Federal court strikes down Missouri’s flag desecration statute


(Reuters / Jim Young)

Friday’s Eighth Circuit decision in Snider v. City of Cape Girardeau (8th Cir. May 30, 2014) reaffirms what should have been obvious, following the Supreme Court’s decisions in Texas v. Johnson (1989) and United States v. Eichman (1990): A statute that reads,

Any person who purposefully and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United States or the flag of the state of Missouri is guilty of the crime of flag desecration.

is unconstitutionally overbroad, in violation of the First Amendment. The court also rejects the defendant police officer’s argument that they should be immune from liability because they were relying on an arrest warrant:

A reasonably competent officer in Officer Peters’ position would have concluded no arrest warrant should issue for the expressive conduct engaged in by Snider. Although it is unfortunate and fairly inexplicable that the error was not corrected by the county prosecutor [H. Morley Swingle] or the magistrate judge [Gary A. Kamor], no warrant should have been sought in the first place. Thus, the district court correctly concluded Officer Peters was not entitled to qualified immunity.

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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