Police and military in Pennsylvania were outraged when Joshuaa Brubaker nailed the American flag to the side of his house. The flag was displayed upside down with a political message painted on it.
“I was offended by it when I first saw it,” Allegheny Township Assistant Police Chief L.J. Berg told WJAC-TV in Johnstown. “I had an individual stop here at the station, a female who was in the military, and she was very offended by it.”
The police charged Brubaker with insulting and desecrating the flag of the United States, a misdemeanor.
“I removed it from the building, folded it properly and seized it as evidence,” Berg said.
Police in Allegheny Township don’t believe the First Amendment or property rights extend to the national symbol of the United States government. Berg said since soldiers died in wars, citizens do not have the right to display the flag upside down in distress or paint political messages on it.
Berg and the police believe Brubaker’s treatment of his privately owned property amounts to desecration. In other words, according to the state, and the police and at least one member of the military, Brubaker violated the sacred character of the government. Desecration, according to the dictionary, is “to violate or outrage the sacred character of (an object or place) by destructive, blasphemous, or sacrilegious action.”
“People have paid high prices for that. People have paid the ultimate sacrifice,” Berg said. “People have made too many sacrifices to protect the flag and to leave this happen in my community, I’m not happy with that.”
Mr. Berg may not be happy with it, but then Mr. Brubaker’s flag is not his property or property owned by the police and Allegheny Township.
“Keeping our eye on property rights, the entire flag question is resolved easily and instantly,” writes Murray Rothbard. “Everyone has the right to buy or weave and therefore own a piece of cloth in the shape and design of an American flag (or in any other design) and to do with it what he will: fly it, burn it, defile it, bury it, put it in the closet, wear it, etc. Flag laws are unjustifiable laws in violation of the rights of private property. (Constitutionally, there are many clauses in the Constitution from which private property rights can be derived.)”
In 1989, the Supreme Court ruled in Texas v Johnson that flag desecration laws are unconstitutional and violate the First Amendment. While flag burning and desecration are not strictly defined as speech, they are considered expressive conduct covered by the First Amendment.
Members of the highest court in the land, however, argued the emotional character of a symbol of the state provides exception to the Constitution. In Texas v. Johnson, William H. Rehnquist, joined by two other justices, argued that the “uniqueness” of the flag “justifies a governmental prohibition against flag burning.”
“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation,” Rehnquist continued. “It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”