Why It's Not Illegal To Burn The American Flag

A young man from central Illinois spent the Fourth of July in jail on Monday after sharing photos on his Facebook page in which he is seen burning an American flag. Following the incident, Bryton Mellott has reportedly received threats through his social media accounts for expressing discontent with violence in America. Threatening Mellott is certainly not OK, and imposes on his right to express his concerns, no matter how much anyone might disagree with them. With that in mind, is it illegal to burn the American flag? Or are concerns over Mellott's sentiments based on a nationalism rather than the law?

Mellott shared the photos to social media on Monday with this description:

I am not proud to be an American. In this moment, being proud of my country is to ignore the atrocities committed against people of color, people living in poverty, people who identify as women, and against my own queer community on a daily basis.

Mellott was arrested for flag desecration and disorderly conduct, and he was simultaneously listed as a victim of disorderly conduct, according to a police report. However, burning the American flag is legal under the First Amendment, and there is an important reason for that controversial right.

In 1989, the Supreme Court heard the case Texas v. Johnson, in which Gregory Lee Johnson argued that he had a constitutional right to burn the American flag in protest. Johnson suggested that burning the flag was "symbolic speech" which should be protected under the First Amendment. The Court voted in his favor. The matter came up again in the 1990 case United States v. Eichman. There, the Supreme Court voted in favor of free speech yet again.

Regarding flag desecration, the ACLU notes the following:

Our democracy is strong because we tolerate all peaceful forms of expression, no matter how uncomfortable they make us feel or how much we disagree. The U.S. Supreme Court has affirmed and reaffirmed that the right to desecrate the flag is included in the Constitution’s protection of speech.

Flag burning and desecration is offensive precisely because it is political. Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, as Congress has repeatedly sought to do, but to express disapproval.

But threats of violence are not a valid expression of disapproval, but rather a way of pushing an individual with dissenting views into silence. No matter how uncomfortable some may be with the act of burning a flag, it is not illegal or unconstitutional. U.S. News reported that Geoffrey Stone, a law professor at the University of Chicago, suggested that "[Mellott] clearly had a constitutional right to do what he did and cannot be punished for it, whether for flag discretion [sic] or for disorderly conduct." U.S. News also reported that Mellott's arrest came after a number of people reported their discontent and concern over his post to the Urbana Police Department. In this case, the arrest also poses a threat to an individual's right to share unpopular opinions online.

It is important to protect the right to free speech, not violent speech, no matter how unsettling it may be for some. If the First Amendment is upheld in this case, then Mellott will not be charged for his actions.