The Justice Department moved on Friday to dismiss charges against a veteran who lit an American flag on fire outside the White House in August in protest of an executive order that seeks to punish flag burning.
The veteran, Jay Carey, 55, had not been charged with flag burning itself but with two misdemeanors related to setting a fire on federal land. If convicted, he would have spent up to six months behind bars. Under a Supreme Court ruling in 1989, flag burning has been considered an act of political expression protected by the First Amendment.
The department did not explain its decision to dismiss the case in the filing on Friday, but it came as the government faced a Monday deadline to respond to Mr. Carey’s lawyers as they argued that he was a target of vindictive prosecution for exercising his First Amendment rights.
Mara Verheyden-Hilliard, a lawyer for Mr. Carey, said in an interview that the government’s decision to dismiss the case was an admission that it “should never have been brought to begin with.” She also suggested it was a victory against the administration’s “effort to stifle and punish freedom of expression” in the country more broadly.
The Justice Department and the White House did not immediately respond to questions about the decision to seek to dismiss the case.
While signing the executive order in August, President Trump vowed to punish those who burned an American flag. But despite his tough talk, the text of the order did not move to make flag burning a crime. Instead, it directed the Justice Department to find other ways to “vigorously prosecute” those who engage in what it called “acts of American flag desecration” for other crimes, such as a hate crime or crimes against property.
It cited part of the Supreme Court’s decision in the 1989 case, Texas v. Johnson, which established flag burning as a First Amendment right but also suggested that some instances may not be protected if they incite violence. But the ruling also made clear that flag burning to protest government policies was not the sort of incitement that could be prosecuted.
In that case, Gregory Johnson, a protester who burned a flag outside the 1984 Republican National Convention in Dallas as part of a political demonstration against Reagan administration policies, was convicted under a state law that criminalized desecrating the flag.
Mr. Johnson appealed his conviction and the case made its way to the Supreme Court, which ruled that his act was symbolic speech protected by the Constitution, even though some justices noted that they found flag burning distasteful.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Justice Antonin Scalia, a conservative, later said. “But I am not king.”
Even before issuing the executive order in August, Mr. Trump had repeatedly criticized demonstrators who burn the flag, suggesting they were anti-American.
“Did you see a lot of the flags being burned?” Mr. Trump asked the crowd at a rally in June, referring to protests happening at the time in Los Angeles over his crackdown on immigration. At least one American flag was set on fire.
“They weren’t being burned by people from our country or from people that love our country,” the president claimed.
Ms. Verheyden-Hilliard, a lawyer with the Partnership for Civil Justice Fund, which is representing Mr. Carey pro bono, said her client had been prosecuted only “at the whims and the directives of a president who has said that he disfavors a particular viewpoint.”
She added, “That simply can’t stand in a democratic society.”
In an interview this week before prosecutors moved to drop the charges, Mr. Carey said he had not set out to burn a flag that day in August.
Speaking from the kitchen of his home in Hendersonville, N.C., Mr. Carey described his more than two decades in the Army. He spent nearly four years deployed in combat zones, including during Operation Desert Storm. He is also the founder of a veterans advocacy group and came to Washington in August with other veterans protesting Mr. Trump’s deployment of the National Guard to the city. He said he was having lunch with a friend and scrolling social media when he saw the news that Mr. Trump had signed the order.
“I turned to my friend and I said, ‘I need to go burn a flag,’” Mr. Carey said. “Because Trump does not have the right, that administration does not have the right, to restrict our First Amendment rights.”
Dressed in his camouflage Army patrol shirt, he took an American flag he had with him to Lafayette Square, a public park directly opposite the White House, and set it down on a brick pathway.
“I’m burning this flag as a protest to that illegal fascist president that sits in that house,” Mr. Carey shouted to people who had gathered, before lighting the fire, according to video that was shared on social media.
An officer was seen stepping in with a fire extinguisher to put out the flames, and Mr. Carey was quickly arrested by U.S. Park Police.
Mr. Carey said that in the moment he knew his right to burn the flag was protected by the First Amendment, but that he still chose to explain his actions as he took them so he would not be misinterpreted.
“I mean, 20 years in the military,” Mr. Carey said. “There’s so many people that hold the flag sacred.”
Mr. Carey, who had also said that he and his family had received threats of violence that led his wife to resign from her role in the local Democratic Party, said in a statement on Friday that he was “relieved.”
He added, “This is a win for the country and the First Amendment.”
Aishvarya Kavi works in the Washington bureau of The Times, helping to cover a variety of political and national news.
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