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Constitutional Challenge to Illinois Flag Burning Law

Posted by Athena M. Herman | Jan 26, 2017 | 0 Comments

Individual's protesting what they see as injustice can take many forms. Many people voice their dissent through social media, while others take part in organized marches. A man in Illinois burned the flag in a protest against what he saw as racial discrimination, poverty, and other injustices, posting pictures on social media. After being arrested, the man now seeks to have Illinois' flag desecration law declared unconstitutional.

Bryton Mellott is a 22-year-old resident of central Illinois. Last Independence Day, Mellott planned a protest of racial discrimination, poverty, and what he saw as other injustices in the United States. Mellott burned an American flag, taking pictures of his protest, and later posting them on Facebook.

Not surprisingly, the protests post generated hundreds of comments, with some supporting Mellott and others condemning the action. Police officers in Urbana responded to the post, showing up at Mellott's workplace and detaining him for hours. He was eventually released, without formal charges. Mellott now seeks to have the Illinois flag desecration law declared unconstitutional, in violation of freedom of speech guarantees.

Open dissent is the highest form of American patriotism,” said Mellott. “And it was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty.”

Urbana police have since claimed they arrested him, in part, to protect him from possible violence as a result of his social media posting. According to a news station, people were calling the police to complain about the flag-burning while others said they were concerned for Mellott's safety.

Attorneys with the American Civil Liberties Union (ACLU) of Illinois have filed a lawsuit with Mellott, including a claim for unspecified damages. The defendants include the 4 Urbana police officers who arrested Mellott. The lawsuit challenges the constitutionality of the state's flag desecration laws. Flag desecration has been recognized as protected speech since 1989 with the Supreme Court decision in Texas v. Johnson.

Even though such laws have already been deemed unconstitutional, most states still have anti-flag desecration laws on the books. Part of the reason these laws remain in place is because repealing such laws is not popular, and state governments place a low priority on updating these laws.

Wisconsin and Missouri have recently had their flag desecration laws removed or repealed. Still, the issue remains highly controversial and divisive. ACLU attorneys have said part of the reason they have filed such a lawsuit is to provide clear guidance for law enforcement.

“We want to make sure that in the future, Illinois law enforcement officers know they cannot arrest people under this statute,” said Rebecca Glenberg, an attorney with the ACLU.

If you have been arrested or treated unfairly in violation of your civil rights, you should speak with an experienced attorney who understands Illinois civil rights law. Our attorneys have successfully handled civil rights and discrimination cases for our clients in Peoria and throughout the state of Illinois. At Benassi & Benassi, we are committed to getting our clients the justice they deserve and equal treatment under the law.

About the Author

Athena M. Herman

Athena M. Herman practices in the areas of employment discrimination law, general employment law, and civil rights law...


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