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October 19, 2020

Taking Down a Pride Flag Illegal or Protected Expression? | Cup of Joe

Taking Down a Pride Flag Illegal or Protected Expression?

"Watertown is having a LBGTQ celebration. For the love of God please let someone go on a mass shooting.”

Donnie Lee Barrigar | Facebook Post

This week we head up to Watertown, New York, up in Jefferson County. It’s about 70 miles north of Syracuse and 325 miles north from Manhattan. Eric Anzalone, the Leatherman/Biker of the disco super-group Village People from 1995 to 2017, grew up in Watertown.  He starred as Donatello in the world tour of the Teenage Mutant Ninja Turtles Coming Out of Our Shells.

Also hailing from Watertown is 36-year-old Donnie Lee Barrigar, an avowed opponent of gay rights, who was charged with taking down a gay pride flag. The flag had been given to the City of Watertown by the Pride Committee.  Only hours after the flag had been raised from a flagpole, Donnie Lee spent a Saturday evening taking the flag down and throwing it into a drop box outside Watertown City Hall.

Donnie Lee was not immediately arrested. Governor Cuomo immediately issued a statement.

“I am disgusted by the actions of this individual and he must be held accountable for this repugnant attack against the LGBTQ community...These hateful acts of division have no place in our state and we will not allow a bigot to bully the Watertown community with impunity.”

Governor Cuomo

Then Donnie Lee was arrested.


Testimony Of Donnie Lee

(A video is being played in court).

Q: Is that you in the video there, Donnie?

A: It sure is. I posted it on the internet.

Q: And can you describe for us what you are doing?

A: Sure. That’s me taking down that gay flag. 

Q: And what are you doing right here.

A: Here I am rolling that flag up into like a ball.

Q: And now you appear to be walking. Where are you going, Donnie?

A: Right; now I’m walking over to the City Hall drop box.

Q: And what are you doing here at the drop box?

A: Opening it up and stuffing the flag inside.

Q: Now, before you did all that, did you see the flag get hoisted up?

A: Yeah. It was a few hours before. There was a small ceremony to raise the flag -- the mayor was there, city council members and those LGBTQ-ers…you know, supporters.

Q: You mentioned earlier that you posted the video we just looked at on the internet, right?

A: Yeah.

Q: And you posted it on your YouTube Channel?

A: Yes, sir.

Q: And that Channel is called “Flat Earth Watertown,” isn’t that right?

A: Yes. That’s right.

Q: And it’s called “Flat Earth” because you believe the Earth is flat?

DEFENSE ATTORNEY:  OBJECTION! RELEVANCE!

PROSECUTOR: WITHDRAWN, Your Honor.

Q: Isn’t it true, Donnie, that on your post you announced: “I took down the gay pride flag.”

A: Yes, I wrote that.

Q: You have a Facebook page, Donnie?

A: I do.

Q: Isn’t it true that last year you posted on your Facebook page the following statement: “Watertown is having a LBGTQ celebration. For the love of God please let someone go on a mass shooting.”

A: I did. 

Q: Let me ask you this, Donnie: Why did you remove the flag?

A: It mocks God. It represents an abomination. I believe that the LGBTQ community involves pedophiles, incest and bestiality. It was a peaceful protest and the flag was public property.  I had the right to flip the flag because we are a nation under duress and we all have the right to peacefully protest.


Prosecutor's Closing Statement

Unfortunately, on Saturday night in an act of ignorance and narrow-mindedness, one individual who literally believes the world is flat, removed the rainbow flag from the City Hall flagpole.

For him to be able to go in and remove a city hall flag, it’s just not right, and constitutes Criminal Tampering in the Third Degree. That occurs when an individual having no right to do, he tampers with property of another person with intent to cause substantial inconvenience to the person or group. That is exactly what Donnie did on the Saturday night in question.


Defense Closing Statement

Donnie took down the flag because he believed that it was mocking God and it’s mocking all the good Christians we have in our community. Donnie was merely exercising his First Amendment right to peacefully protest.

He didn’t burn it or destroy it. In fact, the flag was retrieved by the city and police raised it again. Because there was no intent proven…no intent to cause substantial inconvenience, there is no case against Donnie.

Your Honor, this case must be dismissed.


Judge's Decision

Donnie’s intent to cause substantial inconvenience is clearly demonstrated by the act of removing and disposing of the Pride flag in such a manner to cause members of law enforcement and a private individual to retrieve and return the flag to the flag pole for proper display. Donnie's actions not only required the return of the flag to its proper location, but additional security measures were implemented to ensure such acts did not occur in the future and a criminal investigation. That argument fails.

But what about Donnie’s First Amendment claim? Is what Donnie did "expressive conduct", which would allow Donnie to invoke the First Amendment protection? 

Donnie would have had to articulate the presence of an intent to convey a particularized message; and show the likelihood was great that the message would be understood by those who viewed it.

For example, expressive conduct was found in a case where a peace symbol was attached to the American flag as a protest against the invasion of Cambodia in the early 1970's. In contrast, matters such as gambling, setting off fireworks and urinating in public were deemed non-expressive in nature and subject to regulation. 

Donnie's act of removing the City's Pride flag and stuffing it in a locked box at an hour where no one was likely to be present does not convey a message. Therefore, Donnie’s conduct was not expressive conduct that would provide him with First Amendment protection.  

The prosecution has stated a case for Criminal Tampering in the Third Degree, and the case against Donnie will NOT BE DISMISSED.


Aftermath

A 41 year old man was charged with disorderly conduct after he allegedly shouted obscenities outside Donnie’s home.

Donnie has been barred from city property. He can only go to City Hall if he has legitimate business to go there.    

Donnie now says he plans to run for City Council.


Click HERE for the full testimony.

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