As reported in yesterday's NY Times, early Tuesday morning, three Yale students were arrested for burning a flag hanging from a private home (not theirs). As of late Wednesday night, one of the students had been bailed out while the other two remained in jail pending the posting of bail. According to a story in the Yale student newspaper, a false rumor had been circulating around the Yale campus that the house belonged to Sen. Joe Lieberman.
The story nicely illustrates the inaccurate way in which we often speak about constitutional rights. We sometimes say that Texas v. Johnson establishes a constitutional right to burn a flag as a form of political protest. But that's clearly not true. The case merely establishes a right not to be penalized on account of the message one communicates if one burns a flag as a form of political protest. Thus, it stands as no obstacle to the charges that have been brought against the Yale students: arson, reckless endangerment, criminal mischief, and breach of the peace. Assuming that the students would have been charged exactly the same way for burning a towel with the intent to convey no message at all, the City of New Haven and the State of Connecticut have not in any way targeted expression.
To be sure, if the students can show that they are the victims of selective prosecution on account of their political message, then they'll have a good claim under the combination of Johnson and Yick Wo v. Hopkins (which is the standard citation for the proposition that discriminatory enforcement of a facially valid law is unconstitutional). But what are the odds that they can either demonstrate a pattern of leniency towards other public fire-setters or get a government official to say that the students were targeted because of their message?
It will be interesting to see whether the students or their lawyers nonetheless try to make a free speech argument. So far they don't even appear to be saying that they burned the flag as a political message, much less that this was the reason they were arrested. According to the Yale Daily story, upon their arrest, the students told the arresting officers that burning the flag "was a stupid thing to do." If they weren't going to shout "Death to America," they probably would have done better to lawyer up.