"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.