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SALT LAKE CITY (AP) -- A 10th U.S. Circuit Court of Appeals panel will hear arguments Wednesday on the constitutionality of a Utah law that bans desecration of U.S. and state flags.
The arguments will be heard at a special session of the court at the University of Utah.
Kris Winsness claims his right to free expression was violated when he was charged in Salt Lake County with a class B misdemeanor for violating the law.
Attorney Brian Barnard said his client burned an image of a "smiley face" on a U.S. flag as an expression of frustration with the judicial system. He then displayed his work in front of his garage in October 2002.
Salt Lake County authorities said neighbors complained and a deputy confiscated the flag and Winsness later was charged.
Barnard claims Utah's law is unconstitutional under a 1989 U.S. Supreme Court ruling, that declared a similar statute in Texas unconstitutional.
"It is simplistic and shortsighted to suggest that by law, government can mandate respect for the flag," Barnard said. "The freedoms represented by that flag mean that the protester is able to burn the flag."
County prosecutors dropped Winsness' case but reserved the right to refile charges at any time. Barnard said that puts his client in constant fear of being prosecuted in the future.
The law also is being challenged by Ken Larsen, who ran unsuccessfully for governor last year on the Personal Choice Party ticket. Larsen said his campaign plans included distributing miniature Utah state flags that he signed with a gold-ink pen.
Larsen said he asked Salt Lake County Attorney David Yocom if that would be prosecuted, but didn't hear back until he became part of the lawsuit against Salt Lake County and Utah.
But according to the state's response to the lawsuit, the two men lack legal standing because the charge against Winsness was dropped and Larsen was never prosecuted.
Yocom has also assured that neither man would face future prosecution under the statute.
Barnard said Yocom's promise is not good enough, and that both of his clients face possible prosecution in the future, under a type of law that the U.S. Supreme Court has found unconstitutional.
If the 10th Circuit determines either Winsness or Larsen has legal standing, then a lower court must rule on the constitutionality of the flag desecration law, Barnard said.
(Copyright 2005 by The Associated Press. All Rights Reserved.)
