from the huh? dept
Hey, guys, how was your 4th of July? Good? Lots of hot dogs and brats? Nobody firecrackered their nuts off or anything? Maybe just drank a little too much? Whatever your 4th of July experience, it sure wasn’t as bad as this guy’s.
Meet Bryton Mellott. Bryton’s just a guy from Urbana, IL. A guy with a Facebook page that he uses to share stuff with friends, post hilarious memes, and post a picture of himself burning the American flag on the 4th of July, the anniversary of when President Washington personally haymaker-punched the King of England right in the face (I think), thereby setting
all some Americans free of our British overseers.
As you can imagine, lots of people didn’t like Bryton’s picture. Some called the police about it for reasons we will get into in a moment. Others threatened him with violence and death. Still others threatened him with violence and death at his place of work. A few meager folks stuck up for him. You know, Facebook.
And at the end of the day, Bryton was arrested by Urbana police. Per the department’s own press release.
On the morning of 7/4/16, the Urbana police department began receiving calls concerning a Facebook post that portrayed Bryton Mellott, a citizen of Urbana, burning an American flag. The images and narrative in the post caused some to call and request police action against Mellott and others to call and express concern for the safety of Mellott and those around him. Officers viewed the post and saw that there were a rapidly growing number of social media responses. Many threatened violence against Mellott and his place of employment, which fielded a large volume of calls regarding the post.
Given the volume of responses and specificity of threat against his place of employment (a location where an act of violence would likely cause harm to others), prompted police involvement in this case. After investigating the incident and speaking to both Mellott and his employer [Walmart -EV], Mellott was placed under arrest for flag desecration. The police report lists Mellott as an offender of both flag desecration and disorderly conduct as well as a victim of disorderly conduct. After consulting with a member of the States Attorney’s Office, Mellott was released from custody and given a notice to appear in court. Mellott’s release was due to questions about the constitutionality of the 2013 Illinois flag desecration law.
The Urbana Police department recognizes that this is a case where the right of free speech comes into conflict with the safety of uninvolved citizens. The actions taken in this case have been to try to assure the safety of the public and Mr. Mellott. The Urbana Police urge the public to express themselves in a peaceful way and to not retaliate against unpopular speech.
There is just so much wrong in that press release that it’s hard to know where to begin. Let’s start with the flag desecration bit first. The end of the PR piece says that Bryton was released because there are questions about the constitutionality of Illinois’ flag desecration law, which makes it illegal to burn the American flag. Yet there are zero questions about it, actually. The Supreme Court was quite clear in rulings in the 80s and 90s that laws like the one in Illinois, which was enacted in 2013, are flat out unconstitutional. The burning of the flag can make you mad and sick, but it’s speech, and it’s worth protecting. That additional bit about consulting with the States Attorney’s office wasn’t so much a consultation as it was that office telling police to let him go and then refusing to charge him because they couldn’t.
The State’s Attorney’s Office is declining to file charges against (Bryton) Mellott as the act of burning a flag is protected free speech according to the US Supreme Court decision, Texas v. Johnson, 491 US 397 (1989).
Now, to the disorderly conduct portion of this. That charge as well is completely nonsensical. If the burning of the flag is free and valid speech, the uproar that occurred on social media, including the threats of violence, can in no way be made the fault of the free and legal speech. Bryton didn’t make any threats. He didn’t act disorderly in any way. He was purely a victim here.
And the court has made clear since 1949 that the government can’t punish someone for “disorderly conduct” simply because his speech offends people and leads some of them to threaten violent retaliation. The police must protect the speaker (even though such protection understandably involves cost and risk for the police), rather than criminally punish him for his speech, except perhaps in some extremely rare cases that involve brewing riots on the street — a narrow category into which this speech doesn’t fall.
Which brings us to the police’s use of those threats as part of its excuse for involvement and the eventual arrest of Bryton to begin with. Keep in mind, whatever you think of it, that what Bryton did was legal. For others to threaten him and his place of work with violence, and to then use those threats to arrest Bryton is one of the most blatant examples of victim-blaming I can think of. The summary here should make this clear: a man, on the 4th of July, engaged in free speech, had threats made against him, and then those threats were the excuse used to arrest that man. Nowhere does the department’s comments state that any other arrests have been made, such as the arrests of those who actually committed a real crime by making violent threats.
Being an advocate for free speech means protecting speech you don’t like. I can’t think of a more pure example of the opposite of that than this story.