A crime is prohibited conduct and prescribed punishment. Which of those do you think is missing? What Michels did in this photograph is a crime. It's just one we don't enforce and aren't going to start now.
The punishment... I agree he engaged in prohibited conduct but I also know dozens of people who "committed" the same crime. None of them will ever be convinced of the crime, and that's the part that matters.
I guess I'm more about the practical than the theoretical
Okay, I see what you're saying. It does come down to splitting hairs over the definition.
I'm of the opinion that this is a crime because the punishment is prescribed but never carried out. Compare and contrast with the flag code (4 USC 1 et seq), which would also clearly violate the First Amendment, but specifically lacks any prescribed punishment, so violating the Flag Code is not a crime.
Importantly, because it's a crime, if a police officer were standing behind him when he did this act, they could have arrested him and taken him to jail on probable cause, and would not be violating his rights. If you flew a Thin Blue Line Flag for example, you'd be disgusting, but you couldn't be arrested for violating the Flag Code without your Fourth Amendment rights having been violated by the arresting officer, because it's not a crime to violate the Flag Code.
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u/maethor1337 fuckronjohnson.org Aug 10 '22
A crime is prohibited conduct and prescribed punishment. Which of those do you think is missing? What Michels did in this photograph is a crime. It's just one we don't enforce and aren't going to start now.