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Is It Illegal to Burn a Flag?

Is It Illegal to Burn a Flag?

The First Amendment to the U.S. Constitution affords us the right to freely express ourselves. Of course, those protections aren’t absolute, which means there are some exceptions to the law. For instance, making statements that could cause others to suffer harm or distributing materials a reasonable person would consider obscene isn’t legal.

However, the First Amendment does protect symbolic speech – nonverbal forms of communication that are expressed through actions. That includes burning a U.S. flag. The Supreme Court decided that flag burning was constitutional in the landmark 1989 case Texas v. Johnson. The defendant was accused of violating a Texas law that prohibited flag burning. The offense was a felony that resulted in a fine and 1 year of prison.

The defendant in Johnson burned a flag outside of the Republican National Convention. He did so to protest then-President Ronald Reagan’s policies. Although its decision was split, the Supreme Court ruled in that case that flag burning was a form of symbolic speech.

Nevada’s Laws on Flag Burning

Under the U.S. Constitution, flag burning is not illegal. However, Nevada has a law on the books that prohibits a person from defacing a U.S. or state flag. This statute makes it a crime to mark up a flag, but it doesn’t explicitly state that setting fire to one is unlawful; although this conduct could be implied.

N.R.S. 201.290 states that a person commits an offense when they do any of the following acts to a U.S. or state flag:

  • Display a flag that has been altered by an inscription, design, device, symbol, or any other marking;
  • Publicly or willfully mutilate it;
  • Tear down a flag owned by others;
  • Speak evilly or defame it; or
  • Deface or defile a flag on public or private property

This law is considered somewhat controversial because it prohibits acts to government flag that could be deemed symbolic speech and a constitutional protection. Because of that, a prosecutor might not pursue a charge specifically for flag burning.

However, the alleged offender might be prosecuted for an offense such as:

  • Third-degree arson: willfully burning someone else’s property valued at $25 or more
  • Malicious mischief: willfully or maliciously destroying the property of another
  • Reckless endangerment: willfully disregarding the safety of others

What If It Wasn’t a U.S. or State Flag that Was Burned?

Although a person can burn any flag, that doesn’t mean they won’t face charges. As mentioned earlier, the State can prosecute under other statutes when a government flag is burned, and they could do so for a non-government flag as well.

Depending on the type of flag set on fire, the consequences could be severe. For instance, suppose a person makes negative statements about someone’s sexual orientation. That person then grabs a Pride flag and burns it. Their actions would be prohibited under Nevada’s arson law, and could also be pursued as a hate crime. They could be punished by a minimum of 1 year and a maximum of 20 years in prison in addition to the terms of imprisonment for the arson offense.

Get Legal Representation from The Draskovich Law Group

If you’ve been accused of a crime in Las Vegas, it’s imperative to get skilled legal representation on your side. Our team has over 25 years of combined experience and have handled matters from drug crimes to violent crimes. We will fight hard to protect your rights.

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