'Don't Throw Me in That Briar Patch, Mr. Bush!'

The commander-in-chief of the armed forces, President George W. Bush, has handed a major victory to the bigot-in-chief of Westboro Baptist Church, the Reverend Fred Phelps.

On Memorial Day, Bush signed into law the "Respect for Fallen Heroes Act," which, according to an AP report in the Washington Post, was

passed by Congress largely in response to the activities of a Kansas church group that has staged protests at military funerals around the country, claiming the deaths symbolized God's anger at U.S. tolerance of homosexuals.

The new law bars protests within 300 feet of the entrance of a national cemetery and within 150 feet of a road into the cemetery. This restriction applies an hour before until an hour after a funeral. Those violating the act would face up to a $100,000 fine and up to a year in prison.

Fred Phelps, for those who have not heard of him, is a repulsive, anti-gay demagogue who once ran for governor of Kansas as a Democrat and was also a big supporter of Al Gore during the 1988 presidential campaign. He heads up the Westboro Baptist Church in Topeka, where the congregation consists largely of his own wacko family.

Phelps has become notorious because of his "God Hates Fags" website and demonstrations, first outside the funerals of prominent gay Americans (such as journalist Randy Shilts and student Matthew Shepard), more recently at military funerals. I have written about Phelps and his military protests earlier this year, when state legislatures began considering anti-Phelps legislation.

Why do I say that President Bush and Congress have handed Phelps a victory? Two reasons:

First, Phelps has an infantile need for attention. He is like a five-year-old who uses a string of naughty words just to see his parents reaction, or runs naked around the neighborhood to get people to look at him. He thrives on the attention he gains through transgressive behavior. What the Respect for Fallen Heroes Act says to Phelps is this: "You may be a pervert, but you are consequential" -- consequential enough that the full power of the federal government is called upon to deal with him. Like the parent who screams at a misbehaving child, to the child's delight, the government is giving Phelps just what he craves.

Second, the law is transparently unconstitutional. It is aimed at a specific individual and it is a violation of our First Amendment rights to assembly and speech.

Writing in the St. Louis Post-Dispatch, Adam Jadhav reports:

...free speech advocates and scholars have, perhaps more hesitantly, questioned whether public distaste has overrun free speech.

"There's no question the majority of Americans would want to protect their family at such a terrible moment," said Gene Policinski, executive director of the Nashville-based, non-partisan First Amendment Center. "But this is a road we may not want to go down. Today it's a message that we don't like, tomorrow it might be my message that someone else doesn't like."

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"Our position is that you don't honor fallen heroes by trampling on the constitution that they swore to uphold," said Marv Johnson, an attorney for the American Civil Liberties Union.

An oft-cited U.S. Supreme Court case, Frisby v. Schultz, in 1988 upheld an ordinance in a Milwaukee suburb that prohibited picketing outside an individual residence because it invaded the privacy of a home. But the ruling hinted that restrictions beyond that are less likely to be constitutional.

Courts have upheld bans of picketing within 100 feet of a polling place. But others have ruled that a 300-foot buffer zone around an abortion clinic isn't constitutional. How a court would rule on the bevy of laws passed or contemplated could come down to how they're applied.

"Are the police giving the demonstrators a chance to be seen, or even a chance to be heard, by their target audience?" said Ira Carmen, a University of Illinois professor who teaches political science and constitutional law.

While on the surface the law may look like a content-neutral, simple time-place-manner restriction, if you go deeper it becomes clear that this is an act of Congress aimed at stifling a particular point of view belonging to a specific individual or group.

Fred Phelps must be salivating at the prospect of taking his case to court to defend his First Amendment freedoms, winning the case, and seeing headlines that say "Phelps Defeats Homo-Loving Government." (OK, a real newspaper wouldn't write a headline like that, but the newspapers of Phelps' fevered imagination do.)

In other words, despite his protestations about the passage of this law, Phelps is telling the President and Congress, "Don't throw me into that briar patch!" He wants nothing more than an opportunity to bring his rabid views to a wider audience through litigation and the attendant publicity.

Next month, Senate Majority Leader Bill Frist, in his own bit of demagoguery, plans to bring the anti-flag-desecration amendment to the floor for a vote. This would change the text of the U.S. Constitution to carve out an exception to the First Amendment, saying that we are free to say anything we like as long as we do not burn a flag to express our opinions. (The House version of the amendment was sponsored by disgraced former Congressman Randy "Duke" Cunningham of California.)

Writing in the Memorial Day edition of the Washington Times, Nat Hentoff related the stories of two veterans who oppose the so-called "flag-burning amendment":

The day before Flag Day last year, the Houston Chronicle underlined what we will lose if this amendment becomes law: "It makes no sense to set fire to the Bill of Rights to prevent a few people from protesting in a way that many find offensive. The right to speak our minds in public and engage in protest is at the core of our system of government. The only way to effectively desecrate the American flag would be to undercut the freedom for which it stands." And Sen. Robert Byrd, who carries the Constitution in his DNA, speaks for James Madison across the centuries: "In the final analysis, it is the Constitution not the flag that is the foundation and guarantor of the people's liberties."

Among the many veterans opposing the Flag Desecration Amendment is Gary May, who lost both legs in Vietnam while serving with K Company, 3rd Battalion, 27 Marines. Last year, he said: "This amendment would not honor veterans; it would attack the very principles that inspired us to serve our country... We fought for a society free of repression and filled with open debate." This year, on May 6, Mr. May added: "I did not lose my legs, and nearly my life, to protect a symbol." Of all the personal stories by veterans against this attempt to change the Constitution to limit open debate in this country, the most powerful was by James Warner, who, during a previous debate, told of his imprisonment by the North Vietnamese from 1967 to 1973 after volunteering for duty there and flying more than 100 missions before being shot down. Refusing to accede to his captors' offer to be released if he admitted this country had been wrong in Vietnam, Mr. Warner was tortured and spent 13 months in solitary confinement.

During one interrogation, an enemy officer gleefully showed Mr. Warner a photograph of Americans protesting the war by burning the flag.

"There," the officer crowed, "people in your country protest against your cause! That proves you are wrong!" If only Congress and the president would listen to Mr. Warner's answer to the rejoicing jailer: "No. That (photograph) proves I am right. In my country, we are not afraid of freedom, even if it means that people disagree with us. The officer was on his feet in an instant, his face purple with rage. He smashed his fist on the table and screamed at me to shut up. While he was ranting, I was astonished to see pain, confounded by fear, in his eyes. I have never forgotten that look, nor have I forgotten the satisfaction I felt at using his tool the picture of a burning flag against him." The much-decorated Mr. Warner went on to serve in the White House as a domestic policy adviser to President Reagan during his second term, and is a recently retired corporate attorney.

Tom Walls of the Republican Liberty Caucus put the argument against this amendment forcefully when he wrote during a similar debate nearly a decade ago:

To oppose this nonsensical amendment does not mean one disrespects veterans or is somehow anti-American. I say to support it does not mean that you are a patriot. Leave it to the false patriots to wrap themselves in the flag.

I love America, and the Stars and Stripes always bring a smile to my face. I know how to respect the flag, how to fold it and even how to dispose of it respectfully when worn or tattered. I performed flag duty for years as a Boy Scout and in ROTC.

What needs to be protected from desecration are the principles of freedom our Founding Fathers sacrificed so much to establish. I define patriotism as one's effort to understand these principles. The American Constitution and the Bill of Rights were designed to constrain the use of government power in order to protect liberty. What we need is not more laws but more education in our country's history.

Our military do not serve, fight and die so our government can criminalize flag burning. This law is an insult, not a tribute to them. I come from a military family. My own grandfather was at Pearl Harbor when bombs rained down on his ship. Luckily, he is still around to inspire me. He concurs with me on this, and is enraged by the fact that our government wastes time pursuing victimless crimes instead of real, violent criminals.

As a law enforcement officer told the St. Louis Post-Dispatch, in reference to a soldier killed in action whose funeral was targeted by the Phelps Klan:

"The reason that Christopher Donaldson died was he was fighting for our country and freedom of speech," said Effingham County Sheriff John Monnet.

These two bits of legislation -- the anti-Phelps law and the anti-flag-burning amendment -- are shamefully related. They elevate symbol above substance and in the process erode our liberties.