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First Amendment rights questioned in flag abuse incident

Published: Friday, July 8 2011 2:02 p.m. MDT

HYRUM — Cache County officials say they will not charge two men cited with flag abuse, but the incident has some questioning the validity of a decades-old Utah statute making it a misdemeanor to desecrate a flag.

Justin Jerez and a group of friends were asked by sheriff's deputies to leave town after writing the words "Children of Debt, Inheritors of War" on a United States flag, mounting it upside-down and carrying it along the Independence Day parade route.

"We didn't want to make people mad," Jerez said Friday. "We simply wanted to be there so people would see us."

Chief deputy Brad Slater said the Cache County Sheriff's Office received multiple calls from witnesses claiming the group of men were using vulgar language and making defamatory remarks and deputies responded to the area out of concern the situation would escalate.

"Our primary concern was to try and maintain the peace and keep people from fighting," Slater said.

Slater said the group was cooperative with law enforcement officials.

"They were argumentative at first but eventually agreed to leave," he said.

Jerez denies that he and his friends were being vulgar or disruptive. He said he did not recall any curse words being spoken but if so, they were most likely overheard from the group's private conversations.

"We weren't really yelling or protesting," Jerez said. "We took our flag and walked down the street and talked amongst ourselves."

Jerez said he was contacted after the incident and cited for desecrating the flag with the understanding that charges would follow. As of Friday afternoon, Jerez said he had not had further communication with law enforcement.

"If they are dropping the charges, that's news to me," Jerez said.

Slater said the case had been forwarded to the Cache County attorney, who deemed that criminal charges were not warranted.

Jerez said he was surprised by the citations. He said he is a political science student and believes he was within his First Amendment rights.

The Utah criminal code includes an "Abuse of Flag" statute, enacted in 1973, that makes it a class B misdemeanor to place an unauthorized inscription on a U.S. flag or knowingly cast contempt on a flag by mutilating, defacing, defiling, burning or trampling it in public.

Salt Lake City attorney Brian Barnard said that such a statute is unenforceable.

"The United States Supreme Court has held such statutes to be unconstitutional," Barnard said. "Although they remain on the books, they should not be enforced."

What often happens, Barnard said, is that statutes will be deemed unconstitutional on the federal level and will simply remain, antiquated, on the state books.

"It puts law enforcement in a bind because they find the statute on the books, they enforce it and then everybody's time is wasted," Barnard said.

Since Jerez and his friends were cited for desecrating the flag and not for disorderly conduct or disrupting the peace, Barnard said they were well within their rights.

"Although it's of questionable taste, people have the right to express themselves by marking on the American flag or Utah state flag and it's a First Amendment right to do that," Barnard said.

University of Utah law professor Emily Chang agreed, saying it would take considerably more extreme actions than using the flag as expression to be upheld as criminal.

"It's a classic Supreme Court case called Texas v. Johnson," Chang said. "If what the prosecutors are trying to punish is expression, (the defendants) are going to be OK."

In that case, which was decided by the Supreme Court in 1989, a man named Gregory Johnson had been sentenced to one year in prison after violating a Texas flag desecration law. Johnson dumped kerosene on a U.S. flag and burned it as part of a political demonstration. His sentence was overturned by the high court, establishing the precedent of flag desecration being protected as free speech.

Jerez said the demonstration in Hyrum was meant as a criticism of the government.

"I see the flag as something that represents our country, represents our government and I feel like it's not the same government, not the same country that it should be," Jerez said. "There's a lot of issues going on, a lot of things the government is doing that aren't right."

Email: benwood@desnews.com

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