Legal News

Aren?t Flag-Desecration Cases a Thing of the Past? Not in Nebraska

By Ashby Jones

A woman associated with the Westboro Baptist Church during a protest. Photo: Westboro Baptist Church

A very strange case is brewing in the Cornhusker state, one involving flag-desecration and a church that reportedly holds some interesting beliefs.

A judge in Sarpy County, Nebraska earlier today ruled that prosecutors can go ahead with their case against a member of the Westboro Baptist Church of Topeka, Kan., whose members believe that U.S. troop deaths are punishment for the nation’s tolerance of homosexuality.

The case involves a woman from the church who is accused of letting her 10-year-old son stand on an American flag at the funeral of a National Guardsmen in June 2007 in Bellevue, Neb. Prosecutors also say she wore a flag as a skirt that dragged on the ground. Members of the church have reportedly protested at other military funerals around the country. Here’s the AP story.

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.

But wait, you say, didn’t the U.S. Supreme Court shoot down flag-desecration laws a couple decades ago? We thought so, too, in Texas v. Johnson (1989). But, somewhat strangely in our eyes, Nebraska lawmakers didn’t take the law off the books after Texas v. Johnson.

Despite the precedent, the state court judge in the case, Todd Hutton, was disinclined to shoot down the law, and essentially invited the Nebraska Supreme Court to handle the case.

And apparently Hutton feels there’s some wiggle-room in the law. Although Nebraska’s law is vulnerable when challenged on its face, it “can be narrowly applied to those circumstances where an accused, through words and conduct of an inherently inflammatory nature, intentionally seeks to create an environment designed to provoke a person to retaliate, thereby inciting a breach of peace.’’

Full post as published by Law Blog - WSJ.com on February 03, 2009 (boomark / email).