Westboro Actually Achieves Something Good

I don’t praise the Westboro Baptist Church often, but a lawsuit they filed in Iowa has had a positive effect. In 2010, WBC was set to protest in Red Oak, Iowa and planned to drag an American flag on the ground. Local police threatened to arrest them for doing that because Iowa has a law against “desecrating” and “misusing” the flag. A federal court has now granted summary judgment in favor of WBC in a suit they filed, invalidating those statutes. The desecration law says:

Any person who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag, standard, color, ensign, shield, or other insignia of the United States, or upon any flag, ensign, great seal, or other insignia of this state, or shall expose or cause to be exposed to public view, any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose any article or substance, being an article of merchandise or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached or otherwise placed, a representation of any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed, or who shall publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, or who shall, for any purpose, place such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, upon the ground or where the same may be trod upon, shall be deemed guilty of a simple misdemeanor.

The ruling is clear:

Phelps argues that the flag desecration and misuse statutes are facially unconstitutional under the First Amendment because they are overbroad. The First Amendment is applicable to the states through the Fourteenth Amendment. It provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’ — even ideas that the overwhelming majority of people might find distasteful or discomforting.” In addition to speech, the First Amendment provides protection for symbolic or expressive conduct. Conduct involving the American flag has long been recognized by the United States Supreme Court as expressive communication that falls within the protections of the First Amendment. Here, Phelps mishandles the flag during protests and demonstrations in order to express the message that the flag has become an idolatrous symbol and “should not be worshiped as it is in this nation.” Such use of the flag is plainly expressive conduct that is protected by the First Amendment…

By its plain language, § 723.4(6) is directed only at flag desecration done with the intent to show disrespect for the flag as our national symbol; thus it is aimed at proscribing only constitutionally protected expression. Although “desecration of the flag is deeply offensive to many,” the “bedrock principle underlying the First Amendment . . . is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Here, even assuming the legislature was attempting to regulate fighting words, § 723.4(6) does not pass constitutional muster because the statute only prohibits flag desecration that projects an “offensive political message.” Accordingly, the Court must conclude that § 723.4(6) targets protected expressive conduct.

This is exactly the right result. I’m a bit baffled by why it’s even an issue. Texas v Johnson clearly struck down this statute in 1989 and the fact that police in Iowa were still trying to enforce it only shows the need for more legal training for law enforcement officers. You can read the full ruling here.

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What Are Your Thoughts?leave a comment
  • Alverant

    Well you know cops, if there’s a ruling they don’t like they just ignore it.

    I wish that was a snark but considering what cops have been getting away with, the above is a true statement.

  • caseloweraz

    Depending on when this statute (note correct spelling!) entered into force, I guess it’s a good thing Woodstock did not take place in Iowa.

  • David C Brayton

    I’ve always wanted to try annoying someone by ‘desecrating’ an American ‘flag’ with 51 stars or 14 stripes. Or a flag with a different length to width ratio. Or with beautiful gold tassels on it.

  • http://www.clanfield.net janiceintoronto

    Try substituting the stars with maple leaves.

  • Alverant

    #3 Or those flag style bikinis and ties. I think that using the flag to promote a business was desecrating as well. Then you have the proverbial (and sometimes literal) wrapping oneself in the flag to deflect criticism of an anti-USA action.

  • Stevarious, Public Health Problem

    Or with beautiful gold tassels on it.

    I heard from a VERY reliable source that the gold tassels mean it’s a Navy flag and therefore any Americaning that’s done near it isn’t real.

  • Crimson Clupeidae

    I’d like to see how the Phelps react to someone burning, trampling, or otherwise ‘desecrating’ a bible. Wonder if they would be consistent.

  • Electric Shaman

    caseloweraz:

    Depending on when this statute (note correct spelling!) entered into force, I guess it’s a good thing Woodstock did not take place in Iowa.

    I was trying to type a comment in response to this defending Iowa, saying that Woodstock might have worked in the southeast part of the state which is pretty progressive and liberal thanks to the University of Iowa. But the more I thought about it the less I was convincing myself so I decided it was silly. It is very unlikely Woodstock would have worked in Iowa for a number of reasons. And in southwest Iowa where Red Oak is located? Not a chance.

    I am hoping that the police were just looking for reasons to keep the WBC from coming to Red Oak simply because the WBC are assholes, not that threatening people with unconstitutional arrests is justifiable. Unfortunately, knowing southwest Iowa like I do, I suspect this has more to do with “Defending ‘Murrica” rather than any philosophical opposition to the presence of WBC in Red Oak.

  • bbgunn

    I believe Red Oak, IA lies firmly ensconced in the clutches of the 4th District which is owned and operated by the Koch Bros. and managed by Congressman Steve King (R-Sucker-of-Kochs). I’m betting that the policing officials of that city and county are elected officials and R-party apparatchiks as well.

    Also, paying court costs and sundry legal fees for losing lawsuits are just part of doing business in the Kochburgs and Kochvilles of Murrica.