Burning the American flag feels like a slap in the face to millions of Americans who cherish what it stands for. It represents freedom, sacrifice, and unity. So, when someone lights it on fire, emotions run hot. That’s exactly what has happened recently as former President Donald Trump has once again called for making flag burning a crime punishable by jail. While the sentiment may resonate with patriots, legal experts like William Kirk of Washington Gun Law remind us: the Constitution doesn’t allow it, no matter how offensive the act might be.
William Kirk: “It’s Protected Speech – Like It or Not”
In a recent video, attorney William Kirk tackles the issue head-on. He makes one thing crystal clear: burning the American flag, no matter how despicable it seems, is protected under the First Amendment. Kirk openly admits he personally finds the act “repulsive” and “abhorrent,” but he also stresses that the Constitution isn’t built to protect popular speech – it’s there to protect unpopular and even offensive speech. That’s the whole point of the First Amendment.
Texas v. Johnson: The Supreme Court Made the Call
The legal backbone of this issue traces back to the 1989 Supreme Court case Texas v. Johnson. In that case, protestor Gregory Johnson burned an American flag during a demonstration outside the Republican National Convention. He was arrested under Texas law, but the Supreme Court ruled in a narrow 5–4 decision that the conviction violated his First Amendment rights. Justice William Brennan wrote the majority opinion, joined by Justices Kennedy, Scalia, Marshall, and Blackmun. They held that the government could not ban expression simply because society finds it offensive.
Justice Scalia’s Hard Truth
One of the most surprising votes in favor of protecting flag burning came from the late Justice Antonin Scalia, a staunch conservative. When asked about it later, Scalia remarked, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag – but I am not the king.” That quote, brought up by William Kirk in his video, shows just how seriously the Court takes the principle of free speech, even when the results are personally detestable.
President Trump’s Push for Jail Time
Despite decades of Supreme Court precedent, former President Donald Trump reignited the debate during a speech at Fort Bragg. Trump declared that anyone who burns the flag should face “one year in jail.” He framed the act as unpatriotic and linked it to anti-American protestors carrying foreign flags and throwing concrete chunks at police. In his view, flag burning isn’t just speech – it’s part of a broader assault on American values and law enforcement. Trump vowed to work with senators like Josh Hawley to criminalize the act, despite knowing the legal odds are against him.
Senator Roger Marshall: “It’s a Kick in the Gut”
Appearing on Fox & Friends Weekend, Senator Roger Marshall of Kansas strongly backed Trump’s call for flag-burning laws. As a U.S. Army veteran, Marshall said watching people desecrate the flag is “a kick in the gut” to every American who has served. He didn’t mince words: “I’m all for it,” he said when asked about Trump’s idea for a one-year jail sentence. Marshall sees it as a matter of respect, not legality.
But the Supreme Court Already Said No – Twice
After Texas v. Johnson, Congress tried again to ban flag burning by passing the Flag Protection Act of 1989. But in 1990, the Supreme Court struck it down in United States v. Eichman. Again, in a 5–4 ruling, the Court said government cannot prohibit speech just because it’s offensive. Kirk explains this in detail, pointing out that efforts to criminalize flag burning always end up the same way – in court, and ultimately, in defeat.
A History Lesson in Free Speech
Kirk also gave viewers a historical look at the issue. He cited the 1907 case Halter v. Nebraska, where the Court upheld a law banning commercial use of the flag on beer bottles. That’s a long way from flag burning, but it set early precedent. Things changed dramatically during the Vietnam War, when protestors began using the flag as a political statement. That shift pushed Congress to pass federal flag desecration laws in 1968. But by the 1970s, the tide had already begun to turn, with the Court ruling in Spence v. Washington that even altering a flag with a peace symbol was protected speech.
Offensive Speech Still Has Limits – Just Not Legal Ones
Kirk is quick to clarify something important: the First Amendment doesn’t shield you from consequences – only from legal punishment. “Ask Colin Kaepernick,” he said, referencing the former NFL quarterback who kneeled during the national anthem and saw his career take a hit. You can protest all you want, but that doesn’t mean you won’t get blowback from the public, employers, or even friends and family. The Constitution just says the government can’t throw you in jail for it.
Why This Debate Still Matters
Here’s what makes this issue so fascinating – it’s not just about flags or jail time. It’s a mirror for how America handles its most difficult principles. You don’t have to like flag burning. In fact, most people probably don’t. But the true strength of a country isn’t in how it treats agreeable speech; it’s how it protects speech that pushes boundaries. That’s what makes the First Amendment powerful – and dangerous. It forces us to live with ideas we hate so we can protect the freedom we love.
The Patriot’s Dilemma
This whole debate is a test for American patriotism. Do you believe in freedom enough to let someone mock the very symbols that represent it? For many veterans and everyday citizens alike, the flag is more than cloth – it’s a memory of sacrifice. That’s why this debate gets so emotional. But laws driven by emotion often crash against the Constitution. That’s exactly what keeps happening with flag burning bans. And like Scalia said, we aren’t a monarchy. We follow the rule of law – even when it hurts.
You Don’t Have to Like It – But You Can’t Ban It
At the end of the day, Trump, Marshall, and many Americans want to criminalize something that feels like betrayal. But as William Kirk and the U.S. Supreme Court have made clear, the Constitution doesn’t work that way. Flag burning is deeply offensive, yes – but that’s not a good enough reason to throw someone in jail for it. As long as the First Amendment stands, the right to express even the ugliest opinions remains protected. And maybe that’s the most patriotic principle of all.
Mark grew up in the heart of Texas, where tornadoes and extreme weather were a part of life. His early experiences sparked a fascination with emergency preparedness and homesteading. A father of three, Mark is dedicated to teaching families how to be self-sufficient, with a focus on food storage, DIY projects, and energy independence. His writing empowers everyday people to take small steps toward greater self-reliance without feeling overwhelmed.