Opening Statements

Flying the American flag upside down is protected speech, judge says

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Burning an American flag is a form of protected speech, but what about flying it upside down?

Vito Congine Jr. of Crivitz, Wis., sued that village (population 984) after the police confiscated his upside-down, hanging American flag during a Fourth of July celebration four years ago.

Congine, a former Marine, decided to fly the flag upside down over his planned restaurant as a protest after village officials denied him a liquor license. Crivitz Police Chief Michael Frievalt claimed that members of the local American Legion had complained about the upside-down flag, but he told them that Congine had the right to fly it upside down. On July 4, 2009, Frievalt apparently had a change of heart and removed the flag, claiming he feared it could provoke acts of violence. Police returned the flag unharmed to Congine the next day.

Congine sued, claiming the village and its district attorney—who advised the chief that it was legal to seize the flag—violated his First and Fourth Amendment rights. In May, a federal judge sided with Congine, granting summary judgment claims. The village attorney was given qualified immunity.

“There must be more than the mere potential for a breach of the peace to justify censorship of expressive conduct,” wrote Chief Judge William C. Griesbach for the U.S. District Court for the Eastern District of Wisconsin. He reasoned that “even if violence is imminent, temporary interference with the speaker’s exercise of his First Amendment rights is permissible only as a last resort when police are otherwise unable to protect the safety of the public and only insofar as necessary to avoid the serious harm.”

Congine’s attorney, Christopher M. Meuler of Milwaukee, says the decision reaffirmed the principle that the government may not interfere with protected speech even in emergency-type situations, except as a measure of last resort.

A trial on damages is set for October.

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