A Minnesota Defense Lawyer Explains Flag Desecration Charges Under Minn. Stat. § 609.40
You are staring at a citation, and it feels surreal. You have been charged with a crime related to the American or Minnesota flag. Maybe you were at a protest, creating a piece of art, or promoting your small business, and you never imagined your actions could lead to a criminal record. Now, you’re facing a charge under Minnesota Statute § 609.40, a law that puts your freedom of expression directly in the crosshairs of the criminal justice system. The charge itself can feel like an accusation against your character or your patriotism, and the situation can be isolating and confusing.
The line between protected speech and a criminal act under this law is incredibly blurry, and prosecutors often err on the side of charging someone first and letting the courts sort it out later. They may not understand your intent, the political statement you were making, or the artistic vision you were pursuing. They simply see a statute and an opportunity to file a charge. But a charge is not a conviction. As a criminal defense attorney who has defended the rights of people across Minnesota—from Minneapolis and St. Paul to the suburbs of Maple Grove and Plymouth and the cities of Rochester and Duluth—I understand the constitutional issues at play in these cases. You don’t have to navigate this complicated and stressful situation alone. Your rights are your shield, and building a strong defense starts right now.
What Does a “Flag Crime” Actually Mean in Minnesota?
When you’re facing a flag crime accusation, it’s easy to assume it’s only about burning the flag. However, Minnesota Statute § 609.40 is much broader and covers a range of actions involving either the U.S. flag or the Minnesota state flag. The law also includes anything that even looks like a flag, such as a picture, a copy, or a representation. A prosecutor can bring a Minnesota flag crime charge against you for several different reasons, which generally fall into two categories: acts of desecration or contempt, and improper commercial use.
The first category includes intentionally and publicly mutilating, defiling, or casting contempt upon the flag. This could be anything from physically tearing the flag to spray-painting a message over it during a protest. The second category is focused on commercialism. The law prohibits placing any unapproved word, mark, or advertisement on a flag. It also makes it illegal to manufacture or sell merchandise with the flag depicted on it, or to use the flag for commercial advertising purposes. This means a business in Bloomington or a shop in St. Cloud could face charges for a misguided promotional campaign, just as a protestor in Minneapolis could for an act of political expression.
Minnesota’s Flag Law — Straight from the Statute
The entire case against you is based on the specific language of Minnesota Statute § 609.40. Understanding this language is the first step in understanding the charges and identifying the weaknesses in the prosecution’s case. The law is divided into three parts: the definition, the prohibited acts, and the exceptions.
Here is the full text of the statute:
609.40 FLAGS.
Subdivision 1. Definition. In this section “flag” means anything which is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Minnesota state flag, or a copy, picture, or representation of any of them.
Subd. 2. Acts prohibited. Whoever does any of the following is guilty of a misdemeanor:
(1) intentionally and publicly mutilates, defiles, or casts contempt upon the flag; or
(2) places on or attaches to the flag any word, mark, design, or advertisement not properly a part of such flag or exposes to public view a flag so altered; or
(3) manufactures or exposes to public view an article of merchandise or a wrapper or receptacle for merchandise upon which the flag is depicted; or
(4) uses the flag for commercial advertising purposes.
Subd. 3. Exceptions. This section does not apply to flags depicted on written or printed documents or periodicals or on stationery, ornaments, pictures, or jewelry, provided there are not unauthorized words or designs on such flags and provided the flag is not connected with any advertisement.
Breaking Down the Legal Elements of a Minnesota Flag Charge
To secure a conviction, the prosecutor has to prove every single component—or element—of the alleged offense beyond a reasonable doubt. If they fail on even one element, their case crumbles. Your defense will focus on showing that the state cannot meet this high burden of proof, whether because your actions don’t fit the definition of the crime or because your constitutional rights were violated. These elements are the battleground where your case will be won or lost.
- The “Flag”: The state must first prove that the object in question legally qualifies as a “flag” under the statute’s very broad definition. This includes not just official cloth flags of the United States and Minnesota, but also the U.S. shield, coat of arms, and any “copy, picture, or representation.” This means a drawing of a flag on a protest sign or an image printed on a t-shirt could be considered a “flag” by a prosecutor, making the law’s reach incredibly wide and ripe for a constitutional challenge.
- A Prohibited Act: The prosecutor must prove you committed one of the specific acts listed in Subdivision 2. This could be an act of physical desecration, like intentionally and publicly mutilating or defiling the flag. Or it could be a commercial violation, such as attaching an advertisement to a flag, manufacturing merchandise with a flag on it, or using the flag in a commercial. Each of these prohibited acts has its own specific requirements, such as the act being “public” or for a “commercial” purpose, which we can attack.
- Criminal Intent: You cannot be convicted for an accident. For an act of desecration, the state must prove you acted intentionally to mutilate, defile, or cast contempt. If a flag was damaged by weather or you accidentally spilled something on it, you have not committed a crime. This element requires the prosecutor to get inside your head and prove your state of mind—a very difficult task. For commercial violations, the intent is tied to the act of manufacturing or advertising itself.
Penalties for a Flag Crime Conviction in Minnesota Are More Than Just a Slap on the Wrist
While a flag crime is classified as a misdemeanor, you should not underestimate the impact a conviction can have on your life. A criminal record of any kind can create unexpected and lasting obstacles. The penalties are not just about a potential fine; a conviction establishes a public record that you were found guilty of a crime, which can affect your reputation, career, and future opportunities. You must take this charge seriously and fight to keep your record clean.
Misdemeanor Penalties for a Flag Violation
In Minnesota, a misdemeanor conviction is punishable by up to 90 days in jail, a fine of up to $1,000, or both. A judge could also sentence you to a period of probation, during which you would have to follow specific court-ordered conditions. More importantly, the conviction becomes a permanent part of your criminal record, visible on background checks for employment, housing, and professional licenses. The penalties for flag desecration in Minnesota are designed to be a deterrent, but the most damaging penalty is often the criminal record itself.
What Flag Charges Look Like in Real Life — Common Minnesota Scenarios
These charges are rare, but when they do appear, they often arise from situations involving political protest, artistic expression, or commercial ventures where the law was not fully understood. The statute is so broad that it can be applied to a wide variety of circumstances across Minnesota.
Here are a few scenarios where a person could find themselves charged under § 609.40:
The Minneapolis Political Protest
During a heated rally in downtown Minneapolis, a protestor uses a marker to write “No More War” across the white stripes of a U.S. flag image printed on a poster board. They hold the sign up for news cameras to see. A prosecutor could argue this is intentionally and publicly defiling a representation of the flag, fitting the description in the statute, even though it is clearly a form of political speech.
The St. Paul Artistic Display
A painter in the Lowertown arts community in St. Paul creates a mixed-media piece that incorporates a torn and partially burned Minnesota state flag to comment on environmental issues. The artwork is hung in a public gallery for an exhibition. This act could be charged as intentionally and publicly “mutilating” the flag, pitting the artist’s freedom of expression against the words of the statute.
The Rochester Small Business Promotion
A family-owned furniture store in Rochester decides to run a Memorial Day sale. They print thousands of flyers featuring a large American flag with the words “SAVE BIG!” printed directly on top of the flag’s image. These are mailed to homes and placed on car windshields. This is a classic example of what could be charged as using the flag for commercial advertising purposes.
The Eagan Clothing Designer
An aspiring clothing designer from Eagan creates a line of shirts and jackets that prominently feature the American flag as the main pattern. They begin selling these items online and at a local market. Under a strict reading of the statute, this could be considered manufacturing and exposing to public view an “article of merchandise… upon which the flag is depicted,” which is technically prohibited.
How to Fight Back: Legal Defenses That Can Defeat Your Flag Charge
When you are charged under Minnesota’s flag statute, it may feel like you are on the wrong side of the law. However, the truth is that the law itself is on very shaky constitutional ground. The U.S. Supreme Court has repeatedly affirmed that freedom of expression, especially political speech, is a cornerstone of our democracy. This gives us powerful ammunition to fight your charge. My primary goal will be to build a defense that not only addresses the facts of your case but also directly challenges the state’s ability to prosecute you under a constitutionally questionable law.
An aggressive defense will expose the weaknesses in the prosecutor’s case and highlight the fundamental rights that are at stake. A charge for a flag crime is often an overreach by the government, and we can push back hard. Whether by demonstrating that your actions are protected by the First Amendment or by showing that the facts simply don’t meet the statute’s requirements, we will work to get your case dismissed and your record cleared.
The First Amendment: Freedom of Speech and Expression
This is the most powerful defense against a flag desecration charge. The U.S. Supreme Court has made it clear that expressive conduct, including actions taken toward a flag to convey a political message, is protected speech.
- Symbolic Speech: We will argue that your actions constituted “symbolic speech.” In the landmark cases Texas v. Johnson and United States v. Eichman, the Supreme Court ruled that burning the American flag as a form of political protest is protected by the First Amendment.1 We will assert that your conduct, whether it was marking, altering, or destroying a flag, was intended to convey a political message and is therefore constitutionally protected from prosecution.
- Unconstitutional as Applied: We will argue that even if the Minnesota statute is not unconstitutional on its face, it is unconstitutional as applied to you. This means that in your specific situation, a conviction would violate your First Amendment rights to freedom of speech and expression. This is a nuanced legal argument that can defeat the prosecution even without striking down the entire law.
The Act Was Not “Public”
Subdivision 2(1) of the statute explicitly requires that the act of mutilation or defilement be done “publicly.” If the state cannot prove this element, their case fails.
- Private Conduct: We can argue that your actions took place in a private setting, not a public one. For example, if you damaged a flag in the privacy of your own home or garage, away from the view of the public, the act was not “publicly” done. The state has no authority to police what you do with your own property in private.
- No Public Exposure: For other parts of the statute, such as altering a flag or placing it on merchandise, the law requires that it be “exposed to public view.” If you created such an item but never displayed it, sold it, or otherwise exposed it to the public, the state cannot prove its case.
Lack of Criminal Intent
The statute requires that you acted “intentionally.” Without proof of criminal intent, there can be no conviction.
- The Act Was an Accident: We can provide evidence that any damage or alteration to the flag was purely accidental. Perhaps it was torn during a windstorm, stained by a spill, or damaged in storage. An accident, by definition, is not an intentional act and therefore cannot be the basis for a criminal charge.
- No Intent to “Cast Contempt”: Even if you intentionally altered a flag, we can argue that your intent was not to “cast contempt” upon it. For example, an artist may use a flag in their work to evoke complex emotions like sorrow, criticism, or hope—not simple contempt. Your state of mind is a factual issue that the prosecution must prove beyond all reasonable doubt.
Minnesota Flag Crime FAQs — What You Need to Know Now
Can I really be arrested for burning a flag in Minnesota?
Yes, under the plain language of Minnesota Statute § 609.40, you can be charged. However, such a charge is in direct conflict with U.S. Supreme Court rulings that protect flag burning as a form of political speech. This makes the charge highly vulnerable to a constitutional challenge.
Is this Minnesota law even constitutional?
Many parts of it are likely not. The sections criminalizing the “desecration” of the flag for expressive or political purposes have been effectively nullified by Supreme Court precedent. However, the law is still on the books, and police and prosecutors can still charge you with it, forcing you to defend your rights in court.
What’s the difference between patriotism and a crime here?
The law attempts to draw a line, but it’s a blurry one that often intersects with free speech. The state argues the line is crossed when you “cast contempt” or use the flag for commercial gain. A defense attorney argues the line is crossed when the government tries to punish you for expressing a political opinion.
Do I need a lawyer for a misdemeanor in St. Cloud?
Yes. Any criminal charge, including a misdemeanor, can result in a permanent criminal record that affects your life for years to come. For a charge that involves complex constitutional issues like this one, having a knowledgeable attorney is absolutely critical to protecting your rights and your future.
What does it legally mean to “cast contempt” on the flag?
This is a vague term, which is one of the reasons the law is weak. A prosecutor would argue it means to show disrespect, scorn, or disdain. However, we would argue that what the state calls “contempt” is often just “criticism” or “dissent,” which are forms of speech protected by the First Amendment.
Can I wear clothing with the American flag on it?
This is a gray area. The statute prohibits manufacturing “an article of merchandise… upon which the flag is depicted.” While this law is rarely enforced against people wearing mass-produced flag apparel, a prosecutor could technically try to apply it, especially to the manufacturer or seller.
What if the flag that was damaged was already old and tattered?
This could be part of your defense. We could argue that the flag was already in a state of disrepair and your actions did not further “mutilate” it, or that you were preparing to retire the flag respectfully. The condition of the flag is a factual detail that could be important.
How can I fight a § 609.40 charge?
The best way to fight it is with a strong legal defense. This involves challenging the constitutionality of the statute, arguing that your actions are protected symbolic speech, and picking apart the state’s case to show they cannot prove all the required legal elements of the crime.
Will this misdemeanor stay on my record forever?
Yes, a conviction for any crime, including a misdemeanor, stays on your Minnesota criminal record permanently unless you can get it expunged. Getting an expungement is a separate legal process and is never guaranteed. This is why it is so important to fight the charge from the start.
Is it illegal to fly a flag upside down in Minnesota?
Flying a flag upside down is traditionally a sign of dire distress. While not specifically mentioned in the Minnesota statute, it is widely recognized as a form of political speech and is protected by the First Amendment. It is highly unlikely a charge for this would hold up in court.
What about flags on paper plates or napkins for a picnic?
This falls into another gray area. The statute prohibits depicting the flag on a “wrapper or receptacle for merchandise.” One could argue that paper plates fit this definition. However, the law also has exceptions for “printed documents,” and prosecution for such a common activity is extremely unlikely.
What counts as “commercial advertising purposes”?
This generally means using the flag’s image to draw customers or sell a product or service. For example, putting a flag in a car dealership ad with the text “Patriotic Prices!” would be a clear example. The connection between the flag and the commercial transaction is key.
What is the very first thing I should do if I’m charged?
Exercise your right to remain silent and call a criminal defense attorney. Do not try to explain yourself to the police. Anything you say can be misinterpreted and used against you. Protect yourself by speaking only to a lawyer.
A Misdemeanor’s Mark: How a Conviction Can Impact Your Life
It is a mistake to think that a misdemeanor conviction is “no big deal.” While it may not carry the lengthy prison sentences of a felony, a conviction under § 609.40 leaves a permanent mark on your life. It creates a public record that can trigger a host of collateral consequences, limiting your opportunities and creating hurdles that can follow you for years. Fighting the charge is about more than just avoiding a fine—it’s about protecting your clean record and your future.
The Stain of a Permanent Criminal Record
Once you are convicted, you have a criminal record. When you apply for a job or an apartment, and the application asks if you’ve ever been convicted of a crime, you will have to check “yes.” This can lead to your application being immediately discarded. A conviction for a crime like flag desecration can be particularly damaging, as potential employers may make unfair judgments about your character and respect for authority.
Professional Licensing and Career Hurdles
If you work in a field that requires a professional license—such as teaching, nursing, or law—a criminal conviction can put your license in jeopardy. State licensing boards have “good character” provisions, and a conviction could trigger a review of your fitness to practice your profession. It could prevent you from obtaining a license in the first place or lead to disciplinary action against a license you already have.
The Social and Political Stigma
Being convicted of a crime involving the flag carries a unique social stigma. It’s an emotionally and politically charged issue, and a conviction can lead to harsh judgment from friends, family, and your community. You may be unfairly labeled as unpatriotic or anti-American, regardless of your true beliefs or the context of your actions. This social fallout can be just as punishing as any court-imposed penalty.
Future Legal Complications
A misdemeanor conviction on your record can have serious consequences if you ever have another encounter with the law. It can be used by a prosecutor to argue for a harsher sentence in any future case. A judge may see you as someone who does not respect the law, making them less inclined to give you the benefit of the doubt. It creates a negative legal history that can follow you into every future courtroom you may enter.
Why a Determined Minnesota Defense Attorney is Crucial, Even for a Misdemeanor
When you are facing a flag crime charge, you are not just fighting a legal battle; you are fighting a political and constitutional one. The state has decided to use its power to prosecute you for an act of expression. This is not a situation to take lightly or to handle on your own. You need an attorney who understands the high stakes and is prepared to mount a defense that is as aggressive and principled as the prosecution’s charge.
Protecting Your Constitutional Rights Above All Else
This case is bigger than its misdemeanor classification; it’s about the First Amendment. My primary role is to be the shield that protects your constitutional rights. I will build a defense centered on the principles of free speech and expressive conduct established by the Supreme Court. The goal is not just to argue the facts, but to force the prosecutor and the court to confront the reality that prosecuting you is a violation of your fundamental rights as an American. This requires a deep understanding of constitutional law and the courage to challenge the state’s authority.
Avoiding a Permanent Criminal Record is the Priority
For most of my clients, the single most important goal is to walk away from this with a clean record. A conviction, even for a misdemeanor, can have a domino effect on your life, impacting your job, your housing, and your reputation in your community, whether you’re in Eagan, Brooklyn Park, or anywhere in between. My strategy will be relentlessly focused on achieving a resolution that avoids a conviction. This means fighting for a complete dismissal, negotiating for a diversion program that keeps the charge off your record, or taking your case to trial and winning a full acquittal.
Navigating Local Courts with a Strategic Constitutional Approach
Prosecutors in different Minnesota counties may approach these politically sensitive cases differently. A Hennepin County prosecutor might be more receptive to a First Amendment argument than one in a more rural jurisdiction. I have the experience to assess the legal climate of the specific court you are in and tailor our strategy accordingly. I will engage the prosecutor directly, armed with strong legal precedent, to persuade them that their case is not only weak but also a violation of established constitutional law—a path many prosecutors would prefer to avoid.
This Is a Fight for Your Principles
I understand that for many people charged with this crime, it’s not just about avoiding a penalty—it’s about vindicating your right to speak your mind. You took an action to express a belief, and you are now being punished for it. Your defense should reflect the courage of your convictions. I will be your advocate, fighting not only for your freedom but for the principles behind your actions. We will work together to ensure that your voice is heard and your rights are upheld, aiming for a victory that clears your name and affirms your freedom of expression.