Jay Carey’s case shifted in federal court after the Justice Department moved to dismiss charges against the Army veteran who set fire to an American flag near the White House last year, according to the court filing reported by The Associated Press. The filing came after Carey had pleaded not guilty to two misdemeanors, and it did not provide an explanation for the decision to seek dismissal, the report said.
Carey, 55, of Arden, North Carolina, was arrested Aug. 25 after he set fire to a flag in Lafayette Park, a Washington location overseen by the National Park Service, AP reported. The same day that Carey was arrested, President Donald Trump signed an executive order requiring the Justice Department to investigate and prosecute people for burning the American flag.
The charges Carey faced were misdemeanors that prosecutors said were based on conduct other than the act of flag burning itself, AP reported. Carey was charged with igniting a fire in an undesignated area and lighting a fire causing damage to property or park resources. Carey pleaded not guilty in September, and prosecutors later sought to proceed on those counts rather than on a law specifically centered on flag burning, the report said.
In its filing seeking dismissal, the Justice Department did not explain the reason for dropping the case, and AP reported that the U.S. Attorney’s office for the District of Columbia did not immediately respond to an email seeking comment. Carey’s legal representation and the civil-liberties organization backing him characterized the dismissal as a vindication of First Amendment protections for expressive conduct.
Carey’s attorney Mara Verheyden-Hilliard, one of Carey’s lawyers and a co-founder of the Partnership for Civil Justice Fund, said the prosecution should not have been brought. In a statement, Verheyden-Hilliard argued that “the government’s about-face is a critical vindication of those rights,” adding that the case could set groundwork for defending people whom the Trump administration targets for prosecution to silence viewpoints it does not like.
Carey also said he was protesting the executive order itself. In a statement carried by the Partnership for Civil Justice Fund, Carey said, “I set out to demonstrate that the First Amendment is sacred and that no administration has the right to supersede our constitutional rights,” AP reported. He said he had been targeted for federal prosecution for that position and expressed hope the outcome could help “the next person who takes a stand.”
In a telephone conversation on Saturday, Carey said the case shows “the Constitution still matters,” AP reported. The reporting also noted that the Supreme Court has ruled that flag burning is legitimate political expression protected under the Constitution, and that Trump’s executive order asserted authorities could prosecute flag burning if it “is likely to incite imminent lawless action” or amounts to “fighting words.”
Carey’s dismissal filing therefore returned federal attention to the same constitutional fault line that has shaped earlier flag-burning disputes: whether government can treat a burning flag as conduct punishable under standards tied to imminent disorder, or whether it remains protected speech. With the Justice Department seeking to dismiss the charges in this case, the next steps would fall to the court overseeing Carey’s misdemeanor prosecution in the District of Columbia.