Warrant for desecration of flag

[quincy]

Unfortunately for me I can’t afford an attorney right now let alone bail. The county I live in is pretty backwards and I have no doubt my bail won’t be reasonable.

The link I provided is to low-cost and free legal resources.

 

[quincy]

If there are any law schools within reach, many of them will have clinics where, for a low or no cost, third year students work under the supervision of their professors to get experience.

The link I provided earlier has contact information for this, as well. Has anyone looked at the link?

 

[cbg]

Mea culpa. God forbid information might be listed twice.

 

[quincy]

Mea culpa. God forbid information might be listed twice.

There is no problem with information being listed twice - but the link I provided has a comprehensive list of all free and low-cost legal resources in the area.

 

[cbg]

Very well. I have removed the offending post.

 

[quincy]

Very well. I have removed the offending post.

It wasn’t “offending.” You should have left it in place.

 

[Taxing Matters]

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 I could find regarding 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. Overly broad or vague statutes are generally unenforceable. 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.

 

[quincy]

Your first step will be to get the warrant vacated. The attorney can help you with that.

 

[Ohiogal]

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 I could find regarding 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. Overly broad or vague statutes are generally unenforceable. 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.

But per the flag code, the only proper way to dispose of a flag that is tattered, torn, or touched the ground is to burn it.

 

[FlyingRon]

But per the flag code, the only proper way to dispose of a flag that is tattered, torn, or touched the ground is to burn it.

The code does not say that. It says: The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

 

[commentator]

The legal free legal services link will connect the OP to an overworked and seriously undermanned and under motivated group who wouldn't touch something like this with a ten foot pole. They seriously try to help people, but do not have the time or resources to get involved in a case of this type, IMHO. Call them and talk if you would like. But meantime, I do suggest you find an attorney, get them to negotiate with the other party, pay your fines, lie low and try to get through this. Tennessee is a serious place to be out of synch right now, it is rather unpredictable what the local courts would do to you, or even a local deputy who stopped you and found out you'd gotten in trouble for burning our beloved sacred emblem and all that. It's not a good idea to get known as the county liberal.

And if anybody wanted to touch this case to carry it forward, it'd probably be the ACLU. However, in TN right now, they're fighting their way through our wild and crazy desire to be the most backward state in the nation. We have a legislature that has given felony charges to demonstrators for overnight camping, who sneaked into session and passed the most restrictive abortion law in the nation, whom the pollsters automatically assign to one party, no swing state mentality here (and we're proud of it!) Perhaps this will pass, but honestly, it's best to try to get out of this with as little confrontation as possible right now.

 

[Refinats]

W

The legal free legal services link will connect the OP to an overworked and seriously undermanned and under motivated group who wouldn't touch something like this with a ten foot pole. They seriously try to help people, but do not have the time or resources to get involved in a case of this type, IMHO. Call them and talk if you would like. But meantime, I do suggest you find an attorney, get them to negotiate with the other party, pay your fines, lie low and try to get through this. Tennessee is a serious place to be out of synch right now, it is rather unpredictable what the local courts would do to you, or even a local deputy who stopped you and found out you'd gotten in trouble for burning our beloved sacred emblem and all that. It's not a good idea to get known as the county liberal.

And if anybody wanted to touch this case to carry it forward, it'd probably be the ACLU. However, in TN right now, they're fighting their way through our wild and crazy desire to be the most backward state in the nation. We have a legislature that has given felony charges to demonstrators for overnight camping, who sneaked into session and passed the most restrictive abortion law in the nation, whom the pollsters automatically assign to one party, no swing state mentality here (and we're proud of it!) Perhaps this will pass, but honestly, it's best to try to get out of this with as little confrontation as possible right now.

unfortunately I doubt it would end with fines. Pretty backwards place. On top of that it’s the principle of the matter! I didn’t do anything wrong! I will not be hushed. I will express my freedom of speech ha and not have the state tell me other wise! This isn’t North Korea!

 

[Zigner]

But per the flag code, the only proper way to dispose of a flag that is tattered, torn, or touched the ground is to burn it.

The flag code is not "law".

 

[Taxing Matters]

The flag code is not "law".

It is law. It just doesn't mandate any one method of discarding flags or attach any particular penalty for not following it.

 

[Taxing Matters]

Perhaps this will pass, but honestly, it's best to try to get out of this with as little confrontation as possible right now.

That's the kind of mentality that lets the state suppress speech and ends up stripping away our right to free speech. If you don't defend free speech rights, you risk losing them.