An Ohio appeals court has overturned a lower court ruling that a flag-burning was protected by the Constitution, saying a city has a right to regulate open burning. The 10th Ohio district court of appeals ruled Thursday in the case of two men who burned a gay pride flag during a parade in Columbus in 2001. The men--Charles Spingola, 47, and Thomas Meyer, 49, both of Newark--had been charged with open burning, a first-degree misdemeanor punishable by as much as six months in jail. But former Franklin County environmental judge Richard Pfeiffer ruled that the flag-burning was protected under the First Amendment guarantee of free speech. Tom Condit, attorney for Spingola and Meyer, said it is a "virtual certainty" he will appeal the case to the Ohio supreme court.
The appellate court said regulating open burning "is unquestionably within the city's constitutional power.... Requiring that one obtain a permit before engaging in such conduct places only a minor restriction on free expression," visiting judge William Harsha wrote for the court in a unanimous opinion. The fire code does not prohibit flag-burning, he said, but does ban ceremonial burning without a permit. The appeals court sent the case back to Franklin County environmental court judge Harlan Hale.
Ray Vasvari, legal counsel for the American Civil Liberties Union of Ohio, said that as long as the fire code takes no position on the message a flag burner is trying to convey and spells out the reasons a permit can be approved or denied, then it is constitutional.