In my recent ethics seminars I have been discussing categories of conduct that are ethical but illegal and legal but unethical. The best example of ethical and illegal is civil disobedience, when a citizen intentionally and openly violates a law to call attention to the law’s (alleged) flaw or flaws, and commences to accept the consequences of his or her crime in order to focus public attention on the injustice. (Clarence Darrow loved civil disobedience…).
Jay Carey received a Bronze Star during the Iraq War, and joined a (misguided) veterans’ protest against the deployment of National Guard troops in the nation’s capital because he has been watching too much CNN or something. What does a North Carolina resident know about crime in Washington, D.C.? OK, he’s probably Trump Deranged and Axis media-brainwashed, but never mind, that’s not the issue here.
The veteran was arrested after burning an American flag near the White House and says he plans on taking his case, if it proceeds, all the way to the U.S. Supreme Court. “Presidents don’t make law, and Congress will make no law that infringes upon our rights in accordance with the First Amendment,” Carey told reporters. Trump’s recent executive order declaring that flag-burning was a crime (EA discussed it here) prompted him to engage in civil disobedience.
“I realized that I needed to, that day, go and burn a flag in front of the White House to have the biggest impact and send the message to the President that he’s not allowed to do that,” Carey explained, He burned the flag in Lafayette Square, across Pennsylvania Avenue from the White House, making sure that his defiance was captured in videos posted on social media.
Carey is seen telling bystanders that the President’s executive order violates the First Amendment. “I served over 20 years in the United States Army,” he said. “I fought for every single one of your rights to express yourself in however you feel that you may want to express yourself.”
In the earlier version of this post, I said at this point, “That’s the way to do it, Jay. The Founders would be proud. Good luck: I think you’ll win this one.” The problem is that as far as civil disobedience goes, at least, Jay did not accomplish his objective. As commenter Chris Marschner points out below, Jay was only charged with lighting a fire in an undesignated area and lighting a fire in a manner that causes damage to real property or park resources. He might as well have been burning New York Yankees pennant. There is no way his case will get to the Supreme Court, and he didn’t manage to violate the pseudo law he was protecting.
So there is one more requirement for ethical civil disobedience: competence. Under stand the law you’re trying to violate. Since Jay Carey didn’t, I can’t really award him an Ethics Hero designation for his attempt. But it was a sincere attempt.
Ethics Alarms 
He was not charged with flag burning
WASHINGTON — Federal prosecutors filed minor criminal charges Friday against a U.S. Army veteran who set fire to an American flag outside the White House in protest of President Donald Trump’s attempt to ban flag burning.
Jan “Jay” Carey, 54, of North Carolina, is charged with lighting a fire in an undesignated area and lighting a fire in a manner that causes damage to real property or park resources. Both counts are Class “B” misdemeanors, also known as petty misdemeanors, which are the lowest category of federal offense. They carry a maximum sentence of no more than 6 months in prison and are regularly resolved in D.C. with only a small fine.
This will not go to the Supreme Court.
I think this is right.
After reading more about the executive order, I doubt very much if it is unconstitutional. What Trump said it was and what the order actually said were two different things, apparently. Not surprising, because… Trump.
The Supreme court is unlikely to take a case like this, because the law he violated is content-neutral. He could’ve burned a bag of old clothes in the same place and been charged with the same crime.
But that does bring us to another point — enforcement. Enforcement of these laws cannot be “enhanced” due to content; they must be neutrally enforced. If said burning of a bag of clothes does not result in an arrest, then there is a constitutional argument to be made.
Ah, too bad. He should have come armed with some sandwiches and tossed them at the arresting officers! That would have upped the ante, surely….
Free speech is a right, i accept and defend. However, emotionally I cannot be on his side because of the several friends who returned from Vietnam draped in the flag.
“I fought for every single one of your rights to express yourself in however you feel that you may want to express yourself.”
I wonder what he would say about this.
MINNEAPOLIS — Minnesota prosecutors filed misdemeanor disorderly conduct charges Tuesday against a woman accused of using a racist slur against a Black child at a playground — an incident the woman has since used to raise more than $800,000 after she appealed for help with relocating.
“Defendant wrongfully and unlawfully engaged in offensive, obscene, abusive, boisterous, or noisy conduct, or in offensive, obscene, or abusive language that would reasonably tend to arouse alarm, anger or resentment in others,” the criminal complaint alleges.”
Minnesota woman charged with using racist slur against Black child as her fundraising tops $800,000.
What is interesting is that the rationale used by prosecutors is exactly the same reasoning used by Trump and other commenters here relating to the EO on flag burning.
I am a hard core advocate of the sticks and stones perspective when it comes to words but we cannot have one group being given a pass for what is considered offensive, abusive or obscene to some and not to all. Because we cannot eliminate all offensive utterances nothing should penalized.
I think most of us here agree that burning the American flag is highly offensive. However the Supreme Court has ruled twice that this conduct is a form of expression protected by the First Amendment. This means that enforcement of existing laws needs to be content neutral, and cannot lead to selective enforcement or enhanced penalties in case flag burning is involved.
The article in the bottom of this content puts that discussion in further perspective, namely the burning of BLM flags and burning of LGBTQ+ flags (rainbow flags). People have been prosecuted for this, and the enforcement was not content neutral.
The charges against Shiloh Hendrix follow a similar pattern, by using laws against disorderly conduct as a vehicle to prosecute a slur. Shiloh Hendrix should not have used the N-word, but she may have a First Amendment case here.
Should we not all operate under the same set of rules? If leftwing prosecutors can go after people who destroy pride flags and BLM flags, then should the American flag not enjoy similar protection? If leftwing prosecutors make an end run around the First Amendment to go after somebody for using the N-word, then should the DOJ not be allowed to go after those who offend Christians with blasphemy, and patriots with flag burning? It cannot be that the BLM flag and the pride flag enjoy more legal protection than the American flag.
My preference is for no prosecutions for the burning of any flag, or uttering of any offensive language at all. I also hope that Shiloh Hendrix makes a First Amendment challenge to the Supreme Court, and that the Supreme Court strikes down hate crime enhancements in the context of speech.
https://www.the-independent.com/news/world/americas/us-politics/trump-flag-burning-maga-pride-lgbtq-b2814511.html
For what, exactly, was he arrested?
The charges are shown in my earlier comment
Thanks, Chris — no other comments were visible when I posted.
My question was rhetorical—the post made it sound like he was arrested for flag burning.
So did the news report where I found the story. It’s impossible to trust any reporting now. Hopeless.
I read Jack’s update, and I have doubts that this is NOT a Supreme Court case.
The first question is whether Jay Carey would have been arrested and charged if he had burned a piece of clothing. The homeless burn stuff all the time, and they are not being charged with anything. So arresting Jay Carey for causing damage may be a content-neutral precursor for arrest, however if nobody else is being arrested for similar actions not involving the American flag, then his arrest and prosecution would be selective enforcement of the law based on the content of his speech; this would be sufficient to create a First Amendment issue.
If Jay Carey gets a significant sentence, e.g. one year in prison, that would be enhanced punishment for something that would normally be punished lighter; this would be sufficient to create a First Amendment issue. Especially because the President has been waxing poetically about a sentence of one year for flag burning.
Jonathan Turley has an interesting article about this:
https://jonathanturley.org/2025/08/26/running-it-up-the-flagpole-why-the-trump-order-on-flag-burning-is-unconstitutional/
Sent from Yahoo Mail for iPad