Flag Burning and Free Speech: Understanding Your Rights in 2025
In the United States, the American flag holds a deeply symbolic and revered position. However, the act of burning the flag as a form of protest has ignited passionate debate, testing the boundaries of free speech. As of 2025, understanding your rights regarding flag burning remains crucial, especially given recent legal and political developments. In fact, a YouGov survey from September 2023 found that 59% of Americans now consider burning an American flag during protests to be “always unacceptable”.
The First Amendment and Symbolic Speech
The First Amendment to the U.S. Constitution guarantees the right to freedom of speech, which extends beyond spoken or written words. It also protects “symbolic speech,” actions that express an idea or opinion. The Supreme Court has recognized that flag burning is a form of symbolic speech.
Texas v. Johnson (1989): A Landmark Decision
The Supreme Court case Texas v. Johnson (1989) is central to understanding flag burning and free speech. Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention in Dallas, Texas, to protest the policies of President Ronald Reagan. He was arrested and convicted under a Texas law that prohibited desecrating a venerated object, including the American flag, if such action was likely to incite anger in others.
The Supreme Court, in a 5-4 decision, overturned Johnson’s conviction. Justice William Brennan, writing for the majority, stated that flag burning constitutes “symbolic speech” protected by the First Amendment. The Court reasoned that the government cannot prohibit expression simply because society finds the idea offensive or disagreeable. The ruling invalidated laws against desecrating the American flag that were enforced in 48 of the 50 states at the time.
United States v. Eichman (1990): Federal Law Overturned
In response to Texas v. Johnson, Congress passed the Flag Protection Act of 1989, which made it a crime to knowingly mutilate, deface, physically defile, burn, or trample upon the American flag. However, the Supreme Court, in United States v. Eichman (1990), struck down the Flag Protection Act as unconstitutional. The Court held that the government, like the states, cannot prosecute a person for desecrating a United States flag because doing so would be inconsistent with the First Amendment.
Limitations on Free Speech
It’s important to note that even constitutionally protected speech, including flag burning, is not absolute. The First Amendment does not protect speech that incites violence or constitutes “fighting words.” Therefore, if flag burning is done in a manner likely to incite imminent lawless action, it may not be protected under the First Amendment. Additionally, laws against crimes such as arson or property destruction can be enforced, even if they involve flag desecration.
Trump’s Executive Order and Current Challenges
Despite the Supreme Court’s rulings, the issue of flag burning remains politically charged. On August 25, 2025, President Donald Trump signed an executive order directing the Justice Department to prosecute those who desecrate the American flag. The order argues that flag burning is a statement of contempt and hostility that may incite violence and riot. It also claims that flag burning is used by foreign nationals to intimidate and threaten violence against Americans, potentially leading to visa revocation and deportation.
The executive order instructs the Attorney General to prioritize enforcing criminal and civil laws against acts of flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include violent crimes, hate crimes, illegal discrimination, crimes against property and the peace, and conspiracies to violate such laws.
Legal experts argue that this executive order is an attempt to circumvent the Supreme Court’s rulings and test the boundaries of First Amendment protections. Some believe that the order could lead to renewed legal challenges and potentially a reconsideration of the issue by the Supreme Court, which now has a 6-3 conservative majority.
Practical Advice and Considerations
- Know Your Rights: Understand that flag burning as a form of political protest is generally protected under the First Amendment, according to current Supreme Court precedent.
- Avoid Incitement: Ensure that your actions do not incite violence or create an imminent threat of lawless action, as this could remove the protection of the First Amendment.
- Be Aware of Local Laws: Be mindful of local laws regarding open burning, property destruction, or disturbing the peace, as these may be enforced regardless of the expressive nature of your actions.
- Document Everything: If you are engaging in a protest that involves flag burning, consider documenting the event to protect yourself against potential legal challenges.
- Seek Legal Counsel: If you are arrested or charged with a crime related to flag burning, seek legal counsel immediately to understand your rights and options.
Conclusion
The issue of flag burning and free speech remains a contentious one in the United States. While the Supreme Court has established that flag burning is a form of protected symbolic speech, recent political and legal developments suggest that this issue may be revisited in the future. Understanding your rights and the limitations on those rights is crucial if you choose to engage in this form of protest.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. If you have any questions or concerns about your rights regarding flag burning or free speech, please consult with a qualified attorney.