When Flag-Burning Isn't Protected
By Scott Editor | Scott's Archive
July 19, 2005

Apparently there is a flag-burning epidemic!

Opponents of a constitutional amendment to make flag burning an enforceable crime argue we have more pressing issues to worry about and that acts of flag burning are extremely rare and only happen in obscure and unusual cases.

I tend to agree with liberals on this issue. While flag burners don't make my Greatest Americans list I don't see their treatment of the flag as a prosecutable offense. Yet every now and then our great nation produces an individual who defies the "rare" myth and burns the flag and is subject to scrutiny. A recent case involving a Tennessee teen may turn out unfortunate for him regardless of whether or not flag burning can be considered free speech, because his situation may have nothing to do with the First Amendment.

A guy named Andrew Elisha Staley was jailed for nine days after being accused of burning the American flag on the Fourth of July and faces trial next month.

According to prosecutors the teenager has yet to argue that he was exercising free speech rights, and making the case may be a hard task considering the circumstances.

But burning the flag isn't the only charge Staley faces. The 18-year-old is accused of taking the flag from a residence and setting it on fire which are crimes on their own.

"Bottom line is, the kid got drunk," his mother said. His father added that he would have no reason for burning the flag and would have easily done it to a "garbage can" because he was in a state of intoxication.

While on the surface that sounds like a defense of the kid, it actually makes it harder to prove the flag burning was done as an exercise of free speech if it wasn't politically motivated.

Staley was recently released from jail and awaits his Aug. 2 trial on charges of desecrating a venerated object, underage drinking, littering, evading arrest, burning personal property and theft.

The Tennessee flag-burning statute alone is a misdemeanor and punishable by less than a year in jail and up to $2,500 fine. That, plus Staley has to worry about the other charges such as underage drinking and theft thrown at him.

Perhaps he'll think twice about how he celebrates our nation's independence next year when he'll still be too young to drink legally. One must wonder how drunk Staley was if he did something his parents say he would have never done under normal circumstances.

The issue of flag burning is sensitive because many Americans take pride in our flag and have little respect for those who willfully desecrate it. Of course Staley does not fit in that camp and because he's a Tennessee resident he lives in a state with harsh penalties for burning the American flag.

Specifically, the statue reads:

39-17-311. Desecration of venerated object.
(a) A person commits an offense who intentionally desecrates:
(1) A place of worship or burial; or
(2) A state or national flag.
(b) A violation of this section is a Class A misdemeanor.
The one possible loophole I see is that part in the language that says "intentionally desecrates." If his lawyer is good enough he can probably convince a jury that Staley's state of intoxication prevented him from making any "intentional" decisions, let alone one that led him to stealing a flag and lighting it on fire.

I predict a plea deal. One that will let Staley off easy for doing something stupid on the Fourth of July he probably now regrets. We'll find out soon enough if a full-fledged trial is made of this.

Want to debate this issue and make your own aggressive voice heard? Head over to my blog, Aggressive-Voice Daily, and join in on the discussion.

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