As the Arizona Legislature plows into its 2017 session, among the bills introduced so far is one that’s leaving us scratching our heads. It is SB 1009, which would make it a Class 6 felony to steal a U.S. flag.
The bill, sponsored by Sen. John Kavanagh, R-Fountain Hills, would cover flags on display by a resident or business. Theft of those flags would translate into a year in state prison and a fine of up to $150,000, according to Capitol Media Services.
A committee vote of 4-3 to advance the bill on Thursday, Jan. 19, followed testimony of Charles Foley, a Tucson police officer who runs a program called “Flags for the Flagless.”
Foley said he has provided 90 U.S. flags in Pima County, some of which have been to replace flags that have been stolen.
“I don’t know who is stealing them,” he told lawmakers, adding that he hopes an enhanced penalty will provide a new deterrent.
We believe in Americans having pride in the U.S. flag, and theft of them stirs our patriotism. However, stealing a flag should not be a Class 6 felony.
We agree with Sen. Martin Quezada, D-Phoenix, who said if what’s being stolen is not just a flag but a constitutional right of expression, then Kavanagh’s bill is flawed.
“Is it not also stealing somebody’s First Amendment right to steal an LGBT pride flag, or a flag of another nation who that individual is supporting because we are at war with them and they want to make a political statement?’’ he asked.
Quezada said even the “Don’t Tread on Me” flag that has become the symbol of “tea party” activists also would be denied the same protection.
Kavanagh is absurdly placing the U.S. flag alongside the exclusive categories of firearms and animals, and confusing the issue further by intermixing flag theft alongside flag desecration.
The U.S. Supreme Court decided the First Amendment to the Constitution says it’s unconstitutional for a government (whether federal, state or town) to prohibit the desecration of a flag, because it’s seen as “symbolic speech.”
While burning a flag is actually an action, a non-verbal act makes a similar statement. And it is protected as symbolic speech under the First Amendment.
The U.S. flag itself is simply property, while what it stands for is so much more than that. Only the property can be stolen not what it stands for.
It is also troubling when we see lawmakers pick a topic – any topic – and attach a punishment to it that is beyond the bounds of more serious crimes.
Lawmakers instead should work to overhaul the criminal justice system to have the punishment fit the crime – for which stealing a flag should not be a Class 6 felony.
The measure now needs approval of the full Senate.