Westboro Baptist Church members at a funeral for a U.S. soldier killed in Iraq
Westboro Baptist Church is the group that comes to soldier funerals holding signs with messages like “God Hates Fags,” and blames the soldiers’ deaths on their god’s wrath for America’s “tolerance” of homosexuals. I truly do hate everything the Westboro Baptist Church intentionally stands for.
On the other hand, Westboro Baptist Church forces us to consider just what the First Amendment means. In that regard (and this tastes really bad), I am grateful for the Westboro Baptist Church and its antics.
In 2007, Shirley Phelps-Roper of Westboro Baptist protested at a Nebraska funeral for a fallen soldier.
“Investigators said that a part of the protest that included trampling on a flag violated state law.” (source) Phelps was arrested and charged with violating Nebraska Rev. Stat. § 28-928, which states:
(1) A person commits the offense of mutilating a flag if such person intentionally casts contempt or ridicule upon a flag by mutilating, defacing, defiling, burning, or trampling upon such flag.
(2) Flag as used in this section shall mean any flag, ensign, banner, standard, colors, or replica or representation thereof which is an official or commonly recognized symbol of the United States or the State of Nebraska.
(3) Mutilation of a flag is a Class III misdemeanor.
Phelps-Roper claims that it is within her First Amendment rights to trample the flag as a form of protest.
“Everyone knows from sea to shining sea, except Omaha and Sarpy County, you cannot stop people from using that flag as a form of expression,” Phelps-Roper said. (source)
Local Prosecutor, Nicole Hutten, disagreed.
“States are permitted to and have, for all time, regulated conduct based on health, safety and welfare of its citizens, which would include both targets of conduct and individuals engaging in conduct,” said prosecutor Nicole Hutten. “That’s simply what we have here.” (source)
Hutten is wrong. All this prosecution is likely to do is invalidate the Nebraska flag desecration statute.
In Texas v. Johnson, 491 U.S. 397 (1989) the Supreme Court invalidated a Texas statute that outlawed flag desecration.
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
We have not recognized an exception to this principle even where our flag has been involved. In Street v. New York, 394 U. S. 576 (1969), we held that a State may not criminally punish a person for uttering words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground that Street had “failed to show the respect for our national symbol which may properly be demanded of every citizen,” we concluded that
“the constitutionally guaranteed ‘freedom to be intellectually . . . diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.” Texas v. Johnson, 491 U.S. 397, 414 (1989)
Shortly thereafter, in United States v. Eichman, 496 U.S. 310 (1990), the Supreme Court echoed Texas v. Johnson and invalidated a federal law that outlawed the destruction of the flag.
“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.” Id. at 319.
Accordingly, while I truly do hate Shirley Phelps-Roper and every last member of the Westboro Baptist Church, my hate for them is outweighed by my love of the Constitution. I support them in their fight against the State of Nebraska.
If we want to silence the WBC, we can do it by winning in the marketplace of ideas. My beliefs are strong enough that they can stand forever in opposition to those of the WBC. I am disappointed that the State of Nebraska does not have the same degree of faith.
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Technorati : Civil Liberties, First Amendment