vagueness” and that it could not convict a person for wearing a replica of the flag on his pants.


Several other lawsuits made their way to the U.S. Supreme Court but, in 1974, the U.S. Supreme Court held that state’s did not have an interest that would justify regulating speech against the First Amendment. This was the first Supreme Court ruling that recognized that desecration of the flag was a protected under the First Amendment as a form of expression. As a result, many states narrowed their flag desecration laws to exclude commercial and political misuse or verbal abuse.


It was not until 1980 that the U.S. Supreme Court used the First Amendment in a flag burning case to find a state flag desecration law unconstitutional. In another case in 1989, the Supreme Court held that the state did not prove that it had an interest in the American flag that would trump a citizen’s right to freedom of expression under the First Amendment.


As a result of the U.S. Supreme Court’s opinions, the government revised the Federal Flag Desecration Statute in 1989. The Supreme Court, in cases that followed that revision, finally held in the case of U.S. v. Eichman that the federal law was unconstitutional because it was aimed at prohibiting, or limiting, symbolic speech. Following that case, although Congress attempted to amend the law in a way that would give both Congress and states the right to prohibit physical desecration of the U.S. flag - it could not get enough votes and the bill failed.


Flagpoles Etc.


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