First Amendment “Freedom of Speech” Has Its Limits

A county court sentenced an Oklahoma man to serve up to ten years in state prison for setting an American flag and the state flag of Oklahoma ablaze at the steps of a county courthouse (along with committing a few other violations of state law). His transgressions offer an opportunity to delve into how an act — such as burning the American flag — that is defensible as a form of protected free speech can also be prosecuted as a criminal offense. Here is a hint: don't do it at 2:30 in the morning, you may want to actually be protesting something contemporaneously.

A night of misadventure leads to an arrest

The event’s critical facts in question began when a twenty-four-year-old man took it upon himself to remove the American and Oklahoma flags from their usual location at the county courthouse and lit them on fire on the steps of the building at about 2:30 a.m. Police arrested the individual after he broke into, and set fires inside, a gas station convenience store closed for the night.

According to news reports, police charged him with arson, second-degree burglary, and malicious injury to property. His guilty plea resulted in a judge sentencing him to serve ten years in prison minus the credit he received for time already served awaiting sentencing.

Flag burning – a criminal act or protected form of protest

The flag-burning aspect warrants a closer look at challenges to federal and state legislation, which create criminal offenses for burning or otherwise desecrating the American flag. As it turns out, it’s the details that make burning a flag on the steps of a courthouse or, for that matter, any other building at 2:30 in the morning a criminal offense rather than a constitutionally protected form of free speech.

Oklahoma makes it a felony for any person to burn or otherwise cause damage to the flag of the United States. The statute, which was first adopted by the state in1919, has undergone a few amendments over the years, but defiling the flag by bringing shame or disgrace to it for unpatriotic or profane purposes remains a serious criminal offense in 2020.

It doesn’t come as a surprise that prosecutors apparently chose not to add flag destruction to the list of offenses levied against the twenty-four-year-old. The reason possibly goes back to an incident at the 1984Republic National Convention and Gregory Lee Johnson’s arrest.

The Supreme Court tackles flag burning

Mr. Johnson was one of many people who gathered in Dallas to protest government policies. During a public protest, Mr. Johnson set fire to an American flag. At his trial on charges of violating a similar state law prohibiting desecration of the flag, witnesses called by the prosecution testified about how observing the flag being burned offended them. Their testimony provided proof that Johnson did the act with the knowledge it would offend others watching it, which was a critical element of the offense. Mr. Johnson was convicted of the crime, but his conviction was overturned on appeal. The state subsequently appealed to the U.S. Supreme Court.

The Supreme Court ruled that burning the American flag was expressive conduct that could be used as a defense to criminal prosecution. It went on to say that, absent proof of a substantial government interest other than controlling freedom of speech, the First Amendment protection applies to activities involving the American flag.

It is important to note that the High Court specifically referenced the omission of anything in the record showing law enforcement effectuated Mr. Johnson’s arrest to restore or maintain the public peace and order. The prohibition in the flag-burning statute at issue had nothing to do with preventing breaches of the peace. According to the Court, what the law did was attempt to preserve the symbolic meaning of the flag, which the Court found restricted Mr. Johnson's freedom of speech as applied to the factual situation presented by the case.

Facts matter

Cases involving flag burning as a form of expressive speech show the importance of not only knowing the wording of a statute but of understanding the legislative intent of those words as well. Criminal defense lawyers, as well as prosecutors, must also be aware of how courts may interpret and apply the law based upon the facts of a particular case.

In other words, why would a prosecutor charge someone with flag burning and invite a First Amendment challenge, even when not supported by the facts, when the facts and evidence support other, equally serious charges? Some laws are kept on the books simply because they are rarely, if ever, used due to the fear that they may be found unconstitutional on appeal.

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