Terry Jones, the Quran-burning pastor based in Gainesville, Fla., says his Wednesday arrest by Polk County police was pre-planned to prevent his First Amendment-protected book bonfire. Free speech experts say if that's true, his arrest was unconstitutional.
Jones was arrested after traveling in a truck that police say was towing 2,998 kerosene-soaked Qurans inside a large grill. He said he intended to burn one Quran for each of the victims of the 9/11 terrorist attacks.
Previous Quran-burnings by Jones have been blamed for murderous rampages in Muslim countries, and this year's plan was condemned by many locals.
"We were definitely targeted," Jones told WTVT-TV after his Thursday release from jail. "They were looking for something." Polk County Sheriff Grady Judd disagreed, and accused Jones in a released statement of inviting arrest by transporting the Qurans in a smoker-trailer grill that lacked registration.
[READ: Bikers, Christians Confront Muslim-Initiated 9/11 Protest]
After the initial stop, for which Jones associate Marvin Sapp was cited, both men were charged with a third-degree felony for allegedly transporting fuel in violation of the law and Jones was additionally charged with a second-degree misdemeanor for allegedly carrying in plain view on his hip a gun for which he says he has a concealed carry permit. The felony charge brings up to 40 years in prison and a $5,000 fine.
"The unlawful conveyance of fuel charge stems from Jones and Sapp dousing and emptying kerosene into a smoker/trailer onto a stack of Qurans and then dangerously transporting the trailer onto a state road," the police department said in a statement.
The constitutionality of Jones' arrest hinges on whether or not he can prove he is being selectively prosecuted because of his political views, First Amendment experts say.
"The arrest raises an obvious concern over free speech if it was a pretext for stopping the unpopular demonstration," George Washington University law professor Jonathan Turley, who personally disapproves of Jones' actions, told U.S. News.
"The soaking of the books before the trip does raise an obvious fire concern, though I am not sure how it fits the definition of transporting fuel," Turley said. "The First Amendment does not give Jones an exception to municipal codes or permit requirements that are imposed without discrimination on all citizens, [but] I imagine that many people convey wood and combustible material to tailgate parties and picnics."
In Turley's judgment, "if this is the first such arrest [for transporting combustible material], it raises questions of selective prosecution."
University of California at Los Angeles law professor Eugene Volokh agrees. If the police were motivated by Jones' political beliefs – regardless of whether he violated the law – the arrest would likely be unconstitutional, he said.
"Jones has a constitutional right to burn Qurans, even though others may be offended by it," Volokh said.
"He can't, however, do so while violating laws that apply equally to all conduct regardless of its communicative message," he explains on his popular legal blog The Volokh Conspiracy. "This having been said, if the government selectively targeted him because it was [Qurans] he was trying to burn, and not rags or something else, that would violate the First Amendment."
Volokh points to Wayte v. United States, a 1985 Supreme Court case brought by an opponent of mandatory registration for the military draft. The court ruled "the decision to prosecute may not be [based on]... the exercise of protected... constitutional rights."
"The burden of proving such selective prosecution," Volokh cautions, "is on Jones, and it may be a hard burden to meet. It may well be that if government officials in this locale learn that someone is towing lots of gasoline-soaked stuff (however rarely they may indeed learn this), they'd go after him regardless of the message, precisely because such behavior seems dangerous."
The felony charge is for violating a section of Florida law that says "[i]t is unlawful for any person to maintain, or possess any conveyance or vehicle that is equipped with, fuel tanks, bladders, drums, or other containers that do not conform to 49 C.F.R.," a federal law with precise fuel-transporting guidelines.
Photos provided to U.S. News by the Polk County Sheriff's Office show Jones was traveling with two commercially available plastic kerosene containers, a blow torch and a large number of Qurans. The truck is owned by Jones' associate.
Jones' cellphone remains in police custody. "His gun was also not returned," Fran Ingram of Jones' advocacy group Stand Up America Now told U.S. News. "He has already bought a new one." Polk County police spokeswoman Donna Wood said she's unsure when Jones will have the items returned.