Symbolic Conduct and Flag Desecration

The act of burning the American flag is one of the most visceral and controversial forms of political protest. Understanding why the Supreme Court protects it requires grappling with a fundamental constitutional question: Does the First Amendment shield only written or spoken words, or does it also protect symbolic conduct—actions undertaken to express an idea? The legal journey from a general test for expressive conduct to the specific protection of flag desecration defines a critical frontier of free speech in the United States.

The Foundation: Expressive Conduct and the O’Brien Framework

Not every action is speech. If you burn a flag to stay warm on a camping trip, you are not engaging in protected expression. The law distinguishes between pure conduct and expressive conduct, which is action undertaken to convey a particularized message that is likely to be understood by those who view it. To regulate this hybrid of speech and action, the Supreme Court established a foundational test in United States v. O’Brien (1968).

David O’Brien burned his draft card on the steps of a courthouse to protest the Vietnam War. He was convicted under a federal law that made knowingly destroying a draft card a crime. The Court upheld his conviction, creating a four-part test for when government can regulate expressive conduct:

1. The regulation must be within the government’s constitutional power.
2. It must further an important or substantial government interest.
3. The government interest must be unrelated to the suppression of free expression.
4. The incidental restriction on speech must be no greater than is essential to further that interest.

This O’Brien test is an intermediate level of scrutiny. It allows regulation if the government’s primary goal is not to suppress a message but to achieve an important policy objective (like maintaining a functioning draft system), even if doing so incidentally limits some expression. For decades, this was the standard applied to flag desecration cases, often leading to convictions. The pivotal shift occurred when the Court examined the true purpose behind a law.

Texas v. Johnson: When Government Interest Targets Suppression

In 1984, Gregory Lee Johnson burned an American flag outside the Republican National Convention in Dallas, chanting political criticisms. He was convicted under a Texas law that prohibited desecration of a venerated object. In the landmark case Texas v. Johnson (1989), the Supreme Court struck down the law and reversed his conviction by a 5-4 vote.

The Court’s analysis proceeded in two key steps. First, it confirmed that Johnson’s flag-burning was expressive conduct protected by the First Amendment; it was a deliberate political protest intended to and understood as conveying a message of dissatisfaction. Second, and most crucially, the Court applied the O’Brien test and found that Texas’s asserted government interests—preserving the flag as a symbol of national unity and preventing breaches of the peace—were directly related to suppressing expression.

The state’s interest in preserving the flag’s symbolic value was per se related to controlling communication, as it sought to protect one specific symbol from certain kinds of disrespectful messages. The interest in preventing breaches of the peace was not implicated because the protest did not actually threaten public order; the state cannot ban expression merely because onlookers find it offensive. Because the government’s interest was tied to the communicative impact of the act, the O’Brien test’s third prong failed. The Court therefore applied strict scrutiny, the highest level of judicial review, which requires a law to be narrowly tailored to serve a compelling state interest. Texas’s law could not survive this rigorous standard.

The Congressional Response and United States v. Eichman

In direct response to Johnson, Congress passed the Flag Protection Act of 1989, which criminalized knowingly mutilating, defacing, or burning the flag. Legislators carefully crafted the law to avoid the pitfalls of Johnson, removing language about “veneration” and claiming a broader interest in protecting the physical integrity of the flag itself, irrespective of the message conveyed.

This law was immediately challenged. In United States v. Eichman (1990), the Supreme Court, again by a 5-4 vote, struck it down. The Court saw through the reformulated language, holding that the government’s asserted interest was still inextricably bound to the expressive nature of the conduct. Burning a flag as a political protest damages the flag’s symbolic value, which is the very reason the government wanted to prohibit it. Therefore, the interest remained related to the suppression of expression. As in Johnson, strict scrutiny applied, and the law was not narrowly tailored—it was a direct prohibition on a class of expressive conduct because of its likely communicative impact.

Failed Constitutional Amendment Efforts

The Eichman decision made clear that a statute could not constitutionally ban flag desecration. The only way to override the Supreme Court’s interpretation was to amend the Constitution itself. Since 1990, a proposed flag desecration amendment has been introduced in nearly every session of Congress. It typically reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

This amendment has repeatedly passed in the House of Representatives but has always fallen short of the required two-thirds supermajority in the Senate. Opponents argue that amending the Bill of Rights to carve out an exception for a single form of unpopular speech would fatally weaken the First Amendment’s core principle: that government may not dictate which symbols or ideas are worthy of protection. The repeated failure of this amendment underscores the high institutional barrier to altering fundamental freedoms, even for a deeply emotional issue.

Common Pitfalls

Pitfall 1: Believing flag burning is always illegal. After the Johnson and Eichman rulings, there is no constitutional federal or state law that can criminalize burning a flag as part of political expression. It is protected symbolic speech.

Pitfall 2: Confusing the standards of review. A common error is applying the O’Brien intermediate scrutiny test to all expressive conduct cases. The critical inquiry is always the government’s purpose. If its interest is related to suppressing the message (as in Johnson), the analysis immediately shifts to strict scrutiny, which is almost always fatal to the law.

Pitfall 3: Overlooking the "unrelated to suppression" prong. The heart of the Johnson decision is the Court’s careful dissection of Texas’s stated interests. The pitfall is accepting a government’s claimed interest at face value without analyzing whether that interest is genuinely separate from a desire to censor a disfavored viewpoint. Preserving a symbol’s meaning is inherently linked to controlling how it is communicated about.

Pitfall 4: Assuming the Flag Protection Act was substantively different from the Texas law. While drafted differently, both laws were motivated by the same objective: preventing the expressive act of desecrating the flag. Eichman confirms that repackaging a speech-suppressive interest does not change its fundamental nature.

Summary

• The First Amendment protects symbolic conduct, or expressive conduct, which is action intended and likely to convey a particularized message.
• The standard framework for analyzing such conduct is the O’Brien test, which permits regulation if the government’s substantial interest is unrelated to suppressing expression.
• In Texas v. Johnson, the Supreme Court held that laws prohibiting flag desecration are unconstitutional because the government’s interest in preserving the flag as a national symbol is inherently related to suppressing disagreeable expression, triggering strict scrutiny.
• Congress’s attempt to circumvent Johnson with the Flag Protection Act failed in United States v. Eichman, as the Court found the government’s interest was still rooted in suppressing the communicative impact of flag burning.
• Repeated efforts to pass a constitutional amendment banning flag desecration have failed, leaving flag burning as a politically potent—and legally protected—form of symbolic speech.