July 16, 2005

Teenager jailed for burning the flag.

But apparently he wasn't trying to express any ideas. Does he still have a free speech defense against the statute that penalizes "desecrating a venerated object"?


Gerry said...

Since the NYT only let's non-subscribers see the first line, here is a link to the MSNBC copy.

Ann Althouse said...

Hmmm... I didn't realize the pass-through was different for subscribers. I get cut off too after a certain amount of time, but that one is from yesterday. I'll change the main link.

Mr. I said...

What I find interesting about the whole flag burning issue is that the flag burning laws are singling out one single act of desecration while others are left untouched (or at least unpunished). For example, the flag rules and regulations (see here for some history) state that the flag should never be worn as apparel, yet many people wear American flag shirts and shorts every day. The flag should also never be used in advertising (such as on a credit card) or printed on anything intended for temporary use that will be discarded (example of this violation is the American flag stamp).

I realize that people who wear the flag as a shirt or use the American flag stamp do not do so with disrespect, but I say intent does not matter here. Disrespect of the flag is not determined by an individual's opinion or intentions; it is determined by the rules and regulations. These rules and regulations are quite clear and even though someone may have proud intentions by wearing the flag, this very act is in explicit violation of the rules whereas flag burning is not so explicitly prohibited. In fact, flag burning is an appropriate way in which a worn flag can be disposed of; this is to be done respectfully of course.

Bottom line is I think it’s hypocritical for governments (local, state, and federal) to ban (or punish) one type of flag desecration while other acts, that are in clear violation of the rules and regulations, are never punished.

Bruce Hayden said...


You are the con law prof, so probably have a lot more expertise here than the rest of us. But as I understand it, he apparently wasn't making a statement, and, thus, it wasn't speech (even to the extent that some actions are considered speech), and, thus, is not protected by the 1st Amdt.

Ann Althouse said...

The conlaw prof thing to do is to assign you to read a case. The case is Texas v. Johnson. And it would make a great exam question:

You are representing this teenager and you need to argue that even though your client was just horsing around and not trying to express anything, it still violates Free Speech to penalize him for burning a "venerated object" more than he would be penalized for burning an object not so classfied. How can you argue that the reasoning of Texas v. Johnson should be extended to protect your client?

Bruce Hayden said...

Need to think about this a bit at lunch. But my first thoughts are that your suggestion is not that much different from the justification for or against hate crime legislation.

iocaste said...
This comment has been removed by a blog administrator.
iocaste said...

I believe you cannot prosecute someone under a facially unconstitutional statute; the statute is void from its inception, even if a properly drawn statute could prohibit the teen's conduct.

KAWyle said...

There's another angle to consider -- establishment of religion. For the state to recognize and protect "venerated objects" is arguably an establishment of religion. Query: must a state religion involve a deity to violate the Establishment Clause?

Donna B. said...

The kid in Tennessee is also charged with theft, drinking under age, littering, evading arrest, burning personal property... why is there an interest in making it a political case, when it's rather clear it's a case of juvenile deliquency?

Matt said...

Doesn't "desecration" bear with it the context of there being a message of disrespect? He might not have a free speech defense to the desecration claim, but I'd think he'd have a claim that he didn't "desecrate" the flag because he lacked the intent to do so.

And I'm not sure there's a free speech defense to the lesser charges (unregulated fire, theft, etc.). I certainly believe people are free to burn the flag to send a political message, but the government can REASONABLY regulate the time, place, and manner of doing so. (And you have to burn your own flag--burning someone else's flag isn't OK.)

F15C said...

Kawyle: "There's another angle to consider -- establishment of religion."

One can venerate a religious object as a function of exercising one's beliefs, however one can also venerate a secular object like the flag with absolutely no religious context.

An religious person, agnostic peson, or religious person can venerate their parents or other persons or objects in a completely secular manner should they desire to do so.

I venerate the flag deeply due to my deeply held personal feelings and values with respect to my fellow American citizens and our country. But I do not venerate the flag or anything about America in any manner approaching a religious context.

I also do not support an anti-flag burning amendment. I support the right of an American to burn the flag of the US as a political statement should they be of a mind to do so.

However, (devil's advocate mode) I do believe that due to the very real veneration of the flag by many, that those burning it have a responsibility to do so in a manner, time, and place that does not effectively incite violence.

Burning a flag in protest at an event where there are a known concentration of people who do in all likelyhood venerate the flag (like an rally to honor those Americans who died in wars) could easily be expected to invite violence. Doing so is much like yelling 'Fire' in a crowded theater in terms of the responses that could reasonably be expected.

Scipio said...

Burning another person's flag?

Big-time no-no.

So we have theft, conversion, and trespass, as well as minor in possession?

Mneh, throw the book at him.

gt said...

Based on what I heard or remember, the cop's investigation was based on the flag burning, which only then turned up the other stuff, so there's at least an argument no probably cause, other charges go away.
Back when I was a bit more litigious, I wanted to bring flag burning cases under state constitutions.