PITTSBURGH – A Blair County Court of Common Pleas judge ruled on Tuesday that Joshuaa Brubaker’s conduct in hanging an American flag upside down with the letters “A.I.M.” painted on it was political speech protected by the First Amendment and could not be subject to criminal prosecution under Pennsylvania flag insult and flag desecration statutes.
“Simply put, the prosecution of [Brubaker] for his actions directly contravenes those protections in the First Amendment,” Judge Daniel Milliron said in his opinion. “Free speech is among, if not the greatest, of our Protections.”
Brubaker hung an upside down American flag on the side of his Allegheny Township home in May 2014 with the initials “A.I.M.” painted on it because he believes the United States is in distress. Specifically, he wanted to communicate his distress over a recent Pennsylvania Supreme Court decision making it easier for police to search vehicles and the proposed Keystone Pipeline project, which would run through Wounded Knee Indian territory. Brubaker and his wife are of American Indian descent. The letters “A.I.M.” stand for “American Indian Movement.”
After receiving a complaint about Brubaker’s flag, Allegheny Township Assistant Police Chief Leo John Berg III removed the flag from Brubaker’s home, without informing Brubaker. When Brubaker went to the police station to report the stolen flag, an officer took his statement. As he was leaving, Berg told him that flag desecration charges would be filed against him.
Brubaker was charged with misdemeanors under two Pennsylvania statutes: Insult to National or Commonwealth Flag, which carries a maximum sentence of 2 years imprisonment and a $5,000 fine, and Desecration of Flag, which carries a maximum sentence of 1 year imprisonment and a $2,000 fine. Judge Milliron dismissed both charges, which means Brubaker will not have to stand trial.
“Mr. Brubaker was arrested and prosecuted because he said something the government disliked,” said Andrew Shubin, an ACLU-PA cooperating attorney. “As the Court made crystal clear in its decision, it is the government who acted illegally by punishing Mr. Brubaker. We are grateful for the Court’s defense of the constitution and the hope that the dismissal of all charges sends a powerful message to those who seek to silence expression critical of government policies.”
In 1989, the U.S. Supreme Court held that the First Amendment protected the right to burn the American flag for expressive purposes.
“It’s good to know freedom is still alive,” Brubaker said.
In addition to Shubin, Brubaker is represented by Sean McGraw.
More about the case, including a copy of the judge’s order, can be found at: www.aclupa.org/Brubaker
