President Donald Trump’s administration has moved to end the prosecution of a United States Army veteran who burned the national flag to protest one of the president’s executive orders.
Following his motion to dismiss last October, the Justice Department will drop the charges against defendant John “Jay” Carey, court filings show this week.
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Carey was charged with two misdemeanors: one for setting a fire outside of designated areas and the second for lighting a fire in a manner that endangers public safety or threatens property.
The incident unfolded on August 25, just hours after Trump signed an executive order calling for prosecution of flag burners.
The Supreme Court has long upheld flag burning as an act of protected free speech. In the 1989 case Texas v. Johnson, for example, the Supreme Court held that “flag desecration is inconsistent with the First Amendment,” which protects free speech.
A year later in 1990, it reaffirmed that decision when Congress passed the new Flag Protection Act to outlaw such destructive behavior. The High Court struck down the law as unconstitutional.
But Trump has maintained that flag burning amounts to incitement to violence, which is not protected under the First Amendment of the US Constitution.
Since his first term, he has pushed for stiff prison sentences for any protester who intentionally destroys the US flag.
“If you burn the flag, you get a year in jail,” Trump said when he signed his executive order last August. “No early departure, nothing.”
While his executive order acknowledged Supreme Court precedents protecting flag burning as an act of free speech, it called on the US attorney general to “prioritize enforcement of the full extent of our nation’s criminal and civil laws.”
In short, critics say, it calls for the attorney general to prosecute flag burners by finding laws outside the scope of the First Amendment.
In an interview with the Al Jazeera program UNMUTE last year, Carrey explained that he was outraged that the president would try to circumvent the free-speech rights he fought for as a veteran.
“I served for 20 years. I defended that flag, served under that flag, fought for that flag,” Carrey told Al Jazeera.
“The flag is a symbol. This is not our democracy. I did not burn it to desecrate the flag or to protest America. I did it in direct response to our traitorous, fascist president signing that executive order.”
Carey recalled that he turned to a friend after seeing the executive order. “I think I should go burn the flag in front of the White House.”
The incident that followed was captured on video. At around 6:20pm US Eastern Time (22:20 GMT) on August 25, Kerry appeared in Lafayette Park, directly across from the White House.
He pulled out a bullhorn and identified himself as a US veteran protesting Trump’s executive order. He then placed a US flag on a brick path in the park and set it on fire using rubbing alcohol as a catalyst.
Four federal law enforcement agents approached Carey. One used a fire extinguisher to put out the fire. The others took him by the hand and took him away.
Body camera footage released by law enforcement showed four officers discussing Trump’s executive order as Kerry was arrested.
“So the president signed an executive order today (that) says we’re arresting him,” one says. “We have it to ourselves.”
The Partnership for Civil Justice Fund, a legal nonprofit, eventually took up Carey’s defense, arguing that charging the veteran was evidence of “vindictive action.” It also called the Trump administration’s actions a “direct attack on dissent.”
Carrey himself pleaded not guilty to the charges in September.
In an interview with Al Jazeera, Carrey emphasized that Trump’s executive order is unenforceable — but it threatens to curtail free speech.
“This executive order is nothing but a bunch of fluff,” Kerry said. “The First Amendment means I am able to exercise my rights, my voice, my opinions. I can peacefully protest and redress my grievances.”
“As long as I don’t cause violence, I’m well within my rights under the First Amendment.”
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