Is burning of American flag unlawful in the US? Gautam Gambhir shares a fake quote

BJP MP Gautam Gambhir shared an infographic on September 4 which ascribed a quote to former US Secretary of Defense, James Mattis – “Forget Jail: If you burn the American Flag, you’ll spend two years in the military. I promise you, you’ll be cured of the desire to burn a flag ever again. You’ll be waving in, saluting it, or lying under it.” It also carried the words, “This should be implemented in our country too” – suggesting that regulation punishing citizens for burning the American flag by enrolling them in the military exists in the US.

Gambhir’s tweet was liked over 12,000 times and retweeted nearly 2,500 times at the time of writing this article. It is noteworthy that the infographic shared by the BJP MP adorned a ‘Mahesh Vikram Hegde’ stamp – the man behind the infamous fake news portal Postcard News. Hegde has been arrested twice in the past by the Karnataka police for spreading misinformation.

Fact-check

Did James Mattis ever make such a statement?

We tried looking for news reports that might have quoted the former US Defense Secretary as saying that flag burners will have to serve two years in the military. None exist.

A reverse-search of the infographic led us to a website that shares memes. The website had picked up a 2017 post from a Facebook page ‘Right-Winged Birds of Pray’ which clearly mentions that the quote isn’t an official statement given by Mattis. “Not an official quote. Just an awesome idea featuring legendary Marine, and now Secretary of Defense, Mattis,” reads the caption.

James Mattis had resigned as the Defense Secretary last year. The post was made in 2017 when he was serving in the government. The infographic shared by Gautam Gambhir is a replica of this post except for the image of Mattis used by Hegde to create the copy.

In short, former US Secretary of Defense and military veteran James Mattis never said that individuals who burn the American flag should be enrolled in the military for two years.

Is there an existing law in the US against burning the American flag?

President Donald Trump had recently endorsed the Republican party’s proposal to implement a ban on burning the American flag. This itself serves as evidence that the country does not have an anti-flag burning law in place.

All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!

— Donald J. Trump (@realDonaldTrump) June 15, 2019

In 2016, the President had tweeted that igniting the American flag must have consequences “perhaps” loss of citizenship or incarceration. Trump’s tweet suggested that US law does not penalise citizens for setting ablaze the national flag, however, such regulation should be implemented.

Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

— Donald J. Trump (@realDonaldTrump) November 29, 2016

The United States has the Federal Flag Code that provides guidelines for the display and respect of the American flag but the law neither has enforcement provisions nor penalties for non-compliance. For a better understanding, we have to look into the history of how the country has dealt with the burning of the national flag through the years.

The US’s involvement in the Vietnam War was met with mass protests at home that spanned across ten years, starting in 1964. To oppose the brutality of the war, protestors set fire to the American flag several times to voice resistance and demand that the government calls back its troops. Reacting to the protests, the US government approved the Federal Flag Desecration Law which laid down criminal penalties for the desecration of the national flag.

In 1989, a Texas man Gregory Lee Johnson was convicted of “desecration of a venerated object in violation of a Texas statute” for burning the American flag to protest against the Reagan administration and some Dallas-based corporations. In the landmark judgement of Texas v. Johnson, the US Supreme Court held that “Johnson’s conviction for flag desecration is inconsistent with the First Amendment,” which means that the court recognised flag burning as freedom of expression guaranteed by the US Constitution.

In response to the Johnson ruling, which was only applicable to the state of Texas, the US Congress enacted the anti-flag burning law Flag Protection Act of 1989 which “fined or imprisoned for not more than one year, or both” the violators of the law. After citizens were arrested and charged under the revised statute, the Supreme Court again held the law unconstitutional in the United States v. Eichman ruling of 1990.

Throughout history, there have been attempts to bring in laws that would allow the US Congress to prohibit flag desecration but none of these is enforceable. In plain language, desecration of the US flag, including its burning, is protected under the First Amendment of the US Constitution. Citizens can, however, be convicted if a stolen flag is burnt or the fire causes damage to property.

BJP MP Gautam Gambhir, therefore, shared an infographic that was factually incorrect on all counts. Not only is the burning of the US flag permitted by law but former Defense Secretary James Mattis never said that those who set fire to the flag should be forced to serve in the US military for two years.