Legalities and Symbolism of Flag Burning

There are very few more controversial issues than flag burning. It is the perfect storm of competing ideals. On one side, you have freedom of speech and expression, which is one of the most protected rights in our society up against what some people consider treason and the desecration of a sacred object. This article addresses the legalities and symbolism of flag burning in order to parse some of the issues out.

What is flag burning, technically?

For the purposes of this discussion, it is important to define what constitutes a flag. It is more difficult than many might think. For example, if you burn a pair of boxer shorts with the American flag imprinted on them, is that flag burning? Most people would not consider it flag burning, but most flag burning laws, recently ruled unconstitutional by the U.S. Supreme Court, previously included that as flag desecration. When someone burns a flag in order to desecrate it, they must have an intent behind it, this is called "symbolic speech." One of the best examples of symbolic speech is flipping your middle finger up at someone. Out of context and without intent, it makes no sense. With intent, it makes perfect sense and gets a very direct message across.

The First Amendment

Beyond defining what flag burning is, making flag desecration illegal runs into many First Amendment of the U.S. Constitution issues. Speech, especially political speech, is completely protected by the First Amendment. Flag burning is considered symbolic speech for First Amendment purposes, and is therefore protected. The word desecration means that the thing you desecrate is sacred. To therefore make flag burning a desecration, the government must make it sacred, which then may violate the separation of church and state in the First Amendment.

Flag burning is legal in the United States. The government, however, can limit where and when this speech takes place, but because of the First Amendment, the right to engage in that type of speech is constitutionally protected.