ACLU Says State Flag Desecration Laws Are Unconstitutuional

Feb 29, 2016

Credit sashikag / Flickr

  The American Civil Liberties Union of Pennsylvania has filed a suit to deem two state statutes unconstitutional. The group's client, Joshuaa Brubaker, was charged two years ago for flag desecration.

Brubaker, part Native American by birth, hung the American flag upside down outside his home with letters "AIM" -- an acronym for the American Indian Movement -- spray painted across it in protest of plans for the Keystone Pipeline, which is slated to run through sacred territory in South Dakota.

Police officers at the station across the street took it down and filed criminal charges.

Sara Rose, a staff attorney with the ACLU chapter, said the flag desecration statutes haven’t been used since 2007 and date back to the 19th century.

“Even if some people might think it’s disrespectful or may not like it, our First Amendment gives us the right to use symbols like the United States flag as a form of expression,” Rose said.

Formal charges against Brubaker were dismissed last April, but Rose said Brubaker hasn’t used the flag as a form of expression since, because he is afraid of being charged again.

Of the two statutes, Rose said one has no exception for political demonstration, which she said is unconstitutional under 25 years of United States Supreme Court law. The insult to national or commonwealth flag statute carries a maximum sentence of two years imprisonment and a $2,000 fine. The desecration of flag statute carries a maximum one year sentence and a $2,000 fine.

Rose said many states still have statutes on the books because they aren’t often used.

“In the states where they have been enforced, there have been challenges and those challenges are largely successful because the U.S. Supreme Court said in 1989 that you have the right to burn the American flag if you’re doing it as part of your political expression,” she said.

Brubaker wants the flag desecration and flag insult laws declared unconstitutional and is seeking damages for constitutional violations.