Flag-burning laws unconstitutional, but persist

URBANA, Ill. -- Champaign County State's Attorney Julia Rietz had just finished walking in a Fourth of July parade when her assistant told her a central Illinois man had been arrested on suspicion of burning an American flag.

Rietz said she knew "immediately" the Urbana Police Department needed to release Bryton Mellott, who posted a video of the act on Facebook and whom police initially said they arrested to protect from threats. The state law used to jail him, though clear in its prohibition of desecrating either the U.S. or state flags, is unconstitutional.

An Associated Press analysis shows at least 40 states, including Missouri, still have flag-desecration laws, punishing those who burn or otherwise damage U.S. and, in most cases, state flags with fines or even jail time. A handful of Southern states extend that protection to Confederate flags.

Yet, the U.S. Supreme Court ruled in separate cases in 1989 and 1990 that flag burning and other forms of damage are constitutionally protected free speech.

Most people who burn flags in protest, such as those outside of the Republican National Convention in Cleveland this month, are not arrested.

But at least eight people -- including one in Cape Girardeau -- have been arrested since 2007 for things such as burning a flag while walking in traffic and hanging a torn flag from a tree. There appears to be little political motivation to change or do away with the flag-desecration laws, an act for which some voters might punish them.

"Inevitably someone who is not schooled in Supreme Court decisions reads the statute book and says, 'Hey, let's take this guy in,'" said Ken Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University and president of the First Amendment Center.

He argues the laws need to be repealed, saying, "otherwise innocent people will be arrested."

Arkansas, Connecticut, Missouri, New Hampshire and Rhode Island are the only states to have taken any kind of action to get rid of their flag-desecration laws, while Alaska, Wyoming and Wisconsin have no such laws.

"I can tell you that some of the emails and messages that I've received; I'll kindly say (they are) passionate," Rietz said of the response to the Urbana man's arrest. "I can see where a legislator might not want to vote against this kind of a statute or take action on it."

Maryland State Delegate Eric Bromwell recently sponsored and pushed through legislation amending state law to allow flag-themed commercial products and events, something that his fellow lawmakers were nervous about because they thought it might affect its prohibition on flag desecration.

"People were very careful when they signed onto the bill when I was looking for co-sponsors. The question came up with every turn," the self-described conservative Democrat said.

Flags are burned regularly around the country as parts of protests. Though there were some arrests, no one was charged under Ohio's flag-desecration law, and police chief Calvin Williams and Mayor Frank Jackson talked afterward about flag-burning as a form of free speech.

On July 4, there were two arrests for alleged flag desecration half a country apart.

An 18-year-old New Orleans woman was jailed overnight for several alleged offenses, among them taking a Confederate flag from a home; Louisiana's flag-desecration law includes Confederate flags. Court records indicate she has not been formally charged, a decision that won't be made until her court appearance Aug. 18.

Mellott was taken into custody after posting a video to Facebook of him burning an American flag. He wrote he was ashamed of his country because of its treatment of the poor, minorities and homosexuals. Some of the responses to his post included threats, and Urbana police said they took Mellott into custody to protect him.

Neither Mellott nor Urbana police responded to requests for comment, but Rietz believes police arrested him with "the best of intentions."

"I certainly would have preferred that they call us first instead of afterward," she said, adding she would like to see lawmakers change or repeal Illinois' law.