2 Utahns fighting flag-defacing law

Is the desecration of the U.S. flag protected speech under the U.S. Constitution? That is an ongoing debate in the halls of Congress.

Now, two Utah men are weighing in, challenging a Utah law that makes it a crime to deface the U.S. and Utah flags.

Wednesday, the U.S. 10th Circuit Court of Appeals will hear oral arguments in the case of a Utah man who was charged under Utah's flag desecration law. The argument will be heard as part of a special session of the Denver-based court at the University of Utah.

Kris Winsness claims his right to free expression was violated when he was charged in Salt Lake County with a class B misdemeanor. According to Winsness' attorney, Brian Barnard, his client burned an image of a "smiley face" on a U.S. flag as an expression of Winsness' frustration with the judicial system. He then displayed his work in front of his garage in October 2002.

According to Salt Lake County authorities, many of Winsness' neighbors were offended by his actions and called the sheriff's office. According to the state's brief to the court of appeals, when asked by the deputy why he marked the flag, the deputy reported she was told "he was bored." The deputy then confiscated the flag as evidence.

Later, Winsness was charged under Utah's flag desecration law.

The law, which was last amended in 1953, states: "A person is guilty of abuse of a flag if he: (a) intentionally places any unauthorized inscription or other thing upon any flag of the United States or of any state of the United States; or (b) knowingly exhibits any such flag, knowing the inscription or other thing to be unauthorized; or (c) knowingly casts contempt upon the flag of the United States or of any state of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it."

But Barnard claims Utah's law is unconstitutional under a 1989 U.S. Supreme Court ruling, that declared a similar statute in Texas unconstitutional.

"It is simplistic and short-sighted to suggest that by law, government can mandate respect for the flag," Barnard said. "The freedoms represented by that flag mean that the protester is able to burn the flag."

County prosecutors dropped Winsness' case but reserved the right to refile charges at any time. Barnard said that clearly puts his client in constant fear of being prosecuted in the future.

Ken Larsen, who is also a party in the case, was a third-party candidate for governor of Utah in the last election. As part of his campaign, Larsen handed out miniature versions of the Utah State flag, which he signed with a gold-ink pen.