Also known as: desecrate flag · flag desecration · desecrating flag · desecrated flag · flag burning
Written by attorneys · grounded in primary & secondary sources — see below
Conduct involving the intentional mutilation or burning of the American flag performed to convey a political message. The government may not prohibit the conduct when the restriction is aimed at suppressing its communicative impact rather than advancing a compelling interest unrelated to speech such as preventing an imminent breach of the peace.
Doris Duffy burns an American flag painted with smokestacks during a climate demonstration at a national park entrance. Park rangers arrest her under a regulation that singles out flag desecration. The court dismisses the charges because the rule targets the symbolic message rather than a neutral safety concern.
Danielle Dixon and a fellow student burn a small American flag while chanting against tuition increases on a public university quad. Campus police arrest them under a code banning desecration of national symbols at school events. The court invalidates the discipline because the code singles out the expressive impact of the political act.
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Derek Douglas burns an American flag in a metal trash can during an immigration protest on a public plaza outside a federal office building. Security officers arrest him under a building rule requiring respect for national emblems. The court throws out the arrest because the regulation is aimed at the communicative disrespect rather than fire safety.
Daniel Diaz burns a replica of a corporation's American-flag-themed logo at a crowded tech conference stage to protest surveillance cooperation. City officers arrest him under a policy banning destruction of flag imagery. The court finds the arrest unconstitutional because the policy targets the expressive element without a non-speech justification.
Dustin Donovan burns a small American flag on a busy bus terminal sidewalk while protesting fare hikes. Transit police arrest him under a neutral-sounding rule against flag desecration on transportation property. The court holds the arrest violates the First Amendment because enforcement was triggered by the political message rather than an independent safety interest.
Dwight Dorsey ignites an American flag at the entrance to a federal wildlife preserve to protest drilling permits. Rangers arrest him under a preserve rule prohibiting flag desecration. The court dismisses the prosecution because the rule targets the communicative impact of the symbolic act without a compelling non-speech interest.
Flag burning performed as political expression receives First Amendment protection. The government may not punish the conduct when the restriction is aimed at suppressing its communicative impact rather than advancing a compelling non-speech interest such as preventing an imminent breach of the peace.
A regulation that singles out flag desecration fails because it targets the expressive message rather than a neutral concern such as fire safety. Content-based rules aimed at the symbolic disrespect conveyed by the act are presumptively invalid absent a compelling non-speech justification.
The government must identify a compelling interest unrelated to suppressing the message, such as an imminent breach of the peace or genuine fire danger addressed by a neutral rule. Offense to bystanders or a desire to protect the flag's symbolic value does not qualify.
Selective enforcement during protests supports the conclusion that the rule is being applied to suppress a particular message. Heightened enforcement only after expressive activity begins indicates viewpoint discrimination rather than neutral application of a safety measure.
…suppression of expression, and that Johnson's conviction could not be upheld on that basis. Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 402-420. (a) Under the circumstances, Johnson's burning of the flag was conduct sufficiently imbued with elements of communication, Spence v.…