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):
- Prosecutors Decline To Press Charges Against Flagburner:
- "Teen Cited for Destroying U.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...
I'm gathering there's no real crime in Winona which needs to be investigated or prevented?
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).
'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....
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.
Depends on what "freely speak" means, I suppose.
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.
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.
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.
Now one only hopes Sarcastro doesn't see this thread ....
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.
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.
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.
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.
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.
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.
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."
Nick
I don't know...Randy Barnett, a Conspirator, has gotten more than one book out of it...
"(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.
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.
They wrote it in permanent marker is my guess.
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.
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.
Sorry, missed your point the first time. Agreed on both counts then.
In CA the birthday cutoff is December 1. That makes it even less remarkable for 9th graders to start the year at age 14.
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.
A judge on the Utah Supreme Court took that position also.
But what about this despicable vermin? Doesn't he at least deserve to get his sorry ass kicked?
"(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...