Your burning questions on flag burning

Editor’s note: Today, President Trump signed an executive order on desecrating the flag. During the signing, Trump remarked, “If you burn a flag, you get one year in jail.” The following explainer was originally published on FIRE’s website.

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In July 2024, protesters on Capitol Hill pulled American flags from government flagpoles and burned them to protest the visit of Israeli Prime Minister Benjamin Netanyahu. FIRE’s own First Amendment reporter was on the scene covering the protests.

The right to burn the American flag sparks heated debate. Those debates become complicated when protesters engage in behavior that is not protected by the First Amendment, like destroying public property.

In response to the images from Capitol Hill, former President Donald Trump called for one-year jail sentences for anyone who burns the American flag. "Now, people will say, ‘Oh, it’s unconstitutional,’" Trump added. "Those are stupid people that say that." Vice President Kamala Harris jumped into the conversation too, commenting that the flag "should never be desecrated" like that.

But the First Amendment protects flag burning in most cases, and rightly so. Let us explain why that’s not stupid at all.

Is it legal to burn the American flag?

Yes. It’s a question Americans continue to spar over, even though the Supreme Court settled it decades ago. In 1989, the Supreme Court ruled that the government cannot punish flag burning in service of protecting national symbols. Put simply, our rights are more important than a flag.

So the protesters are protected by the First Amendment?

Well, not in this case. No one has the right to steal and vandalize a flag they don’t own — which is what we saw on Wednesday. People who engage in this behavior are subject to punishment under the law.

People can just burn a flag anywhere?

You probably know the answer to this: Nope. Many public spaces have rules against burning anything due to fire concerns. But this is more a safety issue than a civil liberties issue.

I’m offended when people burn the American flag. What can I do

While you don’t have the right to infringe on others’ expressive rights, that shouldn’t stop you from expressing your own beliefs. The answer to speech you may hate is more speech. Criticize flag burning. Debate folks who engage in it. Better yet, hoist your own flag high into the air.

The fact that flag burning is allowed is a sign of the wisdom of our First Amendment, not its stupidity. It suggests a confidence that critics of the United States and its symbols can be moved to change their minds through persuasion, not force.

FIRE’s Sarah McLaughlin wrote a piece over at MSNBC explaining why flag burning is and should be protected by the Constitution. She put it nicely:

Our speech rights may not be as tangible as a flag, but they are in far greater need of protection than our symbols. New flags can and will be sewn and raised, but a desecrated First Amendment would be much more difficult to repair.