ST. LOUIS — Missouri's flag desecration law "dilutes the very freedom" that makes the flag so beloved, an attorney for the American Civil Liberties Union told a federal appeals court panel Thursday.
A three-judge panel of the 8th U.S. Circuit Court of Appeals heard the case of Frank Snider III of Cape Girardeau, arrested in 2009 for violating Missouri's law prohibiting burning or desecration of the flag. Prosecutors soon dismissed the charge, and in 2012, U.S. District Judge Carol Jackson agreed with the ACLU's contention that the law violated the First Amendment's right to free speech.
Missouri Attorney General Chris Koster appealed to the 8th Circuit, which is expected to rule in 60 to 90 days.
Snider was angry about his inability to find work in 2009 and cut up an American flag, threw it into the street in front of his home and tried to set it on fire. When that failed he used a knife to shred it.
An upset neighbor called police, telling the dispatcher, "He's cut the United States flag up with a knife, throw'd it out in the street for the cars to run over. Now, I am a United States citizen and I don't like it."
Cape Girardeau officer Matthew Peters arrested Snider after consulting with the county prosecutor and a judge. Snider was jailed for about seven hours before he was released.
Prosecutors dismissed the charge after learning of a U.S. Supreme Court ruling that deemed a similar law in Texas unconstitutional.
Officials with Koster's office have defended the Missouri law, saying Missourians have a strong sense of patriotism and don't want to see the flag burned or mutilated. State attorney Jeremiah Morgan told the appeals court panel that the ruling in the Texas case wouldn't necessarily invalidate Missouri's law, noting that even a federal flag desecration law "is still on the books."
The federal law provides for a fine or up to a year in prison for anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States ..." It does not prohibit action to dispose of a flag that is worn or soiled.
But ACLU attorney Tony Rothert said the "bedrock principle" of the First Amendment is that government cannot prohibit the expression of an idea simply because the majority of people disagree with it.
"Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering," Rothert said.
Jackson's ruling in 2012 awarded $7,000 to Snider and also ordered the state and Peters to pay $62,000 in legal fees. Al Spradling III, an attorney representing Peters and the city of Cape Girardeau, said the officer did nothing wrong, since Missouri's law was on the books and he couldn't have been expected to know about the Texas ruling.
Judges questioned Morgan about whether the flag desecration law requires too much interpretation by police.
"You're going to be leaving the next police officer hanging out there," Judge Michael Melloy said.