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Eugene Volokh

Eugene Volokh

Posted: November 6, 2007 07:10 PM

Flag Desecration


I hope to blog in a few days about the $10.9 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians. But for now, here's more on another Phelpsian case:

Security was tight Monday as [Shirley Phelps-Roper] appeared in Sarpy County Court to answer charges that she mutilated a flag and put her child in danger while protesting at the funeral of a Bellevue soldier....

According to Bellevue police, Phelps-Roper had her 10-year-old son stomp on an American flag....

The pretrial hearing centered on a defense motion requesting that the prosecution describe in detail the facts that support the charges, which include disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.

Her attorney, Bassel El-Kasaby, argued that without specifics on what actions broke the law in each case and who was victimized, he can't prepare his case.

"I don't think you can disturb the peace of a police officer or firefighter," he said.

He said it was "unorthodox" and potential "overreaching" by prosecutors to charge Phelps-Roper with contributing to the delinquency of a minor and negligent child abuse....

Deputy Sarpy County Attorney Marc Delman resisted El-Kasaby's request, saying he didn't want to limit the basis for the charges.

Delman told the judge that Phelps-Roper had "cleanly, openly and notoriously" made her son step on an American flag while her church protested at the funeral of William Bailey....

Well, stepping on an American flag is pretty clearly constitutionally protected speech, no less than flying a flag or burning a flag -- and we're allowed to speak "cleanly, openly and notoriously," even when others are offended. We're even allowed to teach our children to engage in such speech. (I suppose that if there's some claim that the child's actions would expose him to serious risk of violent retaliation, the matter might be different, though that's far from clear; but in any case I've seen no evidence that the Phelpsians' many foes would beat up a 10-year-old boy for stepping on a flag.) The flag mutilation charge strikes me as obviously unconstitutional, following Johnson; the other charges nearly as obviously so.

In any case, "Sarpy County Judge Todd Hutton told both sides he wants written arguments on whether the prosecution should specify in more detail the actions that support the charges." Thanks to Edward Still for the pointer.