Following ACLU Intervention, Colorado Business Owner Resumes Upside-Down Flag Display to Protest War

Affiliate: ACLU of Colorado
April 15, 2003 12:00 am

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DENVER — The American Civil Liberties Union of Colorado announced today that as a result of an agreement with city officials, a local business owner may resume displaying the American flag upside-down in his store window to express his views on the war in Iraq.

“This kind of flag display is peaceful symbolic expression that is fully protected by the First Amendment,” said Mark Silverstein, Legal Director of the ACLU.

“Our client was threatened with prosecution under an old Colorado law that says ‘contempt of flag’ is a crime,” Silverstein explained. “The statute makes it unlawful to ‘mutilate, deface, defile, trample upon, burn, cut or tear any flag in public.’ Our client did none of those things.”

John Fleming, owner of The Roost, which sells books and music, 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, and he believes that the war in Iraq is a sign that our country is in distress. His store is located in Alamosa, a town of 9,000 located in the San Luis Valley in the southern part of the state.

Shortly after Fleming set up his flag display, 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.

“Even if that old statute applied to Mr. Fleming’s flag display,” Silverstein noted, “the law 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 Fleming. To avoid having to defend himself on a baseless criminal charge, he removed his flag display from the window. He then contacted the ACLU, which was prepared to file a lawsuit to protect 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.”

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