By SUE CARLTON, Times Columnist
Published September 19, 2007
Made-up scenario: An Earnest Protester shows up at a rally for a Corrupt Politician. He holds up a sign telling the world he is not buying the line the Corrupt Politician is selling.
But wait - here come the Equally Corrupt Cops, who drag the Earnest Protester to jail so nobody hears his message.
When news of this gets out, We The People say: This is wrong! A mockery of the First Amendment! An insult to what America's all about! (Or at least, that's what we should say.)
Now consider our own very different tussle over free speech last week. A fellow named Tod Redman Stewart showed up at Tampa's federal courthouse with a duffle bag of flags, aiming to set Old Glory aflame as a protest.
Stewart, unemployed and in and out of jail, had lodged this manner of protest before. He was even deemed incompetent by a judge after one such incident.
So TV reporters who were gathered for a hearing that day pretty much ignored him. Police and federal marshals, however, did not. Something would be amiss if a man about to set fire to anything at a federal building did not at least catch their interest.
They surrounded him and tried to talk him out of it. An officer consulted with the fire department and determined the man could be cited for lighting a fire, Tampa police Maj. Bob Guidara later said.
"I want you to be able to exercise your First Amendment rights, but there are rules that need to be followed," said an officer who deserves some props for trying to be reasonable. A determined Stewart flicked his Bic anyway. He was arrested and jailed on a misdemeanor charge of resisting an officer without violence. (The nation's highest court decided almost 20 years ago that desecrating a flag is not a crime.)
So here's the question: If an officer tells you not to do something, and that something is perfectly legal, can police arrest you once you do it?
Not and make the charge stick, at least in this case.
This week, the Hillsborough State Attorney's Office dropped the charge and Stewart got out of jail. "It's protected speech," said prosecutor Douglas Covington. "A lot of people might find the act despicable, but part of growing up in America is being able to do things that are protected by the Constitution."
Guidara said the charge was well intended. But he added, "In looking at the big picture, considering the location and the size of the flag and whether or not there was a legitimate threat to public safety, we would have to say we would not arrest under those same circumstances."
Will this logic ultimately be applied to the case of the University of Florida student tasered and arrested Monday after he got mouthy at a John Kerry forum? Stay tuned.
In our own back yard a few years back, authorities got word of an upcoming protest that was supposed to include a flag burning at the Hillsborough courthouse. A fire truck was on hand, but State Attorney Mark Ober said no one should be arrested for burning a flag.
You may think this is a waste of time and resources. But if we don't protect free speech for the Tod Redman Stewarts of the world, who's next?
So here's the headline: Sensibility, Constitutionality Rule The Day. Not the catchiest ever, but, pardon the pun, no protest here.