Photo: Facebook/Bryton Mellott

After arresting a man for a Facebook post under an unconstitutional flag desecration law, police in Urbana, Illinois, claimed on Monday that they did so to “assure the safety” of him and his coworkers, The Washington Post reports.

According to The News-Gazette, Urbana Police say they received “a large volume of calls” about 22-year-old Bryton Mellott’s viral flag-burning photo, but only “decided to take action” when they saw threats mentioning Mellott’s employer, Wal-Mart:

People are free to make inflammatory comments that put themselves at risk, Urbana Sgt. Andrew Charles said Monday, but when they put others at risk who have no say, it becomes a law enforcement matter.

[...]

Before arresting him, Charles said police spoke with Mellott and his employer. He said Mellott was told police “understood his freedom of speech” but were concerned for his safety and believed his posts were putting others at risk.

Following their conversation, Mellott continued similar posts to Facebook, Charles said, so police arrested him.

After consulting with prosecutors, police released Mellott “due to questions about the constitutionality of the 2013 Illinois flag desecration law,” but appeared to defend the arrest under an additional disorderly conduct offense.

“We are trying to ensure his safety as much as we can,” Charles told The News-Gazette on Monday, “and [Wal-Mart’s] business, too.”

According to UCLA law professor Eugene Volokh, however, that justification also violates long-established case law.

“It seems that what they mean is if you post something that makes people upset with you and send threats to you, leading to police investigation and protection, then you’re committing a crime because of what the threateners are saying,” Volokh told U.S. News & World Report. “That cannot be the law. That is not the law.”

On Tuesday, prosecutors announced that they would not file charges against Mellott, citing a 1989 Supreme Court decision protecting flag-burning.

“We have considered 720 ILCS 5/49-1, Flag Desecration, an Illinois statute currently in effect,” said Champaign County State’s Attorney Julia Rietz in a statement. “This statute was the basis for the decision by Urbana Police officers to arrest Mellott. While that statute remains in effect, it is contradictory to the US Supreme Court ruling in Texas v. Johnson. We will be discussing this issue with our local legislators and asking that they consider reviewing this statute given the constitutional issues it presents.”