Jul 3, 2011

Missourian mounts challenge to flag law

Frank Snider of Cape Girardeau was arrested in October 2009 after he shredded a U.S. flag. He was charged under state law with flag desecration after a neighbor saw his action and complained to police. Snider told the arresting officer he was mad at the U.S. government for turning down his request for disability benefits.

In 1989, the U.S. Supreme Court ruled in Texas v. Johnson that destroying a flag as a protest was protected speech. When a reporter questioned Cape Girardeau County Prosecuting Attorney Morley Swingle about the charges, he quickly dismissed the case.

Today Snider is suing Swingle, Cape Girardeau and the officer who arrested him. He is asking for damages and a declaration that Missouri’s law against flag desecration is unconstitutional. The case was set to go to trial Aug. 1, but that date was delayed after Attorney General Chris Koster intervened in an attempt to preserve the law.

Missouri’s flag protection law, enacted in 1980, declares “anyone who purposefully and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United States or the state flag of the state of Missouri is guilty of the crime of flag desecration.”

Although the First Amendment protects people who use the flag for political speech, the act of defiling or defacing a flag isn’t always a political statement, wrote Jeremiah Morgan, the attorney handling Koster’s defense of the law, in a brief for the court.

“An example would be a man blowing his nose with an American flag, not because he intended to convey any political idea about the flag to others, but because he was out of tissue,” Morgan wrote. “Yet another example would be a home owner who decided to use the American flag as a doormat, not to express anything but rather because he believed that its fabric was simply the best material on which to wipe one’s feet.”

Under the state law, someone who blew his nose on the flag and told police it was only because he was out of tissues and not for any political reason could be charged with a crime.

That is strained logic, said Grant Doty, Snider’s American Civil Liberties Union attorney. The VFW magazine advertises an American flag barbecue apron, he said. “I can just see barbecue sauce dripping over it and an officer arresting someone at the VFW,” he said.

Koster’s intervention was more about the 2012 election than law enforcement, Doty said.
“There is a pretty close correlation with elections and who can be more patriotic,” he said. “There is a sense, a reasonable sense, among politicians that if they can wave the flag higher and declare they are more American than their opponents, they win.”

Snider was not available for an interview.

Koster entered the case because defense attorney Al Spradling III was not trying to preserve the law, spokeswoman Nancy Gonder said. “It is our office’s obligation to defend state statutes, so we became involved in the case.”

Snider’s arrest was wrong, Spradling admitted in an interview. But it was a good-faith mistake and quickly corrected, he noted. “I just don’t think the city did anything wrong.”

Cape Girardeau repealed its ordinance against flag desecration earlier this year. Columbia does not have a local law against flag desecration.

Even if Morgan’s argument preserves the law, it will be impossible to convict anyone under it, Spradling said. “We don’t need to put law enforcement officials in a position where they have to make a judgment that this is or is not expressive conduct.”

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