Criminal charges for desecrating and “insult[ing]” American flag?

May 19, 2014

WJAC-TV reports:

A Duncansville man [Joshua Brubaker] says he was standing up for his American Indian heritage and expressing his beliefs when he hung an American flag upside down and spray painted it earlier this week, but police said what he did was inexcusable….

Allegheny Township Assistant Police Chief L.J. Berg said he received complaints about the flag from others in the area. “I was offended by it when I first saw it,” Berg said. “I had an individual stop here at the station, a female who was in the military, and she was very offended by it.” So police took it down and charged Brubaker with [misdemeanor] desecration and insults to the American flag. “I removed it from the building, folded it properly and seized it as evidence,” Berg said….

“People have paid high prices for that. People have paid the ultimate sacrifice,” Berg said. “People have made too many sacrifices to protect the flag and to leave this happen in my community, I’m not happy with that.” …

What a coincidence — I’m not happy with police officers either not knowing the law or not caring about it. The relevant statutes are here and here:

A person is guilty of a misdemeanor … if, in any manner, he:

(1) for exhibition or display places any marks, writing or design of any nature … upon any flag;

(2) exposes to public view any such marked or defiled flag; …

A person is guilty of a misdemeanor … if he maliciously takes down, defiles, injures, removes or in any manner damages, insults, or destroys any American flag or the flag of the Commonwealth which is displayed anywhere.

They are clearly unconstitutional following Texas v. Johnson (1989) and United States v. Eichman (1990). Indeed, the law on this is clear enough that the police officers wouldn’t have qualified immunity in any lawsuit that Brubaker might bring against them.

Thanks to Robert Dittmer for the pointer.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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