Facebook/Bryton Mellot
What pair of Supreme Court cases struck down state and federal laws that tried to criminalize defiling the American flag as a violation of the First Amendment?
The cases are in the news after Bryton Mellott, 22, was arrested for posting this picture to Facebook on the 4th of July. He was charged with flag desecration and disorderly conduct, the latter charge because he was “causing others to be put at risk of harm” by posting the pictures.
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Hint: Law professors have circled the wagons, telling U.S. News and World Report in no uncertain terms the arrest was unconstitutional:
“The man clearly had a constitutional right to do what he did and cannot be punished for it, whether for flag discretion or for disorderly conduct,” says Geoffrey Stone, a law professor at the University of Chicago.
“Flag burning is a constitutionally protected act under the First Amendment,” says Jonathan Turley, a law professor at George Washington University. “It is an exercise of free speech. Moreover, if the act is protected, you cannot charge someone with the response of others to a protected act.”
Eugene Volokh, a UCLA law professor, says “it’s a clearly unconstitutional arrest.”
As with the flag-desecration charge, the disorderly conduct count appeared to run afoul of well-established law, Volokh says.
“It seems that what they mean is if you post something that makes people upset with you and send threats to you, leading to police investigation and protection, then you’re committing a crime because of what the threateners are saying — and that’s been clearly an impermissible theory since at least 1949” with the ruling in Terminiello v. City of Chicago, he says.
“Under this theory, any time anyone posts something sufficiently offensive to enough people, he can be prosecuted for disorderly conduct,” Volokh says. “That cannot be the law. That is not the law.”
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