There is a troubling case in Panguitch, Utah where a woman has reportedly been charged with a hate crime for allegedly “stomping on a ‘Back the Blue’ sign” at a gas station. There is a national movement to add attacks on police as a category of hate crime in various states. This case is an example of the serious free speech concerns raised by such prosecutions. Many of us find this conduct to be offensive and obnoxious. However, it is also a classic form of protest and political speech.
The police affidavit states that a Garfield County police officer was conducting a traffic stop for speeding at a gas station when the officer saw a woman “stomping on a ‘Back the Blue’ sign next to where the traffic stop was conducted, crumble it up in a destructive manner and throw it into a trash can all while smirking in an intimidating manner towards me.”
The officer confronted the woman and demanded to know where she got the sign. While the woman claimed it was her mother’s., the officer said that the sign was clearly one of those made by the local Sheriff’s Office and thus “she had acquired it in our community.” He then arrested the woman and cited her “inconsistent stories” about where she found the sign.
That would be a pretty weak case of property destruction but the police then added a “hate crime enhanced allegation” due to “the demeanor displayed by [the woman] in attempts to intimidate law enforcement while destroying a ‘Pro Law Enforcement’ sign.”
The charge was brought under Section 76-3-203.3, which states a person who commits any primary offense — such as misdemeanor property destruction — with the intent to “intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person” is subject to a class B misdemeanor primary offense becoming a class A misdemeanor.
As a result, the woman could received up to a year in prison or a fine of up to $2,500.
The case run afoul of the First Amendment and controlling precedent in my view. We have previously discussed flag burning cases.
In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court voted 5-4 that flag burning was protected speech under the First Amendment to the United States Constitution. It is considered one of the core cases defining free speech in the United States. Brennan was joined by Marshall, Blackmun, Scalia, and Kennedy (Kennedy wrote a concurrence). I agree with the decision as did conservatives like Scalia, who Trump has expressed great admiration for. Justice Anthony Kennedy wrote a powerful concurrence where he famously stated:
“For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”
Congress has shown the same opposition to the decision as Trump. It passed the 1989 Flag Protection Act to make it a federal crime to desecrate the flag. That law was struck down in United States v. Eichman, 496 U.S. 310 (1990). The Court ruled that “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
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.”
If the American flag can be burned as protected speech, the same is true with “stomping on a ‘Back the Blue’ flag.”
Police are asked to perform a public safety role that many would find impossible. They are asked not only to put their lives in jeopardy every day but must also cope with citizens who heap scorn and insults on them. They are symbols of the state and some view them as personifications of systemic racism and violence. As such, they are often the subject of protests. It takes a great deal of training and discipline to ignore such insults and verbal attacks, but officers do so on a daily basis.
None of this makes the burning or desecration of flags any the less objectionable. Indeed, this week, many of us were appalled by a video of a young boy pulling a flag out of the ground in front of a house and tossing it to the ground — as a woman watched without apparent objection. It is incredibly sad to see a child warped by such hatred. However, this was not a hate crime. It was the destruction of private property, but the penalty cannot be constitutionally enhanced due to the attack on a flag.
Some insults are protected. There are even insults from city governments. For example, in Palo Alto, California, five police officers have filed a lawsuit against the city in Silicon Valley over a Black Lives Matter mural featuring a cop killer. The objection is to the depiction of Assata Shakur, also known as Joanne Chesimard, was convicted in the 1973 killing of a New Jersey state trooper. She subsequently escaped prison, fled to Cuba. The lawsuit states “Law enforcement officers, including Plaintiffs, were forced to physically pass and confront the Mural and its offensive, discriminatory, and harassing iconography every time they entered the Palo Alto Police Department.” National Police Association has petitioned for its removal.
The petition is obviously lawful and itself a form of protected speech. However, while the officers have every reason to be insulted by the mural, they have no legal basis in my view to seek its removal. The city is allowed to speak in ways that are offensive or ill-informed. It is also allowed to create forums for others to engage in such speech. The remedy in such cases is found in the court of public opinion.