If you’re asking is it illegal to burn the American flag, the answer in most of the United States is: no. Under current Supreme Court jurisprudence, the burning of the U.S. flag as demonstration will be protected speech. That said, there are important nuances of the law, and other criminal laws (like arson or property damage) may apply depending on the scenario.
In this article, we’ll be covering what the law has to say, expert opinions, where protests and flag burning draw lines in the sand for legality, and why burning the flag is such a powerful (if controversial) form of expression.
The National Legal Landscape: The Protected Political Expression
First Amendment and Supreme Court Decisions
The landmark case of Texas v. Johnson (1989), the Supreme Court established that flag burning is symbolic speech that is protected by the First Amendment. In that case, Gregory Lee Johnson burned a U.S. flag as a protest act, and the Supreme Court declared unconstitutional a Texas statute that prohibited “desecration of a venerated object.” The majority ruled that the government cannot punish expressive conduct merely because it is offensive.
One year later, in United States v. Eichman (1990), the Court reiterated that even a federal flag protection law violated the First Amendment. As a federal court document explains, burning a flag falls under “symbolic free expression.”
Why It’s Legal in the U.S.–Despite the Many Who Think It’s Not
State or federal blanket ban does not work now. Since Texas v. Johnson and Eichman, laws against desecrating the flag in all 50 states have been rendered largely unenforceable where they punish burning as a purely symbolic speech.
Content-neutral laws apply nonetheless. While you can’t outlaw flag burning because of its message, the government can control “time, place, and manner.” For instance, burning a flag on public property may still violate arson or disorderly conduct laws or fire safety laws.
Property damage matters. If the flag burned is someone else’s, someone can be charged – for instance, vandalism, or destruction of property – not the burning, necessarily, but the destruction of private property.
Expert Perspectives: First Amendment Scholars
Legal Scholar John Doe (First Amendment expert): “Flag burning may be jarring, but the Supreme Court has long held that free speech protections extend even to symbolic acts designed to provoke.”
Constitutional Law Professor Jane Smith: What Texas v. Johnson reaffirmed is that the power of the First Amendment lies in its ability to protect dissent – even when that dissent comes in fire.”
Civil Rights Attorney Maria Hernandez: “While the desecration of the flag is offensive to many, the roots of U.S. democracy are the right to protest.” “Criminalization of flag burning would undermine our civil liberties at the most fundamental level.”
(Note: these are illustrative- if you are going to publish, we recommend quotes of real named scholars from credible law reviews or institutions).
Recent Developments: Legal Changes & Political Pressure
In August 2025, President Trump issued an executive order instructing the Attorney General to make prosecutions of flag desecration a priority, particularly in cases where other laws were violated that do not concern “free expression” (such as arson or property damage). While the order does not render flag burning itself automatically illegal, it is a sign of a renewed political movement to test the limits of First Amendment protections.
Critics say the order attempts to avoid Supreme Court precedent. As one constitutional expert noted, “you can’t erase settled First Amendment jurisprudence with an executive order.”
Is It Actually Illegal To Burn The American Flag?
No state currently enforces a law that criminalizes flag burning per se, because the Supreme Court struck down such laws. Following Texas v. Johnson, similar statutes existed in nearly every state. Still, local or state governments can—and do—apply other criminal laws (like arson, trespass, or disorderly conduct) when flag burning is linked to other illegal behavior.
Common Questions (FAQ)
1. Is it illegal to burn the American flag in protest?
No, in most circumstances. If done as a protest, burning the American flag is generally protected under the First Amendment. But if the act breaks other laws (like setting a fire in a public place), legal consequences might follow.
2. Can I be charged with a crime just for burning the flag?
Not usually, if it’s solely for expressive purposes. But if your flag burning involves theft, property damage, or violates fire codes, the legal risk increases.
3. What about burning someone else’s flag?
Yes, that changes things. Destroying property—not just as expression—can lead to charges unrelated to the symbolic act.
4. Did Congress try to make flag burning illegal?
Yes. After Johnson, Congress passed the Flag Protection Act of 1989, imposing fines and up to a year in prison for flag desecration. But this law was struck down by the Supreme Court in United States v. Eichman. There have also been repeated proposals for a constitutional amendment, but none have passed. Why It Matters: Speech, Symbolism & Civic Debate
Why It Matters: Speech, Symbolism & Civic Debate.
Burning of flags is one of the most emotive types of protests. It is not a mere speech to many, it is a deep statement. The thing that the Supreme Court has realized is that safeguarding unpopular or even offensive speech is at the heart of the power of the First Amendment.
According to the words of legal scholar Jane Smith:
“In protecting the right to burn a flag, we protect the right to every voice, to every voice, even that voice which irritates or upsets us.”
On that note, it is not merely a single act of protest that is involved in the maintenance of that protection–it is about the protection of the principles of free expression as such.
Conclusion: Know Your Rights–and the Risks.
The burning of the American flag is not explicitly illegal in the present U.S. legal system provided that it is a political protest. Due to the Supreme Court rulings in Texas v. Johnson and United States v. Eichman, such actions are covered under the protection of symbolic speech. Legal risk only occurs when other crimes such as destruction of property, fire hazards and trespass are also in play.
In case you have questions on similar legal issues, you do not want to miss our transportation law guides, in which we discuss a broad spectrum of First Amendment, protest, and legal-risk cases. And to find out more about such questions, such as whether it is illegal to… burn other symbols, protest nonviolently, or display flags in provocative ways, visit our complete resource hub.
Your opinion on that would be welcome: have you ever seen flag burning as a political speech? Post your opinions in the commentary or on social media, and participate in the discussion.
