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Burning The American Flag — Is It Illegal Now? Before You Jump On The Bandwagon, Educate Yourself With This Information

By Antonio J. Newell
Published on: 12:02 PST, Nov 14, 2015

Protesters have been seen in videos burning the American flag as a form of rebellious expression. While Congress once said it wasn’t illegal, have laws changed? Will protesters have to pay — literally? Learn which police rights could come into force by this anti-patriotic act.

Emotions can run high during times of turmoil and chaos. Yet, can protesters cry “police brutality” if they repeatedly refuse to obey the law? Before you decide to set an American flag on fire, you should consider the following things.

For one, protesting is your legal right as a citizen, as it states within the First Amendment of the United States Constitution. Cornell University Law School notes the amendment as follows.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This also means that law enforcement personnel can’t interfere in “peaceful” assemblies — i.e., protests, public speeches, etc. — unless it’s deemed as a form of illegal protest. The American Civil Liberty Union mentions that these forms include blocking vehicular movement without a permit, endangering others, blocking a building’s entrance, physical harassment, etc. However, it’s pretty much a given that protests aren’t peaceful if its participants are blatantly breaking the law.

Burning the American flag is extremely frowned upon but not illegal — at least not since 1969. Yet, while it’s hearsay that all police officers have to abide by certain laws, or that a protester or law-breaker doesn’t have to abide by certain commands officers give, those presumptions aren’t true.

According to Miel & Carr, PLC, Trial Lawyers, some cities have special ordinances which require any citizens to do or respond as police officers order. For instance, concerning Grand Rapids, Michigan, the lawyers state as follows.

“Like many other cities, Grand Rapids, Michigan has an ordinance which makes it illegal to disobey a police officer. Specifically, a person may not knowingly and willfully do any of the following:

  1. Assault, batter, resist, or obstruct any police officer in the performance of his duties.
  2. Fail or refuse to obey a lawful order that is issued in the performance of the officer’s duties, as long as the officer is in uniform, or identifies or offers to identify himself as a law enforcement officer.
  3. Fail or refuse to identify themselves when requested to do so by an officer who is attempting to issue them a ticket.
  4. Leave the scene before identifying themselves after being pulled over by an officer.
  5. Escape or attempt to escape lawful police custody.
  6. Give false information in connection with an official investigation or make a false report of a violation of the law to any officer, official, or city employee who is working in their official capacity.

The penalty for violating this city ordinance is a fine of up to $500.00, up to 90 days in jail, or both.”

So while protesters might have such a means of expression on the mind, if an order is given and ignored in certain cities, those protesters might find themselves in a lot of trouble — not because they burned the flag, but because they disobeyed an order. And it gets even worse when protesters resist. Although it may appear contradictory to the label, protesters could fare better if they complied when questioned or asked to do something.

Frank W. Sweet, an NRA-certified firearms instructors notes that there’s no shame in an officer requesting a potential offender to keep their distance. Likewise, handcuffs are for the officer’s safety as well.

“LEOs [law enforcement officers] have the right to do this. The decision to cuff you is theirs alone. It is for their protection and you must comply. The LEO’s decision to cuff you may be because you seemed agitated, or were waving your hands around, or (often, in my case) because they learn that you are carrying a sidearm. They need not tell you the reason to cuff you and you should not ask. Just comply.

“When the LEO finishes the curbside investigation and gives you a ticket, a warning, or simply lets you go (assuming that you are not arrested), he/she will remove the cuffs and you can be on your way…I have been cuffed more than once.”

Yet to digress, throughout the years, bills have been introduced to protect the flag. However, they’ve all been ruled as a contrast to the Constitution. Even in recent years, via the Flag Protection Act of 2012, the perspective of “desecration” could rule against active protesters who take part in such an unlawful gesture — if the bill were to ever pass. As of date, it hasn’t passed. As it potentially relates to protesting flag burners though, here are some things to keep in mind about violations, if the bill should pass in coming years. According to the Library of Congress, the bill states as follows.

“Flag Protection Act of 2012 – Replaces provisions regarding desecration of the flag of the United States with provisions that subject any person who:

  1. destroys or damages a U.S. flag with the primary purpose and intent to incite or produce imminent violence or a breach of the peace to a fine of up to $100,000, imprisonment for up to 1 year, or both;
  2. intentionally threatens or intimidates any person or group of persons by burning a U.S. flag to a fine of up to $100,000, imprisonment for up to 1 year, or both;
  3. steals or knowingly converts to his or her use, or the use of another, a U.S. flag belonging to the United States and intentionally destroys or damages that flag to a fine of up to $250,000, imprisonment for up to 2 years, or both;
  4. and steals or knowingly converts to his or her use, or the use of another, a U.S. flag belonging to the United States and intentionally destroys or damages that flag within any lands reserved for the use of, or under the exclusive or concurrent jurisdiction of, the United States to a fine of up to $250,000, imprisonment for up to 2 years, or both.”

Interestingly relevant to the 1969 ruling, in 1989 during Texas v. (Gregory) Johnson, it was ruled that “burning the flag” was protected under the First Amendment’s freedom of speech clause, as reports United States Courts. Nonetheless, in recent times, some American protesters have felt as if Congress has failed them. In an effort to express their distaste in the United States’ leaders, some anti-government protesters have taken to burning the flag. On November 10 — just hours before Veteran’s Day — protesters marched down the streets of Milwaukee, Wisconsin, to rally against immigration, minimum wages, and a host of other cases, as reports KTLA-5 News.

While they marched from Milwaukee’s city hall, some protesters set an American flag on fire which was quickly extinguished by local police officers. Several people were outraged by the gesture. Military veteran George Torres mentioned as follows.

“Protest all you want! It’s your right. Just don’t burn our flag. So many have laid down their lives to defend it. Some of you may disagree with me and say, ‘It’s just a flag’. And again it’s your right to disagree. However, that flag is the symbol of our great nation; regardless of how you feel politically. Unless you’ve served or lost brothers in arms..it may be difficult to understand. Thank you to all Vets today. Thank you to those 1st Responders as well. Semper Fi.”

Similarly, Wisconsin Senator Van Wanggaard (R) mentioned that those who supported the desecration of the U.S. flag — along with guilty elected officials who happily posted it to their social media pages — should be ashamed. Once the flag was recovered, police performed a ceremony in which they paid proper tribute to its symbolism by folding it as regarded in official procedure. You can see the video below.

https://www.facebook.com/ktla5/videos/10153806895594614/

These protesters didn’t realize that Milwaukee officers who extinguished the fire could have take action against them.

This, and other aforementioned factors, should be considered before breaking the law and/or yelling “police brutality” once officers’ hands are forced by the protesters’ own actions. Stating that “you’re not doing anything wrong” or “you’re not doing anything” — while the officers are giving instructions and you’re resisting — is still deemed as being noncompliant.

[Photo by Adam Long/iStock]

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