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Federal judge declares Mo. flag burning statute unconstitutional
A federal judge's ruling Tuesday about the legality of flag desecration tells people what they already knew, according to Cape Girardeau County Prosecuting Attorney Morley Swingle -- that the Missouri statute prohibiting it is unconstitutional.
"It was no surprise to anybody," Swingle said Wednesday.
Still, the law against flag burning has been on the books for decades and led to the October 2009 arrest of Frank L. Snider for flag desecration, a Cape Girardeau case dismissed within hours because of a 1989 Supreme Court decision that declared such acts as protected speech under the First Amendment.
At the time, Swingle said he was unaware of the case Texas v. Johnson, which invalidated the laws of 48 states, when he filed misdemeanor charges against Snider. Missouri's law was passed in 1980.
Snider, who could not be reached for comment, had expressed disagreement with the government by attempting to burn a U.S. flag on the sidewalk in front of his Cape Girardeau home. A neighbor called the police to complain, and Snider was arrested and held for eight hours.
After reviewing the Supreme Court ruling, Swingle dismissed the case and directed law enforcement to release Snider from custody. Snider sued, with the assistance of the American Civil Liberties Union of Eastern Missouri. On Tuesday, Judge Carol Jackson sided with Snider and permanently barred the state from enforcing the law.
Jackson's decision cited several other recent instances of the statute's enforcement. The law is still in Missouri's statutes.
"The threat of arrest is enough to coerce self-censorship from speakers who would otherwise use the flag to express their message," said Brenda Jones, executive director of the ACLU of Eastern Missouri. "This statute should have been repealed long ago."
Swingle agreed. In fact, he called on the legislature to get the law taken off the books.
"Right now," he said, "we have some law on the books and some other prosecutor or policeman might make the mistake of arresting someone because it's still on the books in the state of Missouri."
Some legislator may do just that, but it won't be Rep. Wayne Wallingford, R-Cape Girardeau. The Air Force combat veteran stopped short of saying that those who burn the flag should be arrested, but he never said they shouldn't.
"I guess we can agree to disagree sometimes with those rulings," Wallingford said. "I would probably not file a bill to take that off the books. I'll leave that to someone else."
Wallingford said the people he represents, including veterans, feel strongly about the flag.
"It represents the country we fought to defend and some of us gave up our lives to do so," Wallingford said. "I just don't feel it's right. I would just let somebody else handle that."
The Cape Girardeau City Council removed an ordinance outlawing flag burning from its books last year.
599 Independence St., Cape Girardeau, MO