The Volatile History of Flag Burning in the US

The American flag has long been a target of political protest in the United States. One of the earliest recorded times an American flag was burned in protest was on May 10, 1861, in Liberty, Mississippi. The outbreak of the Civil War had transformed the Stars and Stripes into a divisive symbol of unity or tyranny.   

In January 1861, the United States Treasury Secretary, John Dix, got word that Confederate officials in Louisiana were threatening to confiscate a federal revenue ship. “If anyone attempts to haul down the American flag,” telegrammed Dix, “shoot him on the spot.” 

The governor of Illinois issued a similar decree, saying that if anyone in his state saw someone trying to remove or desecrate an American flag, they should “shoot him down as you would a dog and I will pardon you the offense.” 

These weren’t empty threats. In 1862, a Mississippi man named William Mumford was hanged for treason after pulling down an American flag, dragging it through the mud and ripping it to shreds. He was protesting what he saw as the unlawful federal occupation of New Orleans.  

"People often think this form of protest started in the Vietnam era, but that’s not the case,” says Jonathan White, a professor of American studies at Christopher Newport University. “There’s been flag desecration throughout American history, because people know that the flag is a really important symbol, and if they want to get a message across that really resonates—or that really ticks people off—they might choose to do that."

Freedom of speech is enshrined in the First Amendment to the Constitution, but flag burning has always tested the limits of that freedom. For most of American history, burning or otherwise desecrating the flag was a crime. The U.S. Supreme Court weighed in on the issue several times in the 20th century before reaching its landmark decision in Texas v. Johnson (1989), holding that flag burning—despite its offensive nature—was a protected form of speech.  

After the Civil War, new concerns over flag desecration arose in the 1880s and 1890s. One of the issues was the increasing use of the Stars and Stripes in advertising. “Flag protection” groups sprang up to protest the commercialization or “pollution” of the flag to hawk products.  

“[The flag’s] sacred folds were never designed to be defaced with advertisements of beer, sauerkraut candy, itch ointment, pile remedies and patent nostrums,” Charles Kingsbury Miller, a flag protection advocate, wrote in 1902, “to serve as awnings, horse blankets, merchandise wrappers, pillow and footstool covers or as miniature pocket handkerchiefs on which to blow noses or with which to wipe perspiring brows.” 

Between 1897 and 1932, every U.S. state passed a law making it a crime to put the American flag on a product label or advertisement, says White. One of those laws was the subject of the first flag desecration case heard by the Supreme Court. In Halter v. Nebraska (1907), a Nebraska businessman challenged the $50 fine he received for printing the American flag on beer bottles.  

At the time, the First Amendment only applied to federal law, not state laws, so the argument in Halter v. Nebraska wasn’t made on free speech grounds. The issue was “discrimination” since flags could be used to advertise for noncommercial purposes. The justices sided with the state, saying it was the legislature’s right to safeguard the flag “as an emblem of National power and National honor.” 

As the U.S. prepared to enter World War I, a pacifist group called the Church of the Social Revolution circulated a pamphlet with an antiwar cartoon showing the American flag on the ground entwined with a bag of money. The group’s leader, Brouke White, was charged with illegally using the flag in an advertisement.  

The day before his trial, White held a meeting during which he burned an American flag in a kettle labeled “Melting Pot” along with a British flag and other international flags. The stunt was meant to symbolize “the brotherhood of man,” but it led to the first prosecution for flag burning in U.S. history. White was sentenced to 30 days in jail and a $100 fine.  

"There was a lot of anxiety and suppression in the air during World War I,” says White. “This is the same era that you get the Espionage Act of 1917 and the Sedition Act of 1918, which also prohibited criticism of the flag and the uniform.” 

Following World War I, the Supreme Court first began to consider whether U.S. citizens had a First Amendment right to protest the government, up to and including acts that insulted or desecrated the flag.  

In Schenck v. United States (1919), the Supreme Court affirmed that there are limits on free speech in times of war. Socialist Charles Schenck was convicted of violating the Espionage Act by distributing leaflets encouraging Americans to defy the draft. In a landmark opinion, Justice Oliver Wendell Holmes established the “clear and present danger” test—when speech is akin to shouting “fire” in a crowded theater.  

In Abrams v. United States (1919), however, Holmes shifted his position. Abrams was another case about antiwar pamphlets and the Espionage Act, but Holmes didn’t think that the statements in the pamphlets posed a “clear and present danger.” Instead, Holmes argued that in the United States, all ideas—even unpopular ones—should be allowed to compete in a free marketplace. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” Holmes was in the minority, though, and the justices ruled 7-2 to uphold the conviction.  

"It took another several decades for Holmes’ ideas about the ‘marketplace of ideas’ to take hold,” says White, “and for America’s thinking about free speech to become more liberalized. By the 1960s, certainly, political dissenters had more rights.”  

Flag burning, however, was still considered a treasonous and criminal act that was beyond the pale of free speech.

On April 15, 1967, more than 200,000 people amassed in New York City’s Central Park and burned dozens of flags to protest the Vietnam War. The flag burnings became a media sensation and triggered widespread anger. Congress responded by passing the Flag Protection Act of 1968, the first federal ban on flag desecration.  

The law made it a crime to “knowingly cast contempt” on the flag by “publicly mutilating, defacing, defiling, burning or trampling upon it.”  

At the same time, the Supreme Court was expanding First Amendment protections for offensive speech. In Brandenburg v. Ohio (1969), the justices ruled that even statements by Ku Klux Klan members advocating racial violence were protected. 

During this era, the Court heard two cases directly involving flag desecration. In Street v. New York (1969), a Black World War II veteran named Sidney Street was fined $100 for burning an American flag in response to the shooting of civil rights activist James Meredith. Street told passersby, “If they can do this to James Meredith, we don’t need a flag.”  

The justices reversed Street’s conviction, saying that the act of burning the flag was inseparable from his defiant words and both were therefore protected speech.  

In 1974, the Court heard Spence v. Washington, in which a college student was prosecuted for hanging an American flag upside down and using removable tape to draw a peace symbol on it. Again, the justices reversed the lower court’s conviction and ruled that the government didn’t have the right to interfere with the student’s symbolic speech.  

Texas had one of the toughest laws regarding flag burning during the Vietnam era. The state categorized the act as a felony carrying a maximum sentence of 25 years.  

In 1970, a 19-year-old man named Gary Deeds was arrested after he lit a piece of red, white and blue bunting on fire during an antiwar protest in Dallas. Some jurors on the case argued that Deeds should get 20 years in prison, but more moderate voices reduced the sentence to four years. Deeds appealed his conviction but was denied, with the judge ruling that other forms of protest—like picketing, wearing black arm bands and sit-ins—were protected forms of free speech, but that flag burning was “an invitation to violence.”  

In 1984, the Republican National Convention was held in Dallas. Outside the convention hall, protestor Gary Lee Johnson doused an American flag with kerosene and lit it on fire. As the flag burned, the protestors chanted, “America the red, white, and blue, we spit on you.” 

By the 1980s, the maximum sentence for flag burning in Texas had been reduced to a $2,000 fine and one year in jail. Johnson received both. He appealed his case on First Amendment grounds and it went all the way to the Supreme Court.  

In Texas v. Johnson (1989), the justices ruled in a narrow 5-4 decision that flag burning—no matter how abhorrent to many Americans—was a valid form of political speech. It was a controversial and somewhat surprising ruling, especially because it won the support of staunchly conservative justices.  

In his majority opinion, Justice William Brennan explained that the Court’s decision was “a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength... The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.” 

Members of Congress disagreed. They immediately introduced the Flag Protection Act of 1989, followed by a constitutional amendment to ban flag burning. Once again, the Supreme Court stepped in and ruled in United States v. Eichman (1990) that the proposed flag-burning ban violated the First Amendment.