The Court left for a later day the question of whether it is constitutional or unconstitutional to prohibit, without reference to the utterance of words, the burning of the flag (see Texas v. Johnson and United States v. Eichman).

The Constitution provides that all Americans have the right to free speech; specifically, the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

"[5][a][b] After hearing a news report of the attempted murder of James Meredith, the defendant, Sidney Street, took a 48-star U.S. flag and burned it.

"[6] He was arrested, and a document was prepared that charged him with the crime of Malicious Mischief in that [he] did willfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law, under the following circumstances: .

"[11] To determine whether the prohibition of "words" in contempt of the American flag was constitutional or not, the majority examined four legitimate public interests that putatively were protected by the law being challenged: The Court found that all four of these interests, considered together, are not sufficient to justify any law prohibiting the utterance of "words" against the U.S. flag.

Chief Justice Earl Warren strongly criticized the majority's narrow reliance on the question of whether a prohibition on "words" uttered against the flag is constitutional or not.

[19] Justice White strongly chastised the court for failing to reach the core question of whether a state may prohibit the burning of the flag: The Court has spun an intricate, technical web but I fear it has ensnared itself in its own remorseless logic and arrived at a result having no support in the facts of the case or the governing law.

First, he argued, if the flag were nothing more than an ordinary item of property, the state could prohibit its burning merely as an exercise of its authority to protect the public safety.

The flag's status as a special emblem of nationality, however, entitles it to additional protections, some of which have been upheld by the Court in the past.

[22] In summary, "Protest does not exonerate lawlessness"; thus, the state can prohibit the burning of any item in public, and the nature of the flag entitles it to more protection under the law, rather than less.