Mimesis Law
18 November 2017

Police Who Can’t Arrest Bryton Mellott Arrest Bryton Mellott

July 6, 2016 (Fault Lines) — When news first broke of Bryton Mellott being arrested for posting to Facebook an image of himself burning an American flag, the ultimate outcome was a forgone conclusion.  That didn’t stop people on the internet from engaging in pointless debate, however:

An Illinois man was arrested after he set the American flag on fire and posted photos of the act on Facebook. But the incident has sparked a debate on social media about whether the act should be considered an expression of free speech.

According to The News-Gazette, Bryton Mellott, 22, posted several photos on Facebook on July 3 showing him burning the American flag. On the photo post, he included a statement about why he is “not proud” to be an American.

The reason the outcome should’ve been no surprise to anyone is because the Supreme Court of the United States decided Texas v. Johnson in 1989, holding that a conviction for flag burning was inconsistent with the First Amendment. It’s a case that I’d hope most people learn about in grade school.

Mellott’s actions were undoubtedly expressive conduct. The image of him holding the burning flag with flowers in his hair was accompanied with a rant about how he wasn’t proud of his country. It isn’t like he was endangering anyone. It isn’t like he was arrested under a law that wasn’t previously held unconstitutional. He was sending an obvious message. The content of that message was his dissatisfaction with his country, something he expressed dramatically through his actions by burning a flag.

It’s pretty amazing that some kid doing the same thing someone else did decades ago and which the Supreme Court said couldn’t constitutionally be prohibited in 1989 would spark a present day debate on social media, but it’s unfortunately just a sad sign of the times. Many people are probably ignorant that what he was doing is protected. They’re coming at it from the position of genuinely believing they’re the first people to ever think deep thoughts about free speech. It isn’t the first time someone failed to realize what came before them.

Others might be even sadder examples of modern thinking, people who are aware of what the Supreme Court said and that it’s well-settled law, but who still think their musings about why the highest court in the country was wrong have sufficient value to merit sharing them with the world. Many of those types may be preparing petitions right now to have legislators pass a law fixing that rogue Supreme Court ruling. There’s no shortage of ignorance, or gumption, when it comes to folks who aren’t fond of being prevented from controlling others’ behavior the way they want.

It’s perhaps more amazing that cops would arrest Mellott, though it becomes clearer why as you dive a little deeper into the facts:

Urbana Sgt. Andrew Charles told The News-Gazette that his department started receiving calls about the Facebook photos. Charles looked at the post, and said he saw many people making violent threats directed at Mellott and his place of employment, Walmart.

Urbana police released a statement on Monday that said, “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.” 

Never underestimate just how many tattletales there are in this country. If you think that people at some point grow out of snitching every time little Susie, or in this case little Mellott, does something that offends their delicate, civilized state of mind, think again.

The playground telltales grow up to be your neighborhood busybodies. They quit squealing to the teacher and instead squeal to the police. There are more of these people than you could ever imagine, and they’re such fragile little snowflakes that someone like Mellott upsetting their sense of decency compels them to go blabbering to the nearest authority figure they can find.

Given their sheer number and the fact the squeaky wheel really does get the grease, police acted and, as is usually the case, did so in a manner that exhibits their own self-righteousness. There’s truly no limit to the dangers cops will invent to justify questionable arrests. For proof of that, consider the reasoning that they offered for arresting a kid who did something that was undoubtedly protected by the constitution. It wasn’t just for Mellott’s own safety, the typical cop justification, but for the safety of innocent Wal-Mart shoppers who might be harmed by someone trying to carry out a threat against Mellott at his place of employment. Who wants innocent consumers who don’t burn flags to get hurt?

The arrest becomes even more understandable in light of this:

Charles told The News-Gazette that he spoke with Mellott and with Walmart about the pictures. The police said they told Mellott that they “understood his freedom of speech,” but they said they believed his posts were putting his safety at risk as well as the safety of others.

According to police, Mellott continued to post similar photos to Facebook, so police arrested him under the state’s flag desecration law.

Enough public outcry tends to get cops to do something fairly often. A good argument police action will protect someone, even if it’s the person they’re arresting, makes action even more likely. At the extreme end, cops telling someone to knock something off and being ignored all but guarantees arrest. Why would Mellott not listen to them? Does he not respect their authority? Can’t he see they’re just trying to protect him?

Amazingly, the unconstitutional arrest came following a consultation with lawyers:

Police said they made the decision to arrest him after consulting with the Champaign County State’s Attorney’s office and weighing his free speech rights against concerns of public safety.

It always feels like a sick joke when government officials talk about weighing rights against safety. What they’re really doing is considering whether the inconvenient liberties of a person like Mellott, something that exists only at their whim, have any possibility of later coming back to bite them in the ass should they go ahead and do what they really want to do.

The fact that the make-believe danger to the public posed by Mellott exercising his right to free speech was enough to lead cops to arrest him after being weighed against established Supreme Court case law from almost thirty years ago invalidating the very law under which they arrested him tells you just how much cops care about rights. Folks at the Champaign County State’s Attorney’s Office seem to be of pretty much the same opinion.

But of course, Mellott won’t be charged:

In a release, the Urbana Police Department says it respects that Champaign County State’s Attorney Julia Rietz will not charge Urbana’s Bryton Mellott in Monday’s flag-burning incident.

“Laws dealing with questions of Constitutional rights are extremely complex,” the release said. “The Urbana Police Department recognizes that this is a case where the right of free speech may have been in conflict with the safety of innocent and uninvolved citizens. Our officers strive every day to achieve a balance between public safety and preservation of Constitutional rights. In this circumstance, our officers acted in good faith and in reliance on a state law that was passed by our legislature in an attempt to do just that. We respect the analysis of the State’s Attorney’s Office and their determination not to proceed with the prosecution in this matter.”

No matter how much people on the internet might be up at arms about flag burning being protected, this result was bound to happen. It wasn’t really that complex, and any threat to innocent and uninvolved citizens only existed in the creative minds of authorities who had to do something to placate the crowd. Either the cops have never actually been online and realized that every idiot spews death threats at the first sign of disagreement, or they’re assuming we’re all too stupid to see past what they’re doing.

This quote, which I believe comes from Butler Schaeffer, pretty much sums up Mellott’s situation:

The Constitution is that sacred document which prevents the government from doing all the terrible things it does.

Mellott was doing something perfectly lawful. Authorities were wrong. That didn’t make him even the slightest bit less arrested, however.

22 Comments on this post.

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  • Scott Jacobs
    6 July 2016 at 10:16 am - Reply

    Everyone involved in that arrest needs to be at home, dreaming of poverty. That kid found a great way to pay for college. And a really nice car. And a really nice house.

    Central Illinois is really, really shitty at understanding the First Amendment, apparently…

  • Bruce Coulson
    6 July 2016 at 11:04 am - Reply

    Bryton Mellott outraged the community, and was punished for it. Not as severely as some would like, but punished nonetheless.

    And the fact that the community will have to pay for punishing Mellott? Since the cost will be mere pennies from every person in the community (as opposed to directly from the parties involved in the arrest), even if most of them understood that concept…they’d be fine with paying.

    • beancrisp
      6 July 2016 at 3:09 pm - Reply

      FACT: It was fake outrage.

    • Greg Prickett
      6 July 2016 at 3:56 pm - Reply

      I don’t care how much he outraged the community, he has the right to burn the flag as an expression of his speech.

      Any patriotic American who supports the freedoms contained in the Bill of Rights would acknowledge this and be appalled at the response of the police.

      Anyone who supports what happened to Mellott needs remedial instruction on the Bill of Rights and on what it means to be an American.

      I don’t like what Mellott did. In fact, it pisses me off since I wore our nation’s uniform for 20 years in the US Army Guard & Air Guard, and wore a cop uniform for the same amount of time. In each of those roles however, I took an oath to defend the Constitution, and that means that I defend what Mellott did, and his right to do so without retaliation.

      Mr. Coulson, you should be ashamed of yourself.

      • Bruce Coulson
        7 July 2016 at 11:00 am - Reply

        You misunderstand, Mr. Pickett. I didn’t say this was right, or even legal; I said this is what happened and why, and why the local community didn’t (and probably doesn’t) care. Nor will the arresting officers, or anyone else involved. If the cost (to you personally) is mere pennies a day, most people don’t care about such ‘minor’ matters…because, of course, something like this will never happen to them.

        Despite supposedly being a nation of laws, not men, a lot of judgments (and penalties) are imposed by local authorities at the request (spoken or otherwise) of the community and their feelings about a given incident. Since it’s unlikely that the vast majority of people will be willing to put aside their outrage to learn what the law actually says, then either the authorities have to stand up for what’s correct…or the authorities have to be punished for failing to do so.

        But fines that ultimately come from the community at large won’t dissuade anyone for acting this way again. And the only certainty we have is that this (or something very similar) WILL happen again.

    • DaveL
      7 July 2016 at 6:45 am - Reply

      Will they be fine with being arrested the next time they find their own opinions at odds with that of the majority?

  • Richard G. Kopf
    6 July 2016 at 11:44 am - Reply

    Matt,

    Thanks for this. However, I am troubled by a comment left by Bruce Coulson. So, I add the following.

    I blew up the Nebraska flag desecration statute as applied to the Westboro Baptist bunch. I then awarded $8,000 in attorney fees to Margie Phelps, a lawyer and member of the church.

    The attorney fees were awarded against the following defendants in the following amounts:
    (1) Nebraska Attorney General Jon Bruning and Nebraska State Patrol Commander Bryan Tuma, $3,500; (2) Sarpy County Attorney Lee Polikov, $2,000; (3) Omaha Police Chief Alex Hayes, $2,000; and (4) Douglas County Attorney Don Kleine, $500.

    To the credit of the Nebraska Attorney General, and the other defendants and their lawyers, the defendants quickly folded after the suit was filed and after I reminded them in oral argument of Texas v. Johnson.

    Perhaps I am misreading him, but Mr. Coulson seems to argue that good citizens will be happy to pay the mere pennies caused by a wrongful arrest off someone who desecrates the flag. Again, perhaps I am misreading him, but he seems to imply that such unconstitutional behavior is fine so long as the community is (properly?) “outraged.”

    He writes:

    “Bryton Mellott outraged the community and was punished for it. Not as severely as some would like, but punished nonetheless.

    And the fact that the community will have to pay for punishing Mellott? Since the cost will be mere pennies from every person in the community (as opposed to directly from the parties involved in the arrest), even if most of them understood that concept…they’d be fine with paying.”

    Mr. Coulson should understand something. A flagrant violation of the Constitution made apparent by an old United States Supreme Court decision can carry with it very heavy non-monetary penalties for the lawyers who authorize such conduct. For example, think disbarment from practice in federal court. To their credit, the Nebraska Attorney General and his subordinates and the other lawyers acted quickly and ethically to concede the matter in my case.

    In short: Mr. Coulson there are different ways to skin a cat.

    All the best.

    RGK

    • Eva
      6 July 2016 at 4:49 pm - Reply

      The contributors on this site are amazing.

      I really enjoy the insights from your various members of the legal community.

  • Tharon
    6 July 2016 at 12:52 pm - Reply

    Kopf,

    All I can say is BRAVO.
    Well said as usual.

  • losingtrader
    6 July 2016 at 3:24 pm - Reply

    I would not have thought Nevada had anything on another state’s stupid flag law, but then, there’s NRS 201.29, which will criminalize the speech of anyone who
    “defames, slanders, or speaks evilly or in a contemptuous manner of [the US or NV State flag]”

    Is this two violations of free speech?
    Maybe we were thinking double negative creates a positive.

  • Anonymous
    6 July 2016 at 8:34 pm - Reply

    I mean it is the American flag after all. Right?

    And it’s only the First Amendment.

    And It’s not right to offend all the Walmart shoppers.

    It’s not like he’s Hillary Clinton. Right?

  • BobE
    7 July 2016 at 8:38 am - Reply

    For all you wanna-be counselors, Its a law still on the books. I may be overturned in court, but still a law none the less. Just like the laws still on the books that say you must be escorted by someone swinging a lantern if your operating a horseless carriage. you can be arrested, and jailed because its still a LAW. yea, its going to be overturned, but your going to get to spend some time in jail anyways, if the police want to enact it on you. and its legal.

    • shg
      7 July 2016 at 8:45 am - Reply

      Sorry, Bob, but unlike you, Matt Brown is a real lawyer, which precludes him from writing something as wrong and mind-numbingly clueless as your comment. The stupidest guy on the internet doesn’t get to inform others about how the law works. Unconstitutional laws are unenforceable. And when they are enforced, they expose the cops to civil liability for their violation of the individual’s constitutional rights. That’s the law.

  • Peter Orlowicz
    7 July 2016 at 9:08 am - Reply

    I’m not sure it’s fair to level the same criticism at the Champaign County State’s Attorney’s Office as the Urbana PD; contrary to the article above, both the Urbana PD press release on July 4 and the contemporary coverage from the News-Gazette say that police didn’t consult with the State’s Attorney’s Office until after Mellott was arrested, and as a result of the consultation he was released and given a notice to appear. A Forbes article says the same thing: “Mellott was booked at the Champaign County Jail at about 9:47 a.m. Monday. He was later released that day after police consulted with the state attorney’s office, according to a statement released by Lt. Joel Sanders.”

    Interpretations may differ, but in this instance I’m inclined to think the cops made the arrest based on an Illinois statute that was (ludicrously) passed by the legislature in 2013 (?!?!?!), then afterwards consulted with the prosecutor’s office who responded “You did WHAT? NO.” The timeline matters here.

    • Peter Orlowicz
      7 July 2016 at 10:27 am - Reply

      Coverage from today’s News-Gazette quotes the State’s Attorney:

      “I believe that the Urbana police officers were trying to make the best decision they could make given the circumstances out of concern for public safety and Mr. Mellott’s safety in light of the comments being made on social media,” Rietz said. “I would have preferred that they had called to discuss this matter before they made the decision to arrest him, but they didn’t.”

      (http://www.news-gazette.com/news/local/2016-07-06/wave-emotion.html)

      • shg
        7 July 2016 at 10:52 am - Reply

        Cops say they first consulted with State’s Attorney. State’s Attorney says they didn’t. News at 11.

      • Peter Orlowicz
        7 July 2016 at 11:00 am - Reply

        Well, if you ignore the first press release from Urbana PD, which says they arrested first, then consulted, sure. The patrol lieutenant (Lt. Sanders) could have been mistaken.

        • shg
          7 July 2016 at 11:39 am - Reply

          He can only work with the latest information available. You have the benefit of coming in a day later. And yet, we still have no real clue who’s telling the truth (although you seem to prefer the State’s Attorney to the cops, which is fine).

  • Two Days, Two Shootings, Two Sets Of Cops Making Recordings Disappear – The Real Strategy
    9 July 2016 at 8:49 pm - Reply

    […] This, too, is a common occurrence. While the Supreme Court’s Riley decisionmay provide an easy way to determine whether someone’s Fourth Amendment rights have been violated by a search/seizure of their cell phone, it doesn’t prevent an officer from simply taking a cell phone and deleting incriminating footage. The path for redress is clearer, but it’s powerless against those whose first reaction is to vanish away evidence of their misconduct. [Update: For what it’s worth, Facebook is standing by its “technical glitch” story and says the cops did not delete the video]. To quote law professor Butler Shaffer [h/tFaultline’s Matt Brown]: […]

  • Fractally Stupid—The Bryton Mellot Story
    11 July 2016 at 9:23 am - Reply

    […] Matt Brown pointed out that laws prohibiting flag burning were struck down by the Supreme Court in 1989. In Texas v. Johnson, the Supreme Court held that: […]

  • John Q. Public
    21 October 2016 at 9:13 am - Reply

    So I guess People can go into a Theater and yell FIRE and NOT get arrested Because of this Law.

    • Ikker19
      27 February 2017 at 10:51 am - Reply

      John Q…your comment is exactly the kind of “logic” (and by “logic” I mean a total and complete lack of even a shred of an angstrom of logic) that I expect from the “modern” uninitiated citizens of this country…I know it was hard for you to stay awake in 5th grade civics class but not “all” speech is Constitutionally protected…what your “comment” described is NOT protected speech…the US Supreme Court has decided that “flag” burning is protected speech…im not sure how to explain it any more simply than that…