Jophiel wrote:
gbaji wrote:
Except it's only protected speech if it's your flag.
No, it's protected speech either way. That doesn't shield you from responsibility for stealing the flag or destroying someone else's property of course but the anti-desecration laws that have been repeatedly found to be unconstitutional don't suddenly become valid that way.
First off, I think we're just quibbling over the term "protected". Protected speech doesn't mean that you can break other laws to do it. Which is relevant in this case, and the point I was making. Whether it's free speech or not is irrelevant when the action you are performing if said speech involves damage to property that is not privately owned by you. I also think that it's questionable as to whether this was "speech" at all. Some speech takes the form of vandalism, but not all vandalism is speech.
Additionally, in the case of flag desecration laws, they are unconstitutional only within this private property context. You are free to burn your own flag as a method of protest, but if you burn someone else's flag, you may come under additional charges beyond just destruction of property (I suppose depending on whatever applicable laws may exist in the state/city/whatever you're in).
For reference, United States V. Eichman says the following:
Quote:
Today's decision does not affect the extent to which the Government's interest in protecting publicly owned flags might justify special measures on their behalf. See Spence v. Washington, 418 U.S. 405, 408-409 (1974); cf. Johnson, supra, at 412-413, n. 8.
Spence v. Washington states the following:
Quote:
A number of factors are important in the instant case. First, this was a privately owned flag. In a technical property sense, it was not the property of any government. [p409] We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property. But this is a different case.
To be fair, I'm not willing to research this to the extent of discovering if anyone has ever been charged and convicted of flag desecration of a public flag via some relevant statute in say the last 30 years or so, but my admittedly brief look see hasn't turned up a case where charging someone under that condition was found to be unconstitutional. Take from that what you will.
I'll also point out that none of this means I'm recommending throwing the book at the kid.
Edited, Feb 13th 2015 6:28pm by gbaji