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First Court Test of Flag Burning Law Begins

October 31, 1989

WASHINGTON (AP) _ The first court test of the nation’s new flag desecration law began Tuesday with charges filed against three demonstrators arrested in a flag-burning protest on the steps of the U.S. Capitol.

No charges were brought against a fourth demonstrator, Gregory Johnson.

It was the case involving Johnson, who burned a flag at the 1984 Republican National Convention, that led to a Supreme Court ruling in June that such activity is protected under the First Amendment.

Johnson, who spent the night in jail with the three co-defendants, called the government’s decision not file charges against him ″an act of cowardice on the part of Bush and the administration.″

″This is a case of selective non-prosecution,″ said defense lawyer William Kunstler, alleging that charging Johnson would have been ″too much of an organizing tool″ for opponents of the new law.

However, U.S. Attorney Jay Stephens said there was insufficient evidence that Johnson participated in Monday’s flag burning.

″I was there,″ Johnson told reporters.

The Flag Protection Act of 1989, which went in effect Saturday without President Bush’s signature, carries penalties of up to a year in jail and a $1,000 fine. Bush has said he favors a constitutional amendment on the issue.

The charges ″vindicate the deep offense Americans feel ... regarding desecration of the national symbol,″ Stephens said.

U.S. Magistrate Deborah Robinson released the defendants on their own recognizance, requiring them to report weekly to federal pre-trial services offices.

The case will be assigned to a U.S. District Court judge here. Kunstler said he hoped the case would be before the Supreme Court on an expedited appeal ″within two months.″

The three charged with violating the law are Dave Blalock, a Vietnam veteran who became an anti-war activist; Shawn Eichman, a 24-year-old New York City artist; and Scott Tyler, 24, whose controversial display of the flag at a Chicago art exhibit earlier this year prompted demonstrations.

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