Did the Flag-Burning Law Really Stop Flag Burning?

Jeffrey Toobin‘s recent New Yorker profile of John Paul Stevens, the retiring leading-liberal Supreme Court Justice, is interesting throughout, and contains this nugget:

Stevens’s Second World War experience also played a part in perhaps his most anomalous opinion as a Justice. In 1989, he dissented from the decision that protected the right to burn the American flag as a form of protest. “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach,” he wrote in an unusually lyrical dissent. “If those ideas are worth fighting for-and our history demonstrates that they are-it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection.”

“The funny thing about that case is, the only consequence of it-nobody burns flags anymore,” Stevens told me. “It was an important symbolic form of protest at the time. But nobody does it anymore. As long as it’s legal, it’s not a big deal. You just don’t have flag burning.”

Question: is the lack of flag burning truly, as Stevens puts it, a “consequence” of the law? I often wonder where all the civic unrest and rioting in U.S. cities has gone, especially with the increase in income inequality. Should we be looking to Supreme Court explanations for that as well? Or are there perhaps much, much broader and more numerous forces at work?


US Flag Code. TITLE 4 > CHAPTER 1 > Sec. 8(k):

The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

So, sounds like you're required by law to burn the flag.


Ben, you're just trying to be difficult.

Flag burning in a formal ceremony, of an old and tattered flag is respectful. Flag burning in protest is disrespectful. Personally, I think people should have the right to be disrespectful - I'd never burn a flag, but the choice should be available.

I think flag burning, or the lack thereof, is more affected by social norms than legal allowances.


The flag code is law, but there are no penalties for violating the code, thus making it have no teeth.


As for your question, "Where has all the rioting and civic unrest gone?" I think the answer is that we have become so splintered socially that protest groups don't think they can expect a sympathetic audience in the broad spectrum of society. I also think that is why Americans are less willing to spend money on public universities and infrastructure -- the money is perceived to be for some other interest group, not "my people."

Mike B

Only a country that tries to outlaw criticism of itself deserves to have its flag burnt. Protecting unpopular forms of speech automatically allows the nation to prevail over those who would try to defame it.

Blaise Pascal

When the fervor over flag burning was going on, I reasoned that while burning a flag in protest should be legal, it was rather stupid. The take-away message I expect people to get from a flag-burning is "He burned a flag!", not whatever political point the protester was trying to make. In many cases, the people the protester is trying to reach will have stopped listening at that point.

When the method of protest overshadows the message of the protest another method should be considered. I suspect that is what happened with flag burning.


As long as people care more about who wins American Idol than their civil liberties, the Constitution, or Supreme Court decisions, there will be no revolution.

Ian Kemmish

Perhaps a stronger disincentive for Americans themselves to burn the US flag is that in recent years it has become an activity mostly associated with disgruntled Islamists abroad?

Of course, you guys are lucky. Over here, the flag of St George has mostly become associated with soccer hooligans and the Union Flag with unpleasant far-right political parties. Both of these are much more disrespectful than merely burning it!


I think you misinterpreted the quote. Stevens was saying that the fact flag burning is now legal has stopped flag burning.

I always thought if someone really was troubled by seeing the flag burned, the last thing you'd want to do is ban the practice. People would burn the flag specifically for the drama of getting arrested.


I recently did a little research on this, and in fact, I have found several cases of people being arrested for violating currently unconstitutional anti-flag desecration laws or their states. In all but one instance, the accused were released only after naive officials realized that, nope, it isn't illegal to desecrate a flag. the other was pending a judicial review.

On the other hand, Johnson was an aberration even when flag-burning was illegal. It never happened much. But it's always an issue for Republicans in an election year (look it up).


Where have protests gone? Remember the millions in the streets protesting the Iraq war? I was there, and there were, it seemed, at least a hundred thousand in San Francisco. But you can only affect policy through protests if you get media attention -- and the media are no longer neutral. They have been told, apparently, not to cover protests, or to downgrade them. So a hundred thousand get reported as 3,00. Then what's the point?


Flag burning must be very labor intensive, cause we seem to have off-shored it to other countries. :P


Brett #2 is dead-on. If you burn a flag these days you'll be demonized without your message being considered. It's a worse-than-useless tactic. How can we get some statistics on how many flag burners are actually in support of whatever they pretend to oppose?

J Melzer

I would rather see the flag burned as a form of political expression than to allow it to be co-opted by the right wing lunatic fringe who lay claim to all things patriotic and therefore strip away the importance and meaning of those symbols.


Pretty much my thoughts on the subject:


John S.

Where's all the civil unrest? Come now, just a few weeks ago Times editorials were screeching that the Tea Party protests were a Threat To The Very Fabric Of Our Society.


To use the word "desecration" with regard to the flag suggests it is a religious or quasi-religious emblem. Is that the message that is intended?


@JesterJames - That is the biggest issue here - protest is labor intensive. How do you cut down labor? use the leverage of technology. Consequently, you have the rise of "slacktivism" as shown by campaigns on facebook. Not to make light of it, but if you had an app for "Slap an iBanker" (for financial reform), or "Healthcare for Americans" (for universal coverage) or similar stuff for various political issues - you'd see better participation than by keeping the bar as high as burning flags in public. Perhaps there can even be a "flag burning app" within Facebook. With all the farm animals, and mafia wars... people would find "labor light" political protest very normal.

Eileen Wyatt

Asking where civic unrest and rioting have gone implies that these are the normative behaviors and lack of extensive civic unrest is unusual in the U.S. When was this true? And for how long?

In any case, the primate urge to run around bellowing and beating one's chest has moved to the internet.


As a law student, I can safely say that I'm likely the only person who abstains from civil disobedience solely because of the law: For most everyone else, they do so because it's futile. No one seriously believes that going to an anti-war rally will lead to the end of the war in Afghanistan. Likewise, no one seriously thinks protesting globalization will lead to the decline of free trade.

It doesn't help that for people born after the late 70's, we've been taught everywhere that we live in Fukuyama's "End of History," and any alternative is silly. If you start from the baseline assumption that your goals can't be achieved, that you can't actually hold elites accountable and your best option is working through the inefficient democratic process, then working towards social change by marching in the streets seems irrational and pointless.

So who engages in this stuff? Culture-jammers. Graffiti artists. Bloggers. People whose method (and arguably their motivation) is self-expression rather than collective resistance. They're engaged in activities that either have some other kind of pay-off (i.e., the adrenaline rush of committing vandalism) or require a low amount of effort, such as joining a group on Facebook. If we ever suffer from real food scarcity, it's more likely people will just complain about their hunger on a status update.