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Can You Be Prosecuted For Mutilating Or Burning The Flag In Michigan?

by | Jun 14, 2020 | First Amendment |


Did you know that there are two statutes on the books that criminalize disfiguring or mutilating the American flag in Michigan?  Did you know that these statutes were held unconstitutional according to the U.S. Supreme Court?

Michigan law provides the following criminal offenses:

  • “Any person shall be guilty of a misdemeanor who shall, in any manner, for exhibition or display, place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign, coat-of-arms or shield of the United States or of this state, or authorized by any law of the United States or of this state.” MCL 750.245(a).
  • “Any person who shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign, coat-of-arms or shield, is guilty of a misdemeanor.” MCL 750.246.

Michigan is one of 48 states in the union that have statutes that criminal desecrating the American flag.  This included the act of flag burning, which was a popular act used by demonstrators to protest governmental policies.

All of those statutes were invalidated when the U.S. Supreme Court issued its decision in Texas v. Johnson, 491 U.S. 397; 109 S.Ct, 2533; 105 L.Ed.2d 342 (1989).  In that case, Gregory Lee “Joey” Johnson, a member of the Revolutionary Communist Youth Brigade, participated in a political demonstration during the 1984 Republican National Convention in Dallas, Texas.  At some point, a demonstrator handed Mr. Johnson an American flag that was stolen from a flagpole outside of one of the targeted buildings.  Upon reaching city hall, Mr. Johnson poured kerosene on the flag and set it in fire.  Protestors chanted as the flag burned, but no one was physically injured or threatened with injury.  Some onlookers reported being extremely offended by the flag burning and one spectator gathered the remains of the flag and buried them in his backyard at home.  Mr. Johnson was charged with violating a Texas flag desecration law, convicted and sentenced to one year in prison with a fine of $2,000.00.  Notably, he was the only protestor charged with a crime.  He appealed to the Fifth Court of Appeals of Texas but they upheld the conviction.  The Texas Court of Criminal Appeals overturned the conviction on the basis that the First Amendment protects Mr. Johnson’s symbolic speech.  The State of Texas appealed to the U.S. Supreme Court.

Is Mr. Johnson’s conviction consistent with the First Amendment?  The majority of the Court, according to Justice William Brennan, held it was not and that flag burning constitutes a form of symbolic speech protected by the First Amendment.  While society may find the conduct very offensive, its outrage is not a basis to suppress free speech.  The State of Texas asserted two interests in maintaining the law: preserving the flag as a symbol of national unity and preventing breaches of the peace.  To the first point, the Court did not see a showing that the flag was in “grave and immediate danger” of being stripped of its symbolic value, nor is the flag’s special status was not endangered by Johnson’s conduct.  To the second point, the State of Texas already has laws that criminalize breach of the peace, so the state has the ability to prevent disturbances without punishing flag desecration and is simply engaged in suppressing expression.

In addition, there was no question that Mr. Johnson’s conduct was expressive conduct.  He burned the American flag as part “of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President.”  The Court found that “[t]he expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.”  Even Mr. Johnson admitted his act of flag burning was political at his own trial.  At the end of the day, the Supreme Court found that the flag desecration law restricted political expression because it targeted the content of the message he conveyed.  While there is no question that some people will find the conduct highly offensive, there was simply no legitimate state interest that Texas could assert to justify regulating the words and expressions that its citizens can make:

  • “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 491 U.S. at 415 (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1989)).
  • “Texas’ focus on the precise nature of Johnson’s expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role — as where, for example, a person ceremoniously burns a dirty flag — we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol — as a substitute for the written or spoken word or a ‘short cut from mind to mind’ — only in one direction. We would be permitting a State to “prescribe what shall be orthodox” by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.”  491 U.S. at 416-417.
  • “We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag — and it is that resilience that we reassert today. The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.”  491 U.S. at 419.
  • “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction, because Johnson’s conduct did not threaten to disturb the peace. Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.”  491 U.S. at 420.

The Texas statute criminalizing flag desecration was rendered unconstitutional.  This has the effect of invalidating any other flag desecration statute in effect in the United States, including those in Michigan.  While this decision is a victory for the First Amendment values of free speech and expression, it is not without its limits.  Flag burning cannot be coupled with using words to incite a riot or intentionally provoking a violent reaction from someone (e.g. with a direct personal insult).  Before engaging in any controversial expressive conduct in a public setting, you should always consult with a knowledgeable lawyer first to ensure that your proposed plans are covered within the limits of the First Amendment.

If you or a loved one is charged with any crime or needs legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.  Have a safe and happy Flag Day!


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