The people's voice of reason

Why is it not criminal to burn a United States flag?

Patriotically and emotionally if the destruction of an American flag is done in a manner of disrespect, I would think that it should be criminal and I would say give that individual a chance to live in another country! I guess this country is so big on tolerance that about the only thing that I see as intolerant by this country is being disrespectful of minority groups (racial, ethnic, sexual orientation, religious, etc.). For me to be a southern Christian white male, proud of my heritage I seem to be a perfect target of disrespect with nothing I can really do about it. But on to the disrespect of a U.S. flag;

The United States Code §43-1-8 says:

Sec. 8. Respect for flag

No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.

(a) The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.

(b) The flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.

(c) The flag should never be carried flat or horizontally, but always aloft and free.

(d) The flag should never be used as wearing apparel, bedding, or drapery. It should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Bunting of blue, white, and red, always arranged with the blue above, the white in the middle, and the red below, should be used for covering a speaker's desk, draping the front of the platform, and for decoration in general.

(e) The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.

(f) The flag should never be used as a covering for a ceiling.

(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.

(h) The flag should never be used as a receptacle for receiving, holding, carrying, or delivering anything.

(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.

(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.

(k)The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

So in the proper disposal of a worn United States flag, it is proper to do so respectfully, preferably by burning. However, I’m sure though that you are referring to a disrespectful burning of the flag.

One of the most defining United States Supreme Court cases involving the disrespectful burning of the United States flag, is Texas v. Johnson, 1989 (5-4 majority decision). Johnson burned a United States flag during the 1984 Republican National Convention in Dallas in protest of Reagan policies. With Johnson and others shouting slogans against the first Reagan administration, there was no doubt that their verbal speech was protected under the First Amendment as it did not otherwise violate other statutes, but what about Johnson’s symbolic gesture?

A lower Texas Court had convicted Johnson criminally under a misdemeanor punishable statute for desecrating a venerated object, which was affirmed at a higher court. The Texas Court of Criminal Appeals reversed the decision and the United States Supreme Court granted the appellants the right of review.

At issue was whether Johnson’s burning of the United States flag was expressive conduct allowing First Amendment protection in his conviction? The Supreme Court had long recognized at this point that protected speech was not only protected by the written or spoken word. Johnson had not caused a real breach of the peace even though his action had angered some and the fire had not injured anyone. The State of Texas conceded that Johnson’s conduct was expressive, which left the State’s assertion at a point that Johnson’s conduct was so serious as to cause a disruption of the peace. The Court rejected the idea that burning the flag amounted to “fighting words” in which an average person would retaliate. The Texas law was not aimed at retaining the physical integrity of the flag since disposal of worn flags is allowed by burning. The majority, in affirming the Texas Court of Criminal Appeals went on to say, “ We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents”.

Three of the four dissenting Justices responded by saying,” The Court decides that the American Flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the Flag, but the government may not prohibit the public burning of the banner under which they fight.” How true. Then again, consider uprisings around the world, should one decide to burn their flag. What would the result of that person’s freedom be?

Fly your Flag not only on Memorial Day, Flag Day (June 14) and Independence Day, but every day. If your flag is worn, allow the American Legion or the Boy Scouts to respectfully dispose of it. Have a great Memorial Day and remember those that gave their lives for this country.!

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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Mailing address: Ronald A. Holtsford, Esq. • Ronald A. Holtsford, LLC • 7956 Vaughn Road, Box #124 • Montgomery, AL 36116 • (334) 220-3700


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