Flag desecration: Is it legal?

flag desecration

Arkansas statute 5-51-207

The skepdick saw this picture going around his Facebook feed this Memorial Day weekend and wondered about the veracity of  flag desecration laws, including this one from Arkansas.  Is it really illegal to defile, burn, place on the ground, or trample a flag of the United States?  Wouldn’t this be the antithesis of the foundation of our Constitution?  Or does this country have a law that protects people’s feelings and intangible symbols?  Let’s dig into some legal statutes and see what the Supreme Court has to say about this issue and whether or not you can be arrested for wearing this sweater.

flag sweater

I vote that this is one ugly sweater


I first thought this was a simple printing error


I bet you didn’t even notice the flag was backwards

This was another flag “scandal” of the weekend.  The number of people who were outraged by this upside down flag on a t-shirt proved too much for PacSun so they removed it from their stores and issued an apology for their distasteful choice.   I wonder how many people are “outraged” by this woman’s bikini.

Just last year we had an issue where school officials were upset not by an American flag appearing on clothing, but how that American flag might offend Mexican students celebrating a Mexican holiday.  When did we become a country that is obsessed with hurt feelings?


The flag of the United States with its red and white stripes and white stars on a field of blue was first adopted by the Continental Congress in 1777 (likely not designed by Betsy Ross contrary to popular opinion, most historians think it was actually designed by Francis Hopkinson*).  Over the years, a specific code for how to respect the flag was compiled, but no penalty was initially mandated for failing to comply with it.  If one wishes to show respect, one follows the code.  Should the government have the power to punish people for failing to show respect?  Part of the code states that the flag shall not be used as apparel, nor advertising, nor as a container. Umhmm.


This guy just creeps me out


How do you feel about the king of beers now?


In the 19th century the Stars and Stripes was mostly used by the U.S. Navy but after the Civil War it became popularized more as a symbol of the country.  Adam Goodheart writes in his book about the Civil War, “As the long winter of 1861 turned into spring, that old flag meant something new. The abstraction of the Union cause was transfigured into a physical thing: strips of cloth that millions of people would fight for, and many thousands die for.”  The flag became a symbol of Americanism, and, as often happens with ubiquitous symbols, by the turn of the century many people believed it was being abused both politically and commercially (albeit I doubt it was as pervasive as today (see above Budweiser ad)).  Thus, by the 1930’s every state had adopted flag desecration laws, much like the Arkansas code 5-51-207, to protect this precious symbol of nationalism.

In 1968 the federal government got into the game with its own flag protection act – after some lawmakers grew tired of anti-Vietnam protesters burning flags in protest – and over the years modified it to narrow the scope of the law.  But, it wasn’t until 1989 when the Supreme Court finally ruled on the constitutionality of flag desecration in Texas vs. Johnson where they decided (rightly) that flag desecration is protected under the First Amendment and that freedom of speech and freedom of expression are one and the same.

This ruling immediately invalidated all the individual state laws prohibiting flag desecration and in the aftermath many states repealed their laws. For example, where I live in Illinois, public act 97-1108 repealed the flag desecration act and, according to the 2013 supplement of the Arkansas code, 5-51-207 was, in fact, repealed as well (man, legal codes are some confusing shit).

5-51-207. [Repealed.] Publisher’s Notes. This section, concerning
contempt for or desecration of the United States flag, was repealed by Acts
2013, No. 1348, § 6. The section was derived from Acts 1919, No. 64, §§ 1-3; C. &
M. Dig., §§ 2315-2317; Pope’s Dig., §§ 2941-2943; A.S.A. 1947, §§ 41-2971 —
41-2973; Acts 1989, No. 842, § 1; 19B9 (3rd Ex. Sess.), No. 75, § 1.

Not to be dissuaded by the Supreme Court ruling, many Americans are still pushing for the only thing that trumps the Court: a constitutional amendment.  Luckily, numerous times since 1989 Congress has rejected a constitutional flag desecration amendment by failing to acquire two-thirds majority vote, although they have been able to attain a simple majority in its favor.  No doubt they’ll try again soon.

flag desecration

What is it with flags and bathing suits?


Alright, so it’s not illegal to desecrate the flag.  That doesn’t make it a respectful or tasteful thing to do, however. The flag is a symbol.  A symbol of freedom, and the very freedom that it represents ironically supports those who would desecrate it.  It’s understandable how a person can be deeply offended by such desecration, but keep in mind that the flag is still just a piece of cloth (or whatever inanimate object it happens to be) and the offended person’s faith in our country isn’t diminished.  People who wish for laws protecting the flag remind me of people who want laws preventing gay marriage or laws preventing the drawing of cartoons.  It may harm your feelings but ultimately does nothing more than that.   What we don’t need in this country is more laws where the government takes away our freedoms.


Should mullets be illegal? Hmm

Flag desecration in name or in deed certainly evokes strong feelings and emotions.  Ask any veteran how they feel about someone burning the flag and I bet they suggest burning that person right back and stomping on their ashes.  I get it.  I understand having strong feelings for this country and our flag is a unique symbol with strong associations towards patriotism.  However, what makes the United States so great is the fact that we are free to have our own opinions and the freedom to express those opinions.  What we do not have is the freedom to not be offended.  We do not have the freedom to not have hurt feelings.

Lawyer about sad client: 'I object, your honor - that witness hurt my client's feelings!'

Aw, shall we call the Wambulance?

Free expression is and should always be protected by the Constitution (with exceptions of course: yelling fire in a crowded theater, urging for the direct harm of another, or directly inciting a riot), but burning or otherwise desecrating such an albeit unique and valuable symbol, a symbol that at its core is an iron ball of freedom, as distasteful and sickening as it may be to some, must remain a free and legal action.  There is no such thing as a sacred item and there shouldn’t be laws against desecrating any privately owned object or idea or ideology.  Any idea can be challenged and we should be free to do so.  Ultimately the flag is a symbol, and if someone desecrates that symbol, it may hurt your feelings, but it doesn’t diminish your patriotism, although it may seem to diminish theirs.

What makes this country great is that it is the land of the free and the home of the brave.  People are free to burn a flag and other people are free to ask them why they are doing it.  Flags aren’t burned for no reason and if we talk about why it’s happening rather than suppressing people’s freedoms maybe we can make this a better place to live.  I love this country, and it has its share of problems, but worrying about how someone else decides to non-violently express themselves shouldn’t be one of them.  Let’s worry about what drove them to choose that form of expression.  If you are bothered by someone desecrating a flag, learn this little known stanza of the Star Spangled Banner and sing it out loud to them:

On the shore, dimly seen through the mists of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
‘Tis the star-spangled banner! Oh long may it wave
O’er the land of the free and the home of the brave!*

Try singing that without getting goosebumps.  But, if poetry’s not your style, there’s always this:


Fist pump, fist pump!


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49 thoughts on “Flag desecration: Is it legal?

  1. Elektra DeVanass

    I find it hilarious how touters of “freedom of speech” and “freedom of expression” only apply it to those things they LIKE! Freedom of speech is being stripped away every day, bit by bit as now there are certain WORDS or phrases that can no longer be said, the Confederate battle flag is banned and anything that it’s painted on, Religious symbols that don’t pertain to certain people find it OFFENSIVE, and there are those that walk around looking for anything that can offend them. This is a sign of a deeper, psychological issue when someone who doesn’t like something tries to force everyone else to not like it also and prevent anyone from having it. I’m sure there’ll be some issues if groups of people decide to burn the LGBT rainbow flag. It’s sickening!

    1. Dan Brennan

      Wait, where was the Confederate flag banned? Walmart and TV Land pulled it but they are private businesses and cow towed to because money rules the world. The United States, on a state level has decided the flag of an upstart country that declared war on it doesn’t belong on State government, or federal grounds. We don’t fly the Rising Sun of Japan on government grounds either.

  2. Thayne Inman

    I agree to a point in that the desarcrtion of an object is theirs not someone else. The destruction of someone else or public property I believe is protected under the constitution.

    1. skepdick Post author

      Exactly. It should be illegal to physically harm another person through the destruction of an object you own, but if all you’re doing is hurting their feelings then that’s just too bad for them.

      1. Diane Zunich Brooks

        On the money…Or sacred stone…Or headdress of you favorite shaman on Sunday. ..Or any piece of a cloth from your mother’s coat. Whatever blows your skirt up. I disagree on the person in your local gay bar that you say does not love our flag, I will fight to the death for the freedom to love from your heart not just your reproducive pieces, parts…Is it so very hard to connect as souls first? That queer kid over there could be your son or daughter or mom or dad or grandmother or grandfather sister or brother. Hurt who you choose, more I importantly….Love who you want.

      1. Neil

        How about it is ok to teach Islam in schools. It is ok for them to bring their Koran into the schools. But let a 7 year old pass out bible notes and the shool calls the police to them, this happened. Do your research and you will see it all over, but obviously you can’t see the Truth because the Truth is not in you. I have said my piece, God Bless!!

        1. Don Keebals

          Neil, you idiot. Any child can practice their belief in school. Schools just can’t lead them in a belief. They can teach about beliefs, but that’s it. And that California school the 7 year old was passing out christian verses at, got it’s ass handed to it for civil rights violations. I guess it’s too much for a christian to know the whole truth

      1. Dave

        Separation of church and state you say? Then explain to me how the phrase “In God We Trust” made its way onto our money as well as into our courtrooms. The hypocrisy is deafening!

        1. r smith

          by congress in 1957 and by countless god fearin nuts before and since who need to force their religious silliness onto others in order to provide themselves a sense of legitimacy.

      2. Mumphie

        “Separation of church and state us real here” ..only real in the minds of people who twist the Constitution. Nowhere in it does that phrase exist. It came from an exchange of letters that Thomas Jefferson wrote to the Danbury Baptist Church. It isn’t, not had it ever been LAW.

        1. mpf088

          Clearly, the intention of the founding fathers was to keep religion completely out of politics. Contrary to what people also believe, one of the jobs of the supreme court is to interpret ambiguous parts of the constitution. Surprisingly, it’s very hard to write a set of governing laws that will pertain to the entirety of a nations existence. There’s also the establishment clause…which….actually is law. :/

    1. Craft Recruiter

      As a veteran I rever and honor our flag. I Revere and honor our countries freedom of speech and expression. I do not, however enjoy watching someone desecrate that symbol, but I do respect and honor their right to do so. I fought to maintain that right.
      For the most our founding fathers were devoutly spiritual men, and still foresaw the intrinsic need for separation of church and state. That does not, however, diminish the value and historic context of the phrase quote in “In God We Trust.” I do not wish to convert you to my belief system I just want you to realize the phrase was part and parcel in the lives of men like Washington Jefferson Madison . That is important to me.
      My biggest fear today is that we lose sight of what our founding fathers believed the Bedrock of this country — in our democracy and in our daily lives. What is that? I believe it to be a common decency and respect for those around us as we walk through our lives (with that freedom) on a daily basis. When was the last time you waved, said hello or genuinely welcomed someone that you did not know? When was the last time that you help someone simply because it was the decent thing to do? Instead of concerning ourselves with issues like desecrating Flags, why noy embrace being decent on a daily basis to each and everyone that we encounter in our lives. When in doubt, be nice; when someone is ill towards you, be nice. Our founding fathers firmly understood that decency is its own reward.

      1. Tim Carver

        Thank you Craft Recruiter for writing that. I enjoyed it very much and I do try every day to encourage someone or like you said, I at least try to be decent to others, I don’t see colors until it is jammed in my face and then I try to understand. There is a great deal of hate in the Country right now, I wish it would get the hell out! That’s all….

  3. Omar from India

    Usa ..very strange place….visit there….strange in gud way…in my country u brake law…lash to back….police in usa remind me of the ones in Canada. ..friendly. ..police in Mumbai. ..shoot first ask questions later. ..

  4. Art

    Actually, the United States Flag is not simply a symbol. It is codified in Title 4 that it is a living element of the country.
    So, by that fact, the Supreme Court has failed to recognize that the Flag of the United States of America, is a living element, affording it the same Constitutional and inalienable rights as any individual in the United States of America.

    1. David Trest

      It’s codified in the United States Code, which SCOTUS has the ability to rule on. It’s NOT codified in the Constitution, which they don’t.

  5. Corey Aldridge

    I do have strong feeling s about this. if i see someone doing thang to the my country flag i try to stop them
    see what the hell is going on we as a contry have much bigger thangs to fix such as all lives matter, helping our vet, why as a country are we helping other country whene we have homeless vets,wemem,kids,
    our country helth care plan is a joke, and lets commet on food stamps section 8 housing that all a joke also
    people use and abuse these programs. the people that need cant get on them and people on thim live better than me cuse i dont want to abuse the systom i work hard never took from any systom for help so i live with in my meens people on the these programs drive new cars,have all new electronics and ect
    just a few of my thougs thank for reading have a nice day

  6. Ed VanDyke

    When the state makes the symbol of the state sacrosanct, it’s the introduction of a fascist, “civil religion” , and the beginning of the end . If nothing else, “desecrating” the symbol of America should be the ONLY approved method of criticizing America. And if every other means of exercising free speech is abolished, that one must remain… If there’s ONE thing the First Amendment protects, it’s our freedom to criticize the state. Can anyone suggest a more singular way to do so?

  7. Thinkaboutit

    It should always be your right to desecrate the flag. It should also be the right of anyone that served or has family that has served to beat your ass and take it from you. Maybe it is “feelings” that generate the response but those same “feelings” drive the disrespectful “protest”. Think about what that flag ACTUALLY REPRESENTS. When you stomp or burn the flag, you are spitting on the graves of all the men and women who have made the ultimate sacrifice for their country. What would you do if you saw someone desecrating your family members grave? Applaud them and say “Just someone expressing free speech” ? People that lost brothers and sisters in combat don’t appreciate that gesture. You aren’t stomping on or burning the White House, Congress or any part of government. So by all means if you are compelled, stomp the flag. Just don’t be surprised if you get your ass stomped by a pissed off veteran.

    1. skepdick Post author

      I understand your strong feelings about what the flag means to you, but I think you misunderstand what free speech is. A flag that one person owns and chooses to burn is not the same thing as a person going and desecrating someone else’s gravesite. You don’t own the flag. Your idea of honor to our country isn’t touched one bit by someone else burning their flag. I agree with you that many people who lost loved ones in combat may not appreciate the gesture, but those people didn’t die so someone like you can “stomp some ass” because you’re upset about a bit of colored cloth going up in flames.

      1. Kwausimodo

        Love it. Savage, unobjective truth. Most claim to seek it. Some may understand it. Even fewer can live by it.

      2. Grunt

        The American People, more specifically Combat Veterans, own everything the flag represents. Many have paid ultimate sacrifices to keep that “SYMBOL” of freedom flying, therefore affording those pieces of dung certain freedoms in which they believe provide them a doorway to desecrate one of the most important symbols of this great country. Unlike ThinkAboutIt, I will hand out an asswhippin to anybody I see defacing, burning, or anything else dishonoring that symbol of Heroism, Sacrifice, and Blood.

    2. Tom v young

      I agree when you desecrate the flag you desecrate the graves of everyone that died defending the freedom it represents….. if you dont like life here then leave!!! Go where you do like life….. dont force your feelings or views on the rest of us…. that violates our rights… you can differ with anyones opinion but when you force me to participate in GAY MARRIAGE…..or to Condone ABORTION….
      You VIOLATE MY RIGHTS as an American

  8. Thinkaboutit

    Believe me I understand what free speech is. Freedom isn’t freedom from consequences or reactions from people. Just because you can do something doesn’t mean you should. It is not just a piece of colored cloth to many people. Just as a burial site is not just a piece of land to people. Just as Jesus on a cross may mean nothing to me, it may generate an emotional response from people if I disrespect it and stomp and burn it in front of them. It’s freedom of speech to protest outside homosexual’s funerals saying they are going to hell, but it is still wrong to do that to people and ignorant to think there should be no reaction. Showing a little respect can go a long way. I never said I would be the one to hand out a stomping. But I don’t think anyone should be shocked if a Combat Veteran forcibly takes a flag from you and smacks you upside the head if you are disrespecting it. In my opinion they are 100% justified in doing so. Veterans are constantly shit on by this country. They fight our wars and then (if they) come back home and we spit on them, desecrate the flag they fought for, ignore medical and mental health issues including mass poisonings (burn pits), let them become homeless and watch them commit suicide. But I guess it is too much to ask to ever show a little respect to the flag that has covered so many coffins.


    1. Trinket

      No. You don’t get to physically attack someone who is destroying his or her own property, no matter how much it offends you. What is so hard to understand about this?

  9. Harry Copper

    It is odd how one acts on initial perception or feelings without weighing both sides first. This is well written Sir and I agree with you that avoiding getting “butt hurt” isn’t a protected right. Burning flags offends me but doesn’t Trump (no pun intended) another person’s rights to act like a jackass. My suggestion is for your own sanity put the blinders on, don’t give the offender (non legal terms) the benefit of attention the long for, recognize what’s in your own heart and move on or change the channel. That’s it!

  10. sampson2978

    A note of clarification: while it is technically accurate to say that Illinois repealed the Flag Desecration statute codified at 720 ILCS 620 via Public Act 97-1108, that very same Public Act included and re-enacted a criminal prohibition against Flag Desecration which can be found at 720 ILCS 5/49-1. As the author observes, legal codes are “confusing shit”, and the practice of recodification only makes it worse. A comparison of the two statutes (620 versus 5/49-1) reveals that the two statutes are substantively (if not exactly) identical: under both the repealed and currently enacted statutes, a person who “publicly mutilates, defaces, defiles, tramples,or intentionally displays on the ground or floor any such flag, standard, color or ensign” commits a Class 4 felony punishable by 1 to 3 years incarceration and a fine up to $25,000.

  11. Tp

    Skep. You’re dealing with some dull pencils here. I give you credit for even trying to explain it to these self avowed professors of freedom. Stupidity is innate, but ignorance is a choice.

  12. Sheldon Forest former candidate Governor louisiana

    Seems to me our flag is like a copyright item you can print it or sew it up and the material belongs to you but the meaning and lets say the logo belongs to our Government and all of us at once . to defame our flag is to defame all of us . it would be nearly imposible to enact a law to protect it , however I porpose a law wich would hold harmless any citizen whom witness such an act from making an action to prevent flag desicration from occuring . this might deter it from happening .

  13. Nope

    Here’s what I find funny. You want to make the claim that it’s hurting the feelings of those who see the flag as a symbol of freedom. Which conversely becomes an insult to those of us who stood ready to die to protect that very same freedom.

    Let’s tear apart the symbolism in it all, the American flag represents our nation as a whole, which includes the constitution, that same constitution you cited as reasons why it should be ok to desecrate it. Not realizing that by desecrating the symbol of freedom you are in turn desecrating freedom. An oxymoron if you would.

    Also many of the people doing the desecrating are the ones who consistently complain about their fuckig feelings so please take that aspect and shove it straight up your ass.

    Or does my vulgar language hurt your precious little fifi’s.

  14. Andrea Woodall

    I think this should be brought to Washington’s attention again. Maybe this time something will be done. Look at the money that could be collected from these fools. Fine them, put them in jail until fine is paid and then charge them for their room and board while in jail.

  15. Jeff

    Skepdick, I agree with you on everything but gay marriage. It is a religious ceremony and religion and our God finds homosexuality ” abominable. Homosexuals have the right to do as they please, but marriage is a religious ceremony is off limits and when homosexuals marry, it desecrates the institution. They should have a “Civil Union” or something else to give them legal rights they are looking for like insurance coverage ect.


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