Judge Rules Flag Protection Act Unconstitutional

The law against desecration of the American flag passed by Congress last fall is unconstitutional, a federal judge ruled Wednesday in finding that four people who burned flags were exercising their First Amendment rights.

“In order for the flag to endure as a symbol of freedom in this nation, we must protect with equal vigor the right to destroy it and the right to wave it,” Judge Barbara Rothstein said in her decision.

“Burning the flag as an expression of political dissent, while repellent to many Americans, does not jeopardize the freedom which we hold dear.”

She ruled in the first constitutional challenge to the Flag Protection Act of 1989, said David Cole of the Center for Constitutional Rights in New York, which represented the four defendants.

Mark Haggerty, Jennifer Campbell, Darius Strong and Carlos Garza had been charged with burning a U.S. flag outside a Seattle post office shortly after midnight on Oct. 28, the day the flag protection law took effect.

Congress passed the law in response to a U.S. Supreme Court decision that burning a U.S. flag is protected under First Amendment guarantees of free speech.

The defendants pleaded not guilty and moved to have the charges dismissed on grounds that the act violates the First Amendment.

In addition to the flag desecration charge, each was charged with one count of destruction of U.S. government property. Rothstein was asked only to dismiss the flag desecration charges, which is what she did in holding the law unconstitutional.

The flag desecration and destruction of property counts each carry a maximum penalty of one year in prison and a $100,000 fine.

“I think it’s wonderful,” Cole said of the ruling. “I think the judge reaffirmed that the First Amendment means that people must be as free to burn the flag as they are free to wave it.”

Assistant U.S. Atty. Mark Bartlett said the U.S. attorney’s office, the Justice Department and the solicitor general will decide whether to take the remaining count of property destruction to trial or take the issue directly to the U.S. Supreme Court.

The act provides for direct appeal to the Supreme Court.

The Center for Constitutional Rights planned to argue the same issue today in District Court in Washington, D.C., in a case involving three people who burned flags on the steps of the U.S. Capitol, Cole said.

He said it is likely that both cases will end up together before the Supreme Court.