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"Teen Cited for Destroying U.S. Flag":

The Winona Daily News reports:

Police have issued a ticket this week to a 14-year-old Winona Senior High School student for desecrating a U.S. flag.

The teen, whose name is withheld because he is a juvenile, admitted he planned to desecrate it when he bought it and knew that was illegal, police said. The misdemeanor ticket carries a maximum penalty of 90 days in jail and a $1,000 fine....

[The teen told the police he] bought the flag, wrote song lyrics on it, tore it to pieces and burned it with cigarettes....

According to the Minnesota statute, it is illegal for anyone to intentionally or publicly mutilate, defile or cast contempt on the flag or to place words, marks or designs on the flag that don't belong there....

Naturally, the student can be punished for skipping class (something he did, apparently to attend "the Rage Against the Machine concert Sept. 3 in Minneapolis during the Republican National Convention"), and if he burnt the flag with cigarettes at school, and possession of cigarettes at school is prohibited (and the prohibition would normally be enforced even against a non-flag-burner), he could be punished for that, too. But given the Supreme Court's well-known holdings striking down flag desecration laws such as this one, the prosecution of the teen appears to be legally frivolous.

Thanks to W. Edward Howard, Jr. for the pointer.

Related Posts (on one page):

  1. Prosecutors Decline To Press Charges Against Flagburner:
  2. "Teen Cited for Destroying U.S. Flag":
Scote (mail):
Boy, thank goodness George Bush was in Livonia, Mich and not in Minnesota when he autographed a supporter's flag...
http://www.commondreams.org/views03/0831-01.htm

I'm not sure where McCain was when he autographed a flag recently...

:-p

Stupid politically motivated and politically endorsed desecration laws are really annoying...
9.19.2008 6:24pm
R Gould-Saltman (mail):
My guess? Unidentified juvenile was paid, or encouraged by, operatives of the RNC.

I'm gathering there's no real crime in Winona which needs to be investigated or prevented?
9.19.2008 6:34pm
Dave N (mail):
I agree the flag burning charge won't stand. Even jackasses (of the human sort) have First Amendment rights. Perhaps we should celebrate that even THEY do.
9.19.2008 6:38pm
hawkins:
Could he bring any action against the police or county, given the clear unconstitutionality of a crime that is still on the books and enforced? From my understanding, it would be impossible for the cops/county to make an argument of good faith.
9.19.2008 6:41pm
Utes Win (mail):
How is this law still on the books after the Supreme Court's very explicit holdings?
9.19.2008 6:44pm
one of many:
Unfortunately Scote, I am reasonably sure that the Speech protection for defacing the flag extends to a president or presidential candidate signing a flag. I'm not certain how one could twist an act by a politician at a political event not to be political speech and thus worthy of the highest protection. And it was Keene NH where McCain signed a flag earlier this year.
9.19.2008 6:56pm
Dilan Esper (mail) (www):
Could he bring any action against the police or county, given the clear unconstitutionality of a crime that is still on the books and enforced? From my understanding, it would be impossible for the cops/county to make an argument of good faith.

Sure he could. He'd have a Section 1983 action; United States v. Eichman and Johnson v. Texas constitute clearly established law so there's no qualified immunity, and he'd be entitled to some sort of damage award (though it might be nominal).
9.19.2008 7:01pm
R Gould-Saltman (mail):
Utes Win:

'cause either nobody has ever litigated the validity of the specific Minnesota statute, or the state legislature passed a new statute in anticipation of a Federal flag-burning amendment (you'll recall that this is one of the things that the Republicans (I must admit, with some embarrassing Democratic assistance) spent time proposing in Congress, when they could have been thinking about, oh, investment banking regulation...)

Remember, IIRC, Alabama only got around to formally repealing their anti-miscegenation statute within the last decade, thirty-odd years post-Loving, and there was no comparable movement afoot in Congress to permit the states to re-criminalize miscegenation during the last forty years....
9.19.2008 7:05pm
Christopher Cooke (mail):
Dilan: you and Volokh do not actually believe that the First Amendment's protections are incorporated under the Fourteenth Amendment, and therefore applicable to the states, do you?
9.19.2008 7:07pm
Syd Henderson (mail):
You sure this wasn't a radical protest against anti-smoking regulations?
9.19.2008 7:14pm
Dilan Esper (mail) (www):
Dilan: you and Volokh do not actually believe that the First Amendment's protections are incorporated under the Fourteenth Amendment, and therefore applicable to the states, do you?

What do you mean by "actually believe". If you are asking whether I believe that Gitlow v. New York was decided by the Supreme Court some 8 decades ago and settled that question (at least unless and until the Court revisits it, which it is not likely to do), yes, I would say I actually believe that.

Seriously, I am the last person to complain about conduct in the comments threads, but lately this site is being spammed by commenters who simply repeat, over and over again, their claims that judicial review is illegitimate, the Bill of Rights was never incporporated, the New Deal Court decisions were wrongly decided, etc. Those viewpoints are fine to have, but since a lot of our discussions here deal with what the state of the law actually is, going off about how decades worth of constitutional decisions are all wrongly decided doesn't really contribute very much.

About the only cranks we aren't attracting are the wackos who think the Fourteenth Amendment isn't part of the Constitution. I guess we'll get those next week.
9.19.2008 7:44pm
anoNY:
Mr. Cooke: Interesting question. If incorporation is out, then all the plaintiff is left with is the Minnesota constitution ("the liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right.")(From Wiki)

Depends on what "freely speak" means, I suppose.
9.19.2008 7:45pm
Allen G:
He should be celebrated, as should all people who write lyrics of Rage Against the Machine lyrics on anything and then tear it to shreds.
9.19.2008 7:48pm
Milhouse (www):
Good grief. How do they think they can get away with it? As for the kid, he "admitted he [...] knew that was illegal"; OK, he's only 14 so he can be excused for not knowing that it's not illegal, but still, you'd think if he's the protesting type he'd've picked up this information somewhere...
9.19.2008 7:50pm
Jerry F:
You have to learn to love our activist Supreme Court, according to which: (1) pornography is speech, (2) nude dancing is speech, (3) flag burning is speech, BUT (4) criticism of homosexuality is not speech when said in the workplace, (5) refusing to hire homosexuals has nothing to do with the First Amendment's freedom of association, and (6) contributions of money for political speech (the very core of what the First Amendment was meant to protect) is not protected.

Of course, given the way Democrat Party officials got rid of thousands of U.S. flags in the aftermath of the Democrat Convention, it is a good thing for the Left that flag desecretion is constitutionally protected; their messiah's campaign apparatus would have been severely undermined with half of their people in jail.
9.19.2008 7:59pm
Wahoowa:
Does it have any bearing that this is a student and not an adult? Especially since this took place at school? Seems like burning a flag would clearly be disruptive, especially indoors.
9.19.2008 8:02pm
Mike& (mail):
He'd have a Section 1983 action; United States v. Eichman and Johnson v. Texas constitute clearly established law so there's no qualified immunity, and he'd be entitled to some sort of damage award (though it might be nominal).

It depends.... If he was arrested for burning the flag, but there was probable cause to arrest him for other offenses (truancy; smoking; whatever), then he wouldn't have a Section 1983 action for false arrest/unlawful seizure. Devenpeck v. Alford.
9.19.2008 8:29pm
Ohio Scrivener (mail):
This post reminds me of the "Bong Hits for Jesus" Case. If my memory is correct, that case dealt with the ability of a public school to discipline a student who exercised some rather colorful free speech.

Here, however, it appears the flag burning student is being prosecuted under a law of general application -- not simply being disciplined by the school. Thus, I agree with Eugene Volokh's original comment, "given the Supreme Court's well-known holdings striking down flag desecration laws such as this one, the prosecution of the teen appears to be legally frivolous."

Now, if the school adopted a rule against flag burning and applied it to the student, this case might be a closer call. Instead of dealing with a law of general application, we would have to wrestle with the more deferential review the Supreme Court has given schools who struggle with issues related to discipline etc.
9.19.2008 8:41pm
Crafty Hunter (www):
People who desecrate logic by equating bad treatment of an inanimate object belonging to the person who maltreated it, should be arrested and horsewhipped, then released to be pelted with rotten tomatoes.
9.19.2008 9:38pm
Crafty Hunter (www):
Oops, sorry. That should be "... by equating bad treatment of an inanimate object belonging to the person who maltreated it, with maltreatment of the objecting party, ...".

Now one only hopes Sarcastro doesn't see this thread ....
9.19.2008 9:39pm
Mark Field (mail):

Even jackasses (of the human sort) have First Amendment rights. Perhaps we should celebrate that even THEY do.


First Amendment case law would be pretty sparse if it didn't protect people who, at the time, were considered jackasses.

Dilan: I'm pretty sure Christopher Cooke was being facetious.
9.19.2008 9:56pm
Cornellian (mail):
If he knew what he was doing he would have written the text of the First Amendment on the flag, then dared the police to cite him for that.
9.19.2008 10:06pm
Steve2:
I'm confused as to how a 14-year old is in a "Senior High", unless I suppose Winona has amalgamated their high school and junior high. 14 would put him in 8th grade, right?

Actually, from what I recall of 8th grade, I'm not so certain skipping it to go to a Rage concert (and didn't they break up years ago to make Audioslave?) is really all that worse a use of one's time...

Oh, and Dilan, if it would make you feel better, I could drag out a diatribe about how Barron v. Baltimore was wrongly decided, the limitations of the first 9 Amendments should have always bound the states, and Black was right about total incorporation. You know, balance things out.
9.19.2008 10:12pm
Bruce Hayden (mail) (www):
Seriously, I am the last person to complain about conduct in the comments threads, but lately this site is being spammed by commenters who simply repeat, over and over again, their claims that judicial review is illegitimate, the Bill of Rights was never incorporated, the New Deal Court decisions were wrongly decided, etc. Those viewpoints are fine to have, but since a lot of our discussions here deal with what the state of the law actually is, going off about how decades worth of constitutional decisions are all wrongly decided doesn't really contribute very much.
I think that you brush too broadly. It is very easy to believe that the New Deal cases were decided wrongly, but still accept that they are the law of the land, at least until reversed, which is overall unlikely. Though somewhat agnostic as to whether abortion is good or bad (not being a woman), I also question whether Roe v. Wade was decided wrongly. That doesn't mean that I question whether it is the law, because it most assuredly is.

In other words, I will suggest that in your zeal, you are conflating two things, first an argument about what the law is, and second, whether the cases underpinning that were decided correctly. The first is pragmatic, while the second is hypothetical.

I do agree though that arguing at this late date whether or not the 1st Amdt. is incorporated in this situation is rather silly. It is. Maybe it shouldn't have been. But that is moot. It was.
9.19.2008 10:13pm
Mark Field (mail):

I'm confused as to how a 14-year old is in a "Senior High", unless I suppose Winona has amalgamated their high school and junior high. 14 would put him in 8th grade, right?


Depends on your birthdate. If it's late in the year, you can be a 9th grader at 14. I was and my younger daughter was.
9.19.2008 10:55pm
Matt_T:
He should be ticketed for having awful taste in music.
9.19.2008 11:19pm
K. Hughes:
Good thing it wasn't at school. Had it been litigated, perhaps the Roberts Court would've seen fit to create another arbitrary Tinker carve-out, à la Morse v. Frederick. Maybe an unpatriotic speech exception?
9.19.2008 11:38pm
Dilan Esper (mail) (www):
You have to learn to love our activist Supreme Court, according to which: (1) pornography is speech, (2) nude dancing is speech, (3) flag burning is speech, BUT (4) criticism of homosexuality is not speech when said in the workplace, (5) refusing to hire homosexuals has nothing to do with the First Amendment's freedom of association, and (6) contributions of money for political speech (the very core of what the First Amendment was meant to protect) is not protected.

Of course, as far as I know, our Supreme Court has actually held: (1) pornography is speech, but it is subject to a substantial amount of regulation; (2) nude dancing is in the outer ambit of First Amendment protection, and can be banned; (3) flag burning is constitutionally protected; (4) the Court has never ruled on criticism of homosexuality in the workplace, but under established Title VII doctrine, it would only be actionable, if at all, if it is sufficiently severe and pervasive as to make a reasonable gay or lesbian employee unable to work; (5) the Court has never ruled whether refusal to hire gays and lesbians is protected as free association, refusal to hire gays and lesbians is not illegal anyway under federal law, nor are gays and lesbians a suspect class, but the idea that discriminatory hiring is not protected as free association dates back at least to the 1960's and arose out of race and later gender cases; and (6) contributions for political speech are definitely protected-- they are subject to regulation, but the regulations must be narrowly tailored and must not suppress speech.

But I thank you for posting, because your post is a nice example of a point I argue often, which is that many conservatives who pop off about liberal judges ignoring the law have no idea what they are talking about.
9.20.2008 12:49am
Synova:
I don't know when this law passed but there was a big thing about it when my baby sister was in high school... she wrote a paper saying that it shouldn't be illegal to burn/desecrate the flag and the teachers thought this serious enough to bring up to my parents at parent-teacher meetings.

I guess I never realized the law passed.

The funny thing, though, is that my parents were not impressed by the school's concern. They are both very conservative and patriotic. Very *very* conservative. And my Dad, what he said was... if it was going to be illegal to burn the flag, it should apply to the flag of any nation, not just our own.

I think that some people viewed it as a simple "why *not* make it illegal?" while my father understood that the most important thing wasn't the flag, but what it represented, which is liberty rather than laws imposed with little thought behind them but that the majority liked the idea.
9.20.2008 1:37am
TruthInAdvertising:
"Of course, given the way Democrat Party officials got rid of thousands of U.S. flags in the aftermath of the Democrat Convention, it is a good thing for the Left that flag desecretion is constitutionally protected; their messiah's campaign apparatus would have been severely undermined with half of their people in jail."

Good to see you got it wrong all the way through.

"Stories circulating about flags at the Democratic National Convention are false. We distributed more than 125,000 American made flags at the Convention - the flags removed from Invesco field were intended for other events and taken without permission. It's disappointing that someone would take American flags without authorization and then falsely describe how they were being used. We have the utmost respect for the American flag, and it's sad to see them being used for a cheap political stunt."
9.20.2008 1:44am
NickM (mail) (www):
Steve2 - I'm another who thnks that Barron was wrongly decided, but the limitations against the states would not inherently apply from the First (specifically mentions Congress as entity whose power is limited), Third (only federal government has power to raise army, let alone quarter it), and Seventh (specifically refers to proceedings in federal courts).

Nick
9.20.2008 1:44am
Obvious (mail):
"going off about how decades worth of constitutional decisions are all wrongly decided doesn't really contribute very much."

I don't know...Randy Barnett, a Conspirator, has gotten more than one book out of it...
9.20.2008 1:47am
Obvious (mail):
:-)
9.20.2008 1:48am
Sagar (mail):
Dilan,

"(6) contributions for political speech are definitely protected-- they are subject to regulation, but the regulations must be narrowly tailored and must not suppress speech."

Looks like you are OK with the "regulation" of contributions for political speech. Before I call your BS, let me ask if you believe McCain-Feingold is "narrowly tailored" as you describe above.
9.20.2008 1:59am
Dave N (mail):
Mark Field,

That was kind of, sort of, my point. Though some are still jackasses even after having their First Amendment rights vindicated.

As to the Senior High School note, this is the beginning of the school year. 8th graders usually turn 14 during the school year (or at least before the new school year begins). This means that 9th graders usually start the year at 14 and turn 15 before going into 10th grade.
9.20.2008 2:36am
PLR:
How is this law still on the books after the Supreme Court's very explicit holdings?

They wrote it in permanent marker is my guess.
9.20.2008 2:37am
Bill Poser (mail) (www):
With regard to the Senior High School question, one might add that it is not unknown for students to skip a grade.
9.20.2008 3:15am
Public_Defender (mail):
The article says the police issued a ticket. My guess is that the case will be dismissed as soon as it touches a prosecutor's desk. If it doesn't, the city gets to pay the student's legal bills, and the ACLU gets another fundraiser. In any case, an overbearing cop has turned a punk into a First Amendment hero. Good work, officer!
9.20.2008 7:21am
Taltos:
Actually, from what I recall of 8th grade, I'm not so certain skipping it to go to a Rage concert (and didn't they break up years ago to make Audioslave?) is really all that worse a use of one's time...

Audioslave broke up due to tensions between Chris Cornell and the former Rage guys. Rumor has it that one of the principle issues was the Rage guy's desire to do more political music which Cornell was opposed to.
9.20.2008 7:48am
BruceM (mail) (www):
Texas still has a law on the books about destroying US or state flags, too. Clearly such laws are unconstitutional. Doesn't it per se violate due process (among other things... such as the 4th Amendment) to arrest someone for breaking a law which has been declared unconstitutional by the SCOTUS? Dismissal should be automatic, and so should a civil rights lawsuit. Of course damages are impossible to prove, as always. There should be statutory damages in civil rights cases.
9.20.2008 7:54am
Crafty Hunter (www):
There should be statutory damages in civil rights cases.
There should be mandatory prison terms for cops and prosecutors and judges in such cases, plus mandatory restitution to victims of these government thugs, taken directly from the personal assets of the government thugs.
9.20.2008 11:00am
Libertarian1 (mail):
I'm confused as to how a 14-year old is in a "Senior High", unless I suppose Winona has amalgamated their high school and junior high. 14 would put him in 8th grade, right?



Depends on your birthdate. If it's late in the year, you can be a 9th grader at 14. I was and my younger daughter was.




With regard to the Senior High School question, one might add that it is not unknown for students to skip a grade.




I was in 10th grade when I was 14 because of skipping a grade.

9.20.2008 11:54am
Dave N (mail):
I never skipped a grade. I was 14-15 my 9th grade year.

Most school districts require a child to be 5 by September 1 of the school year to start kindergarten. If you do the simple math, that means most 9th graders are 14 at the beginning of the school year. There is absolutely nothing unusual or remarkable about this kid's age.
9.20.2008 11:59am
Mark Field (mail):

That was kind of, sort of, my point. Though some are still jackasses even after having their First Amendment rights vindicated.


Sorry, missed your point the first time. Agreed on both counts then.


Most school districts require a child to be 5 by September 1 of the school year to start kindergarten. If you do the simple math, that means most 9th graders are 14 at the beginning of the school year.


In CA the birthday cutoff is December 1. That makes it even less remarkable for 9th graders to start the year at age 14.
9.20.2008 12:42pm
Steve2:
Ok, so much for my convenient "18 = 12th, subtract from there" rule of thumb.
9.20.2008 2:17pm
one of many:
Steve it works for graduation (completion of grade) though, and is also good for the later parts of the school year. It's still a good rule of thumb but don't confuse that with a hard and fast rule.
9.20.2008 2:50pm
Christopher Cooke (mail):

Dilan, sorry I was being facetious. I did study ConLaw in law school and am familiar with Gitlow et al. But on the Internet, you never know about some posters.

FYI, there was a district court judge in Alabama who wrote a long opinion explaining how the 1st Amendment was not incorporated against the states, in the 1980s (the Hon. William Brevard Hand in Alabama). But I happen to think the US Supreme Court has decided this issue many years ago.
9.20.2008 2:53pm
Mark Field (mail):

FYI, there was a district court judge in Alabama who wrote a long opinion explaining how the 1st Amendment was not incorporated against the states, in the 1980s (the Hon. William Brevard Hand in Alabama). But I happen to think the US Supreme Court has decided this issue many years ago.


A judge on the Utah Supreme Court took that position also.
9.20.2008 4:30pm
Smokey:
The kid is 14, and maybe can be given a wee bit of leeway.

But what about this despicable vermin? Doesn't he at least deserve to get his sorry ass kicked?
9.20.2008 5:22pm
A Guest - Really (mail):
Dilan Esper:
"(6) contributions for political speech are definitely protected-- they are subject to regulation, but the regulations must be narrowly tailored and must not suppress speech."

So can we repeal the laws that require disclosure of the source and destination of political contributions now? I work in a city (Seattle) in which it would be, umm, double-plus-ungood for my career to contribute to McCain and other Republican candidates, so I have not made such contributions, even though I would like to. By this example, the laws have suppressed speech and therefore are unconstitutional, right?

(I suppose it's somewhat fitting that it's McCain to whom I've refrained from contributing, but that's a whole other rant...)

Oh, Steve2, I was also 13 in ninth grade, as the cutoff where I grew up was December 31...
9.20.2008 8:50pm
Suzy (mail):
Seems pretty clear that it's his "political speech" and he should be free to do it. However, I wonder how he'll feel looking back on this incident when he's 34, or 64. Will he find a better understanding, or a better outlet for his frustration?
9.21.2008 3:57pm
ParatrooperJJ (mail):
In order for the law to be found unconstitutianal, he first has to be charged. Most likely he will also be convicted, unless the charges are dropped or thrown out.
9.22.2008 10:09am