I used to be inclined to think that flag-burning laws were a slam-dunk First Amendment issue. I'm not as sure any more, at least at the state level (not sure where in the enumerated powers the feds get the power to ban it.)
1/
1/
Can a state decide that certain symbols are sacred, and can't be messed with, so long as (a) people are warned clearly and in advance by the law; and (b) there are many alternative ways of expressing the same point of view without touching the sacred symbol? 2/
Certainly, this historically would have been within the police power, and not considered an interference with "the freedom of speech." And I'm not sure there is any really strong reason to override the historical/originalist position. 3/
Even though I think banning and prosecuting flag-burning is a silly use of government resources. /end
PS, I do think such laws would have to be limited to something like an actual American flag. Having someone draw a picture of a flag on a piece of paper, and burning that? Come, now.
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