DESECRATION OF FLAGS

The First Amendment provides everyone with freedom of expression. However, that freedom does have its limitations. One of those limitations is the prohibition on the desecration of the American Flag, or the flag of any of the Individual States. Convictions for desecration of a flag can carry harsh fines and even possible jail time.

What is the legal definition of Desecration of Flags?

NRS 201.290 defines Desecration of Flags.

NRS 201.290 – Penalty; exception.

Any person who, in any manner, for exhibition or display, puts or causes to be placed any inscription, design, device, symbol, portrait, name, advertisement, words, character, marks or notice, or sets or places any goods, wares and merchandise whatever upon any flag or ensign of the United States, or state flag of this State, or ensign, evidently purporting to be either of the flags or ensign, or who in any manner appends, annexes, or affixes to any such flag or ensign any inscription, design, device, symbol, portrait, name, advertisement, words, marks, notice or token whatever, or who displays or exhibits or causes to be displayed or exhibited any flag or ensign, evidently purporting to be either of the flags, upon which shall in any manner be put, attached, annexed or affixed any inscription, design, device, symbol, portrait, name, advertisement, words, marks, notice or token whatever, or who publicly or willfully mutilates, tramples upon, or who tears down or willfully and maliciously removes while owned by others, or defames, slanders, or speaks evilly or in a contemptuous manner of or otherwise defaces or defiles any of the flags, or ensign, which are public or private property, shall be guilty of a misdemeanor.
This section shall not apply to flags or ensigns the property of or used in the service of the United States or this State, upon which inscriptions, names of actions, words, marks or symbols are placed pursuant to law or authorized regulations.

I thought it was illegal to burn a flag, why don’t I see that in the statute?

Burning a flag is something of a conundrum. According to the statute above, it is illegal to deface or defile a flag in any way. This would clearly include flag-burning, since that would be a permanent defacement. However, the United States Supreme Court has ruled that it is not illegal to burn the flag, as it is a form of “symbolic speech,” and therefore protected by the First Amendment. Consequently, while the police can arrest you for flag-burning in violation of NRS 201.290, it is unlikely that they actually would do so as the case would almost certainly be thrown out of court.

Please Note: while flag-burning is not a crime, in itself, the circumstances can give rise to criminal charges. If the flag belongs to someone else, or is in a location where the fire may damage people or property, then you may be prosecuted for other crimes such as arson, theft, vandalism or malicious mischief, and possibly even reckless endangerment.

Then what exactly is prohibited?

The statute is very difficult to understand, particularly because it is written as one long, run-on sentence. Essentially, there are five ways to violate NRS 201.290:

Defacing or defiling the flag;
Defaming the flag (which somewhat confusingly also includes “speaking evilly” of the flag);
Publicly or intentionally mutilating, trampling on, or tearing down a flag;
Displaying a flag that has been defaced, defamed, or altered in any way that defames the flag;
Willfully and maliciously removing a flag owned by another person (stealing someone else’s flag).

As you may have noticed, for the most part, prosecuting these crimes is difficult because they are not easily proven. Obviously, “speaking evilly” about the flag is going to be a very difficult crime to prove. Moreover, as with flag burning, defaming the flag, or publicly mutilating the flag are often forms of “symbolic speech” that will carry First Amendment protections. Consequently, the most likely versions of this crime to be prosecuted are the malicious removal of another’s flag, tearing down a flag, and displaying a defaced flag, because they easier to prove and/or because they include other crimes, such as theft, vandalism or malicious mischief.

What are the possible penalties?

Desecration of the flag is a misdemeanor in Nevada, which carries:

Up to 6 months in a county jail; and/or
Possible fines up to $1,000.

Please Note: If you are charged with any of the tangential crimes (arson, theft, vandalism or malicious mischief, reckless endangerment) you will be facing the penalties for both crimes, it will not be a situation of one or the other. You may be able to get the sentences to run concurrent (meaning at the same time), but it will be in the court’s discretion whether it wants to run the sentences concurrent or consecutive (meaning you have to finish one before you start the other).

Are there any Defenses?

Yes, of course there are. Some of the possible defenses include:

First Amendment – As noted above, the United States Supreme Court has ruled that many forms of flag desecration fall within the protection of the First Amendment’s “symbolic speech” and the freedom to such speech. If you can show that your desecration of the flag fell within the limits of the First Amendment’s protections, the charges against you should be dropped or dismissed.
Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” Flag desecration is a notoriously difficult crime to prove, in part because many of the forms of flag desecration leave no physical evidence, or the evidence is protected by the First Amendment. If there is not enough evidence to uphold this high level of proof, or that the evidence is too unreliable, then the charges should be dropped or dismissed.

What should I do if I’ve been charged with Flag Desecration?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.