ROCKINGHAM — A North Carolina lawyer has offered his services free of charge to anyone in the state criminally charged with flag burning.
T. Greg Doucette, a Durham-based attorney, said his decision to do so was a gut reaction to president-elect Donald Trump’s Nov. 29 tweet: “Nobody should be allowed to burn the American Flag – if they do, there must be consequences – perhaps loss of citizenship or a year in jail!”
Doucette shared Trump’s tweet, saying: “If anyone in NC is arrested for burning a flag, we’re happy to defend you pro bono btw.”
He soon added: “With each pro bono case, we’ll also mail copies of both Texas v. Johnson and US v. Eichman to @realDonaldTrump at the White House ;)”
Both are landmark U.S. Supreme Court decsions which invalidated both state (Johnson) and federal (Eichman) laws that made flag burning a crime and held that the act is protected as free speech and expression under the First Amendment.
Just because he’s defending flag burning, doesn’t mean Doucette agrees with it.
“I think it’s repulsive,” he told the Daily Journal on Thursday. “I grew up in a military family, and have a reverence for the flag that is probably unusual. But I recognize it also represents this country and its government, and there are few forms of protest more powerful than setting it on fire. I wouldn’t do it myself, but doing so should never be criminalized.”
Doucette — who is licensed to practice in all state courts and has been admitted to practice in all federal courts within the state, as well as the Fourth Circuit Court of Appeals — has defended multiple free speech cases and said representing those wrongly arrested for protesting is his preferred way of providing pro bono services.
“I’ve defended roughly 50 people arrested at our state legislature as part of the ‘Moral Monday’ prayer-ins, defended several Black Lives Matter protesters here in Durham, defended two anarchists who disrupted a government meeting in Chapel Hill, defended 14 Durham teachers who protested in Raleigh after the governor refused to meet with them, and defended five people who protested in Raleigh over House Bill 2,” he said.
Out of the nearly 100 defendants he’s represented, with 12 cases still pending, Doucette said only two were convicted and the rest of the cases were dismissed.
Doucette recently ran for a seat in the state Senate as a Republican, though a lot of his views run counter to most of those in the GOP.
“I tell folks I’m a small-L libertarian, which used to be what was called ‘conservative’ when I was growing up,” he said. “I’m uniformly skeptical of government.”
Even though the Supreme Court cases were in 1989 and 1990, respectively, North Carolina still has a flag desecration law on the books.
N.C. General Statute 14-381 makes it a Class 2 misdemeanor “for any person willfully and knowingly to cast contempt upon any flag of the United States or upon any flag of North Carolina by public acts of physical contact including, but not limited to, mutilation, defiling, defacing or trampling.”
“The state law predated the Supreme Court case that invalidated them, and legislators never bothered to repeal it,” Doucette said. “So people who don’t understand how constitutional law works still think it’s against the law — because the Supreme Court didn’t strike down our particular statute.”
According to him, the state law wouldn’t hold up in court and any criminal prosecution would be automatically dismissed.
“And the case law is so old now, a person could theoretically sue the government for malicious prosecution,” he added.
One important thing to note is how property rights come in to play with flag burning.
An individual choosing to burn a flag he or she paid for is different, the criminal defense attorney said, from taking one down from a flag pole owned by someone else — including “public property,” which is essentially government-owned property.
“At that point you’ve committed larceny, before you ever get around to burning anything,” he said. “I’ll still defend you, but I’ll charge you for it.”
Reach William R. Toler at 910-817-2675 and follow him on Twitter @William_r_toler.