Mo. attorney general gets involved in flag desecration case

Wednesday, July 6, 2011

Missouri's attorney general has joined a federal lawsuit filed one year ago by a Cape Girardeau man challenging the state's flag desecration law.

Attorney General Chris Koster's motion to intervene, filed in late April, postponed a trial date set for Aug. 1.

The motion defends the constitutionality of the statute that says "any person who purposefully and publicly mutilates, defaces, tramples upon or otherwise desecrates the national flag of the United States or the state flag of the state of Missouri is guilty of the crime of flag desecration."

The plaintiff, Frank L. Snider, says the law is under all circumstances unconstitutional, therefore void. Snider filed the federal lawsuit July 6 last year, nine months after being arrested by Cape Girardeau police for shredding an American flag. He was charged with the misdemeanor crime by Cape Girardeau County Prosecuting Attorney Morley Swingle, but Swingle dropped charges after reviewing a U.S. Supreme Court decision that declared flag burning as protected speech. Snider's lawsuit lists Swingle, the Cape Girardeau Police Department and the arresting officer, Matthew Peters, as defendants.

Jeremiah Morgan, one of the attorneys handling Koster's defense of the law, says in the motion that the state takes no position on whether Snider engaged in "expressive conduct" or whether the statute as applied to him is unconstitutional. Their motion also presents issue with Snider's claims that the law is unconstitutional at face value.

The motion upholds the First Amendment, which protects people who use the flag for political speech, but says it's possible to desecrate the flag in nonexpressive ways, such as using one as a doormat or as a tissue to blow your nose. The statute has never "automatically concluded that any action taken with respect to our flag is expressive," Morgan wrote in the motion.

Although Koster has intervened in many lawsuits before, he's not joined a lawsuit challenging the state's flag desecration law.

"It is our office's obligation to defend state statutes so we became involved in the case," press secretary Nanci Gonder said in an email Tuesday.

Additionally, the U.S. Supreme Court has never facially invalidated a flag desecration law. The Pennsylvania Supreme Court in Commonwealth v. Brinker refused to hold a state statute there unconstitutional. The case involved a woman who was using a small American flag as a mat inside the door of her home. An officer noticed it when serving unrelated warrants.

The court rejected the notion that it's "impossible to separate the symbolic, expressive nature of the American flag from its physical tangible fabric."

Grant Doty, Snider's counsel with the American Civil Liberties Union, said he and his client were surprised Koster intervened as late as he did. Doty said they notified Koster's office at the time of filing and he could have joined at that time.

"It's not a problem that they intervened, it just seemed late," Doty said. "We think we're going to succeed in this case whether or not the state is involved. The statute in which he was arrested under is very clearly unconstitutional."

Doty argued that the government doesn't have the right to say how a person treats the American flag. He posed the question of whether police should have the authority to determine whether, for example, someone donning a flag patch on the bottom of their pants or on their undergarments is disrespecting the U.S. flag.

"The state argues that it might reasonably enforce the law against those who are not trying to say anything by the way they're using the flag," he said. "We don't think it's going to pass constitutional muster."

The judge presiding over the case has not set a new trial date and likely won't, according to Doty. He said the judge will likely rule based on all the filings already made in the case.

ehevern@semissourian.com

388-3635

Pertinent address:

555 Independence St., Cape Girardeau, MO

Map of pertinent addresses

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