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  1. #1
    Join Date
    Sep 2020
    Posts
    1

    Default Warrant for My Arrest for Desecrating American Flag

    My question involves civil rights in the State of: Tennessee

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Warrant for My Arrest for Desecrating American Flag

    There are already two threads going on this on various boards. The majority of posters here also post on the two other boards. But if you want to get answers here, you'll need to provide some details.

  3. #3
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Warrant for My Arrest for Desecrating American Flag

    So you apparently burned a small American flag of yours after an argument with your neighbor, the neighbor called the police, and you ended up being cited for violation Tennessee Code 39-17-311, which states:

    (a) A person commits an offense who intentionally desecrates:
    (1) A place of worship or burial; or
    (2) A state or national flag.
    (b)
    (1) A violation of subdivision (a)(1) is a Class E felony.
    (2) A violation of subdivision (a)(2) is a Class A misdemeanor.

    Two things about this statute. First it requires that the state prove that you intentionally desecrated the flag, and neither the statute nor any cases on this statute define what it means to desecrate the flag. That makes the statute a bit vague and the statute itself is rather broad, presenting avenues of potential attack on the state's case. Second, burning the flag when it is done as statement or protest of some kind is generally protected under the First Amendment's guarantee of free speech. See Texas v. Johnson, in which the U.S. Supreme Court overturned Johnson's conviction under a similar Texas law because the law, as applied to his conduct, which involved burning an American Flag at a Republican convention, violated his free speech rights. But the court noted that not all burning of the flag is protected:

    We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred.

    Texas v. Johnson, 491 U.S. 397, 405, 109 S. Ct. 2533, 2540, 105 L. Ed. 2d 342 (1989). In other words, the First Amendment may provide you another defense here, but it's not the case that the Constitution protects all burning of the flag. Only those incidents in which the burning is meant to express some idea or communicate some message, are protected, like a political protest, for example.

    So the bottom line here is that I think you have several different ways that might work to defend yourself against these charges. You'd likely fare better having an attorney make that defense for you. The attorney might even be able to simply meet with the prosecutor, outline the problems the prosecutor is going to have with this case, and get the prosecutor to drop it.

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