Koster agrees it's a long shot, but he's not backing down.
"While we understood that defending the statute was an uphill battle, most Missourians have a strong reaction against flag desecration," said Koster spokeswoman Nanci Gonder. "Our defense of the statute was our attempt to give voice to that patriotic sentiment."
Those at the American Civil Liberties Union of Eastern Missouri said they will continue to fight Koster in court. Legal director Tony Rothert said he was more bemused than shocked when he learned of Koster's appeal that was certified by the courts last week. Rothert even speculated that the appeal appears to be little more than a token gesture by an ambitious politician.
"My first response was, 'Really?'" Rothert said. "I think the attorney general wants to say he did everything he could to defend this."
Koster intervened in a federal lawsuit between Frank L. Snider III and the city of Cape Girardeau that was filed in 2010 at the Rush Hudson Limbaugh Federal Courthouse. Snider sued after he was arrested for cutting up an American flag and throwing it in the street. Federal judge Carol E. Jackson awarded Snider $7,000 in damages last month, $1,000 for each hour he was incarcerated. Jackson at her initial March ruling also issued a permanent injunction against the enforcement of any damage to a flag.
Koster's court challenge was filed with the 8th U.S. Circuit Court of Appeals, though a date has yet to be added to the docket.
The case captured the attention of Missouri residents statewide for a time following Snider's arrest.
Snider was initially given a littering citation after a neighbor noticed him cutting a flag before he tossed it in the street. But the arresting officer returned to take Snider into custody three days later after former prosecutor Morley Swingle requested an arrest warrant.
Swingle made the call based on the 1980 Missouri statute that made flag desecration a crime. But Swingle called for Snider's release when he was told of the Supreme Court's ruling in Texas v. Johnson that invalidated so-called flag-burning laws in the 48 states that had them.
While some may chastise Koster for filing the appeal, the attorney general's office seemingly attempted to make a compelling case at trial level. Koster's original argument wasn't whether flag desecration is protected by the First Amendment, but whether it is always protected. The Missouri statute also applies to those who defile or mutilate the flag when it isn't meant to express a belief or political idea, Koster said. The state's court filing at trial cites the example of someone blowing his nose into a flag simply because he's out of tissue, not because he's trying to convey any idea or intentionally show disrespect. Those instances should still be considered illegal, Koster said, because they are not protected speech.
Now, the matter falls into the hands of the appeals court. Rothert said all Americans should feel free to express their beliefs -- even if some find the thought of burning an American flag unpatriotic.
"It has been clearly established for 25 years that the First Amendment includes the right to engage in expressive conduct that is disrespectful to the flag," Rothert said. "But in Missouri, we have people still being arrested and going to jail for doing just that. Most of the country moved on 25 years ago. It's a little disappointing that the attorney general's office is still trying to defend it."
555 Independence St., Cape Girardeau, Mo.