Flag Burning: Am I Missing Something?
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I don't get it:
But there is simply no question about flag burning. The issue has been unambiguously resolved by the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989). Furthermore, the First Amendment has been fully incorporated by the Fourteenth Amendment -- see Gitlow v. New York, 268 U.S. 652 (1925) -- so states also cannot criminalize flag burning.
Is the prosecutor's argument that Johnson only applies to flag burning intended as "expressive conduct" and that the teen's conduct was not intended as speech but merely as drunken mayhem? If so, then how on earth are a judge or jury supposed to draw that line, for this defendant or for anyone else? Do we forfeit our First Amendment rights whenever we get drunk? It simply can't be done. Even if Johnson were somehow distinguishable, the Tennessee statute would still fail for vagueness.
In other words, there is no question, absolutely none, that the Tennessee flag-burning statute is unconstitutional.
So my question becomes this: Why is it not prosecutorial misconduct to charge a person with violating a criminal statute that any minimally competent prosecutor, indeed any minimally competent attorney, knows or should know is unconstitutional? Also, does not such a prosecution give rise to a cause of action under 42 USC 1983 ("violation of civil rights")?
This kid needs better lawyers.
A teenager was jailed for nine days after being accused of burning an American flag on the Fourth of July, and he faces trial next month.Now let's be clear here: the kid allegedly stole a neighbor's flag (a criminal offense) and was publicly intoxicated (also an offense). Fair enough. Try him for those offenses and punish him accordingly if convicted.
While the case could test a state statute against flag burning -- an act the U.S. Supreme Court says is protected under the First Amendment -- prosecutors said Andrew Elisha Staley has yet to argue that he was exercising free speech rights.
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The Tennessee flag-burning statute makes the crime a misdemeanor, punishable by less than a year in jail and up to $2,500 fine.
But there is simply no question about flag burning. The issue has been unambiguously resolved by the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989). Furthermore, the First Amendment has been fully incorporated by the Fourteenth Amendment -- see Gitlow v. New York, 268 U.S. 652 (1925) -- so states also cannot criminalize flag burning.
Is the prosecutor's argument that Johnson only applies to flag burning intended as "expressive conduct" and that the teen's conduct was not intended as speech but merely as drunken mayhem? If so, then how on earth are a judge or jury supposed to draw that line, for this defendant or for anyone else? Do we forfeit our First Amendment rights whenever we get drunk? It simply can't be done. Even if Johnson were somehow distinguishable, the Tennessee statute would still fail for vagueness.
In other words, there is no question, absolutely none, that the Tennessee flag-burning statute is unconstitutional.
So my question becomes this: Why is it not prosecutorial misconduct to charge a person with violating a criminal statute that any minimally competent prosecutor, indeed any minimally competent attorney, knows or should know is unconstitutional? Also, does not such a prosecution give rise to a cause of action under 42 USC 1983 ("violation of civil rights")?
This kid needs better lawyers.
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Posted by KipEsquire on
18 July 2005
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