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Man charged with flag burning.
November 5, 2001 11:35 AM   Subscribe

Man charged with flag burning. Now, correct me if I'm wrong but it seems that The Supremes said such a law was unconstitutional right here. Why even charge him with it? To make an "example"?
posted by owillis (13 comments total)

 
Uhm, you don't think the "fire that damaged nearly two acres of woodland in northern Virginia" might have something to do with it?
posted by frednorman at 11:37 AM on November 5, 2001


Hm, I might have to take that back (now that I've actually read the article *blush*). It seems like he was charged with the actual flag burning after all.
posted by frednorman at 11:39 AM on November 5, 2001


Regardless of wether the law is constitutional or not, the police are required to enforce it. The police have to arrest flag burners while the law is on the books. Obviously police have been selective in the past though. I guess they decided not to be in this case.

Question: Does the SCOTUS have to reject each flag burning law?
posted by phatboy at 11:40 AM on November 5, 2001


Man, dumbasses like this one (Torchy McGee, the flagburner) make me sorry to be a "first amendment" cheerleader.
posted by ColdChef at 11:43 AM on November 5, 2001


I found it amusing that they feel the need to have the person arrested undergo a psychiatric evaluation. Because, of course, whomever burns the flag *must* be crazy, right? ;)
posted by terrapin at 11:49 AM on November 5, 2001


The rulings of the Supreme Court have very little (direct) effect upon local police officers, unless the state has chosen to change its policies.

However, for even a state prosecutor to file charges in a statute which is clearly unenforceable per the Supreme Court would be highly unusual, and quite possibly deemed to be prosecutorial misconduct.

In any event, anyone jailed on state charges of flag burning, per se, would be entitled to be released on a writ of habeus corpus sought from and issued by a local federal judge. The writ prevents any state officials from exerting physical possession over a person in violation of their federal civil rights.

If a person were jailed, or even uncomfortably handcuffed or otherwise inconvenience, on such a charge, by a police officer, then the officer and his agency would be subject to litigation under Section 1983 of the Title 42, U.S. Code, which subjects persons and agencies to civil liabilities for violating the civil rights of a person under color of state authority. However, once again, this possibility of litigation would not effect a prior restraint.

But, the bottom line, is that he has been dually charged under a general arson felony and the flag-burning misdemeasor. The latter charge will presumably be quickly struck by local prosecutors; the former charge will stay in effect, until and unless a (likely) federal court ruled that it was a pretext, just a backdoor way to prosecute someone for the speech crime of flag burning. If he burned down 2 acres, though, that pretext strategy probably will avail him nothing, except maybe get him able to strike veterans from his jury pool.
posted by MattD at 11:57 AM on November 5, 2001


Is there a chance they'll try to bring this issue before the supreme court again, in order to elicit a different decision because of the current circumstances?
posted by Doug at 12:55 PM on November 5, 2001


Aren't you supposed to burn a flag if it touches the ground? Maybe the Russian guy was just trying to be an American and do his civic duty - but screwed it up.....
posted by matty at 1:02 PM on November 5, 2001


Two points, matty, but I believe that you're supposed to retire a flag by burning it "in a dignified manner", which probably doesn't involve taking any forestland with it.

What ColdChef said, too.
posted by Sapphireblue at 1:09 PM on November 5, 2001


So, what happens if a giant flag becomes animate and starts choking me? Will I be charged with flag desecration if I rip it apart in order to save my own life?
posted by trioperative at 1:27 PM on November 5, 2001


Can't sleep, flag will eat me. Can't sleep, flag will eat me...
posted by rusty at 1:40 PM on November 5, 2001


Doug: the question of test cases in the criminal law context, in order to prompt the Supreme Court to overturn its prior holdings, is a very difficult one.

In theory, one could prosecute and convict an offender and then litigate his appeals up through the Supreme Court, but the problem becomes the habeus corpus one: the lower federal courts would refuse to allow the state to hold the person charged in jail, or to jail him for failing to appear in court or mount a defense, or to imprison him after he was convicted. Hence, he would have no reason (and, arguably, no standing) to appeal a conviction in the first place, even if a state trial judge would allow the case to proceed against a defendant who had no obligation to defend himself.

The Supreme Court has only been in the business of striking down categories of crimes and punishments for about 40 years, and in no instance has there ever been a conviction had and then appealed up which was for an offense or with a punishment previously judged unconstitutional.

(The most big instance of the Supremes backtracking -- the death penalty -- was where the Supremes expressly allowed the states to adopt new death penalty laws when it struck down the old death penalty laws.)
posted by MattD at 3:02 PM on November 5, 2001


What else is it illegal to burn in Georgia? If you can't burn a copy of the US flag, can you burn a copy of the US constitution? Can you burn a photo of the president? Can you blow up a model of the World Trade Center? You can't burn a cross there anymore, can you?
posted by pracowity at 11:35 PM on November 5, 2001


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