Legal Commentary

An Unusual Flag Burning Arrest

By Eugene Volokh

From Bohmfalk v. City of San Antonio (W.D. Tex. magistrate report adopted by the distirct court June 29, 2010):

This case arose from an incident in which plaintiff David Bohmfalk left his home in Hondo, traveled to the Alamo Plaza, and burned a flag of Mexico to ?demonstrate and protest against Senate legislation granting amnesty to illegal aliens....? Bohmfalk was cited under the City?s fire code for ?illegal burning within the City limits.? [The charge was later dismissed. Unsatisfied with this result, Bohmalk sued the City of San Antonio (the City), two of the City?s park rangers, [and others].

The court upheld the illegal burning ordinance ? which made it ?unlawful for any person to burn or cause to be burned, any trash, brush, tree limbs, grass, trees, leaves, paper, boards, planks, shavings, or any other combustible materials whatsoever within the corporate limits of the City, without first having a permit? ? against a First Amendment challenge and a vagueness challenge. Seems correct to me. See also City of Columbus v. Meyer, 152 Ohio App. 3d 46 (2003), which likewise upholds the application of a similar general ban on open burning, not limited to flags.

Full post as published by The Volokh Conspiracy on July 08, 2010 (boomark / email).