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June 07, 2007

I Hate The Phelps Klan -- But This Arrest Is Wrong

I despise the Fred Phelps Klan from Westboro Baptist Church in Kansas. They are hate-filled pseudo-Christians whose anti-Americanism is as deep as that of the Islamists and many left-wing anti-Bush activists.

But this story troubles me, becasue of the clear violation of Constitutional rights it involves.

A woman was arrested in Bellevue on Tuesday during the funeral for a fallen soldier.

Shirley Phelps-Roper was arrested on suspicion of contributing to the delinquency of a minor for allowing her 8-year-old son to stomp on an American flag.

Phelps-Roper is a member of a Topeka, Kan., church that conducts anti-homosexual picketing at funeral services for U.S. soldiers.

Now let's get this one straight here -- mama was arrested because she set up her kid to desecrate the flag. The arresting officer even confirms this.

Bellevue Officer Joe Gray, who made the arrest, said that at first the group brought out a couple of members' own American flags.

"The arrestee, Ms. Phelps-Roper, put one around her waist. The second one was given to a 10-year-old, who put it on the ground and started kicking it in the area they were protesting," Gray said.

Nebraska law states that it is a Class 3 misdemeanor when a person "intentionally casts contempt or ridicule upon a flag by mutilating, defacing, defiling, burning or trampling upon such flag." The law was passed in 1977.

"It appears the adults weren't stepping on the flag because they knew it was a violation of the law. But they allowed the children to go ahead and do that," Gray said.

The local prosecutor seems to agree.

Sarpy County Attorney Lee Polikov said the words from the group are fighting words and that takes it away from protected speech.

Which proves that Sarpy County Attorney Lee Polikov is an incompetent who should immediately be removed from office.

After all, this issue was settled nearly 20 years ago.

[I]n Texas v. Johnson (1989) the Court addressed the flag-burning issue head-on and held (5-4) that Texas’ “venerated objects” law had been unconstitutionally applied to Gregory Lee Johnson when he burned a flag in Dallas. In considering the two interests advanced by Texas as overriding Johnson’s First Amendment rights, the majority first held that, under previously established standards, “the state’s interest in maintaining order is not implicated” since “no disturbance to the peace actually occurred or threatened to occur because of Johnson’s burning of the flag.” Turning to Texas’ second asserted interest, “preserving the flag as a symbol of nationhood and national unity,” the majority held that since Johnson’s guilt depended “on the likely communicative aspect of his expressive conduct,” the Texas statute violated the “bedrock principle underlying the First Amendment, … that the Government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable.” Citing its holding in Street that “a State may not criminally punish a person for uttering words critical of the flag,” the majority, represented by Justice William Brennan, declared flatly that Texas’ attempt to distinguish between the “written or the spoken words [at issue in Street] and nonverbal conduct … is of no moment where the nonverbal conduct is expressive, as is here, and where the regulation of that conduct is related to expression, as it is here.”

Furthermore, Brennan declared that the principle that “the Government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea” and therefore the state could not “criminally punish a person for burning a flag as a means of political protest” on the grounds that other means of expressing the same idea were available. The majority concluded that the “principles of freedom and inclusiveness that the flag best reflects” would be reaffirmed by its decision: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that his cherished emblem represents.”

Now I feel rather confident that word of this decision reached Kansas some time back -- whether by means of semaphore, pony express, or that new-fangled telegraph thingy (not to mention telephone, television, and the internet). And since the state has no interest in punishing desecration of the flag (stepping on a flag is clearly analogous to and less severe than burning one), the Kansas statute in question is as unenforcible as one mandating segregation of public schools. First Amendment trumps state law -- period. And to argue that constitutionally protected political/religious speech (remember, these folks are their own little family-based pseudo-church cult group) constitutes "fighting words" is absurd -- especially since the Fred Phelps Klan had a valid permit to demonstrate. What Polikov wants to impose is nothing less than a heckler's veto -- something the Supreme Court has more or less consistently ruled against in the case of such speech since it decided the case of Terminello v. Chicago, in which SCOTUS held that there “must be a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest” for otherwise constitutionally protected speech to be banned. That burden clearly has not been met here, and I would argue that the holding in Texas v. Johnson makes it unlikely that any court could ever legitimately hold that the burden has been met in a flag desecration case (provided the flag belongs to those doing the desecration).

So what we have here is a cop and a prosecutor attempting to establish an entirely new paradigm with some frightening ramifications. Under this novel arrangement engaging in constitutionally protected speech or allowing your child to do so is now contributing to the delinquency of a minor. Just imagine -- CPS showing up at the door to haul away children whose parents have taken them to protest abortion. Encouraging your child to express the wrong religious beliefs could constitute grounds for arrest. In other words, the police and prosecutor in Sarpy County are seeking to eviscerate the First Amendment.

As I have said in the past, and in this post, I despise the Fred Phelps Klan, and wish they would slink back under their rock -- but destroying the Constitution is not a method I find acceptable to make them do so.

OPEN TRACKBACKING AT The Virtuous Republic, , The Random Yak, DeMediacratic Nation, guerrilla radio, 123beta, The Amboy Times, Phastidio.net, Leaning Straight Up, Cao's Blog, Jo's Cafe, Pursuing Holiness, Adeline and Hazel, Diary of the Mad Pigeon, Faultline USA, The Pink Flamingo, Church and State, and Gone Hollywood, thanks to Linkfest Haven Deluxe.





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