An Illinois Man Was Arrested For Flag Burning, But Is It Actually Illegal?

This is America, and we have the freedom to do whatever the hell we want, right? How about this — do you know if it’s illegal to burn a flag or not? Bryton Mellott of Illinois found out this week after posting an image on Facebook of himself burning an American flag, writing that he was ashamed to be an American. “I do not have pride in my country. I am overwhelmingly ashamed, and I will demonstrate my feelings accordingly. #ArrestMe,” his post said.

The 22-year-old added, “I would like to one day feel a sense of pride toward my nationality again. But too little progress has been made. Too many people still suffer at the hands of politicians influenced by special interests. Too many people are still being killed and brutalized by a police force plagued with authority complexes and racism.” As soon as he put the post up, he began to receive death threats online and at his job at Walmart, according to the News-Gazzette. Mellott did not immediately return The Frisky’s request for comment.

Police allegedly arrested Mellott for “flag desecration and disorderly conduct” because he also “refused to deescalate” the situation by taking the post down. In some way, the statement the police posted to Facebook seems like they arrested Mellott in part for his safety and in part for the post.

But Illinois’ flag desecration law was no match for federal laws. Champaign County State’s Attorney Julia Rietz said she would not press charges because even though Illinois does have a flag desecration law on the books, flag burning was actually protected in the 1989 Texas v. Johnson Supreme Court case. According to the Supreme Court, it’s “symbolic speech” that is protected by the First Amendment. But it’s still a tricky issue.

In 1968, at the height of protests over the Vietnam War, Congress passed the Federal Flag Desecration Act, which made it illegal to knowingly destroy a flag. Today, 48 states have  flag desecration laws on their books. In addition to that, the Johnson decision from 1989 only struck down the Texas desecration law, and the Court was super divided afterwards. In response to the Johnson decision, Congress passed the Flag Protection Act of 1989, which the Supreme Court then also shut down as unconstitutional.

So technically, it’s both illegal and legal to burn a flag. The SCOTUS ruling says that it’s protected as free speech, so even if states have desecration laws, the Supreme Court totally trumps those laws. So sure, the Illinois attorney general could have pressed charges, but it would not have been worth anyone’s trouble to actually go forward with it. It would turn into a long, drawn out case that would eventually hit the state’s Supreme Court, which would then use the past two, federal verdicts as precedent.

If the Supreme Court says the burning of a flag is just another way to be pissed off, it doesn’t matter what the states want. And whether watching that punk kid burn a flag pisses you off or not, you have to admit: the First Amendment is a pretty dope protection all around.