Burning the flag of the United States of America in protest is considered free expression under the First Amendment of the U.S. Constitution. So ruled the U.S. Supreme Court in 1989 in Texas v. Johnson, in which the court struck down a Texas law that prohibited “desecration of a venerated object.”

Texas had argued that the state’s interests in preserving the flag as a symbol of national unity were more important than Gregory Lee Johnson’s right to symbolic speech. But an appeals court overturned a lower court’s decision affirming the Texas law, ruling “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol …”

In a 5-to-4 decision, the U.S. Supreme Court upheld the appeals court ruling, stating that though Johnson’s protest wasn’t verbal expression, it was “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.”

Burning the flag is characterized as “expressive conduct” of an “overtly political nature (that) was both intentional and overwhelmingly apparent.”

In his dissent, Justice William Rehnquist wrote that protection of the flag was legal because “millions and millions of Americans regard it with an almost mystical reverence.”

But in his concurring opinion, Justice Anthony Kennedy noted that sometimes the court has to hold its nose over its distaste when affirming constitutional rights that might result in actions that offend a majority, “… perhaps for fear of undermining a valued principle that dictates the decision.”

The court’s decision not only struck down the Texas law, but also invalidated similar laws in 47 other states.

In response, in 1989 the U.S. Congress passed the Flag Protection Act, which was also struck down a year later by the Supreme Court. The most recent attempt to pass a flag desecration act failed by one vote in the Senate in 2006.

While flag desecration is offensive to many, noted the court, “The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

According to Eugene Volokh, a professor of law at UCLA, the best historical evidence suggests arguments presented by proponents of flag desecration laws are flawed.

“The Framers fully understood ‘freedom of speech, or of the press’ to include symbolic expression as well as verbal expression,” wrote Volokh for the Wall Street Journal. “The Framers were working within a late 18th century common-law legal system that generally treated symbolic expression and verbal expression the same.”

Now that that point is out of the way, let us also be perfectly clear that stealing a flag and then burning it is against the law because it is destruction of another’s property.

And stealing a flag from a war memorial and burning it is not only illegal, but reprehensible and repugnant.

While it is understandable that those who have fought, or lost loved ones who have fought, under the banner of the flag would be upset at the disrespect shown by whoever committed a criminal act of vandalizing a memorial, we should all step back from our initial reactions and take a deep breath.

The Constitution, which guarantees the application of fair, equal and moral justice, is what our friends and family members fought and died for.

While, for many, the flag is the symbol of all that is good about the country and represents our history and the legacy of those who died protecting it, it is just that, a symbol.

But the Constitution is more than a symbol; it is a manifestation of a greater good, a nation built in response to tyranny on laws based on what is right and moral. We should respect and defend the Constitution first and foremost.

And part of that Constitution guarantees free expression, whether we like or not the method of that free expression.

— The Brattleboro (Vt.) Reformer