No Disrespecting the Flag

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By Professor Victoria Sutton

July 06, 2025

Guest Opinion. Is the American flag protected by a federal statute that says the flag should be “respected”? 

The statute 4 U.S.C. Sec. 8 is entitled “respect for the flag” and details how the flag is to be treated with respect, prohibits its use as clothing, and directs how it is to be used and stored.Yet, the U.S. Supreme Court has said that it is not only legal, but protected conduct to burn the flag as it is constitutionally protected symbolic speech.

Do we have to twist ourselves into a Constitutional pretzel to justify these two seemingly opposite correct answers to the same question?

Constitutional Analysis

The U.S. Const., First Amendment protects symbolic conduct as a “communication,” with a speaker and an audience (actual or potential). Examples of protected symbolic conduct found by the U.S. Supreme Court are: Refusal to pay taxes; public nudity; urination on the capitol steps; and flag burning.

Criminal statutes

The first case found a Texas criminal statute to be unconstitutional where it made it a crime when: “a person commits an offense if he intentionally or knowingly desecrates . . . [a] national flag.” The statute defined “desecrate” to mean “deface, damage or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”

In response, the U.S. Flag Protection Act of 1989, which made it a crime to burn the flag, replaced this language which prohibited “knowingly casting contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.” The amended statute 18 USC Sec 700 (Supp. 1990) reads:

(a)(1) whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.

(b) As used in this section, the term ‘flag of the United States’ means any flag of the United States, or any part thereof, made of any substance, or any size, in a form that is commonly displayed.” 

Replaced previous statute 18 USC §§700(a) using language that was intended to be content neutral and focus on the actor.

The Flag Protection Act

It was not long until this statute was challenged in United States v. Eichman (1990). Eichman challenged the statute after he was convicted for setting a flag ablaze on the steps of the U.S. Capitol, protesting the government in general. (Another defendant in a different incident was added to the case.) The Flag Protection Act was found unconstitutional in a 5-4 decision, when the U.S. Supreme Court struck down the law because "its asserted interest is related to the suppression of free expression and concerned with the content of such expression." Further, because the statute permitted flags to be burned in a disposal ceremony yet criminalized protestors from setting it ablaze at a political protest convinced Justice Brennan that this was an unconstitutional burden on Free Speech.

The “fighting words” doctrine

Chaplinsky, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace.

In Chaplinsky v. New Hampshire (1942), the court unanimously upheld the New Hampshire law, putting fighting words into the same category of low value speech as obscenity and fighting words. They explained that fighting words do not convey ideas and thus are not subject to First Amendment protection.

In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."

So could burning the flag meet the standard for “fighting words”? The issue was actually raised in oral argument before the United States Supreme Court in United States v. Eichman (1990):

Antonin Scalia: Let's... let's... let's try fighting words, Mr. Kunstler. You know Texas v. Johnson was a year ago, and fighting words is no good why?

I mean, it's certainly... it's certainly the case that whenever somebody tramples a flag or burns a flag there is a real potential for causing a riot, isn't there?

William M. Kunstler: Well, that isn't really what fighting words are as I understand Chaplinski.

Antonin Scalia: Well... it's... it's... it's the same... it's the same thesis, that you don't have any rights to engage in conduct that's likely to provoke a riot.

William M. Kunstler: It really isn't, Justice... that isn't really fighting words.

Fighting words, as I understand it, is what the Jehovah's Witness did in Chaplinski when he went up to the sheriff and directly to him said words which would lead to a fist fight between two individuals.

At one point they were even throwing things.

William H. Rehnquist: What do you do with Feiner against New York?

William M. Kunstler: I don't think that's really applicable here, because... well, that's not totally a fighting words case. You're not dealing here--

William H. Rehnquist: It was held permissible for the sheriff to silence the speaker because he would... the audience was... was about to riot.

William M. Kunstler: But... but there's a point, I guess, where you have a riot develop, and on the verge of developing, where a police officer can stop.

William M. Kunstler: Feiner was over the edge. But I think that to burn a flag is not that point. You have no record here of any incident occurring whatsoever.

William H. Rehnquist: Well, if we had a record, would it make it a different case?

William M. Kunstler: No, I don't think so, unless it were a record were a riot did ensue and police were forced to come in and take the speaker off the rostrum.

That might be a different case.

So it is possible that flag burning could be a “fighting words” case and be found unconstitutional.

Is burning a draft card constitutionally protected symbolic speech?

Protests of the Vietnam War was often done with burning draft cards. In United States v. O’Brien (1968), the U.S. Supreme Court answered the question, whether burning a draft card was constitutionally protected symbolic speech. They answered it with a “no, it is not”.

Chief Justice Warren, writing for the majority found that both the government’s interest and the criminal statute

“. . . are limited to the noncommunicative aspect of O'Brien's conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System. When O'Brien deliberately rendered unavailable his registration certificate, he willfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted.”

So burning a draft card is not constitutionally protected speech because it impedes the work of the federal government, “where the government interest is unrelated to the suppression of free expression”. The flag burning does not impede the work of the government, and thus does not fall within this narrow category like the draft card.

Using the “fighting words” doctrine, some flag burning may turn unconstitutional

The landmark case, Texas v. Johnson (1989) arose from Gregory Johnson burning an American flag at the Republican Convention in Dallas. Protestors who showed up for the Republican National Convention in 2016, were led once again, by Gregory Johnson who was present to lead the flag burning. They were arrested shortly thereafter for inciting violence and held for 24 hours.

Summing it up

So, in the end, flag burning, symbolic speech is protected, so long as you don’t invoke violence or otherwise invoke the “fighting words” doctrine. This amounts to deciding flag burning on a case by case basis, with the judgment of law enforcement at the time, like at the Republican National Convention in 2016.

The statute above, that describes the American flag and customs of the display and use of the flag is advisory in nature, which is unusual for a federal law. The Flag Advisory Code, does not include penalties and is not binding.

The Flag Protection Act remains codified but is not enforceable due to the U.S. Supreme Court’s opinions. But a flag burning leaves the protection of symbolic speech which it “incites violence” and then arrests may ensue.

So there you have it, how to reconcile two seemingly different answers to the same question of respect for the flag.

To read more articles by Professor Sutton go to: https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is Director of the Center for Biodefense, Law & Public Policy and an Associated Faculty Member of The Military Law Center of Texas Tech University School of Law.