When Actions Speak: Flag Burning, Kneeling, and the First Amendment

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The First Amendment says Congress cannot make laws that limit free speech. Most people think of speeches or newspaper articles when they hear “free speech.” But the Supreme Court has ruled that some of the most powerful statements in American history never used words at all.

A student wearing a black armband to protest war. An activist burning the American flag. An NFL player kneeling during the national anthem. These actions can say more than any speech. They also create some of the biggest controversies in American law.

This is the world of “symbolic speech” – where actions become statements, and the courts must decide when the government can step in to stop them.

What Counts as Symbolic Speech

The legal system has specific rules for deciding when an action becomes protected speech. Courts use different terms for non-verbal communication. “Symbolic speech” means statements made through symbols instead of words. “Expressive conduct” covers any behavior designed to send a message. Both are different from “pure speech” – the communication of ideas through spoken or written words.

The First Amendment originally only limited the federal government. But through legal doctrine called “incorporation”, these rights now apply to state and local governments too. Neither Congress nor a state legislature can create laws that unconstitutionally limit this form of expression.

The Supreme Court has recognized a number of actions as expressive conduct. This includes picketing, marching, distributing leaflets, and even sitting silently at a segregated library.

Courts use two main tests to decide these cases. The first determines whether an action counts as “speech” at all. The second determines when the government has legitimate reasons to regulate that action, even if it is speech.

The Spence Test: Is It Speech?

In 1974, the Supreme Court created a test in Spence v. Washington to determine if an action qualifies as symbolic speech. The test has two parts:

Intent to Send a Specific Message: The person performing the act must have intended to communicate something particular.

Likelihood of Understanding: Given the context and circumstances, people who saw the act would likely understand the message.

If an action meets both requirements, it has enough “elements of communication” to earn First Amendment protection.

The O’Brien Test: Can Government Regulate It?

Just because something counts as speech doesn’t make it immune from all regulation. The government can sometimes limit expressive conduct. The framework comes from the 1968 case United States v. O’Brien, where a man burned his draft card to protest the Vietnam War. The Supreme Court upheld his conviction, reasoning that the government had legitimate interests in keeping the draft system running smoothly.

The O’Brien test has four parts for determining if a government regulation that limits speech is constitutional:

1. The regulation must be within the government’s constitutional power
2. It must serve an important or substantial government interest
3. The government interest must be unrelated to suppressing free expression
4. The restriction on First Amendment freedoms must be no greater than essential to serve that interest

The third part – that the government’s interest must be “content-neutral” – is often most critical. A law is suspect if its purpose is to silence a message the government dislikes. But if the law serves a purpose unrelated to the content of expression (like preventing public disorder or maintaining administrative systems), it’s more likely to survive.

This distinction between regulating conduct because of its message versus regulating it for non-speech reasons is central to First Amendment law. A law targeting the message itself faces “strict scrutiny” – a very high legal bar. A content-neutral law that incidentally affects speech gets judged by the more lenient O’Brien standard.

The boundaries of symbolic speech aren’t fixed. In the 1995 case Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court seemed to soften the Spence test’s requirement for a “particularized message.” It said a “narrow, succinctly articulable message is not a condition of constitutional protection.” This created disagreement among federal courts about exactly what standards to apply.

Key Supreme Court Cases on Symbolic Speech

Flag Burning: From Criminal Act to Protected Speech

No form of symbolic speech has created more intense legal and political conflict than flag desecration. For many Americans, the flag is sacred – representing national unity and military sacrifice. For others, it’s a powerful symbol to use in protest against the very nation it represents.

Early Flag Protection Laws

Laws prohibiting flag desecration aren’t new. By 1932, every state had such laws. Early in the 20th century, the Supreme Court upheld these laws in Halter v. Nebraska (1907), ruling that states could ban using the flag’s image on commercial products like beer bottles.

Modern flag burning as political protest emerged during the Vietnam War. States and the federal government began enforcing these laws more vigorously. In 1968, Congress passed the first federal Flag Protection Act in response to an anti-war protest in Central Park.

Spence v. Washington: The First Victory for Flag Protesters

The first major challenge to flag protection laws came in 1974. After the Kent State shootings and U.S. invasion of Cambodia, college student Harold Spence hung an American flag upside down from his apartment window. He had taped a large peace symbol made of black tape onto both sides.

Spence was arrested and convicted under a state “improper use” statute that forbade placing any design on the flag. The Supreme Court overturned his conviction in an unsigned opinion. Applying what became known as the Spence test, the Court found his action was clearly expressive conduct. The context – the recent, highly public events at Kent State and in Cambodia – made it likely his protest message would be understood.

The Court noted several key facts: the flag was Spence’s private property, he displayed it on private property, the tape could be removed without damaging the flag, and his protest didn’t disturb the peace.

Spence established that altering the flag for political expression could be protected speech.

Texas v. Johnson: The Landmark Decision

Fifteen years later, the issue returned in a far more inflammatory context. During the 1984 Republican National Convention in Dallas, protester Gregory Lee Johnson burned an American flag as the culmination of a political demonstration against Reagan administration policies. While some witnesses were seriously offended, the protest didn’t incite violence. Johnson was charged and convicted under a Texas law that criminalized “desecration of a venerated object.”

In a deeply divided 5-4 decision, the Supreme Court held that Johnson’s conviction violated the First Amendment. Justice William Brennan wrote one of the most powerful and controversial opinions in modern First Amendment history.

The Court’s Reasoning in Johnson

Flag Burning is Expressive Conduct: The Court easily concluded that Johnson’s flag burning was expressive. It occurred during a political protest, was clearly intentional, and its political nature was “overwhelmingly apparent.”

Government’s Interest Was to Suppress a Message: Texas offered two justifications for the law – preventing breaches of the peace and preserving the flag as a symbol of national unity. The Court dismissed the first, since no disturbance occurred. It found the second justification was the real issue. An interest in preserving the flag’s symbolic value is, by its very nature, related to suppressing expression. The government cannot mandate respect for the flag by punishing those who disrespect it.

The “Bedrock Principle”: Brennan articulated what has become a cornerstone of free speech law: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Court said this principle has no exception for the American flag.

Strengthening the Symbol Through Tolerance: In a striking argument, Brennan suggested the flag’s revered place in society would be “strengthened, not weakened” by the ruling. He argued that the nation’s resilience and principles of freedom and inclusiveness that the flag represents are reaffirmed by tolerating criticism like Johnson’s.

The Dissenting Views

The dissenting justices responded with equal passion, revealing a profound disagreement about the flag’s constitutional status. The core conflict was whether the flag’s unique status justifies an exception to standard First Amendment rules. The majority applied a universal principle – no idea can be banned for being offensive. The dissenters argued for the flag’s special status.

Chief Justice Rehnquist’s Dissent: Joined by Justices White and O’Connor, Rehnquist argued that the flag isn’t just another idea in the “marketplace of ideas” but a unique symbol of the nation itself, held in “almost mystical reverence” by millions. He contended that public burning was “no essential part of any exposition of ideas” and tended to incite breaches of peace.

Justice Stevens’ Dissent: Stevens argued the issue wasn’t about punishing Johnson’s political opinion but about protecting the tangible value of a “national asset.” He wrote that sanctioning public desecration would “tarnish its value – both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it.”

Congressional Response and the Amendment Movement

The Johnson decision caused a political explosion. Outraged members of Congress immediately moved to counteract the ruling. This sequence shows the dynamic interplay between the judicial and legislative branches. The Supreme Court’s ruling didn’t end the debate – it moved the battle to Congress.

Congress directly responded to Johnson by passing the Flag Protection Act of 1989. The law was immediately challenged, and in 1990, the Supreme Court struck it down in United States v. Eichman, reaffirming Johnson by the same 5-4 vote.

With courts blocking the legislative path, opponents of flag burning turned to the ultimate constitutional remedy: an amendment. Since Eichman, there has been a sustained political movement to pass a constitutional amendment granting Congress power to prohibit physical flag desecration. The House of Representatives has passed such measures multiple times, and all 50 state legislatures have passed resolutions calling on Congress to send an amendment to states for ratification. However, the proposal has consistently failed to achieve the required two-thirds majority in the Senate.

This ongoing political struggle demonstrates that a Supreme Court decision, while legally binding, doesn’t necessarily settle deeply felt public controversies. Instead, it can trigger powerful political backlash seeking to change the Constitution itself.

Taking a Knee: A Different Legal Question

In 2016, a new form of symbolic protest captured national attention, sparking debate that echoed flag burning controversies but rested on fundamentally different legal footing. When San Francisco 49ers quarterback Colin Kaepernick began kneeling during the national anthem, he ignited a national conversation about race, patriotism, and the First Amendment’s meaning.

The Protest’s Origin and Spread

Kaepernick’s protest began in August 2016, when he initially sat on the bench during the anthem to protest police brutality and systemic racial injustice. After talking with Nate Boyer, a former Green Beret and NFL player, Kaepernick shifted to kneeling. He explained this was a way to protest while still showing respect for military members and veterans.

“Taking a knee” quickly spread. Other NFL players, and eventually athletes in other sports and at all levels, from high school to professional, joined the protest. The reaction was intensely polarized. Supporters, including then-President Barack Obama, defended it as a legitimate exercise of constitutional rights to bring attention to important issues. Critics, including then-President Donald Trump, condemned it as disrespectful to the flag, military, and nation. Trump called on NFL owners to “fire” any player who knelt.

The Crucial Legal Distinction: State Action

The heated public debate was often framed in terms of players’ “First Amendment rights.” This reveals a common and profound misunderstanding of how the Constitution works. The core legal difference between flag burning cases and kneeling protests lies in one critical concept: the “state action doctrine.”

The First Amendment begins with “Congress shall make no law…” As interpreted by courts, this means the amendment’s protections against limiting speech apply primarily to government – federal, state, and local. In flag burning cases, the government was prosecuting individuals for their expressive conduct. This was clear state action, making the First Amendment directly applicable.

The NFL, however, is a private entity. Private employers are generally not bound by First Amendment speech restrictions. An NFL team owner could, in theory, discipline or fire a player for kneeling during the anthem without violating the Constitution, because the team isn’t the government.

This distinction is why the legal analysis for kneeling is so different from flag burning. The kneeling controversy is fundamentally a question of labor and contract law, not constitutional law.

The widespread confusion on this point serves as a powerful civics lesson. It exposes a gap between the public’s intuitive sense of “rights” and the actual legal framework, which carefully distinguishes between what government can do and what private citizens or organizations can do.

What Protections NFL Players Might Have

If the First Amendment doesn’t apply, what recourse does a private employee like an NFL player have? The protections are limited and come from other areas of law:

National Labor Relations Act (NLRA): This federal law protects employees’ right to engage in “concerted activities for the purpose of mutual aid or protection.” This typically covers actions related to wages, hours, and working conditions. Legal experts largely agree that kneeling protests, which address broad societal issues of racial injustice, would likely not be protected under NLRA because they’re not connected to specific employment concerns.

Title VII of the Civil Rights Act: This law prohibits employment discrimination based on race. A player could argue that being disciplined for protesting racial injustice is racial discrimination. However, this is difficult to prove, as employers would likely argue discipline was for violating workplace rules, not because of the player’s race or protest content.

Collective Bargaining Agreement (CBA): For unionized employees like NFL players, the most significant source of rights is the contract negotiated between their union (NFLPA) and employer (NFL). The NFL’s ability to discipline a player for kneeling depends on specific CBA language, particularly clauses allowing discipline for “conduct detrimental to the integrity of and public confidence in” the league. Disputes would likely be resolved by neutral arbitrators interpreting the contract, not courts interpreting the Constitution.

This legal reality highlights another crucial aspect of free expression in America: the “marketplace” can punish speech even when government cannot. While the First Amendment prevents government from jailing protesters, it offers no protection from social or economic consequences.

Colin Kaepernick became a free agent after the 2016 season and remained unsigned by any team, leading him to file a collusion grievance against the NFL that was later settled confidentially. Other protesting players lost lucrative sponsorships, and companies like Papa John’s Pizza publicly blamed protests for declining sales. This demonstrates that even when speech is constitutionally protected from government censorship, it’s not free from powerful non-governmental regulation in a free-market society.

When Speech Isn’t Protected

The First Amendment’s guarantee of free speech is among the world’s most expansive, but it’s not absolute. The Supreme Court has consistently held that certain narrowly defined categories of speech receive little to no constitutional protection because their potential for harm outweighs their value in the “exposition of ideas.”

Unprotected Categories

Even symbolic speech can be punished if it falls into these exceptions:

Incitement to Imminent Lawless Action: Government can prohibit speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This standard, from Brandenburg v. Ohio (1969), sets a very high bar. It’s not enough for speech to advocate lawbreaking in the abstract – it must be intended to and likely to cause immediate illegal activity.

“Fighting Words”: This refers to words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” This is a very narrow and seldom-used doctrine, generally applying to face-to-face personal insults likely to provoke violent reactions.

True Threats: This is a critical and highly relevant exception. A “true threat” is a statement where the speaker means to communicate a serious expression of intent to commit unlawful violence against a particular individual or group. The speaker doesn’t need to actually intend to carry out violence – the harm lies in causing victims to fear for their safety.

Courts distinguish true threats from “political hyperbole.” In Watts v. United States (1969), the Supreme Court overturned the conviction of a war protester who said if drafted, “the first man I want to get in my sights is L.B.J.” The Court deemed this crude political opposition, not a genuine threat against the president.

In the modern era, the Supreme Court has refined the standard. In Counterman v. Colorado (2023), the Court ruled that to convict someone for making a threat, government must prove the speaker had some subjective understanding of their words’ threatening nature. The standard is “recklessness” – meaning the speaker “consciously disregarded a substantial risk” that their words would be viewed as threatening. This prevents punishing people for speech that is merely misunderstood or taken out of context.

Symbolic acts can also be true threats. In Virginia v. Black (2003), the Court held that states could ban cross burning when carried out with intent to intimidate. Given the Ku Klux Klan’s history, a burning cross can be a “particularly virulent form of intimidation” and thus a true threat.

The legal distinction between a protected act like flag burning and an unprotected act like cross burning reveals the judiciary’s attempt to draw lines based on the nature of harm. The harm from flag burning, in the majority’s view in Johnson, was offense to witnesses – harm to sensibilities. The harm from burning crosses, as seen in Virginia v. Black, is direct and intentional creation of fear of violence – tangible harm to person’s safety and security.

First Amendment law is built on this hierarchy: the law is reluctant to protect people from being offended by ideas but robust in protecting them from credible threats of violence.

Time, Place, and Manner Restrictions

Even fully protected speech is subject to reasonable, content-neutral regulations on its “time, place, and manner.” This doctrine is a pragmatic tool that allows society to function while preserving robust protest rights. It provides a legal way for government to regulate disruptive aspects of protest without banning its message.

Government can impose rules on where, when, and how expression occurs, provided those rules meet a three-part test:

Content-Neutral: The regulation cannot be based on the subject matter or viewpoint of speech. A rule banning all protests in a hospital zone is content-neutral; a rule banning only anti-abortion protests is not.

Narrowly Tailored: Rules must serve significant governmental interests. This interest could be public safety, traffic control, or protecting residential privacy. The rule doesn’t have to be the “least restrictive” option, but it must promote the government’s interest effectively.

Ample Alternative Channels: Government cannot regulate speech in ways that effectively silence speakers by denying them reasonable ways to reach their intended audience.

Examples of valid time, place, and manner restrictions include requiring permits for large parades, limiting loudspeaker use in residential areas at night, or restricting sign sizes on public property. This framework prevents the right to protest from becoming a right to disrupt society, balancing individual liberty with the needs of an orderly community.

The Power of National Symbols

The legal arguments over symbolic speech, while complex, don’t fully explain the visceral, emotional reactions that acts like flag burning and kneeling provoke. To understand why people care so deeply, one must look beyond law to sociology and psychology, which explore the profound power of national symbols.

The Flag and Anthem as Sacred Objects

The American flag is more than cloth. It’s officially codified as a symbol of the nation. Its 13 stripes represent the original colonies, and its 50 stars represent the states. The colors themselves carry meaning: red for valor and bravery, white for purity and innocence, and blue for vigilance, perseverance, and justice. Culturally, it’s a powerful emblem of freedom, national unity, and military sacrifice.

The national anthem, “The Star-Spangled Banner,” is inextricably linked to the flag. It was inspired by Francis Scott Key’s sight of the flag still flying over Fort McHenry after brutal bombardment during the War of 1812. Together, they form a set of sacred national symbols.

The Psychology of Symbolic Protest

Sociologists and psychologists explain that national symbols are powerful agents in forming group identity. They help create what has been called an “imagined community,” binding millions of strangers together through shared belonging and collective identity. National symbols aren’t passive objects – they actively enhance national identification and promote group unity, often at an unconscious level.

Because of this immense power, social movements often target national symbols to communicate their message. By using or subverting a revered symbol, protesters can effectively challenge the status quo, question dominant national narratives, and capture public attention in ways that words alone cannot. The protest itself becomes political drama played out in the public sphere.

This use of national symbols in protest can trigger powerful psychological responses in witnesses. Political scientists have identified the “rally ’round the flag” effect – the tendency for public support for a country’s leaders and institutions to increase during periods of perceived external threat or crisis. An act of symbolic protest, like burning a flag, can be perceived by many not as dissent against specific policy, but as an attack on the nation itself – a threat to the “in-group.” This perceived threat can elicit strong emotions like anger and a defensive desire to reinforce group loyalty and punish the perceived aggressor.

The act of kneeling during the anthem presents a particularly complex psychological case. Kneeling is a posture that can signify reverence, mourning, or deference. However, when used to break a powerful social ritual – standing for the national anthem – it’s perceived by many as deviation from sacred norm. This deviation can trigger threat responses in the brain, leading observers to view the act not as a sign of respect or sadness, but as hostile challenge to the status quo and the group’s values. This creates profound disconnect in meaning, where protesters intend to convey solemn protest against injustice, while many observers perceive an act of profound disrespect toward the nation.

Two Competing Visions of Patriotism

These intense social and legal conflicts are surface manifestations of a deeper clash between two competing visions of patriotism. One side defines patriotism as reverence for the nation’s symbols and institutions. For this group, disrespecting the flag is, by definition, disrespecting the country and those who defended it. The other side defines patriotism as allegiance to the nation’s founding ideals – liberty, equality, and justice. For this group, protest is a patriotic duty aimed at holding the nation accountable to those ideals when it falls short.

The flag burning and kneeling controversies aren’t just about specific actions – they’re battlegrounds where these two deeply held definitions of patriotism collide. No court ruling can fully resolve this fundamental conflict of values. The law can only define what government is permitted to do. It cannot prescribe what citizens ought to believe, or what it truly means to be a patriot.

This leads to the central irony at the heart of the entire debate, as articulated by the majority in Texas v. Johnson: the intense focus on protecting the physical symbol of the flag can risk obscuring and even undermining the very principles of freedom that the flag is meant to represent.

The ongoing debates over symbolic speech reflect deeper questions about the nature of patriotism, the role of dissent in democracy, and the balance between individual expression and community values. These questions don’t have easy answers, and they likely never will. What the law does provide is a framework for protecting the space where these debates can continue – sometimes loudly, sometimes controversially, but always freely.

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