Is Flag-Burning a Crime?

Texas Criminal Defense Lawyer Answers Is Flag Burning a Crime

There is no question that flag-burning is controversial but should there be consequences when individuals choose to do so?

Whatever your political leanings, you have probably heard numerous news reports about the aftermath of the presidential election, as well as the status of President-elect Trump’s transition into the White House.

For Trump, who is a well-known Twitter user, social media seems to be a preferred vehicle of communication. Recently, however, he stirred up controversy with a comment about flag-burning.

Trump made headlines November 29 when he tweeted that there should be harsh penalties for individuals who burn the U.S. flag. Trump wrote, “Nobody should be allowed to burn the American flag—if they do, there must be consequences—perhaps loss of citizenship or year in jail!”

There is no question that flag-burning is controversial. The stars and stripes is one of the most enduring symbols of the country. Understandably, many veterans and ordinary citizens feel protective of the flag. For some, it is akin to a sacred symbol.

But is burning it a crime? Or should it be? Opinions are divided, but the U.S. Supreme Court has already weighed in on the issue.

Flag-Burning Protected: United States v. Eichman

In United States v. Eichman (1990), the Supreme Court held that burning the flag is protected speech under the First Amendment. In 1989, the Court also reversed a Texas statute that purported to punish people for desecrating the flag. There are certain protocols for caring for an American flag and disposing of old flags, but citizens can’t be criminally prosecuted for failing to follow them.

However, the issue of flag-burning has reappeared many times in the intervening years. In 2005, Hillary Clinton sponsored a proposed law that would have banned desecration of the flag if the desecration posed a threat to public safety. The Senate did not approve the bill.

No Loss of Citizenship as Punishment

Furthermore, the Supreme Court also ruled in Afroyim v. Rusk (1967) that U.S. citizens can’t lose their citizenship as a form of punishment, nor can they be stripped of citizenship involuntarily.

Texas federal criminal defense lawyer Clint Broden explains: “The Supreme Court in the Afroyim case held that the Fourteenth Amendment does not give Congress the power to revoke a person’s American citizenship. The only way to lose your citizenship is to relinquish it voluntarily.”

People have strong opinions about flag burning, with many people feeling it is disrespectful. On the flipside, others believe that flag burning is a powerful form of protest speech. Still, others personally would never burn a flag, but they also uphold the right of their fellow citizens to do so under the law.

The bottom line is that flag burning is not a crime, as it is protected as free speech under the First Amendment.

Broden & Mickelsen, LLP
2600 State St Dallas, Texas 75204
Main Phone: (214) 720-9552

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SOURCE: Broden & Mickelsen, LLP

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.