When CalArts student Adam Greene laid an American flag on the floor as part of an art exhibit last week, he sent police and prosecutors scrambling to enforce an esoteric law that has not been used much since the flag-burning era of Vietnam War protests.
The exhibit is no longer open, and the Los Angeles County district attorney’s office is not planning to press charges against Greene. But authorities have requested that he attend an informal meeting Tuesday so they can explain how his exhibit violated Section 614 of the California Military and Veterans Code.
“We want to settle the case without having to file a criminal charge against him,” said Deputy Dist. Atty. James A. Baker. Prosecutors said a meeting with the artist was the best way to resolve the issue.
Section 614 states in part: “A person is guilty of a misdemeanor who knowingly casts contempt upon any flag of the United States or of this state by publicly mutilating, defacing, defiling, burning or trampling upon it.”
A district attorney’s spokesman said he could not recall the code being enforced in Los Angeles County in 10 years. State authorities could not recall any recent cases, either.
“I know that during the Vietnam War protests, when people were burning flags and wearing flags as shirts, there were some prosecutions,” said Michael Raymer, an associate government analyst for the state attorney general’s office. “I think it’s fairly rare that someone pours gasoline on the flag these days.
“It doesn’t seem to be as popular as it used to be,” Raymer said.
The state code is enforced by local police departments, and violation carries a maximum penalty of six months in jail and a $1,000 fine.
Federal lawbooks carry a similar flag statute that is enforced by the FBI; violation carries a maximum penalty of one year in prison and a $1,000 fine. Like the state code, the federal law is seldom enforced.
“The flag statute is not something where we go running around trying to find a violation,” said a U.S. Justice Department official who declined to give his name.
On both state and federal levels, most flag desecration cases come to authorities’ attention either because police are notified or the act is highly visible.
News reports suggest that only a handful of these cases have occurred since the Vietnam years.
- In 1980, two members of the Revolutionary Communist Party were prosecuted for burning a flag at a rally in Greensboro, N.C. The defendants were prosecuted under federal law and the Supreme Court rejected a challenge of that law.
- In 1984, a Pasadena man donated $10,000 to his church for the purpose of erecting two flagpoles--one for the American flag and the other to fly a Christian flag. But Pasadena has a municipal ordinance that prohibits non-governmental flags.
Ray Risser and the First Church of the Nazarene argued unsuccessfully that flying their flag was a form of religious expression and, thus, should be protected by constitutional rights.
- That same year, a Texas man burned a flag outside the Republican National Convention. His conviction was overturned by a state appeals court, but the Texas attorney general’s office filed an appeal. The Supreme Court will hear arguments in the case this month.
Free speech and First Amendment rights were argued in all these cases and have been a common defense against prosecution of flag laws.
“Usually the reason that people are doing what they are doing is to express some point of view,” said Jonathan Varat, professor of constitutional law at UCLA. “People burn flags because they are protesting government policy.”
Free speech defenses have met with some success. But, because flag-defiling cases come before the courts so infrequently, no consistent legal precedent has been set.
“The central question is whether it is permissible for the government to protect the flag as a symbol of values,” Varat said. “It’s a highly controversial issue. So much is at stake here and the court has tried hard not to draw sharp lines.”
Prosecutors say they find such cases difficult to try because they must prove that the defendant meant to cast the flag in a contemptuous light.
“It’s not an easy standard to prove,” the Justice Department official said. “We don’t prosecute very often because of the limitations of the statute.”
When it comes to works of art, the legal picture grows even cloudier.
Greene’s exhibit of the flag was modeled after a similar artwork by Scott Tyler that has attracted protest at the School of the Art Institute of Chicago.
In Los Angeles, the district attorney’s office quickly determined that the CalArts exhibit encouraged visitors to walk across, and thus defile, the flag. Yet, in Chicago, a Cook County circuit judge dismissed a suit challenging the legality of Tyler’s piece. And, in another legal twist, Chicago police later arrested a visitor to the Chicago exhibit after she stepped on the flag.