Flag and First Amendment Burn in Nebraska

by Norm Kent (Updated and Revised on February 6, 2009)

Rally Round the First Amendment, not the Flag

by Norm Kent
"Your honor, I regret that I have but one shirt to give for my country."
- Abbie Hoffman

My blog this morning is about a different Phelps then the one in the news lately. This one does not swim. Fred preaches. Fred Phelps that is; the old-time, bible-thumping, chest-pounding, sin-spewing, fundamentalist preacher, who has spent a lifetime railing from the pulpit and street corners about how you are a sinner.

Fred Phelps is a man who begins each morning with a proclamation America is a depraved and demonic society, and how we are going to burn in hell, particularly gay people like me. The hottest places in Hell are going to be reserved for us.

Fred Phelps serves the Lord as the minister of the infamous Westboro Baptist Church of Topeka, Kansas. Apparently bored with bringing his family to protest and celebrate the death of prominent Americans who have died of AIDS or been victims of gay hate crimes, he has found a new crusade.

Phelps gathers his Klan in the family bus and now shows up regularly at the funerals of slain U.S soldiers, arguing they are God’s punishment for the nation’s tolerance of homosexuality. Church members routinely travel across America to picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as "Thank God for dead soldiers" and "God hates fags."

Forget for a moment those soldiers should not be dying in a foreign war America should not be fighting. They still wear our uniform, defend our country, and their loss should be honored. Not so for Fred. Not last week in Nebraska.

During a not-so-silent protest, a church member allowed one of her children to stand on an American flag, while she wore one as a skirt, and let it drag on the ground. For me, it brought back memories of the day the Merv Griffin Show refused to allow a video transmission of Abbie Hoffman while he was wearing an American flag-motif designed shirt. It was America’s first use of photo-shop. We had audio but no pictures.

Now Fred, a gay hating SOB, is not my favorite person, but he has First Amendment rights too- apparently though not in Nebraska. You see, a local prosecutor has elected to criminally charge the skirt dragging congregant of the Phelps church with a violation of a flag desecration statute. A county judge has declined to dismiss the charge and ordered the case to proceed.

Nebraska has a law against flag desecration, which prohibits intentionally “casting contempt or ridicule’’ upon a flag by mutilating, defacing, defiling, burning and trampling it. Violating the law carries a misdemeanor charge. Using it as a weapon to kill millions, of course, gets you the Republican nomination.

Anyway, twenty years ago, that’s right, twenty years ago, the U.S. Supreme Court deep sixed flag-desecration laws in Texas v. Johnson (1989). Unfortunately, Nebraska lawmakers didn’t take the law off the books, and now a citizen of the United States is being charged on a clearly unconstitutional law.

This is the same Phelps whose protests in 2006 at similar funerals led to an 11 million dollar financial judgment against his church for an ‘invasion of privacy tort’, unwanted intrusion into seclusion. That of course, was a civil suit. The grievants at the funeral did not even see the protest unfolding. Apparently they saw it on television afterwards, and then sued and won. The Maryland verdict is now under appeal.

What’s an 11 million dollar verdict between friends? It’s about four times more than the Church is worth. But the cost to the first amendment is incalculable. We did not construct this monument to free speech for people that agree with us. We built it so people could tell us how much they hate us.

In the criminal case in Nebraska, the prosecutor wants to use a thin legal line to suggest the protestors were trying to incite a breach of the peace. Nonsense. Fred just wants to get his message of the Almighty out. Fred just wants to get his signs on TV. Fred just wants to eliminate religious indifference in America. This prosecution is an end run around a Supreme Court precedent. Better a citizen push the envelopes of protest peacefully than a prosecutor abridge or infringe that very same right under an illusory legal ruse.

As a result of the pickets, several state legislatures have passed bills restricting protests at funerals or tightening existing limits, and lawmakers in more than a dozen other states are considering such measures. Reasonably tailored laws can in fact constitutionally be defended if they provide rational restrictions on the time and place of a protest for an arguably private event.

Ultimately, though, who cares what an egomaniacal preacher and his merry band of faithful idiots say on a street corner? It is pretty clear to me that like Abbie Hoffman, it is not just trampling the flag that is getting Fred Phelps in trouble, but his political beliefs.

I care less about the content of his message then that he will live in an America where he will always be able to carry it forward. Fred, I know it scares you, and my friend Abbie is long gone, but you had a lot in common.