Flag Burning: Symbolic Speech, First Amendment

Explore the legal landscape of flag burning as symbolic speech under the First Amendment, examining key Supreme Court cases, legislative efforts, and the balance between free expression and national symbols.


Flag burning is a highly controversial act that often stirs strong emotions and political debate. At the heart of this issue lies the First Amendment of the United States Constitution, which guarantees the right to free speech. This legal guide explores the intersection of flag burning and symbolic speech under the First Amendment, providing a comprehensive overview of the legal landscape, key court cases, and ongoing legislative efforts.

The First Amendment and Symbolic Speech

The First Amendment

The First Amendment to the United States Constitution states:

"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."

This amendment is a cornerstone of American democracy, protecting various forms of expression, including speech, press, assembly, and petition.

Symbolic Speech

Symbolic speech refers to actions that purposefully convey a particular message or statement to those viewing it. The Supreme Court has recognized that symbolic acts, such as wearing armbands, burning draft cards, or even burning the American flag, can be protected forms of speech under the First Amendment.

Key Supreme Court Cases

Texas v. Johnson (1989)

Case Background

In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson burned an American flag in protest against the policies of President Ronald Reagan. Johnson was convicted under a Texas statute that prohibited the desecration of a venerated object, including the American flag. He was sentenced to one year in prison and fined $2,000.

Supreme Court Decision

The case eventually reached the Supreme Court, which ruled in a 5-4 decision that Johnson's act of flag burning was protected speech under the First Amendment. Justice William Brennan, writing for the majority, stated:

"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."

The Court held that the Texas statute was unconstitutional because it discriminated based on the content of the speech.

Impact and Significance

The decision in Texas v. Johnson affirmed that flag burning is a form of symbolic speech protected by the First Amendment. This ruling underscored the principle that the government cannot suppress expression simply because it is unpopular or offensive.

Read the full case summary on the United States Courts website

United States v. Eichman (1990)

Case Background

Following the Texas v. Johnson decision, Congress passed the Flag Protection Act of 1989, which made it a federal crime to desecrate the American flag. In response, protesters, including Shawn Eichman, deliberately burned flags to challenge the new law.

Supreme Court Decision

The Supreme Court, in a 5-4 decision, struck down the Flag Protection Act, holding that it violated the First Amendment. The Court reiterated its stance from Texas v. Johnson, emphasizing that the government cannot prohibit expression simply because it is offensive.

Impact and Significance

United States v. Eichman reinforced the protection of flag burning as symbolic speech and invalidated federal attempts to criminalize flag desecration.

Legislative Efforts to Prohibit Flag Burning

Proposed Constitutional Amendments

In response to the Supreme Court's decisions, there have been numerous attempts to amend the Constitution to prohibit flag desecration. These efforts have included:

  • Senate Report 108-334: A proposal to amend the Constitution to prohibit flag desecration. Read the full report
  • House Report 108-131: Another proposal for a constitutional amendment to protect the flag. Read the full report
  • House Report 109-131: A subsequent attempt to propose an amendment. Read the full report

Despite these efforts, no constitutional amendment has been ratified to date.

State-Level Legislation

Some states have attempted to pass their own laws to protect the flag. However, these laws often face legal challenges and are subject to the same constitutional scrutiny as federal laws.

Content-Based vs. Content-Neutral Regulations

The Supreme Court has distinguished between content-based and content-neutral regulations of speech. Content-based regulations, which target specific messages or viewpoints, are subject to strict scrutiny and are rarely upheld. Content-neutral regulations, which apply to all speech regardless of content, are subject to intermediate scrutiny.

Flag desecration laws are typically considered content-based because they target a specific form of expression. As such, they must meet the strict scrutiny standard, which requires the government to prove that the law serves a compelling interest and is narrowly tailored to achieve that interest.

Balancing Free Speech and Government Interests

The debate over flag burning often centers on balancing the right to free speech with the government's interest in preserving national symbols. Proponents of flag protection argue that the flag represents national unity and should be safeguarded from desecration. Opponents contend that protecting the flag at the expense of free speech undermines the very freedoms the flag symbolizes.

Public Opinion and Political Considerations

Public opinion on flag burning is deeply divided. Many Americans view the flag as a sacred symbol and support measures to protect it. Others believe that the right to free expression, even when it involves controversial acts like flag burning, is fundamental to democracy.

Political leaders often navigate these differing views, balancing the desire to protect national symbols with the need to uphold constitutional principles.


Flag burning remains a contentious issue at the intersection of symbolic speech and the First Amendment. The Supreme Court's decisions in Texas v. Johnson and United States v. Eichman have firmly established that flag burning is a protected form of expression. Despite ongoing legislative efforts to prohibit flag desecration, the constitutional protection of free speech continues to prevail.

For further reading and official resources, please refer to the following links:

This legal guide aims to provide a comprehensive understanding of the legal principles and ongoing debates surrounding flag burning and symbolic speech under the First Amendment.

About the author
Counsel Stack

Counsel Stack

Helpful legal information and resources

Counsel Stack Learn

Free and helpful legal information

Counsel Stack Learn

Great! You’ve successfully signed up.

Welcome back! You've successfully signed in.

You've successfully subscribed to Counsel Stack Learn.

Success! Check your email for magic link to sign-in.

Success! Your billing info has been updated.

Your billing was not updated.