Flag desecration laws still sit in the federal code and in most state codes, but two Supreme Court decisions have made them unenforceable against anyone who burns or defaces an American flag as political expression. Federal law at 18 U.S.C. § 700 carries up to a year in prison for knowingly destroying, defacing, burning, or trampling a U.S. flag, yet a prosecutor cannot use it against a protester without running straight into the First Amendment. Conduct around the flag that harms someone else or breaks a content-neutral law is a different story, and a 2025 executive order is pushing federal prosecutors to lean harder on that distinction.
What the Statutes Actually Prohibit
The federal criminal statute is 18 U.S.C. § 700, the Flag Protection Act of 1989. It makes it a crime to knowingly destroy, deface, burn, or trample any flag of the United States, punishable by a fine, up to one year in prison, or both.1Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties The statute defines “flag of the United States” broadly: any flag or part of a flag, made of any substance, of any size, in a form commonly displayed.2Office of the Law Revision Counsel. 18 USC 700 – Desecration of the Flag of the United States; Penalties It covers only the U.S. flag; federal law does not criminalize the desecration of a foreign nation’s flag. It also carves out an exception for disposing of a worn or soiled flag in a dignified manner.
Most states have their own flag desecration statutes as well, typically classified as misdemeanors. Every one of those state laws is subject to the same constitutional limits as the federal statute.3Legal Information Institute. Texas v Johnson, 491 US 397 (1989)
One boundary worth flagging: the U.S. Flag Code, in Title 4 of the U.S. Code, is often confused with these criminal statutes. The Flag Code sets out customs and recommendations for handling and displaying the flag, but it carries no criminal penalties and cannot be enforced against a civilian.4Office of the Law Revision Counsel. 4 USC 8 – Respect for Flag Violating it is not a crime.
Why Prosecutors Cannot Use These Laws Against Protesters
The Supreme Court has ruled twice, both times 5-4, that burning or defacing a flag as political expression is protected by the First Amendment.
The first case was Texas v. Johnson in 1989. Gregory Lee Johnson burned an American flag outside the Republican National Convention in Dallas and was convicted under a Texas flag desecration statute. The Court overturned the conviction, finding that Johnson’s conduct was expressive: he intended a political message, observers understood it, and Texas’s interest in preserving the flag as a symbol of national unity was tied directly to suppressing the message he was communicating.3Legal Information Institute. Texas v Johnson, 491 US 397 (1989) The government cannot prohibit expression, the Court held, just because society finds the idea offensive.
Congress responded by passing the Flag Protection Act of 1989, trying to write a content-neutral law that protected the flag’s “physical integrity” without targeting any particular viewpoint. In United States v. Eichman (1990), the Court struck that law down too.5Legal Information Institute. United States v Eichman, 496 US 310 (1990) The neutral language did not disguise what the statute was doing. Its exemption for disposing of worn flags gave the game away: Congress cared about disrespectful treatment, not physical damage generally. Because the law targeted expression, it had to survive strict scrutiny, and it did not.
So the statute is still printed in the federal code. It just cannot reach expressive flag burning. State officers and prosecutors generally avoid charging flag desecration under state statutes for the same reason: the charges will not survive a constitutional challenge, and pressing them can expose the jurisdiction to civil rights liability.
Whether a specific act qualifies as protected symbolic speech depends on two questions the courts have long asked: did the person intend to convey a specific message, and was there a strong likelihood that observers would understand it.6Justia. Spence v Washington, 418 US 405 (1974) A protester burning a flag at a rally clears both. Someone setting fire to a flag in the backyard because they wanted something to burn probably does not.
Flag-Related Conduct That Can Still Be Charged
The First Amendment protects burning your own flag as political expression. It does not immunize every act that happens to involve a flag. Several categories remain fully prosecutable.
- Destroying someone else’s flag. The Court in Texas v. Johnson said its ruling should not be read to suggest “one is free to steal a flag so long as one later uses it to communicate an idea.” Theft, vandalism, and destruction of property can be charged regardless of expressive intent.
- Fire safety violations. Many municipalities have open burning ordinances that restrict fires in public spaces. A protester who lights a flag on fire in violation of a content-neutral fire code can be cited for the fire code violation itself.
- Disorderly conduct and breach of peace. If flag burning escalates into violence, threats, or genuine incitement, officers can intervene. Courts draw a clear line between speech that offends and speech that creates an imminent threat of disorder. Offensiveness alone is not enough, and an audience’s hostility to a message is not a constitutional basis for silencing the speaker.
Some states have tried to write around Johnson and Eichman by framing flag laws in terms of breach of peace or disorderly conduct rather than desecration itself. Courts tend to view those laws skeptically when the only “disorder” being prevented is the public’s reaction to the speech.
The 2025 Executive Order and Pending Bills
In August 2025, the White House issued an executive order titled “Prosecuting Burning of the American Flag.” It directs the Attorney General to prioritize enforcement of content-neutral criminal and civil laws against flag desecration that causes harm unrelated to expression, identifying violent crimes, hate crimes, crimes against property, and open burning restrictions as potential bases for prosecution. The order also directs federal agencies to refer flag desecration cases to state and local authorities when the conduct may violate state or local laws such as open burning restrictions, disorderly conduct statutes, or property destruction laws.7The White House. Prosecuting Burning of The American Flag The strategy operates inside the boundaries Johnson and Eichman drew by aiming at secondary effects rather than the expressive act. Whether prosecutions under this approach survive judicial review is an open question.
On the legislative side, Senator Josh Hawley introduced the Enhanced Penalties for Criminal Flag Burners Act in June 2025. Instead of criminalizing flag burning directly, the bill would add sentencing enhancements for people who burn the American flag while committing a separate federal offense.8GovInfo. S 2079 (IS) – Enhanced Penalties for Criminal Flag Burners Act
The Constitutional Amendment Route
Because the Court’s rulings rest on the First Amendment, the only way to fully override them is to amend the Constitution. A Flag Desecration Amendment would grant Congress the explicit power to prohibit physical desecration of the flag.
The bar is high. Two-thirds of both the House and Senate must approve the resolution, then three-fourths of state legislatures must ratify it.9Constitution Annotated. Congressional Proposals of Amendments The amendment has passed the House multiple times but never cleared the Senate. The closest attempt came in 2006, when the Senate voted 66-34 in favor, one vote short of the required two-thirds.10U.S. Senate. Roll Call Vote 109th Congress – 2nd Session
In June 2025, Senator Steve Daines introduced another resolution to restore Congress’s authority to prohibit flag desecration, with companion legislation from Congressman Steve Womack in the House. Daines has introduced this resolution annually since 2017.11U.S. Senator Steve Daines. Daines Introduces Constitutional Amendment to Protect American Flag from Desecration No vote on the current resolution has been scheduled.