A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires. ... Here the State does not, and likely could not, articulate an interest that would justify restricting expression."

Though the statute has never been removed from the state's code, it had not been enforced since 1989 when the US Supreme Court ruled in Texas v Johnson [opinion] that flag burning was protected under the First Amendment. Since that landmark decision, the issue of flag burning has been a contentious legal issue which has received a large amount of legislative attention. In 1995, 2000, and 2006 the US Senate has voted on amending [JURIST report] the Constitution to ban flag burning. The closest these efforts came to fruition was in 2006 where the measure failed by one vote [JURIST report].