November 23, 2010 – A federal court entered a judgment yesterday prohibiting St. Francois County Sheriff Daniel Bullock from enforcing Missouri’s statutes prohibiting desecration of the national and Missouri Flags and protests near funerals. The order came in a case filed earlier this year by the American Civil Liberties Union of Eastern Missouri on behalf of Ms. Shirley Phelps-Roper a suit which sought to protect citizens desiring to engage in constitutionally protected expressive conduct.
The ACLU filed suit on June 23, 2010, alleging that the Sheriff’s threats to enforce the funeral protest and flag desecration statutes violated clearly established First Amendment rights. The next day the court entered a temporary restraining order against Sheriff Bullock. The consent judgment entered on Monday by United States District Judge Jean C. Hamilton permanently prevents Bullock from issuing citations, making arrests, or filing or pursuing criminal charges against any person believe to have violated that state laws that prohibit pickets near funerals and funeral processions and that make it a crime to “purposely and publicly mutilates, defaces, defiles, tramples upon or otherwise desecrates the national flag of the United State or the state flag of the state of Missouri[.]” Bullock was also ordered to pay Ms. Phelps-Roper’s attorneys’ fees and court costs.
This case is believed to have been the first to challenge Missouri’s Flag desecration statute.
“In the end, Missouri’s laws are so broadly written that they criminalize wide swaths of speech in a manner the First Amendment cannot tolerate,” said Anthony E. Rothert, legal director of the ACLU of Eastern Missouri and one of the attorneys representing Phelps-Roper. “Allowing speech we find offensive in public forums is one cost of the freedom that defines America.”
“It is not the job of the government to silence speech that we don’t want to hear,” said Brenda Jones, Executive Director of the ACLU of Eastern Missouri. “The response to speech that some find offensive should be more speech explaining the disagreement, not having the police arrest those who take an opposite view.”
Earlier this year, the ACLU of Eastern Missouri won a case challenging the state’s funeral protest statutes. On August 16, 2010, Missouri’s funeral protest statute was declared unconstitutional. Chief Judge Fernando J. Gaitan, Jr., of the United States District Court for the Western District of Missouri, also struck down a back-up statute intended to go in effect when the original law was found unconstitutional. Both statutes were held to violate the First Amendment.
The ACLU of Eastern Missouri also won its case challenging a series of funeral protest bans enacted by the City of Manchester. In that case, decided on September 8, 2010, Chief Judge Catherine D. Perry of the United States District Court for the Eastern District of Missouri found that each of three attempts by the City of Manchester to prohibit funeral pickets went too far and, thus, violated the First Amendment.
Ms. Phelps-Roper is a member of Westboro Baptist Church. Members of Westboro Baptist Church believe that homosexuality is a sin and further believe that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. Although church members have picketed outside funerals since 1993, they raised the ire of Missouri legislators in 2005 when they began picketing near military funerals.
