So We Can, or We Can’t Desecrate the Flag?

By Sam Lea,
Legal Satyricon Correspondent

Police in Winona, Minnesota charged a 14-year-old boy with desecrating a U.S. flag, after he wrote song lyrics on it, burned holes in it with cigarettes, and then proceeded to tear the flag into several pieces. He then scattered the pieces throughout his high school before skipping class to attend the “Rage Against the Machine” concert on September 3rd in Minneapolis during the Republican National Convention.

The penalty carries with it a maximum penalty of 90 days in jail and a $1,000 fine. The boy told police he knew that it was illegal, but did it to “excite his friends who were unable to attend the concert” (link to the story

Despite the fact that the Supreme Court has addressed the flag-desecration issue directly in Texas v. Johnson (1989), which invalidated prohibitions on desecrating the U.S. Flag, 47 states, including Minnesota, still have laws that prohibit its desecration. (complete listing of state statutes ).

Perhaps fearing getting involved in a lengthy court battle or having the law reviewed and stuck down as unconstitutional, prosecutors dropped the charges against the teen last week. Winona Police Chief Frank Pomeroy stated that the law has been on the books for “a long time,” recognizing that there are several US Supreme Court decisions striking down similar laws.

Although the First Amendment won the day in this instance, the potential existed for a very controversial free speech show down. The case would have turned on whether or not the student’s speech possessed sufficient communicative elements to invoke the First Amendment. This two part test was laid out in Texas v. Johnson, stating that the teen would have to have “an intent to convey a particularized message,” and whether the “likelihood was great that the message would be understood by those that view it.”

On these facts, it may have been difficult for the teen to meet this test. First, after tearing the flag to “shreds,” no one would have been able to read the song he wrote on it. Second, he did most of this from home and just brought the remaining shreds to school scattering them. The student told police that he did it to get his friends excited that were unable to attend the “Rage Against the Machine” concert.

The student’s actions may have been to convey a particularized message, but I’m not sure who would have understood it. The State could have easily portrayed his actions to seem like incitement of lawlessness (encouraging others to skip class for the concert).

On the other hand, it would have been fun to have seen a defense attorney attempt to link up the student’s message, with Rage Against the Machine’s political often revolutionary message, and the Republican National Convention.