The following says:

Currently, flag burning is not illegal in the United States. The Supreme Court of the United States in its decision from 1969 has ruled that the burning of the flag is protected by the First Amendment. However, the person who burnt the flag can be found guilty of a misdemeanor for starting a fire without a permit.


But this law seems to say that it is illegal:

(a) (1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.


What is the right one?

  • 2
    In the US system, when the courts have determined that a statute or regulation is unconstitutional, the statute or regulation nonetheless remains on the books until removed by the normal legislative or regulatory procedure. Furthermore, courts can specify specific interpretations of the law without invalidating them outright. So you can never rely entirely on statutes and regulations to know what the law is; you also have to take into account any judicial rulings concerning the statute or regulation you're looking at.
    – phoog
    Dec 2, 2016 at 15:54
  • Hypothetically, if one was to construct something that has a likeness to (for example) the US flag, but is demonstrably not correct (the wrong number of stars or an extra red and white stripe or is the wrong aspect ratio) is that a technicality that would be a valid defence against the Cornell rule above? Say that a photo was taken of the flag before it was entirely destroyed that shows the design discrepancy.
    – Wossname
    Dec 3, 2016 at 15:06

1 Answer 1


18 U.S. Code § 700 was held to be unconstitutional in Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990).

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. (Texas v Johnson)

Mere flag burning is not illegal and is protected by the First Amendment.

You may still be prosecuted for other crimes that happen while flag burning. For example, the flag may be somebody else's property.

The Seattle appellees were also charged with causing willful injury to federal property in violation of 18 U.S.C. §§ 1361 and 1362. This charge remains pending before the District Court, and nothing in today's decision affects the constitutionality of this prosecution. (US v Eichman)

  • It's also worth noting that flag burning was protected as political speech. If an act of flag burning were found to be hate speech, which does not enjoy constitutional protection, the act could be prosecuted as a hate crime, even if not under 18 USC 700.
    – phoog
    Dec 2, 2016 at 15:57
  • 2
    @phoog Hate speech is constitutionally protected: R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Snyder v. Phelps, 562 U.S. 443 (2011). If it were found to be a true threat or incitement to violence, on the other hand, you are correct, it could be prosecuted for those reasons. This is why I say "mere" flag burning is not illegal, and give one example where another charge incident to the flag burning could be pursued. There are many others.
    – K-C
    Dec 2, 2016 at 16:01
  • 1
    You are correct, I was thinking of cross burning, which isn't I suppose illegal purely as hate speech, but rather because of the threat it represents.
    – phoog
    Dec 2, 2016 at 16:07
  • 1
    Re: cross burning: I don't know if there is anything more recent than this: aclu.org/news/… Dec 2, 2016 at 17:42

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