The 10th U.S. Circuit Court of Appeals on Thursday declined to give the plaintiffs in a flag desecration case what they were after. The three Judge panel ruled, in the case of a Utah man who violated a state law banning the desecration of the American flag, that the courts do not have the jurisdiction to remove laws from the books – only legislatures can do that.
The whole thing started in 2002 when Utah resident Kris Winsness burned a smiley face into an American flag and hung it on his garage door to annoy the neighbors. And annoy them he did. Neighbors called the sheriff and Winsness was arrested for violating Utah’s flag desecration statute. The Salt Lake County Prosecutor soon dropped the charges however, but Winsness, now armed with lawyers, insisted on going to court in an effort to have the statute declared unconstitutional and removed from the books.
The 10th Circuit, who heard the case in August, ruled Thursday that the Supreme Court had ruled in the 1989 Texas vs. Johnson case that such laws were unconstitutional and it would therefore be redundant to issue the same ruling. They furthermore stated that "There is no procedure in American law for courts or other agencies of government, other than the legislature itself, to purge from the statute books laws that conflict with the Constitution as interpreted by the courts."
So now the law will remain on the books but will not be prosecuted any time in the near term, since the Supreme Court declared it unconstitutional to do so. As for Winsness, and here’s the real point to be made, he narrowly missed prosecution for this law that might have stuck.
You see, the reason the Prosecutor dismissed the charges was that Winsness, with the aid of his legal team, declared that the reason he treated the American flag in so foul a manner was that he was frustrated with the judicial system. Frusatrated with the judicial system? How does burning a smiley face into the fabric of a flag indicate frustration with the Judicial system? Apparently it doesn’t.
Winsness, upon first being arrested, expained to the officer that he did it because he was bored. It was only later, after consulting with a lawyer, that Winsness claimed a political motive. The Prosector no doubt, after reviewing the facts, realized that Winsness’ casual remark about being bored was not given in the presence of a lawyer and would not be admissable in court.