Detroit -- The ACLU of Michigan today asked a Calhoun County prosecutor today to drop charges against Thomas Little, a resident of Marshall who was recently charged by a city police officer with a crime for displaying an American flag upside down during an anti-war protest. Flying the flag upside down is the traditional way of signaling distress. The law he is being prosecuted under makes it a misdemeanor to, among other things, “mutilate” or “cast contempt” upon an American Flag “by word or act.” MCL 750.246. . Mr. Little is required to appear in the 10th District Court in Battle Creek on May 2.
“Although acts of intentional flag ‘desecration’ are extremely rare, those isolated instances anger many people,” said Kary L. Moss, Executive Director of the ACLU of Michigan. “However it is precisely because acts of political expression involving the flag are unpopular that they need and deserve protection under the First Amendment. Popular speech needs no protection. Dissent, offensive though it may be, requires it.”
The U.S. Supreme Court has repeatedly held that conduct such as Mr. Little’s, and even burning the American flag in protest, is speech protected by the First Amendment and therefore cannot serve as the basis of a prosecution. See, e.g. Texas v Johnson, 491 US 397 (1989); United States v Eichman, 496 US 310 (1990).
Mr. Little’s father, Melvin Little, is a retired noncommissioned officer and supporter of the war effort. He said: “I believe that patriotism can take many shape and forms. The most basic feature of patriotism though is an understanding that people can disagree with the government without fear of punishment. Anything else is not a democracy.”
Congress is currently considering a bill that would amend the federal Constitution to prohibit flag desecration. This would be the first limiting of the First Amendment in the more than 200 years since the Bill of Rights was enacted. Senate Majority Leader Bill Frist recently announced that he will schedule a vote on the amendment on or about June 14, 2006 Flag Day. There is opposition to the amendment across a wide political and media spectrum. Three Michigan Republican members of the House voted against the amendment during the most recent vote -- Vernon Ehlers, Peter Hoekstra and Joe Schwarz. Editorial voices raised against the amendment include The Detroit News and The Jackson Citizen Patriot. Former Secretary of State Colin Powell has spoken out against the amendment, as have other prominent former military officers and some veterans groups.
Senator Carl Levin is opposed to the amendment. Senator Debbie Stabenow has indicated her intention to vote for it. The issue could be decided by a single vote.
“We hope that the vote of Michigan’s own Senator will not be the one that makes a crime of Mr. Little’s legitimate, peaceful protest,” said Moss.