Recently a person has been jailed for 16 years for burning a flag which represents a group of people meeting certain conditions in United States. This was deemed as discrimination and a hate crime if I understood correctly. But we also see a lot of times people burning american flags and holding foreign countries flags in United States (which supposedly represents americans) and we hear this is protected free speech. So I wondered why one is protected and the othe isnt, and I've heard about protected classes. According to this,

Protected classes under Anti-discrimination laws

The Civil Rights Act of 1964 is one anti-discrimination law that protects certain groups of people. Under this act, and other federal anti-discrimination laws (like the Age Discrimination in Employment Act and the Americans with Disabilities Act), a person may not be discriminated against based on certain characteristics:

  • Age;
  • Race;
  • National Origin;
  • Religious Beliefs;
  • Gender ;
  • Disability;
  • Pregnancy;
  • Veteran Status

There one of the items says "national origin". If an american is attacked or discriminated by his status as american, is he protected by anti discrimination laws because "national origin" is a protected class? Or if not why not?

  • 16
    Other things worth bearing in mind are that apparently Martinez had caused a disturbance at a bar, threatened to burn it down and then returned and set fire to a banner outside it. He was found guilty of multiple offences and his long sentence was a result of a "three strikes" rule in effect because of his two previous felony convictions. It seems a lot of web sites are trying to characterise this as a simple protester being victimised with a heavy sentence but if they can't find a more palatable victim it seems they don't have much to work with.
    – Eric Nolan
    Dec 22, 2019 at 12:50
  • 5
    Is "Gender" really a protected category under the Civil Rights Act of 1964? Seems extremely doubtful; the word "Sex" was used much more often than "Gender" prior to the last 10 years or so.
    – Chozang
    Dec 23, 2019 at 14:27
  • 4
    @EricNolan; The prior felonies were driving on a suspended license and a DUI for marijuana. The guy may be a ‘habitual offender’ under the law, but there is nothing that morally justifies 15 years in prison.
    – Wes Sayeed
    Dec 23, 2019 at 18:27
  • @EricNolan: Well, you spread the "3 strikes" smear, now tell us what those two or more prior strikes were. Dec 24, 2019 at 1:33
  • I didn't hear the same uproar from you when poor people were sent to jail for 15 years for stealing an item of food from a store 3 times. Dec 24, 2019 at 3:21

2 Answers 2


The main difference distinguish Martinez's conviction from other flag burning convictions is that it wasn't his flag. If you were to steal and burn my American flag, you too could be prosecuted. There is a little issue of protected class, because he was convicted under the hate crime statute, not just plain arson. In Iowa the protected classes are:

race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or the person’s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability

If you burned my Tall People's Club flag, that is not a protected class. If you burned my American flag because I am expressing my Americanness, that's a hate crime.

  • 4
    So, are you saying that if this guy would have bought the flag he burnt, he couldnt have been prosecuted for hate crime?
    – Pablo
    Dec 21, 2019 at 21:57
  • 9
    @Pablo yes that's exactly right. It would have been his property and free speech if he did that.
    – Ron Beyer
    Dec 21, 2019 at 23:40
  • 8
    Burning a flag - american or not - at a petrol station would also be a series offence and not free speech. Or threatening to burn a bar down and then burning a flag or any other flammable material outside the bar.
    – gnasher729
    Dec 22, 2019 at 15:51
  • 8
    Actually, it is the crucial point. Simple hatred is not a crime: the crime is committing a crime motivated by hatred in terms of race, gender etc. Burning a flag is not illegal in the US: it is crucial that it was stolen (the role of the 'reckless use of fire' matter is not clear: it's well-established that flag burning is protected speech). He himself admits that his motivation was hatred.
    – user6726
    Dec 22, 2019 at 19:16
  • 4
    Whoever it is that owned the flag. It is/was someone's property. I assume you aren't questioning property rights. He violated §712.4-5 of the Iowa Code, which pertains to arson, and §712.9 specifically deems arson to be within the purview of the hate crimes law.
    – user6726
    Dec 24, 2019 at 2:14

As explained, the sentence wasn't just for discrimination for burning the "Pride" flag of an LGBTQ club. It was for:

  1. burning something that wasn't his property,
  2. for burning it just outside a bar that he had threatened to burn down earlier, and
  3. based on earlier convictions.

If you purchased a "Pride" flag and burnt it in a safe way and had no previous convictions, your punishment would be a lot less.

Now if someone burnt a US "Stars and Stripes" flag, would that be illegal discrimination? That depends. If you did that in Germany, where these flags are kind of rare, and if it was done to attack defenseless Americans living in Germany, probably yes (for example, burning a US flag outside a club in Germany that is known to be frequented by US expatriates, to make them afraid to go to that club). If it was done as a protest against US politics, no.

In the USA - where if I stole a random country flag, chances are >95% that it is a US flag - it's unlikely to be discrimination, especially since discrimination isn't just disliking something, it requires actual ability to damage the person.

But in principle, for example if you applied for a job somewhere in the USA and you were told "go away, we only hire Argentinians", that would be illegal discrimination based on your nationality and you would be protected.

  • 1
    The flag was previously stolen from a church; it wasn't from the club.
    – richardb
    Dec 22, 2019 at 16:51
  • 14
    "If you purchased a "Pride" flag and burnt it in a safe way and had no previous convictions, your punishment would be a lot less." Why would there be a punishment at all in that case? Dec 22, 2019 at 21:17
  • 3
    @JosephSible-ReinstateMonica "No punishment" is obviously less punishment than 16 years in jail, wouldn't you agree? But any act will be seen in a context, and depending on the context there could be punishment.
    – gnasher729
    Dec 22, 2019 at 22:43
  • 1
    About "go away, we only hire Argentinians" - in many countries it is actually legal to discriminate if it 'makes sense' - like requiring your the priest of a Christian congregation to actually be Christian. Wouldn't that apply also if, say, if you were a club celebrating something uniquely Argentinian, which required the new member of staff to be a genuine Argentinian?
    – j4nd3r53n
    Dec 23, 2019 at 9:25
  • 1
    Is it really necessary these days to point at that flag-burning in the USA is protected by the 1st amendment? I would hope that's simply understood at this point. Dec 23, 2019 at 14:37

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .