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