Why a Penn. man arrested for flag desecration was awarded $55,000

A police chief in Allegheny township charged Joshua Brubaker with flag desecration after he spray painted an American flag and hung it upside down. But at the end of the case, the township ended up paying Mr. Brubaker. 

Lucas Jackson/Reuters
A demonstrator holds an upside down US flag in Cleveland Public Square near the Republican National Convention in Cleveland, Ohio, on Tuesday.

A Pennsylvania man was arrested in 2014 for flying a upside down, spray-painted flag off of his front porch. 

Joshua Brubaker later sued the township of Allegheny for the arrest, arguing that the flag was not desecration, but an exercise of his civil rights. The Altoona Mirror reports Friday that the township has settled the lawsuit, agreeing to pay Mr. Brubaker $55,000.

Allegheny Township Police Assistant Chief L.J. Berg seized the flag as evidence on May 12, 2014 and charged Brubaker with “desecration of flag,” a third-degree misdemeanor and “insults to national or commonwealth flag,” a second-degree misdemeanor.

“I was offended by it when I first saw it,” Chief Berg told WPXI-TV at the time. “Too many people have made too many sacrifices to protect the flag and to have this happen in my community, I’m not happy with that.”

Not only was the flag flown upside down, an official symbol of national distress, but Brubaker had spray-painted the letters “AIM” on the flag.

Brubaker says the letters were an acronym for the American Indian Movement. Part native American, Brubaker says he first flew the flag off of his porch in May 2014 to protest the proposed Keystone Pipeline route through the Wounded Knee battleground site in South Dakota.

Although the state of Pennsylvania has flag protection laws, the township's law enforcement have since been instructed not to enforce them in light of national freedom of speech protections.

Questions around the enforcement of flag desecration laws have gone as high as the US Supreme Court.

In 1989, the nation's high court overturned the conviction of a Texas man for burning an American flag in protest. That same year Congress passed the Flag Protection Act, with the support of President George H.W. Bush, making it against federal law to desecrate the American flag, regardless of motive. A year later, however, the Supreme Court struck down this law in United States v. Eichman, protecting flag burning as an example of free speech.

Writing for the majority in 1990, Justice William Brennan said punishing flag desecration contradicts the same freedom it is set to represent.    

"If there is a bedrock principle underlying the First Amendment," Justice Brennan writes, "it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." 

All states except Alaska and Wyoming have their own laws of flag protection, complicating many cases. Despite the 1990 ruling, arguments over the morality of flag desecration persist. 

At the Republican National Convention this week in Cleveland, when police arrested 17 protestors – two for assaulting police and the rest for “incitement to violence,” a misdemeanor – while reportedly burning an American flag. 

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