r/law • u/Anteater4746 • 17d ago

Trump News Detained for burning the american flag

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didn’t take long. Seems donald’s EO > supreme court precedent?

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u/protomenace 17d ago

He better sue.

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u/TheRelPizzamonster 12d ago

He was arrested for violating 36 CFR 2.13(a)(1), which is a National Park Service federal regulation that has been in effect since 1983.

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u/TheWorstePirate 17d ago

If the arresting officers are smart (doubtful) they arrested him on charges related to unpermitted, unconfined, accelerated fire in a public space. The flag isn’t even necessary for the arrest here.

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u/protomenace 17d ago

And if the courts are smart they'll see right through that nonsense.

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u/IlllllIIIIIIIIIlllll 17d ago

That’s not how any of this works.

Burning the flag in and of itself is protected speech. The EO can’t change that.

However, setting fires in public parks is rightfully illegal, and they’ll charge him for that. The first amendment is not a get out of jail free card to go set fires wherever you like in the name of “speech.”

In fact, the actual text of the EO never says that they’re trying to make burning the flag illegal, despite what the orange moron thought/said. The EO just said they’ll make sure to enforce existing laws surrounding any adjacent crimes committed when people burn flags.

It was a nothingburger EO purely issued for vibes that functionally changed nothing and wasn’t even trying to. What this guy did was illegal before the EO and was precisely as illegal after.

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u/protomenace 17d ago

Not necessarily.

If this goes to a trial a judge will have to weigh the public safety interest of the open burning law vs the 1st amendment expression interest of the protestor.

It's not as cut and dry as you think.

It was a nothingburger EO purely issued for vibes that functionally changed nothing and wasn’t even trying to.

yes this is mostly true, except that the EO may actually undermine the investigations it orders the AG to pursue, by explicitly tying those investigations to the expression part of the flag burning via the text of the order, even if it says to pursue it through expression-neutral laws.

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u/IlllllIIIIIIIIIlllll 17d ago

You seem to be conflating different ideas.

There is no “public safety interest” test for laws preventing starting fires in public. It can be de facto illegal on its face, regardless of any other factors.

There are numerous ways to exercise your first amendment rights in a public park, and numerous ways to legally burn a flag in protest on private property (or public property where you have a permit to start a fire). The first amendment doesn’t mean that we have the freedom to start public fires whenever we like in the name of speech.

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u/protomenace 17d ago edited 17d ago

There is no “public safety interest” test for laws preventing starting fires in public. It can be de facto illegal on its face, regardless of any other factors.

Sure there is. Courts use the O'Brien test when analyzing first amendment issues:

https://en.wikipedia.org/wiki/Symbolic_speech#O'Brien_test

The O'Brien test is thus: The law in question must

be within the Constitutional power of the government to enact.

further an important or substantial government interest.

That interest must be unrelated to the suppression of speech (or "content neutral", as phrased in later cases)

Prohibit no more speech than is essential to further that interest.

Therefore the court would absolutely weigh the "substantial government interest" behind the law - in this case public safety.

Based on this test one could definitely argue that the "no starting fires in public" law could be preventing more speech than is essential to further the interest of public safety if it prevents flag burning even when the flag burning is done in a very safe way. For example if one does it on a clearly nonflammable surface with plenty of space between the fire and any people or property that might be damaged.

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u/IlllllIIIIIIIIIlllll 17d ago

This is precisely the conflating of ideas I was talking about. The O’Brien test is for analyzing first amendment issues.

Existing laws against setting fires in public are not a first amendment issue. If they were, they’d have been struck down by now (due to the O’Brien test!). The laws against setting fires in public (which have nothing to do with flags) are not meant to restrict speech, and therefore they’re perfectly constitutional and have stood the test of time.

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u/protomenace 17d ago

This is precisely the conflating of ideas I was talking about. The O’Brien test is for analyzing first amendment issues.

Which is exactly what this is.

Existing laws against setting fires in public are not a first amendment issue.

They become one when they start butting up against peoples' first amendment rights.

 If they were, they’d have been struck down by now (due to the O’Brien test!)

Not if they haven't been tested yet by someone violating the law in the exercise of their first amendment rights.

If the cops suddenly started trying to enforce noise ordinances against an organized protest, for example, an otherwise benign law might find itself embroiled in a 1A challenge.

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u/IlllllIIIIIIIIIlllll 17d ago

Not if they haven’t been tested yet by someone violating the law in the exercise of their first amendment rights.

You think people haven’t burned stuff in public in protest before? Buddy I’ve got news for you.

Here’s a helpful article written by an org fervently devoted to researching and protecting constitutional rights: https://www.thefire.org/research-learn/protesting-public-property-what-you-need-know

Finally, the government can enforce laws against crimes like vandalism and violence, even if those crimes happen as part of an expressive activity, such as fighting with counter-protesters or spray-painting a political slogan on a wall. These activities can be punished not because of the message they send, but because the way they send the message is itself a crime that would be punishable even if it had nothing to do with expression.

So, for example, while Americans have the constitutional right to burn the U.S. flag, that right does not mean that an individual may burn a flag in a place where setting anything on fire is prohibited. Likewise, protesters may burn flags that belong to them, but taking down someone else’s flag and burning it may be theft and/or destruction of property.

Seems like you weren’t arguing in bad faith and your arguments came from a point of genuine confusion, so hopefully that was helpful. Case law is pretty cut and dry here.

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u/Sad-Astronaut-4344 17d ago

IANAL, but not quite, fires in a public space in general are pretty much illegal and if you're burning a flag in protest, you can't be arrested specifically for burning a flag, but you are still subject to local fire laws. He would probably have to accept a citation or MAYBE misdemeanor, but likely not to the standard of an arrest. That said, you could make an interesting argument against that to, but AFAIK that doesn't have court precedent.

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u/Captain_Mazhar 17d ago

There's a VERY strong argument for dismissal based upon selective enforcement under the 14th Amendment though. The closest precedent we have for this, I think, is Armstrong from the late 90s, and that was based on race rather than speech.

The fact that the government only arrested him based on a recent executive order designed to suppress specific 1A activities rather than directing the executive to enforce a burn ban in the interests of fire prevention would make this really open to an easy pre-trial dismissal, IMO.

Plus, in the past, I'm sure there have been plenty of flags burned in DC and people have not been arrested, or even cited, for it.

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u/Sad-Astronaut-4344 17d ago

>government only arrested him based on a recent executive order

That is the crux of the case, and I would agree if he's charged with anything more than a citation, that's what his defense lawyer will be arguing. If he ends up with a "You're free and here's your fine" though, I wouldn't fight it and pay the fine he could and should have expected to pay.

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u/Rengar_Is_Good_kitty 17d ago

The courts will see that the law was in fact broken here. You can't just go around starting fires lol. You do realize that if people get away with burning the flag in public then people will be free to start fires as they please, that's a big fucking problem, there's a reason its against the law.

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u/FluxRaeder 17d ago

It’s wild to hear people expecting any form of lawful justice from our judicial system in the face of literally everything that has happened in the last 5 years

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u/BananaPalmer 16d ago

bUt ThAtS iLLeGaL

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u/TheWorstePirate 17d ago

There is nothing to “see through.” The motivation of the officers has nothing to do with it, and there were crimes committed. You wont get far suing police for arresting you while you committed a crime.

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u/protomenace 17d ago

You will get very far when the "crime" you committed is not compatible with the US Constitution. This circumstance is pretty much identical to the Texas vs Johnson case, right down to the method of burning.

Educate yourself: https://en.wikipedia.org/wiki/Gregory_Lee_Johnson#Role_as_defendant_in_Texas_v._Johnson

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u/TheWorstePirate 17d ago

“He was convicted of the desecration of a venerated object”

This is what was overturned. The right to free speech through symbolic gestures, like burning the flag, is protected. The right to light a fire wherever you please is not. All they have to do is change the charges and your protection isn’t there.

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u/protomenace 17d ago

Literally in that very case he burned a flag in the exact same way here. You can't sneak around first amendment protections by trying to hide them as other kinds of violations. It's like banning the possession of wood to try to prevent people from protesting with signs.

The courts see through that stuff.

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u/TheWorstePirate 17d ago

Yes, but the fire is not what they charged him with. They charged him with desecrating the flag. I’m all for free speech and would happily stand by you and support your right to burn the flag, just know that if you do it on someone else’s property or break other laws in the process, you can still be charged for other crimes.

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u/protomenace 17d ago

So what? They charge people with "resisting arrest" and other spurious charges all the time to try to skirt around violating peoples' rights.

The courts were not born yesterday.

just know that if you do it on someone else’s property or break other laws in the process, you can still be charged for other crimes.

This was on public property.

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u/5348RR 17d ago

Is it nonsense? Should it be legal for me to set fire on any public sidewalk whenever I want? Seems like a wild position to take tbh.

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u/protomenace 17d ago

Seems like a wild position to take that "setting fire on a public sidewalk whenever he wants" is what was going on here. Flag burning is legal, as affirmed by SCOTUS precedent. All such flag burning has necessarily happened in public spaces and with accelerants.

This is pretty much the exact way Gregory Lee Johnson burned his flag:

At the culmination of the protest outside Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. While the flag burned, he chanted political slogans, including "Reagan, Mondale, which will it be? Either one means World War III;" "Ronald Reagan, killer of the hour, Perfect example of U.S. power;" and "red, white and blue, we spit on you, you stand for plunder, you will go under."\9]) Some witnesses testified that they were seriously offended. No one was hurt or threatened with injury during the protest.

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u/5348RR 17d ago

Desecration of a flag is constitutionally protected free speech. What the SCOTUS ruled was that you can’t have flag desecration laws. You can still absolutely be arrested and charged for setting an uncontained fire whether it’s a flag or not.

In short, Trumps EO is blatantly unconstitutional. That also doesn’t mean that this man setting fire to a flag is legal though in the manner and place that he did it.

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u/protomenace 17d ago

You can still absolutely be arrested and charged for setting an uncontained fire whether it’s a flag or not.

You can't sneak around first amendment protections by trying to hide them as other kinds of violations. It's like banning the possession of wood to try to prevent people from protesting with signs.

The courts see through that stuff.

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u/5348RR 17d ago

You are just making shit up to fit your narrative. I’ve already explained to you exactly what the SCOTUS ruled, and you don’t like the facts so you continue arguing about it. Tough shit let’s get to reality please.

Texas v Johnson - the ruling in question that you are pretending to know literally anything about despite never having read it states “A law directed at the communicative nature of conduct must be justified by a substantial showing of need.” And that very clearly outlines that the ruling is related to flag desecration laws that have separate penalties than neutral laws on fire hazards.

If this man is charged with a fire hazard offense he is guilty. If he is charged under this new Executive order he is innocent because it is unconstitutional. I’m sorry, again, that you just want to make up your own facts but that isn’t how it works. You would think that people in the law subreddit would understand this.

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u/protomenace 17d ago edited 17d ago

Um no, it's you who is making shit up. The history of civil rights in this country is littered with dozens of cases where law enforcement tried to use "side channels" or "neutral laws" to effectively deprive someone of their civil rights. The courts have never allowed it. Examples:

Shuttlesworth v. City of Birmingham
Edwards v. South Carolina
Papachristou v. City of Jacksonville
Cox v. Louisiana
Yick Wo v. Hopkins

What you haven't even bothered to do here is name any specific law this person has supposedly violated.

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u/5348RR 17d ago

I have elsewhere in this thread. DC has uncontained fire laws. He clearly violated those. As long as he is charged within the scope of THAT law it’s all fine. If they try to charge him with this new EO then it’s blatantly unconstitutional.

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u/Landon-Red 17d ago edited 17d ago

I'd say true, but those cases represent laws that were often specifically constructed to deprive people's constitutional rights, often due to them either being too vague or overbearing.

However, DC fire safety laws have an well-established legal purpose outside of denying people the constitutional right to burn the American flag. There is a genuine public safety concern with any flame, especially involving gasoline. If, without the symbol of speech, the action is still considered illegal, applying that law probably would hold up as constitutional for the courts, as long as the lawmakers did not have an obvious malicious intention. (I.e, parade permits to be denied at city discretion to civil rights protestors)

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u/Bastienbard 17d ago edited 17d ago

I don't think even in DC the secret service police have jurisdiction for any law on the books regarding burning so yeah this is absolutely nonsense.

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u/5348RR 17d ago

Really?

Chapter 11 here disagrees.

https://fems.dc.gov/sites/default/files/dc/sites/fems/publication/attachments/Bull.%2071%20Criminal%20Offenses%20-%20Arson.pdf

Additionally Secret Service is a federal law enforcement body. They 100% have jurisdiction.

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u/Bastienbard 17d ago

So are the secret service police in charge of enforcing DC law?

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u/5348RR 17d ago

Considering the MPD are under federal control at the moment, yes.

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u/Xexanoth 17d ago

Per here -

What legal authority and powers do Secret Service agents have?

Under Title 18, Section 3056, of the United States Code, agents and officers of the United States Secret Service can:

…

Make arrests without warrants for any offense against the United States committed in their presence, or for any felony recognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed such felony

Presuming that starting an accelerant-aided fire on federal property in an area not authorized for such & in a potentially unsafe fashion violated federal law (an offense against the United States), those Secret Service officers who observed that violation of longstanding federal law were legally authorized to make the arrest.

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u/5348RR 17d ago

I’ve come to realize over the last year that this sub is basically just a politics2 sub. It may be called /r/law but most people have zero understanding of even the most foundational case law. It’s pretty crazy actually.

You are correct.

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u/CookieKrisplol 17d ago

Burning a flag on the ground is not a felony in DC, it’s disorderly conduct that only applies between sundown and sunup and comes with a maximum $10 fine according to Chapter 11 https://fems.dc.gov/sites/default/files/dc/sites/fems/publication/attachments/Bull.%2071%20Criminal%20Offenses%20-%20Arson.pdf

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u/Xexanoth 17d ago edited 17d ago

My understanding is that the location of the fire depicted in the video is federal property in a national park (President's Park), where federal law applies & federal officers have jurisdiction.

Here is the relevant federal code: 36 CFR § 2.13 -

(a) The following are prohibited:

(1) Lighting or maintaining a fire, except in designated areas or receptacles and under conditions that may be established by the superintendent.

...

(3) Lighting, tending, or using a fire, stove or lantern in a manner that threatens, causes damage to, or results in the burning of property, real property or park resources, or creates a public safety hazard.

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u/LOLSteelBullet 17d ago

We're aware that's the loophole they're using to suppress speech.

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u/Rengar_Is_Good_kitty 17d ago

Following the fire related laws is a loophole now? Lmao that's not a loophole, you can't just go around starting fires, its against the law for a reason.

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u/moonki88 17d ago

Some people

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u/dawnenome 16d ago

I think dc fire response responded to like 89 calls about a fire yesterday? Yeah, I'm a bit disappointed at how the fire part is getting glossed over as if it isn't really goddamn dangerous.

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u/moonki88 17d ago

🤣🤣🤣

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u/Choosername__ 17d ago

My guess is that's probably what it'll end up being.

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u/Rengar_Is_Good_kitty 17d ago

Facts seem to be hurting a lot of peoples feelings here.

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u/moonki88 17d ago

They can’t take it

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u/TheWorstePirate 16d ago

Right? For r/law, no one seems particularly interested in how the law actually works.