A Blair County, Pennsylvania, resident named Joshua Brubaker got into some trouble last weekafter he hung an American flag upside down and painted “AIM” on it. Brubaker, who is part American Indian, was trying to make a statement after learning that the site of the infamous 1890 Wounded Knee massacre—and a 1973 conflict between the American Indian Movement and the FBI—was going up for sale. A graffitied flag is the kind of routine artistic protest often made by 19-year-olds who have just heard of Noam Chomsky, but it really pissed off L.J. Berg, an assistant chief with the Allegheny Township police. Berg—who says a woman who was in the military was offended by it as well—took it upon himself to take the icon down and charge Brubaker with desecration and insults to the American flag.
According to Flag Code, an upside-down flag is a distress signal, and some protesters have, like Brubaker, used it as a symbol for metaphorical or political distress. In 2012, a West Virginia McDonald’s flew an upside-down American flag at half-mast either in protest of Obama’s reelection, or, as the franchise owner later said, because a cable broke. Also that year a veteran in Spokane, Washington, had his upside-down flag stolen from his yard about two weeks after he first put it up to protest “a lot of political things.”
Malcontents from across the political spectrum turn flags upside-down, but there are plenty of people who wish all these damn hippies would get locked up or whatever—as headlines like“Desecration or Free Speech?” reflect. In fact, the right to burn or deface the stars and stripes was only officially affirmed 25 years ago, in the Supreme Court case Texas vs. Johnson. That dealt with a communist named Gregory Johnson, who in 1984 burned an American flag outside the Republican National Convention in Texas and was subsequently arrested for vandalizing a respected object. He was sentenced to a year in prison under the 1968 Federal Flag Desecration Law, but in 1989 his conviction was overturned by the Supreme Court, which held that burning the flag was “symbolic” and protected free speech. Part of the court’s reasoning was that since burning a flag is a proper way to “retire” it, the prosecution of Johnson was based on his political motivations, not the actual action of burning, and you can’t arrest people for their beliefs in the US.
Subsequent federal laws to protect the flag have been either overturned or gotten stuck in a legislative quagmire, usually in the House. State restrictions on burning or defacing the flag have been overturned since as unconstitutional, but not without a fight—in Missouri, a judge overturned one such law in 2012 after a man successfully sued after his arrest for burning and tearing a flag in 2009, but that fight has continued in other courts. Freedom of speech aside, many Americans still think flag burning should be illegal—a 2006 Gallup poll found that a majority of respondents favored a Constitutional amendment that would allow legislatures to ban flag burning. (Fortunately, America is not ruled by opinion polls yet.)
But hold on—doesn’t all that mean the cops were clearly in the wrong when they arrested Brubaker? Not necessarily. He’s been charged with a third-degree misdemeanor under a 2010 Pennsylvania law that prohibits various desecrations of the flag that makes exceptions for “patriotic or political demonstration.” The legal director of the Pennsylvania American Civil Liberties Uniontold the media that Brubaker’s flag absolutely qualifies as political, and thereby protected, speech. The cops can argue that Brubaker’s actions aren’t political and attempt to make the charges stick—they’d just be very, very wrong. As Brubaker said, “If I don’t have a right to fly that flag upside down, which means a sign of distress, which this country is in so much distress right now, then what’s the point of having it?”
The rest of this week’s bad cops over here