Is flag burning illegal? The history of one of the most striking acts of dissent


After a litany of complaints against CNN's refusal to toe the line on President-elect Donald Trump's false claims millions of people illegally voted in the presidential elections, he ignited another Twitter-based firestorm Tuesday.

"Nobody should be allowed to burn the American flag," Trump tweeted. "If they do, there must be consequences, perhaps loss of citizenship or year in jail!"

While Trump's tweet reeks of authoritarianism, Hillary Clinton proposed a similar measure when she was a New York senator. According to Newsweek, Clinton co-sponsored the 2005 Flag Protection Act alongside Democratic Sen. Barbara Boxer of California. Late Republican Sen. Robert Bennett of Utah introduced the bill, which stated that "an abuse of the flag causes more than pain and distress to the overwhelming majority of the American people." Had the legislation not died in Congress, it would have punished flag-burners with a $100,000 fine and two years in prison.

Although flag-burning is despicable to some, it is not considered criminal. The issue went before the Supreme Court twice: Texas v. Johnson in 1989 and U.S. v. Eichman in 1990, in which the court ruled flag burning is a form of free speech and thus is protected under the U.S. Constitution's First Amendment.   

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Burning the U.S. flag as a way of political protest surged during the Vietnam War, according to American Civil Liberties Union. In 1969, the Supreme Court in Street v. New York ruled that New York could not convict a person for disparaging the flag. The court did not decide whether flag burning was protected by the First Amendment.

As Walter Isaacson wrote in 1989 for Time:

"In the 1960s, the battle between flag wavers and flag burners represented a traumatic schism over the Vietnam War and national morality in general. Even in those incendiary times, there was never a serious effort to pass a constitutional amendment."

The protests during the Vietnam War era prompted states to use legal provisions that criminalized the desecration of the U.S. flag — in 1907, the Supreme Court decision in Halter v. Nebraska empowered states to enact anti-flag desecration laws. But it wasn't until activist Gregory Lee Johnson burned the U.S. flag during the 1984 Republican National Convention and was subsequently charged that the Supreme Court overturned all provisions on constitutional grounds in 1989. 

Organizations such as the ACLU have fought to uphold the U.S. flag burning as a form of expression. But time will only tell whether Trump will upend the U.S. v. Eichman and Texas v. Johnson rulings, since he has the unprecedented opportunity to create the most conservative Supreme Court in modern history during his upcoming term.