Courts - Nebraska Judge puts temporary hold on Nebraska flag law

By Margery A. Beck

Associated Press Writer

OMAHA, Neb. (AP) -- A federal judge put a temporary block Tuesday on enforcing Nebraska's ban on flag mutilation, part of a lawsuit filed by a member of a Kansas church known for protesting at the funerals of fallen soldiers.

U.S. District Judge Richard Kopf in Lincoln said in issuing the order that the law is "almost certainly unconstitutional."

The request came as part of lawsuit filed earlier in the day by Megan Phelps-Roper, a member of Westboro Baptist Church of Topeka, Kan., against Nebraska Attorney General Jon Bruning.

It challenges the constitutionality of Nebraska's flag mutilation law, which bars intentionally "casting contempt or ridicule" upon a U.S. or Nebraska flag by mutilating, defacing, defiling, burning or trampling it.

Chief Deputy Attorney General David Cookson said his office believes the law is still valid, but has advised the Nebraska State Patrol of the judge's ruling.

Westboro members travel around the country protesting at soldiers' funerals because they believe U.S. troop deaths are punishment for the nation's tolerance of homosexuality. The group often tramples on, wears and displays the U.S. flag upside-down as part of their protests.

In issuing the order, which is good through July 20 and pertains only to Phelps-Roper, Kopf said that while people may not like the fact that Phelps-Roper has a constitutional right to dishonor the American flag, "the First Amendment trumps the citizenry's preference for patriotism."

Kopf cited the U.S. Supreme Court's 1990 decision striking down as unconstitutional a Texas law that criminalized desecration of the American flag. Kopf said issuing the order protects Phelps-Roper's rights while causing no harm to Bruning.

The attorney general is the sole defendant in the lawsuit. Phelps-Roper's attorney and aunt, Margie Phelps -- also a Westboro member -- said that is because Bruning has threatened to have Phelps-Roper and other church members arrested if they use American or Nebraska flags in their protests. Bruning's office denies that.

Accompanying the lawsuit were affidavits from Phelps-Roper and other Westboro members, one of which detailed a videotaped exchange between the members and a Nebraska state trooper at a protest the church held at the Nebraska State Capitol in December.

Phelps said Lincoln police had told the group that city police would not arrest Westboro protesters for demonstrating using the American flag. But when church members began to gather flags, a trooper approached and warned them he was under orders from the attorney general to arrest anyone who stepped on a U.S. flag, the affidavit says.

Cookson countered that Phelps and other Westboro members are mistaken about the involvement of the attorney general.

"As we told the court, we advised the state patrol that the law is on the books, but it ultimately is the decision of law enforcement -- within their discretion -- how to enforce the statute," Cookson said.

Because the lawsuit assumes Bruning's involvement and names him as the sole defendant, Cookson said, it is flawed and he plans to ask the court to dismiss it.

Phelps lauded Kopf's ruling as "a beautiful thing" and said she plans to seek a permanent injunction to keep the flag mutilation law from being enforced statewide.

Until the decision Tuesday, the church had seen little success in suppressing the state law. Last month, a federal judge in Omaha rejected a lawsuit by another church member -- Shirley Phelps-Roper, the mother of Megan Phelps-Roper -- who had sought to declare both the state's flag mutilation law and its funeral protest law unconstitutional.

Nebraska's funeral protest law prohibits picketing within 300 feet of a funeral or memorial service.

Cookson said people should understand that Tuesday's ruling does not affect the state's funeral protest law -- and that the attorney general plans to vigorously defend it.

Published: Thu, Jul 8, 2010

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