Constitutional Law Expert Reaffirms Unconstitutionality of Targeting Flag Burning

Constitutional law expert Paul Sherman recently reiterated the long-standing legal principle that efforts to specifically prohibit flag burning remain unconstitutional, even in the context of broader public safety regulations. In a tweet dated August 21, 2025, Sherman commented on the potential for legal challenges, stating, "Probably this will order Bondi to review flag burnings to see if they violate any content-neutral law, like a ban on public burning." He immediately cautioned, "One problem: Singling out flag burners because they burned a flag (and not something else) is still unconstitutional."

The U.S. Supreme Court has consistently affirmed that flag burning constitutes symbolic speech protected under the First Amendment. Landmark decisions such as Texas v. Johnson (1989) and United States v. Eichman (1990) established this precedent, overturning state and federal laws that sought to ban flag desecration. These rulings underscored that the government cannot prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.

While direct prohibitions on flag burning are unconstitutional, the courts have acknowledged that content-neutral laws can be applied to such acts. These laws, which do not target the message or content of the expression, might include general bans on open flames in public spaces or ordinances addressing public disturbances. The critical distinction, as highlighted by Sherman, lies in the intent and scope of the law: it must apply equally to all similar conduct, regardless of the symbolic message conveyed.

Sherman's commentary, potentially referencing a review by Florida Attorney General Ashley Moody (or former AG Pam Bondi), serves as a reminder of the ongoing tension between symbolic expression and public sentiment. Despite the clear constitutional protections, debates surrounding flag burning often resurface, reflecting persistent public and political discourse on the limits of free speech and the reverence for national symbols. The core legal challenge remains the same: any law that specifically targets flag burning due to its expressive content, rather than its general impact, is likely to be struck down.