Legally Weird - The FindLaw Legal Curiosities Blog

Illinois Man Burns Flag on Fourth of July, Gets Arrested, Gets Free

Flag burning is legal. The Supreme Court said so. Our right to burn the American flag, the Stars and Stripes, the Red, White and Blue, the very Star-Spangled Banner, is protected by the First Amendment. But some states still have anti-flag burning statutes on the books, and, regardless of what the High Court says on the matter, many, many people don't like it when you burn the flag.

Which leads us to the curious case of Bryton Mellott of Urbana, Illinois, who decided to torch Old Glory on Independence Day, take photos, and post those photos to Facebook. What happened next may not surprise you: people got angry and Mellott was arrested. But then he was released and all charges were dropped.

You Better Burn That Flag

That was the hashtag attached to the Facebook post that sparked this conflagration in the first place:

And if you doubt how extreme the backlash to a little flag burning can get, scroll Mr. Mellott's feed for recent "friend" requests, check out the Deport Bryton Mellott Facebook page, or let the Urbana Police Department tell you:

The images and narrative in the post caused some to call and request police action against Mellott and others to call and express concern for the safety of Mellott and those around him. Officers viewed the post and saw that there were a rapidly growing number of social media responses. Many threatened violence against Mellott and his place of employment, which fielded a large volume of calls regarding the post. Given the volume of responses and specificity of threat against his place of employment (a location where an act of violence would likely cause harm to others), prompted police involvement in this case. After investigating the incident and speaking to both Mellott and his employer [Walmart -EV], Mellott was placed under arrest for flag desecration.

Which One of Us Is Disorderly?

The only problem, obviously, is that flag desecration is legal, even if a bunch of people get upset and threaten the desecrator and his boss with violence. As law professor/blogger Eugene Volokh succinctly explains:

...the Supreme Court made clear, in 1989 and 1990, that flag desecration laws such as the Illinois law violate the First Amendment. And the court has made clear since 1949 that the government can't punish someone for "disorderly conduct" simply because his speech offends people and leads some of them to threaten violent retaliation. The police must protect the speaker (even though such protection understandably involves cost and risk for the police), rather than criminally punish him for his speech, except perhaps in some extremely rare cases that involve brewing riots on the street -- a narrow category into which this speech doesn't fall.

Champaign County State's Attorney Julia Rietz agreed, and dropped the charges against Mellott. "While that [flag desecration] statute remains in effect, it is contradictory to the US Supreme Court ruling in Texas v. Johnson," Rietz said. "The State's Attorney's Office is declining to file charges against (Bryton) Mellott as the act of burning a flag is protected free speech according to the US Supreme Court decision, Texas v. Johnson."

Mellott's Facebook feed continues to include politically charged statements and memes, all of which, while they may not endear him to his neighbors, are perfectly legal.

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