No, flag burning is not illegal. The Supreme Court’s 5-4 decision in Texas v. Johnson made this clear: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the experission of an idea simply because society finds the idea itself offensive or disagreeable.”
However, the four Occupiers are not to be charged with “burning an American flag.” Rather, according to news reports, the men violated a law prohibiting the “careless use of a fire” because they burned the emblem without the use of a fire pit, a misdemeanor. It’s not clear from reports as to whether the law violated is part of the North Carolina Fire Code, a local modification thereof or a purely local ordinance. Whatever the case, as we’ve seen in past cases, it can sometimes be that an ordinance of seemingly general applicability can run into legal obstacles when enforced in seeming conflict with First Amendment rights.
Therein lies the interest to readers of this feed: most any local law can tread in perfectly legal though seemingly complicated waters, whether land use laws or otherwise.
We’ll see if free expression groups take this one up.
Mike Thelen is a lawyer in Womble, Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.
Categories: Constitutional Issues