POLITICS
07/05/2016 06:04 pm ET

A Man Burned The Flag And Got Arrested, Which Is Clearly Unconstitutional

After reviewing the charge for "flag desecration," even an Illinois state's attorney agreed it was bogus.

A young man who wasn't feeling very patriotic this 4th of July weekend decided to burn an American flag and tell the world about it on Facebook -- only to get arrested the next day after neighbors complained.

Bryton Mellott, 22, of Urbana, Illinois, was taken into custody Monday after police received calls about his Facebook posts, which included a picture of him setting the Stars and Stripes on fire and a message explaining that he was "not proud to be an American."

"In this moment, being proud of my country is to ignore the atrocities committed against people of color, people living in poverty, people who identify as women, and against my own queer community on a daily basis,” Mellott wrote in a Facebook post that appears to have since been taken down.

It turns out that Mellott had been charged under Illinois' flag desecration statute -- a relic from another era, since the Supreme Court ruled more than 25 years ago that flag burning is expressive political conduct and, as such, is protected by the Constitution.

"If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” wrote Justice William Brennan for a divided 5-4 court in the landmark 1989 case Texas v. Johnson.

Sgt. Andrew Charles of the Urbana Police Department told Forbes columnist Fernando Alfonso that the UPD had never charged anyone under that law in 27 years, but that police proceeded with the arrest out of an attempt to balance civil liberties with issues of safety.

"This wasn’t an issue with anyone at the police department being personally offended by his speech," Charles said. "But the reaction that it was gathering, and the concern for the safety of all involved forced us into a reaction."

It appears that Mellott's constitutional rights won out in the end, because Julia Reitz, the state's attorney assigned to the case, decided not to proceed with a prosecution. She pointed to Texas v. Johnson, which declared a similar flag desecration statute unconstitutional.

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Justice William Brennan in Texas v. Johnson (1989)

Reitz also suggested that the law currently in effect in Illinois might need to be revised to comport with the First Amendment.

"We will be discussing this issue with our local legislators and asking that they consider reviewing this statute given the constitutional issues it presents," Reitz said Tuesday in a statement.

Following the county's decision not to press charges against Mellott, the police department insisted in a press release that its officers acted in good faith -- both in following the law and out of concern for Mellott, whose postings elicited "significant emotional reactions," including death threats against him.

This "escalating negative landscape and the concern for the poster" led the Urbana Police Department to act the way it did, according to the release, posted Tuesday on Facebook.

The American Civil Liberties Union of Illinois, for its part, was none too pleased that getting jailed for flag-burning is still a thing in 2016.

"The notion that someone would be arrested for that so long after we have settled that question in the courts is really troubling," said Ed Yohnka, a spokesman for the legal advocacy group.

Mellott didn't return a request for comment and his posts are no longer publicly visible on Facebook, but his expressive act lives on: As of Tuesday, a photo of him burning the flag was still his profile image on social media.

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