In 1862, during the Union army's occupation of New Orleans in the American Civil War, the military governor, Benjamin Franklin Butler, sentenced William B. Mumford to death for removing an American flag. Today, defacing a flag is an act of protected speech under the First Amendment to the US Constitution, as established in Texas vs. Johnson (1989), and reaffirmed in U.S. v. Eichman (1990).

After these decisions, several “flag burning” amendments to the Constitution have been proposed. On June, 22, 2005, a flag burning amendment was passed by the House with the needed two-thirds majority. On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the 

Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states.