The American Civil Liberties Union Foundation of Colorado (ACLU) announced today that as a result of an agreement with Alamosa city officials, an Alamosa business owner may resume displaying an American flag upside-down in his store window to express his views on the war in Iraq.
John Fleming, owner of The Roost, a store which sells books and music on State Street in Alamosa, prompted controversy last month when he displayed the American flag upside down in his store window. According to Fleming, the Boy Scout Manual says that an upside-down flag communicates distress. Fleming believes that the war in Iraq is a sign that our country is in distress.
“Mr. Fleming’s flag display is peaceful symbolic expression that is fully protected by the First Amendment,” said Mark Silverstein, ACLU Legal Director.
Shortly after Fleming set up his flag display, however, he received a visit from Alamosa’s Chief of Police, who told Fleming that the display violated a Colorado statute. He threatened to charge Fleming with a crime unless he took down the display.
“Our client was threatened with prosecution under an old Colorado statute that states that “contempt of flag” is a crime,” Silverstein said. “The statute makes it unlawful to ‘mutilate, deface, defile, trample upon, burn, cut or tear any flag in public.’ Mr. Fleming did none of those things.”
“Even if that old statute applied to Mr. Fleming’s flag display,” Silverstein continued, “the statute violates the Constitution. The Supreme Court has recognized on numerous occasions that the First Amendment protects the right of individuals to use the symbolism of the American flag in a manner intended to communicate ideas and opinions. That is exactly what Mr. Fleming did in this case.”
According to the ACLU, the threat of prosecution silenced Mr. Fleming. “To avoid having to defend himself on a baseless criminal charge, Mr. Fleming took his flag display out of the window,” Silverstein said. Mr. Fleming then contacted the ACLU, which was prepared to file a lawsuit to protect Mr. Fleming’s right of expression. The need for litigation was avoided, however, when Alamosa officials agreed to resolve the dispute. “The Alamosa City Manager and City Attorney deserve credit for acting promptly to resolve this matter without litigation,” Silverstein said. “The City Attorney assures me that he has discussed this matter with the Chief of Police, who now understands that Mr. Fleming’s flag display is constitutionally-protected expression. Mr. Fleming will now be able to move his display back to his store window without interference from the police.”
