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Can flag-burner sue? Judge says intent key

SHARE Can flag-burner sue? Judge says intent key

Was it boredom or a political statement that motivated a Salt Lake County man to burn a "smiley face" into a U.S. flag?

On Wednesday a federal judge said the answer to that question could be key in determining if Kris Winsness can seek damages against the Salt Lake County sheriff's deputy who issued him a citation.

Winsness claims deputy Stacie Campbell violated his constitutional rights when she cited him for "casting contempt upon the flag" in October 2002.

U.S. District Judge Ted Stewart said he was concerned when the deputy reported that Winsness told her "he was bored" when asked why he burned the smiley face and displayed the flag on his garage door. It was neighbors who called authorities after they found the gesture offensive.

Winsness was later charged with a class B misdemeanor under Utah's flag desecration law, a law similar to one struck down by the U.S. Supreme Court in Texas in 1989. The Salt Lake County District Attorney's Office ultimately dismissed the charge.

In a companion suit filed against the state and Salt Lake County District Attorney David Yocom, the 10th Circuit Court of Appeals ruled last January that Winsness lacked legal standing to bring that suit forward because he was not under any real threat of being prosecuted again. In an affidavit, Yocom promised not to prosecute anyone under the statute.

Steven Allred, attorney for Campbell, argued that because Winsness burned the image out of boredom, it shouldn't be considered constitutionally protected speech. "Just because someone does something to the flag, it is not expressive conduct," Allred said.

Stewart said one can show contempt for the flag without expressing a viewpoint. Allred gave the example of a jogger who stops to wipe the sweat off himself with the flag as contempt without expressing a view. Even if it is a view, the message must be clear, Allred said.

"My client put a smiley face on a flag for expressive purposes," attorney Brian Barnard said, adding case law does not require that the message be clear. In this case, Barnard said, Winsness was expressing his displeasure with the judicial system.

Stewart said he would have to take a closer look at case law to see if a message must be clearly communicated, adding he would issue a ruling in writing at a later date.

Although the 10th Circuit threw out Winsness' claims against the state and Salt Lake County, they did rule he could seek damages against the deputy. Both sides have asked the judge for summary judgments in their favor.

E-mail: gfattah@desnews.com