What Did the Supreme Court Rule on Flag Burning?

The Supreme Court’s ruling on flag burning is that setting an American flag on fire as political protest is expressive conduct protected by the First Amendment. The Court reached that conclusion by a 5–4 vote in Texas v. Johnson (1989) and reaffirmed it the following year in United States v. Eichman (1990) when it struck down a federal law Congress had passed specifically to outlaw the practice.¹² Those two decisions remain the governing law, and no later ruling has narrowed them.

Texas v. Johnson and What the Court Actually Held

The case came out of the 1984 Republican National Convention in Dallas. Gregory Lee Johnson joined a protest march against Reagan administration policies, and at the end of the march outside Dallas City Hall he doused an American flag in kerosene and set it on fire while other demonstrators chanted. Texas convicted him under a state law against desecrating a venerated object, sentenced him to a year in prison, and fined him $2,000.¹

When the case reached the Supreme Court in 1989, five justices held that Johnson’s conduct was “overtly political” expression squarely covered by the First Amendment. Justice Brennan wrote the majority opinion, and the single line that has stuck from it captures the reasoning: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself disagreeable or offensive.”¹

The lineup surprised observers. Justice Scalia, one of the Court’s most conservative members, joined the liberal majority. Justice Kennedy wrote a concurrence acknowledging the personal difficulty of the outcome while concluding that the Constitution required it. The ruling voided flag desecration statutes in 48 states.

Why Congress’s Follow-Up Law Also Failed

Congress responded within months by passing the Flag Protection Act of 1989, which amended 18 U.S.C. § 700 to make it a federal crime to knowingly damage or destroy any American flag, punishable by fines and up to a year in prison.³ The drafters tried a workaround: instead of targeting the protester’s message, the statute framed itself as protecting the flag’s physical integrity as a national symbol.

Protesters burned flags almost immediately to test the new law, and the resulting case reached the Court within months. In United States v. Eichman (1990), the same 5–4 majority struck the statute down. Justice Brennan’s opinion pointed out that the government’s interest in the flag’s “physical integrity” only mattered when someone treated the flag in a way that communicated disrespect. Congress had also written in an exemption for disposing of worn or soiled flags, which proved the point: respectful burning was fine, protest burning was a crime, and the distinction depended entirely on the message.²

When Flag Burning Can Still Lead to Criminal Charges

The rulings protect the expressive act itself. They do not shield a protester from every law that might apply when a fire starts and a flag is involved.

Fire safety violations. Open burning ordinances, fire codes, and arson statutes apply regardless of the message. A protester who lights a fire in a dry area, in a crowd, or in violation of a local burn ban can be charged under those laws.
Destruction of someone else’s property. The right applies only to a flag you own. Taking a flag from a government building, a neighbor’s porch, or a business and then burning it can lead to theft and property destruction charges.
Fighting words and incitement. The Johnson opinion explicitly did not rule on flag burning aimed at a specific person as a personal insult likely to provoke immediate violence, or on conduct intended to and likely to produce imminent lawless action. Those categories sit outside First Amendment protection.
Disorderly conduct. A content-neutral statute can apply if the protester blocks traffic, creates a public safety hazard, or engages in other conduct unrelated to the expression itself.

The 2025 Executive Order

In August 2025, the White House issued an executive order titled “Prosecuting Burning of the American Flag,” directing the Attorney General to prioritize enforcement of criminal and civil laws against flag burning “that violate applicable, content-neutral laws, while causing harm unrelated to expression.”⁴ The order lists violent crimes, hate crimes, property crimes, open burning restrictions, and disorderly conduct statutes as potential bases for prosecution. It also directs federal agencies to refer cases to state and local authorities when local laws may apply, and instructs immigration agencies to pursue visa revocations and removal proceedings against foreign nationals who burn flags in certain circumstances.

The order does not change the constitutional rule. It acknowledges the Supreme Court’s decisions while arguing that the Court “has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.” In practice, the order pushes federal prosecutors to look for content-neutral grounds whenever a flag burning occurs alongside other conduct that independently violates the law. Whether that approach produces sustained prosecutions will depend on how courts evaluate individual cases.

Efforts to Amend the Constitution

After Eichman, the only route left for outlawing flag burning has been amending the Constitution. Proposed amendments have followed a consistent formula: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” That single sentence would override both Supreme Court rulings and let Congress pass a new criminal statute.

The process is steep. An amendment requires a two-thirds vote in each chamber of Congress, followed by ratification from three-fourths of the states, currently 38 of 50.⁵ The House has passed flag desecration amendments multiple times since 1995. The Senate has never cleared the threshold. The closest attempt came in June 2006, when the measure failed 66–34, one vote short of the 67 needed.⁶

The effort continues. In June 2025, Representative Steve Womack of Arkansas introduced H.J.Res.101 in the 119th Congress, proposing the same amendment language. The resolution was referred to the House Judiciary Committee.⁷ Similar proposals have surfaced in nearly every Congress for three decades. Until one clears both chambers and is ratified by 38 states, Texas v. Johnson and United States v. Eichman remain the law.

1
Justia U.S. Supreme Court Center. Texas v. Johnson, 491 US 397 (1989)
2
Justia U.S. Supreme Court Center. United States v. Eichman, 496 US 310 (1990)
3
Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties
4
The White House. Prosecuting Burning of The American Flag
5
Constitution Annotated. ArtV.1 Overview of Article V, Amending the Constitution
6
United States Senate. US Senate Roll Call Votes 109th Congress – 2nd Session
7
Congress.gov. H.J.Res.101 – 119th Congress