The Volokh Conspiracy

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Free Speech

Flag Desecration Arrest in Indiana


WEVV (Evansville) reports:

An Evansville woman is behind bars after police say she set an American flag on fire and hung up an ISIS flag….

Authorities say they arrested Sierra Malloy, who made a comment about cutting off two of the officer's heads….

The affidavit shows Malloy had taken down the American flag off Spectrum's flag pole and set it on fire….

Malloy claimed to be ISIS and was saying homophobic slurs to officers.

Malloy was booked into the Vanderburgh County Jail for two counts of communication intimidation, criminal trespass, criminal mischief, and flag desecration.

It is certainly a crime to destroy someone else's flag, like it's a crime to destroy other people's property more generally; that's the criminal mischief charge. But it can't be punished as "flag desecration."

First, Indiana's flag desecration law ("A person who knowingly or intentionally mutilates, defaces, burns, or tramples any United States flag, standard, or ensign commits flag desecration, a Class A misdemeanor") is unconstitutionally overbroad, because it includes constitutionally protected burning of a flag that you yourself own. See Texas v. Johnson (1989).

Second, even a law that was limited to burning other people's U.S. flags would be unconstitutionally selective, in violation of R.A.V. v. City of St. Paul (1992). The law can punish all destruction of others' property without their consent, just as (in R.A.V.) the law could punish all face-to-face fighting words. But when the law selectively targets particular subcategories of the punishable conduct because of the message (and likely the viewpoint) that the conduct conveys (hostility to the flag in this case, bigotry in R.A.V.), that is presumptively unconstitutional. And while some content-based distinctions within unprotected speech or conduct might be constitutional, as R.A.V. discusses, this wouldn't be one of them.

Thanks to Robbin Stewart for the pointer.