A Year In Prison For Flag Burning? It's Already (Unenforceable) Law In Vermont

Nov 29, 2016

President-elect Donald Trump caused a stir on social media Tuesday morning when he Tweeted that burning the American flag should be punishable by a year in prison or a loss of United States citizenship. Vermonters may be surprised to find out that part of Trump’s proposal is already enshrined in state law.

Trump’s proposal was widely described as unconstitutional, in part because the U.S. Supreme Court ruled in 1990 that flag-burning is a form of free expression protected by the First Amendment to the U.S. Constitution.

When the highest court in the nation made that ruling, however, Vermont already had a law on the books that says a person “shall not publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield.”

The law applies to the Vermont state flag and the U.S. flag, and anyone who violates it “shall be imprisoned not more than one year or fined not more than $1,000, or both.”

According to the staff at the Vermont state archives, the Vermont ban on flag-dissing became the law of the land in 1941, the same year Japanese warplanes attacked Pearl Harbor, bringing the U.S. into World War II.

These days, the state’s law isn’t much more than a historical record. Because the U.S. Supreme Court ruled that flag burning and other forms of desecration are protected as free speech by the U.S. Constitution, the “Supremacy Clause” of the Constitution says that no state-level laws can reverse those protections.

John Treadwell, the chief of the criminal division in the Vermont Attorney General's office, says the U.S. Supreme Court decision made Vermont's law meaningless.

"It's unenforceable as a criminal statute because it's protected speech under the First Amendment," he said.

Treadwell noted that the state has many outdated laws, such as a law against treason.

"The legislature could repeal it," Treadwell said, but that wouldn't change the legal landscape. "I mean it's unenforceable. It's effectively a legal nullity."

Update 4:11 p.m. This post was updated to include comments from John Treadwell.

Update 7:12 p.m. The headline on this story has been updated to clarify that the law is not enforceable.