Legal Commentary

During my prior guest stint, I wrote about the multi-million-dollar civil verdict against Fred Phelps and his Westboro Baptist Church for their protest outside a slain soldier's funeral in Maryland. On Tuesday, the AP reported on a criminal prosecution in Omaha against a different member of the Phelps family and the Church (the categories are largely co-extensive), Shirley Phelps-Roper, arising from a different funeral protest last June. (H/T: First Amendment Center).

Phelps-Roper has been charged in two separate criminal complaints. One contains charges of disturbing the peace, contributing to the delinquency of a minor, and negligent child abuse. The latter two charges are based on the fact that Phelps-Roper used her 10-year-old son in the protest. These implicate an issue that Eugene Volokh has written about: the extent to which parents' unpopular or offensive speech to or with their children can constitute child abuse or neglect or otherwise reflects on their fitness as parents. The second complaint includes a single charge of flag mutilation, defined as "intentionally cast[ing] contempt or ridicule upon a flag by mutilating, defacing, defiling, burning, or trampling upon such flag." Press reports indicate that charge came about because the son stood on an American flag as part of the protest. The new development in the case is an order that the prosecutor provide a "bill of particulars," detailing how Phelps-Roper (through her son) violated the flag-mutilation law.

It is hard to believe that we are seeing a prosecution such as this, nearly twenty years after the Supreme Court's unequivocal statement that flag desecration is constitutionally protected expression. The charge has no chance and the bill of particulars is the first step towards dismissing on constitutional grounds.

Nebraska's flag-mutilation statute has all the defects that the Johnson Court identified with these laws. It applies only to those who cast contempt or ridicule on the flag through their conduct, making it content- (indeed viewpoint-) based. And Nebraska is not going to be able to come up with any valid compelling interest to justify a prohibition only on flag-burning. Nor do the explanations from prosecutor Lee Polikpov, made in public comments, save a prosecution specifically for flag burning.

First, Polikov argues that the boy standing on the flag was fighting words that could have provoked violence between protesters and mourners. But Johnson considered and rejected the idea that desecrating a flag is, per se, fighting words:

Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U. S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs. See id. at 315 U. S. 572-573; Cantwell v. Connecticut, 310 U. S. 296, 309 (1940); FCC v. Pacifica Foundation, supra, at 438 U. S. 745 (opinion of STEVENS, J.).

We thus conclude that the State's interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent "imminent lawless action." Brandenburg, supra, at 395 U. S. 447. And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex.Penal Code Ann. § 42.01 (1989), which tends to confirm that Texas need not punish this flag desecration in order to keep the peace. See Boos v. Barry, 485 U.S. at 327-329.

Moreover, the context of the kid standing on a flag does not appear to be the sort of direct, face-to-face, directed personal insult that falls within the modern fighting-words doctrine. A plainly political, although offensive, statement directed at a crowd of people that is some distance away from the speaker no longer will fall within that limited category of unprotected speech.

And even if young Mr. Roper's standing on the flag as his mother's agent could be deemed fighting words in context, that would support a prosecution for breach of the peace or disturbing the peace or for uttering fighting words (if there is such a statute). But a statute prohibiting "fighting words through flag mutilation" is impermissible under the analysis of R.A.V. v. City of St. Paul (the first cross-burning case), which prohibits government from drawing content-based distinctions even within unprotected categories of speech. Government can prohibit all fighting words, but it cannot enforce a statute that prohibits only certain fighting words, such as (in R.A.V.) those based on race, gender, etc., or (here) those that express the fighting words through a show of contempt for the flag through trampling that flag.

Second, Polikov argues that the problem was one of time-and-place: "They?re taking what they say is freedom of speech and using it to invade somebody?s space. It?s not the same as demonstrating against the war at the courthouse." But this does not justify a flag-mutilation charge. If the problem is the time and place of this protest, that still does not justify singling out the flag portion of the protest in that time and place for particular prosecution.

On the other hand, maybe it is not hard to believe such a prosecution could happen. The AP story is full of somewhat smug comments from Polikov that he "understood how difficult the flag-desecration charge was going to be" and "[n]obody said it was going to be easy." Did it occur to him that the reason this is going to be difficult is because clearly established First Amendment law prohibits prosecuting someone for expressing an offensive political message by mistreating a flag?

But then, I am not sure he cares. Laws such as these remain on the books, even though almost everyone (including the prosecutor) knows a charge has no constitutional chance, because they can be wielded at opportune moments against the most unpopular speakers and the most unpopular ideas. Even if the prosecution ultimately must fail (at trial or on appeal or on habeas), the defendant has been put through a legal wringer, which serves its own public purposes--if the goal is to chill unpopular speakers and expression and make the Phelps stop doing what they want to do.

Let me close with one question and one request. The question, for you Fed-Courters out there: Could Phelps-Roper succeed in getting a federal court to enjoin the flag-burning prosecution in § 1983 action under the exception to Younger v. Harris for a statute that is "flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it"? An admittedly narrow-to-invisible exception, I know--but could this be the extreme case?

The request is to Mr. Polikov and other prosecutors: Stop going after the Phelps crew with these blunderbuss restrictions on what is basically obnoxious-but-protected speech (my guess is that even the disturbing-the-peace charge cannot withstand a First Amendment challenge). You are going to lose--maybe not today, maybe not tomorrow, but someday. And every time you do, you make the Phelps crew look more and more heroic to their small band of followers.