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Copyright © 2007, Gerald Bamberger


Darla had just completed a course in American Government at her high school.
She felt strongly that the United States should not be sending troops to Iraq, and
she believed every citizen had an obligation to speak his mind on national issues.

Darla purchased a United States flag, painted a peace symbol over it, and
proceeded to march down Main Street on the Fourth of July chanting "End the
war now!" She marched past a bandstand where the county prosecutor and the
town's chief of police were presenting awards to local youth who had
distinguished themselves in public service. The prosecutor and chief of police
were visibly upset, but did not approach Darla.

When Darla returned home, her mother told her, "Don't you realize that there are
flag desecration laws in this state? You could be jailed for up to six months!"

Darla was indignant. "The Supreme Court says I can burn a flag if I want to."

"Don't you realize that flag burning is a special case?" cautioned her mother.
"Burning is the traditional way to properly dispose of a worn or soiled flag. That's
why it's so hard to stop flag burners--statutes can't distinguish between 'good'
flag burning and 'bad' flag burning."

Darla was getting nervous. "But I marched right past the prosecutor and the
chief of police, and they made no attempt to stop me."

"Why would they want to create a public spectacle on the Fourth of July and ruin
the award ceremony for all those kids," replied her mother. They have plenty of
time to come after you--tomorrow, next week, or next month."

Darla was frightened. She headed straight for the public library, and discovered
that, in fact, it was a misdemeanor in the jurisdiction--punishable by a $500 fine,
a jail term not to exceed six months, or both--to "knowingly or intentionally
mutilate, deface, or trample a United States flag." The statute did not mention
flag burning.

Darla promptly brought suit in federal court against the county prosecutor and the
town's chief of police, seeking to enjoin the enforcement of the statute against
her. The court will most likely

(a)     dismiss Darla's suit as unripe for adjudication.
(b)     dismiss Darla's suit because it violates the Eleventh Amendment.
(c)     deny Darla's request for injunctive relief, because the statute regulates
conduct, not expression.
(d)     grant Darla's request for injunctive relief, because the statute is
unconstitutional on its face.

To see Professor Bamberger explain the answer in detail click here.





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