We 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