OMAHA, Neb. — Sarpy County Attorney Lee Polikov has until March 31 to explain precisely why he’s charging a member of the Westboro Baptist Church in Kansas with flag mutilation.
Shirley Phelps-Roper faces three other charges stemming from her church’s protest of a soldier’s funeral in Bellevue last June.
Sarpy County Judge Todd Hutton last week granted the defense motion for a “bill of particulars” on the flag issue, meaning Polikov must show in detail how Phelps-Roper broke the law.
Polikov said yesterday that he knew his case would be tough to win and that he was pinpointing Phelps-Roper’s decision to allow her 10-year-old son to stand on an American flag. He said the boy was acting as her agent and that his actions could have provoked violence between the protesters and mourners.
Phelps-Roper attorney Bassel El-Kasaby of Omaha maintains that the flag-mutilation statute is unconstitutional because the U.S. Supreme Court has thrown out similar laws in other states.
Nebraska’s flag law defines flag mutilation as when a “person intentionally casts contempt or ridicule upon a flag by mutilating, defacing, defiling, burning or trampling upon such flag.”
Polikov acknowledged that the constitutionality issue was “problematic.” He said his challenge will be to show why the circumstances at the soldier’s funeral merit a restriction.
“I don’t know how optimistic I am,” Polikov said. “I’m convinced in my belief. Now I have to convince the court, and that’s not always an easy task.”
Polikov said the boy’s standing on the flag is tantamount to “fighting words,” which are not protected speech.
“It’s the content and environment,” Polikov said. “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.”
Phelps-Roper is a member of the Topeka, Kan.-based Westboro Baptist Church, whose members believe that U.S. troop deaths in Iraq are punishment for the nation’s tolerance of homosexuality.
The protesters carry signs bearing such slogans as “Thank God for dead soldiers.” Followers say they are entitled to protest at soldiers’ funerals under the First Amendment, which guarantees freedom of speech and religion.
Polikov filed two complaints against Phelps-Roper in connection with the Westboro protest at the funeral of Nebraska Army National Guard Spc. William “Bill” Bailey.
The first complaint only contains the flag-desecration charge. The other complaint charges her with disturbing the peace, contributing to the delinquency of a minor and negligent child abuse.
El-Kasaby said the fact that the flag charge is separate from the rest of the charges indicates that the prosecution realizes its desecration case is shaky.
Polikov doesn’t dispute that.
“We understood how difficult the flag-desecration charge was going to be,” he said.
But El-Kasaby said the remaining charges will be difficult to prove if the flag-mutilation charge goes away.
Polikov said the disturbing the peace charge would be the anchor of the case if the flag issue doesn’t stand up in court.
“Nobody said it was going to be easy,” he said.