ACLU History: Flag Burning

September 1, 2010
The practice of flag burning as a form of political protest emerged during the Vietnam Era, prompting nearly every state in the nation to invoke little-used provisions making it a crime to 'desecrate' the flag. It wasn't until 1989 that the Supreme Court decisively struck down such provisions on constitutional grounds in Texas v. Johnson. The case arose when Gregory Lee Johnson was arrested for burning an American flag at a political demonstration during the 1984 Republican National Convention in Dallas, Texas. The ACLU represented Johnson in his lower court appeal and later filed an amicus brief supporting his Supreme Court case.

In response to the Johnson ruling, members of Congress introduced the Flag Protection Act, a Constitutional amendment to ban flag burning. Ironically, although the stated purpose of the Act was to end flag burnings, its immediate impact was to spur perhaps the largest single wave of such incidents in American history. Flags were burned in about a dozen cities shortly after the law took effect. The Supreme Court promptly struck down the law, but since that time numerous attempts to revive a Constitutional ban on flag burning have surfaced. In opposing various attempts to criminalize this form of expression, the ACLU has worked with veterans, religious leaders, members of the military, former White House officials, and other Americans who believe that such an amendment would undermine the very principles for which the American flag stands.


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