Constitutional Law

Mo. sheriff won't enforce funeral-protest, flag-desecration laws

By By The Associated Press

ST. LOUIS — A Missouri sheriff has backed off a pledge to enforce state statutes prohibiting desecration of the American flag and protests near funerals.

The move comes as part of the settlement of a lawsuit brought by the American Civil Liberties Union of Eastern Missouri.

U.S. District Judge Jean Hamilton signed a consent agreement in the case on Nov. 22. The ACLU said Nov. 23 that the case may be the first to challenge Missouri?s flag-desecration statute.

Missouri is among a number of states that passed laws restricting protests at funerals after members of Westboro Baptist Church in Kansas began protesting at the funerals of soldiers killed in Iraq and Afghanistan. Church members claim the deaths are God?s punishment for American immorality and tolerance of homosexuality and abortion.

St. Francois County Sheriff Dan Bullock pledged earlier this year to enforce the laws if Westboro Baptist members protested in his area. The ACLU filed a lawsuit in June on behalf of church member Shirley Phelps-Roper.

The consent agreement signed by Hamilton permanently prevents Bullock from issuing citations, making arrests or pursuing criminal charges against anyone believed to have violated state laws banning flag desecration and funeral protests.

?In the end, Missouri?s laws are so broadly written that they criminalize wide swaths of speech in a manner the First Amendment cannot tolerate,? ACLU attorney Anthony Rothert said. ?Allowing speech we find offensive in public is one cost of the freedom that defines America.?

Bullock could not be reached for comment in time for this story. His attorney, Michael Berry, said he agreed to the consent judgment because other court cases also have called the statutes into question.

?We?re going to follow other court precedent,? Berry said. ?Whether we agree with those decisions or not isn?t the issue.?

The consent judgment was another blow to Missouri?s efforts to restrict protests near funerals. In August, U.S. District Judge Fernando Gaitan ruled that the state?s funeral-protest laws violate the right of free speech guaranteed by the U.S. Constitution. That ruling was also in response to an ACLU lawsuit filed on behalf of Phelps-Roper.

Missouri Attorney General Chris Koster said he would appeal that decision. A spokeswoman for Koster declined to comment Nov. 23 on the latest ruling.

In October, the U.S. Supreme Court heard an appeal by the father of a Marine killed in Iraq to reinstate a $5 million verdict against protesters from Westboro Baptist who picketed outside his son?s funeral in Maryland. A Baltimore jury awarded damages for emotional distress and invasion of privacy, but a federal appeals court threw out the verdict. The Supreme Court has not yet ruled in the case.

A 2006 Missouri law bans protests near any church, cemetery or funeral establishment from an hour before until an hour after a funeral ceremony, procession or memorial service. A secondary measure says protesters must stay back at least 300 feet from ceremonies and processions.

Missouri?s flag-desecration statue, passed in 1980, makes it a misdemeanor to ?purposefully and publicly? mutilate the U.S. or Missouri flag.

A Cape Girardeau, Mo., man was charged last year with flag desecration for tearing up a U.S. flag and tossing into the street, but the Cape Girardeau County prosecutor later dropped the charge, citing the U.S. Supreme Court?s 1989 ruling in Texas v. Johnson. In that case, the Court ruled that a Texas law barring desecration of the American flag violated the First Amendment.

Full post as published by First Amendment Center on November 24, 2010 (boomark / email).