Burning the Koran: Is it Legal? Looking to Flag Burning Cases for Answers

WASHINGTON, Sept. 10, 2010 -- Free speech experts agree that Pastor Terry Jones will not be violating the Constitution if he goes ahead with his plan to burn copies of the Koran.

"So long as one does not violate generally applicable, content neutral health and safety laws, one may desecrate or destroy a Koran, Bible or a rosary," said Richard W. Garnett, an associate professor at Notre Dame Law School.

But experts also agreed that burning the Koran would be an offensive act.

"This is free speech at its most basic, no matter how ugly it is," said Brandon Hensler, a spokesman for the American Civil Liberties Union of South Florida.

Burning the Koran, they say, is comparable to flag burning, another issue that was hot in the courts in the late 1980s.

"It's the same thing," said Kathleen Bergin, a professor at South Texas College of Law. "They are both venerated objects -- one is political and the other is religious. Burning them is a form of political speech protected by the First Amendment unless doing so is meant to incite violence."

But flags aren't burned regularly anymore. Why is that?

In 1989, a divided Supreme Court struck down a Texas law that banned the burning of a flag. The court held that the law violated the First Amendment of the U.S. Constitution. Justice Antonin Scalia voted against the law. In speeches he often brought up the case. He talked about how he was furious about the "bearded, scruffy, sandal-wearing guy" who had burned the flag. But Scalia said the First Amendment had handcuffed him.

Justice John Paul Stevens, however, surprised many in his passionate dissent. Stevens, a veteran of World War II who had witnessed the Vietnam War protests of the late '60s and '70s, said the flag is "more than a proud symbol of the courage, the determination and the gifts of nature that transformed 13 fledgling colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance and of goodwill for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival."

But Stevens' position on flag burning evolved since the 1989 ruling. In 2006, he told a Chicago audience that he would not support a constitutional amendment to protect the flag. He explained that since the high court's decision, "no one burns flags anymore."

Flag Burning No Longer a Form of Protest

More recently, Stevens told the New Yorker's Jeffrey Toobin, "The funny thing about that case is, the only consequence of it -- nobody burns flags anymore. ... It was an important symbolic form of protest at the time. But nobody does it anymore. As long as it's legal, it's not a big deal. You just don't have flag burning."