Illinois Man Sues Over Arrest for Flag Burning

1414249_1280x720We previously discussed the case of Bruyton Mellott who was arrested after posting online pictures of himself burning an American flag has filed a federal lawsuit seeking to have the state’s flag desecration law declared unconstitutional. The 22-year-old the Wal-Mart employee was charged with flag desecration despite two Supreme Court cases clearly saying that such an act is constitutionally protected. After various experts (including myself) said that the arrest was unconstitutional, the charges were dropped, but Mellott is now suing.  I personally find Mellott’s actions to be highly offensive and disturbing.  I have never understood the burning of the flag which represents our collective rights, including free speech.  Unfortunately, important free speech cases are often triggered by the most reprehensible forms of speech or most reprehensible individuals.  In the end, the lawsuit may force legislators to confront the fact that they have continued a facially unconstitutional law on their books because they fear the political backlash if they comply with long-standing Supreme Court precedent.

Mellott, who is being represented by the American Civil Liberties Union of Illinois and his complaint names several police officers. Urbana police have said they arrested Mellott to protect him from possible backlash from the online posts. He is seeking unspecified damages.

Supreme Court has stated clearly that flag burning is protected under the first amendment in Texas v. Johnson (1989) and U.S. v. Eichman (1990).

Police say that they responded to demands from citizens for an arrest – hardly a convincing defense to say that we were merely trying to appease the public with an unconstitutional arrest. What is equally bizarre is that he was charged with disorderly conduct as well as being the victim of disorderly conduct. His conduct was deemed as “causing others to be put at risk of harm.” That is facially ridiculous. Just as the act is constitutionally protected, you cannot charge some for the response of others to a constitutionally protected act. It is like arresting a journalist for the response of a reader to an article.

In an interview, the late Associate Justice Antonin Scalia explained why flag burning is protected speech:

“If I were king, I would not allow people to go around burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged — and it is addressed in particular to speech critical of the government,” Scalia said. “That was the main kind of speech that tyrants would seek to suppress.”

It is time for the legislature in Illinois to take as principled a stand and repeal this unconstitutional law.  We can then continue as a society to denounce offensive acts like Mellott’s flag burning as a desecration of not only the flag but the rights that it represents.


Here is the complaint: Mellott Lawsuit

120 thoughts on “Illinois Man Sues Over Arrest for Flag Burning”

  1. Give him a scholarship.

    Burning a flag is one of the greatest acts of political expression in which a citizen can engage.

    JT’s description of a fantasy land translates to our “collective rights” being represented through the flag. Hahaha that is facially invalid… history sings a different tune.

    But I’m glad it’s disturbing and offensive to the establishment folk in law and politics like JT. It tends to demonstrates their true concerns (appearance and legacy, not present human rights), and exposes their fluffy rhetoric as being simply fluffy rhetoric.

    1. I checked my oath of office didnt say a thing about land area, didn’t say anything about people, didn’t say anything about buildings and it said nothing about flags.

      All it covers is protect and defend the Constitution.

      Dindn’t say anything about flag burners either.

      Tell you what kid..Next time don’t dial 911 call your attorney.

  2. There are several ambiguities in the First Amendment which need to be clarified through Constitutional Amendment.

    Burning our nation’s flag is an expression of treason. We need a Constitutional Amendment to declare it so. I hope President Trump leads the Congress and the States to make this change to our Constitution.

      1. What part of ‘we need a constitutional amendment’ don’t you understand?

      2. Normally I am a very big free speech person, but as I have examined this issue of flag burning more in depth, it has become clear to me that this is a kind of action that crosses the line into treason.

        From Article III, Section 3 of our Constitution:

        “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

        Burning the nation’s flag is an expression of waging war against the United States. The flag does not just represent current policies or current political administrations. The flag represents our nation, and as citizens of this nation, we should all swear an allegiance to our nation to make it the best country possible. ISIS and other Islamic Terrorists burn our nation’s flag as an expression of their hatred for us and as an expression of their waging war against us.

        Burning our nation’s flag can be seen as adhering to (being compatible with and in accordance with) our enemies. It also gives aid and comfort to our enemies for them to see Americans hating our country.

        A Constitutional Amendment could give clarification concerning how this kind of action is treasonous and it would empower Congress to determine the penalties for such actions.

        1. Despite our complete agreement SCOTUS has spoken which means the last and final step is the ultmate source of power over ruling the Court with an amendment procedure. And that would solve half the problem. The other half is the refusal of local law enforcement to enforce the laws as others were simultaneously violated.

          The key issue to remember the Constitutional Oath mentions nothing about flags, nor people, citizens, nor Presidents nor real estate. The sole item mentioned is Constitution. Take a close look at the sections coverering loss of citizenzhip and the circumstances AND the use of violence in a revolution against or direct attack on our Constitutional Republic.

          The revolution is a fact, the use of violence is a fact and the required sworn duty of those who took the oath is a fact. It’s either a defense or it’s a full on counter revolution. Most in the military understand those points. Most involved in the revolution against the Republic do not.

          Ignorance of the law is no excuse.

          Those who have taken the steps stipulated are ipso facto no longere citizens by their own choice. I will not treat them as such.

          Only a legal, by consitutional rules, can the Republic be changed or abandoned. The perhaps unintended or unsuspected or unexpected consequence is not a defense.

          Those who flirt with such dangers including our outgoing President should stop and think thoroughly about one small detail.

          IF they get rid of the Constitution legally or illegally who will protect them? At that point it’s open season with a no bag limit.

          I personally do not believe they are smart enough to consider that eventuality. I do not believe they are important enough for the ruling class of their collective to concern themselves. Either way is fine with me.

        2. David, you’re smarter than this. Burning a flag gives no aid or comfort to the enemy nor does it levy war against the US.

          Jane Fonda’s statements in Hanoi are more to your point, but then again Richard Nixon short-circuiting negotiations with the Vietnamese prior to becoming the president makes Hanoi Jane not quite the villain du jour.

          1. Two others slightly different mold but longer in the oven. The common factor is a very intensive brush with death and living in constant fear. One became a Republican then a RINO and the other became a Democrat then a DINO. Both had living then dead heros to emulate and were themselves heros.

            Both abandoned that position and both ended up as part of the left wing socialist – government over citizens factions. One was a Freedom Marcher or Rider and had Martin Luther King and his principles to emulate and live up to a huge job in itself. The other was a member of the combat arms and spent years as a POW. That one had many to emulate and follow.

            One’s name is Lewis the other McCain. One fought against racism and became reverse racist. The other one fought for The Constitution and became a supporter of the Socialst left. One represents the left wing of the left and the other the right wing of the left.

            Now. Both stand for nothing and that will be their legacy.

            At least they had one – unlike Nixon and Obama.

          2. Steve Groen wrote: “Burning a flag gives no aid or comfort to the enemy nor does it levy war against the US.”

            What are you trying to say here? Are you suggesting that waging war against our country and siding with enemies of the USA will only happen when it is ISIS who burns our nation’s flag? Is the function of flag burning dependent upon the person doing the burning?

            Your reasoning here reminds me of how some people say that black people are allowed to use the N word but white people can’t.

            1. david, then just how does burning a flag give aid or comfort to the enemy or levy war against the US? Don’t you need that act plus something more?

              The ball’s in your court. And, by the way, if you’re arguing that this kid burned a flag because he supports ISIS, Russia, China, Duterte or whichever other enemy Washington dreams up to turn the economy’s sprocket, I’d be much obliged if you’d support your assertion.

              1. Steve Groen – given the effect of flag burnings in the US on the Viet Cong, I would say YES, flag burning does give aid and comfort to the enemy.

                1. And if his intent in burning the flag was to protest police shootings, would it matter that an effect on the Viet Cong could be inferred? If that’s the case, then any speech critical of the government would be treason, and you and John Adams’ Federalists (i.e., the advocates of a strong centralized government) would be in bed together.

                  What’s your next argument?

                  1. If it’s a declared war don”t open your mouth If it’s not there is a little leeway. The military does not like draftees You WILL get all the shit jobs and worst assignments. Tha’ts the part I left out. Treason laws etc have to do with the Constitution The rest of it has to do with the Uniform Code of Military Justice. Regular Army enlistees wil get none of them. NG’s and ERs will get some.

                    Now for those looking for the top of the heap jobs. it takes three years service rank of E5 three stripe sergeant , parachute wings and aptitude test equal to that required of going to commissioned officer school. In the Army there are only around 6,000 slots and as the old song goes 100 will test but only three will make the grade. Better you should think about a real skill such as heavy equipment operator or learning to be an electrician or plumber.

                    1. Michael A. writes, “If it’s a declared war don”t open your mouth[.] If it’s not there is a little leeway.”

                      As I wrote above, “you’re basically surrendering to a totalitarian state any time we have what the government deems an enemy and you speak out against what the government is doing. Do you want that kind of blind obedience, knowing we’re in a perpetual state of war for the finance, petroleum, and MIC swine running this country, or do you want to balance the definition of treason with the First Amendment?”

                      Imagine no one being able to say anything during wartime no matter what the government does in contravention of our best interests.

                      Got Stalinism?

                  2. Steve Groen – I lived thru the 60s and 70s. Now it was possible that there was a flag burning to protest police brutality, but I do not remember one. There were lots of flag burnings to protest the draft or rather being sent to Vietnam to fight, but we all had to go or find a way out of it. BTW, wearing a dress did not help. 🙂
                    There were serious protests and non-serious protests. The problem was they were all covered by American TV. That emboldened the North Vietnamese and the Viet Cong. Then we had that great military strategist Walter Cronkite tell us we had lost the war during the Battle of Hue. Still, we won the Battle of Hue with few troops, but the damage had been done. The most trusted man in America sealed the fate of that war.

                    1. Paul Shculte…Did you even TRY the dress?
                      When I went in for my draft physical, a fellow student had loaded up on speed before he went.
                      The readings he got in the phisical, + the needle marks on his arm, made him “unfit” for military service.
                      “picky, picky, picky!😉

                    2. tnash – when I went for my physical, the fact that you were breathing was almost enough to qualify you. I did have x-rays from my doctor which forced them to take a set to make sure I wasn’t faking it, that keep me at 2-Y.

                    3. Paul’s comment about wearing a dress didnt’ work is reversed. Nowadays front of the line to get the proper balance. So the problem is what? Men’s Divisions, Amazon Divisions and Alphabet Divisions. Anything to avoid what the military is for in the first place and to skip around tiptoe ing through tulips about why women aren’t treated equally and kept in second class citizenship status. The best move now would be to restrict the college loan money to women who had volunteered and restrict it to those of any sex who had not.

                      Second best move is openly offer on day one of age 18 an option to join the social contract and if offered and accepted then would come full citizenship with the rights and responsibilities. For those refusing. Second class status perhaps a form of Green card. Can’t deport them they would have no passport and no country issues visas without a passport. But…someone has to chop cotton, weed lettuce, clean chickens, and work for McDonalds. Oh yes. Noi minimum wage either.

                2. Paul: I see your point, but if that’s the standard for aiding the enemy, then you’re basically surrendering to a totalitarian state any time we have what the government deems an enemy and you speak out against what the government is doing. Do you want that kind of blind obedience, knowing we’re in a perpetual state of war for the finance, petroleum, and MIC swine running this country, or do you want to balance the definition of treason with the First Amendment?

                  Granted, with our military in trenches waiting to meet their maker, what Hanoi Jane did seemed to be over the top, and there may have been a basis with which to prosecute her, but the entire episode at that point was a fraud on us anyway. Trying and putting Fonda before a firing squad would have been a rather outrageous pie in the face TO ALL OF US once it was disclosed to the public that the entire Maddox Incident was a fraud. Wouldn’t you agree? And it can be said that Jane Fonda taught us all a lesson.

                  And Mr. Nixon, an ordinary citizen like Fonda, interfering with the Paris peace talks with Hanoi? That’s not aiding and comforting the enemy by your definition? Where’s the outrage, Mr. Schulte?

                  So, when you start throwing around the term traitor, knowing they’re hiding facts under the umbrella of national security, please do tell me how anyone gets due process in a trial for treason?

                  Full circle, if I walk down main street and put a Bic lighter to a two-bit replica of the US flag, or even with a placard reading “Out of Syria, Iraq, Yemen, Somalia, and Afghanistan!,” your belief that this constitutes treason seems a bit awkward.

                  1. Steve Groen – I think we no longer have a clearly defined enemy to give aid and comfort to. We arm the Taliban, then we fight them. We fight ISIS, then we support them. Who the hell’s side are we on?

                    Jane Fonda is a traitor. We did not know about Nixon until just lately. We have Soviet spies we have not prosecuted because of the passage of time. If it helps, I boycott all Fonda films and all Nixon films.

                    1. Are you all speaking about Richard Milhous or some other NIxon? I knew he was crooked bu tthen most politicians are. I didn’t know he was an actor????

                    2. Paul: I don’t see any difference. Did we have a clearly-defined enemy in Vietnam? It seems to me we were doing back then exactly what we’re doing now:

                      Ernest Gruening (D-AK), during the Gulf of Tonkin debates, objected to “sending our American boys into combat in a war in which we have no business, which is not our war, into which we have been misguidedly drawn, which is steadily being escalated.”

                      Go ahead. Make my day. What’s the difference?

                    3. But the only one that voted against Tonkin Gulf Resolution which started LBJ’s war was Wayne Morse, D Oregon.

                    4. Steve Groen – there is a difference between clearly defined enemies and clearly defined military goals. Most of the time we were in Vietnam, we were not there to win, just to get a draw. However, we had clearly defined enemies: the Viet Cong and the North Vietnamese. Our job was to see that South Vietnam did not lose. We won tactically, but all of those flag burners and and anti-war marchers kept the North Vietnamese in the game. They felt that eventually America would lose the will to win, which is exactly what happened. So, do I think Hanoi Jane is a traitor, yes!!!! Did Nixon delay the peace talks, I really don’t know.

              2. Steve Groen wrote: “… just how does burning a flag give aid or comfort to the enemy or levy war against the US? Don’t you need that act plus something more?”

                Waging war might require more, although we should keep in mind that a threat is defined by intent and the ability to follow through with damages. People can communicate a threat against the USA by burning a flag. This is not to say that EVERY flag burning is associated with waging war, but it certainly is an expression of disrespect and hatred for our country.

                Giving comfort to our enemies, however, can be done even without intent. Expressing hatred for one’s own country gives comfort to our enemies who also hate America. Burning the flag is an expression of hatred against the country that flag represents.

                Put yourself in the place of an enemy fighting a country. If we were at war with Iraq and the Iraqi citizens were burning the Iraqi flag, and perhaps burning effigies of their leader, would not that action comfort you and embolden you that your cause of war against Iraq was justified? How did you feel when you saw the Iraqi people pulling down that statue of Saddam Hussein?

                Being a citizen of a country should require some level of support for your country. One might disagree with an administration or with policies, and they should be free to express their discontent, but they should not hate the country because of that. Burning the flag is more than just disagreeing with politics. Bryton Mellott might have burned the flag on July 4th simply because he is not proud to be an American, but in doing so, he gives comfort to the enemies of our country, and it assists them in their ideological case that the USA is the Great Satan. Ironically, our enemies would likely execute him because of his sexual proclivities and dressing like a woman.

                By the way, it is not just State law that creates an issue here, but federal law. Title 4 Chapter 1 outlines the many ways in which our flag should be treated. Section 8 says, “No disrespect should be shown to the flag of the United States of America.” It also says, “The flag should never be carried flat or horizontally, but always aloft and free.” Also, “The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.” There are good rational reasons these laws were created.

                The Supreme Court may have pronounced the burning of the flag to be Constitutionally protected speech, but an Amendment to the Constitution would correct this error.

            2. You shouldn’t worry about something that isn’t happen. Short of the draft being activated and assuming you aren’t to old etc. it’s not your fight whatever the fight may be. You just get to sit back, relax and awit the outcome and the consequences.

              1. Michael – Steve might be draft eligible. That could influence his writings.

                1. As I recall the initial bracket is 18-35 and the entire bracket includeds up to age 45. But then it’s not a draft if they signed that card at age 18 in order to get a student loan (paid or not) or a government job. The signing is considered a voluntary act even though there is a hefty fine and jail sentence for not registering – Catch 22 – but there’s another twist.

                  At age 18 any act of citizenship counts as accepting the social contract. Paying taxes, registering to vote, etc. Any number of things. Getting a federal approved as national ID drivers license. Accepting the social contract means accepting full rights AND responsbilities of citizenship. The women are still gettting a free ride on that where college money and government jobs are concerned …..however….accepting that loan and or that job is another way of accepting the social contract. Depends on how the law is interpreted.

                  And that is set up according to the need when the draft law is fully activated and the reporting letters go out and that depends on what deferments are granted and for what reason. The National Guard will of course have gone first and the Reserves.

                  First thing is a physcial deferment and that’s not set in stone under the new rules the physical standards for rear echelon jobs are a lot less. For the new physical fitness tests go to they just posted them.

                  Other deferments were sole surviving son, family dependent on the potential new soldier possibly pregnant wife or newly born, but those have to be discussed in Congress. In the meantime With the National Guard out of the picture ROTC is a a good choice but not in Universities that dropped that program. Graduating on time with a Second Lieutenant Commission is usually preferable than going to Basic training. Although if the college degree is present OCS after initial training is available if the slots are available.

                  The term of service is two years minimum IF there is not a declared war. And then there was the lottery. Starting at the youngest age of 18 they figure out how many bodies are needed and work their way up the age brackets.

                  The Universites won’t be able to play favorites as it’s all about equal this and that so half the slots at school will be female and part of the slots at schools will be those who can’t pass this or that test.

                  That’s all IF it’s done as it was before.

                  Two things. Best thing is the college deferment with ROTC and don’t trust recruiters. Many a ‘cruit signed up for a four year hitch in the Navy as medic only to find out the real name is corpsman and that’s where the Marines get their corpsmen. aka medics. Sign up for guaranteed tour in some place like Germany if such exist and they onlyhave to give one day.

                  But remember ETS means Estimated Term of Service and a declared war means duration plus six months minimum;

                  Another reason not to vote Democrat they are the only party that supported keeping the draft or conscription law on the books and the program active.

                  Welcome to reality snowfakes.

          3. Actually, given the social media fixated world and the fact that certain sorts are easily emboldened, it is arguable that burning the flag, if it is publicized, is lending aid and comfort to the enemy in the same way as Hanoi Jane’s words and photo shoot did.

            1. Only if there is a declared state of war something the US Congress has shied away from for a lot of reasons. One is all life insurance polices would immediately be null and void and not paid. But it goes beyond that. The most important is Congressional responsibility.

              Notice that with todays B2 Bombings in Libya Obomba is going out as major big time war monger President which to his party is a major legacy to be proud of since they are the straight up hands down indisputable war monger party of the last 100 years. Of those two dozen or so ‘conflicts’ and ‘police actions’ WWI, WWII were the only ones declared as wars with most of the total the vast majority of the total begun by Democrat Presidents.

              Apparently this one is still in the one way or the other column but since WWII the Democrats have failed to finish successfullyanything they started except numbers of body counts of US Soldiers and other categories.

              Now let’s here the whiners of the war monger fascist left refute that WITH FACTS not BS. Ii’ve already posted the whole list multiple times so probably they will just do the ignore and play pretend it doesn’t exist act .

      3. David B. Benson:

        Remember Tokyo Rose (Iva Toguri), convicted of treason for radio broadcasts which lowered the morale of troops during wartime? Imagine our soldiers fighting ISIS and other Islamic radical groups watching citizens over here burning the American flag. Think that might have a similar effect?

          1. Never used the name Tokyo Rose and on broad casts inserted hidden messages and played music which the GI’s in the Pacific liked. Did some fall for what they thought was propaganda? Probably. Every group has it’s weak members.

          2. DesperatelySeekingSusan – there is some thought that there were several women who played the part of Tokyo Rose.

            1. There were several women, and that’s well known. Iva Toguri was the only one prosecuted because she was easy to identify and locate. The whole case is one of those examples you encounter from time to time of justice ill-served by a pathological social type you might call the ‘prosecutor – prick’. These types cannot bear to admit error and they’ll press absurd claims to avoid official acknowledgement of that error and they’ll suborn perjury to boot. Judges have manufactured phony legal doctrines to prevent them from ever being held to account.

          3. DesparatelySeekingSusan wrote: “She was pardoned. She likely wasn’t guilty.”

            There would be no need for a pardon if she was not found guilty. The point is that even under the way our current Constitution reads, she was convicted of treason for radio broadcasts which were deemed supportive of enemies of the USA.

            Robert Henry Best is another person who was convicted of treason for radio broadcasts sympathetic to the Nazi’s. The jury said that he gave “aid and comfort to the enemy.” He was given a life sentence and later died in prison.

            Probably a better example related to flag burning is William Bruce Mumford, who was executed for treason because he tore down an American flag during the American Civil War.

            We are currently at war with ISIS and other Islamic terrorists. Our flag should be respected by our citizens.

            1. There would be no need for a pardon if she was not found guilty. The point is that even under the way our current Constitution reads, she was convicted of treason for radio broadcasts which were deemed supportive of enemies of the USA.

              President Ford pardoned her because he thought the jury had erred and that she was not, in fact, guilty. She was convicted on one count. A surviving juror in 1976 said he regretted his vote to convict her. He’d held out for a while in the jury room. The case against her was bogus in its inception and rested on perjury.

  3. This is just some little twit looking for attention. Just ignore him. One of these days he might get burnt playing with matches.

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