Also known as: flag desecrations · desecration of the flag · desecrating a flag · flag burning
Written by attorneys — see sources below.
The act of mutilating, defacing, burning, or flagrantly misusing a flag. Such conduct receives First Amendment protection when performed as political expression unless the government identifies a compelling interest unrelated to suppressing the message.
Farah Fox burned an American flag on the steps of a federal courthouse to protest a new trade policy. Federal agents arrested her under a statute that banned flag burning except for proper disposal. The court dismissed the charges because the statute targeted the communicative impact of the act rather than any independent safety concern.
Felix Franco burned a flag at the end of a political rally criticizing the governor. State police arrested him under a statute prohibiting flag desecration. The appellate court overturned the conviction because the statute was aimed at the expressive message rather than preventing an imminent breach of the peace.
In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a political demonstration organized by the Revolutionary Communist Youth Brigade to protest the policies of the Reagan administration and Dallas-based corporations. The demonstration began with a march through the city streets where participants chanted slogans and carried signs critical of the administration and corporations. At several points the group staged die-ins to dramatize the consequences of nuclear war, and on some occasions spray-painted buildings and overturned plants, though Johnson took no part in those acts. The march concluded in front of Dallas City Hall. There Johnson was handed an American flag that had been removed from a flagpole at one of the corporate locations visited during the march. Johnson then poured kerosene on the flag and set it on fire. As the flag burned the demonstrators chanted America the red white and blue we spit on you. After the flag was consumed the group dispersed. No one was physically injured or threatened during the event although several witnesses were seriously offended by the flag burning. Of the approximately 100 demonstrators Johnson was the only one arrested. He was charged with desecration of a venerated object under Texas Penal Code Annotated section 42.09(a)(3). Following a trial Johnson was convicted and sentenced to one year in prison and a fine of two thousand dollars. The Court of Appeals for the Fifth District of Texas affirmed the conviction. The Texas Court of Criminal Appeals reversed the judgment. The Supreme Court of the United States granted certiorari.
View caseFreya Freeman burned a flag while leading chants at a protest in a public park. City officials enforced a noise ordinance that limited sound amplification during all events. The court upheld the citation because the rule advanced a substantial interest in controlling volume and applied evenly without regard to the message conveyed.
The city of New York owns the Naumberg Acoustic Bandshell in the southeast portion of Central Park. This amphitheater and stage structure faces west across a grassy open area that can accommodate 6,000 to 8,000 people. The Sheep Meadow quiet zone and Central Park West residences lie within its sound range. Rock Against Racism is an unincorporated association dedicated to the espousal and promotion of antiracist views. It sponsored annual programs of speeches and rock music at the bandshell each year from 1979 through 1986. RAR furnished its own sound equipment and sound technician for the performing groups. Over the years the city received numerous complaints about excessive sound amplification at respondent's concerts from park users and residents of areas adjacent to the park. On some occasions RAR was less than cooperative when city officials asked that the volume be reduced. At one concert police cut off power to the sound system, causing the audience to become unruly and hostile. Before the 1984 concert city officials met with RAR representatives and agreed to monitor sound levels at the edge of the concert ground with revocation of the permit if limits were exceeded. Levels still exceeded acceptable limits for sustained periods despite warnings, resulting in two citations. The following year the city declined to grant a permit citing prior noise and crowd control problems but later issued one after RAR agreed to abide by regulations. The city then developed comprehensive Use Guidelines for the bandshell promulgated on March 21, 1986. These guidelines require sponsors to use only the Department of Parks and Recreation sound amplification system including amplifiers, speakers, monitors, microphones, and processors along with a professional sound technician employed by the city at no cost to the sponsor. The goals are to provide the best sound for all events and insure appropriate sound quality balanced with respect for nearby residential neighbors and the Sheep Meadow quiet zone. RAR returned to the United States District Court for the Southern District of New York and obtained a preliminary injunction against enforcement of the sound-amplification rule. This allowed it alone among 1986 users to employ its own equipment and technician, after which the concert again generated complaints. RAR then amended its complaint to seek damages and a declaratory judgment that the guideline was facially invalid. After five days of testimony the district court upheld the guideline while the Court of Appeals for the Second Circuit reversed.
View caseFatima Flores burned a flag on a sidewalk outside a post office to protest mail policies. Officers arrested her under a regulation restricting expressive activity on postal property. The court sustained the arrest because the rule regulated the nonexpressive aspects of conduct on government property and left open ample alternative channels.
Respondents Marsha B. Kokinda and Kevin E. Pearl, volunteers for the National Democratic Policy Committee, set up a table on the sidewalk near the entrance of the Bowie, Maryland Post Office to solicit contributions, sell books and subscriptions to the organization's newspaper, and distribute literature addressing a variety of political issues. The postal sidewalk provides the sole means by which customers of the post office may travel from the parking lot to the post office building and lies entirely on Postal Service property. The District Court for the District of Maryland described the layout of the Bowie post office as a freestanding building with its own sidewalk and parking lot located on a major highway. During the several hours that respondents were at the post office, postal employees received between 40 and 50 complaints regarding their presence. The Bowie postmaster asked respondents to leave, which they refused to do. Postal inspectors arrested respondents, seizing their table as well as their literature and other belongings. Respondents were tried before a United States Magistrate in the District of Maryland and convicted of violating 39 CFR § 232.1(h)(1). Respondent Kokinda was fined $50 and sentenced to 10 days' imprisonment. Respondent Pearl was fined $100 and received a 30-day suspended sentence. Respondents appealed their convictions to the District Court, which affirmed holding that the postal sidewalk was not a public forum and that the Postal Service's ban on solicitation is reasonable. A divided panel of the United States Court of Appeals for the Fourth Circuit reversed. The Supreme Court granted certiorari because the decision below conflicts with other decisions by the Courts of Appeals.
View caseFlora Ford burned a flag outside a law school building during a protest against military recruitment. School officials cited a policy requiring equal access for all groups. The court rejected her claim because the policy regulated conduct without compelling the school to convey any particular message.
The Forum for Academic and Institutional Rights, Inc. (FAIR) is an association of law schools and law faculties whose members have adopted policies expressing opposition to discrimination based on sexual orientation. These members objected to the military's policy regarding homosexuals in the military and sought to restrict military recruiting on their campuses. In response to such restrictions by law schools, Congress enacted the Solomon Amendment, which denies specified federal funds to institutions of higher education that do not provide military recruiters access equal to that provided other recruiters. In 2003, FAIR filed suit against enforcement of the Solomon Amendment and sought a preliminary injunction. At that time, the statute prevented the Department of Defense from providing funds to institutions that prohibited or prevented military recruiters from gaining entry to campuses. After the September 11, 2001 attacks, the Department of Defense had adopted an informal policy requiring equal access in quality and scope to students. Some law schools had previously arranged for military recruiters to interview on the undergraduate campus to comply while maintaining their policies. The District Court for the District of New Jersey denied the preliminary injunction. The court concluded that FAIR had not established a likelihood of success on the merits of its claims. Congress subsequently amended the Solomon Amendment to codify the equal access requirement, specifying that military recruiters must receive access at least equal in quality and scope to that provided any other employer. FAIR appealed to the Court of Appeals for the Third Circuit. A divided panel of the Third Circuit reversed the District Court and remanded with instructions to enter a preliminary injunction against enforcement of the Solomon Amendment. The Supreme Court granted certiorari to review the Third Circuit's decision.
View caseFaye Fuller burned a flag while donating to a political committee at a public event. Officials enforced a contribution limit that applied to all donors. The court upheld the limit because it targeted the aggregate amount of money given rather than the content of any symbolic act.
In the 2011–2012 election cycle, businessman Shaun McCutcheon contributed a total of $33,088 to 16 different federal candidates and $27,328 to several noncandidate political committees, all in compliance with the base limits applicable to each. He alleges that he wished to contribute an additional $1,776 to each of 12 candidates and $25,000 to each of the three Republican national party committees but was prevented from doing so by the aggregate limits on contributions to candidates and to noncandidate political committees. McCutcheon plans to make similar contributions in future election cycles, including at least $60,000 to additional candidates and $75,000 to non-candidate political committees in the 2013–2014 cycle. The Republican National Committee, a national political party committee charged with the general management of the Republican Party, wishes to receive the contributions that McCutcheon and similarly situated individuals would like to make, which are otherwise permissible under the base limits but foreclosed by the aggregate limits. Federal law imposes base contribution limits restricting how much money a donor may contribute to a particular candidate or committee, such as up to $2,600 per election to a candidate and $32,400 per year to a national party committee. It also imposes aggregate limits restricting how much money a donor may contribute in total to all candidates or committees, such as $48,600 to federal candidates and $74,600 to other political committees during the 2013–2014 election cycle. In June 2012, McCutcheon and the RNC filed a complaint before a three-judge panel of the U.S. District Court for the District of Columbia, asserting that the aggregate limits on contributions to candidates and to noncandidate political committees were unconstitutional under the First Amendment. They moved for a preliminary injunction against enforcement of the challenged provisions, and the Government moved to dismiss the case. The District Court denied the motion for a preliminary injunction and granted the Government’s motion to dismiss. It assumed that the base limits appropriately served the Government’s anticorruption interest. It concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits. McCutcheon and the RNC appealed directly to the Supreme Court, as authorized by law. The Court noted probable jurisdiction.
View caseFlag burning performed as political expression receives protection unless the government shows a compelling interest unrelated to suppressing the message, such as preventing an imminent breach of the peace.
A content-neutral rule that regulates open flames or similar conduct without targeting the symbolic message may be upheld if it advances an important interest unrelated to expression and leaves open alternative channels for protest.
A valid regulation must address nonexpressive harms such as fire risk or crowd control rather than the communicative impact of disrespecting the flag. Selective enforcement or a focus on the symbolic act alone indicates an unconstitutional purpose.