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Burning the Flag Is OK, But Starting Fires Sometimes Isn't

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The man who established the constitutional right to burn the American flag almost 30 years ago may go to prison for doing the same thing outside the Republican National Convention in Cleveland yesterday. Gregory Lee Johnson, the defendant in the 1989 Supreme Court case, Texas v. Johnson, was reportedly one of 18 people arrested after a staged flag-burning went awry, leading to three protesters catching on fire and a confrontation with police.

The facts, which still need to be determined, raise the intriguing possibility that Johnson may be punished this time.

Burning the flag is still free speech. But if Johnson assaulted a police officer or refused to disperse when told to do so, he might be convicted -- and his conviction would likely withstand a constitutional challenge.

The flag-burning seems to have begun lawfully, and an organization called Revolution Books Cleveland apparently obtained a permit to stage the event and advertised the protest in advance on its website. The flag-burning was billed as an event featuring Johnson: “Joey Johnson, Notorious Flag Burner and Revolutionary Communist to Display Flag the ONLY Way It Should Be: On Fire.””

What happened at the event is subject to dispute. According to Cleveland Police Chief Calvin Williams, things started to go wrong when the flag-burners blocked delegates from entering the Quicken Loans Arena, where the convention is being held. The police ordered the group to disperse.

Then, according to Williams, before the group could disperse, one of the protesters set the flag on fire. According to a witness, this was Johnson.

The police said the person who set the flag on fire accidentally set his own pants on fire, too. A police officer with a fire extinguisher approached to put out the flames. The flag burner tried to keep the flag away from the officer, and in the process two other protesters caught fire. Two police officers were allegedly pushed or punched and 18 people were arrested. All were charged with misdemeanor failure to disperse when instructed to do so by a police officer. Two were charged with felony assault of a police officer.

Amina Gonzales of the Revolutionary Communist Party offered a different account in comments to reporter. "This is protected speech and they bum-rushed us," she explained.

The legal analysis will depend on a few key facts, all of them constitutionally interesting. The first is whether Revolution Books Cleveland had a permit to protest exactly where it did. If the answer is yes, Johnson’s case would be much easier.

In recent years, municipalities hosting events like political conventions have imposed very strict “time, place, and manner” limits on protests. The courts have largely upheld restrictions intended to protect safety -- even when they have the effect of pushing demonstrations far away from the events being targeted. Given recent attacks on police in Dallas and Baton Rouge, Louisiana, security concerns seem especially important around the convention in Cleveland.

If the protesters had a permit to be where they were, it still remains to be determined whether they were unlawfully blocking delegates’ access to the arena -- the act that police say triggered the order to disperse. The protesters’ mere presence, if they had a permit, shouldn’t be considered unlawful blocking.

If the order to disperse was unlawful, then charges against the protesters for failing to disperse should be unlawful, too. Freedom of speech and assembly aren’t worth much if the police can break up a protest without citing a public-safety threat.

The pants-on-fire issue is more complicated still. Suppose Johnson accidentally set himself on fire in a way that endangered him or other protesters or other members of the public. A police officer would then have been legally justified in trying to extinguish the fire. Johnson could be prosecuted for resisting.

He has a constitutional right to speak by burning the flag safely, but no rights to endanger others in the process.

And assaulting the officers would be legally unprotected conduct, not protected speech.

Yet it’s also possible to imagine a scenario where police used the risk of Johnson setting himself on fire as an excuse to stop him from burning the flag. If there was no real danger, and the police actually intended to block the protest, that would violate Johnson’s free-speech rights. The Supreme Court held just this past term that a First Amendment violation is triggered by the government’s intent to suppress speech.

Texas v. Johnson remains an important Supreme Court precedent. It stands for the proposition that the government may not punish symbolic speech, even when it’s performed through an act that many find repellent.

But the court also noted in the case that there was no breach of the peace when Johnson burned the flag in front of the Dallas City Hall. That may be different from what happened in Cleveland. Unless Cleveland authorities decide they don’t want to prosecute a First Amendment hero, it will now be up to a court to sort it out.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net