Burning The New Jersey Flag: Free Speech?

This week, many around the world are mourning the death of singer Whitney Houston, whose music is beloved by many. But her death has also sparked controversy, after New Jersey ordered the state flag to be flown at half-mast.

As protest to the flowered flag, a Michigan man who lost his son in Iraq in 2005 has taken to burning the New Jersey flag. He claims that lowering the flag for Whitney Houston dilutes the gesture’s symbolic meaning, and degrades the death of his son.

In turn, many are outraged that the father would burn the flag of the Garden State, and some have asked: can you even do that? Isn’t it illegal to burn the U.S. flag? If so, shouldn’t it be illegal to burn a state flag?

The question of whether you can burn a flag has long been recognized as an issue of free speech. This is because although the activity is not vocal or verbal, it is inherently expressive. When an action is not done for the sake of doing it, but in order to express a symbolic truth or invoke a reaction, it is considered expression which is protected by the 1st Amendment to the Constitution.

In this case, the Supreme Court has long held that flag burning is protection expression which cannot be outlawed for no reason other than that people are offended by it. Now, if it is done in a dangerous way, it can be regulated to a certain extent.

Although the Supreme Court has never ruled on state flag burning, it is presumed that the same protections would apply.

Governor Christie, who ordered New Jersey flags to be flown at half staff, has defended his decision to honor the cultural New Jersey icon that was Whitney Houston.

This information is not intended as legal advice.

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