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Lawmaker disgusted by flag desecration ruling plans legislative response

An Eastern Iowa lawmaker is promising to fight 'with a fiery passion' to protect the American flag

The North Liberty Fire Department hangs the American flag over Interstate 380 in remembrance of the victims of the 9/11
The North Liberty Fire Department hangs the American flag over Interstate 380 in remembrance of the victims of the 9/11 attacks on the Word Trade Center 13 years ago, (Sy Bean/The Gazette)

CEDAR RAPIDS — An Eastern Iowa lawmaker is promising to fight “with a fiery passion” to protect the American flag from desecration in light of a federal court ruling in favor of protesters who wore, trampled and spit on flags as part of their demonstrations at funerals of soldiers killed in action.

In an email Thursday, Rep. Bobby Kaufmann, R-Wilton, told constituents that the “magnitude of disgust and anger I feel about this cannot be put into words.”

The source of his outrage was a ruling by Federal Judge Robert Pratt in Des Moines that picketors from the Westboro Baptist Church of Topeka, Kansas, were using the flags as an expression of free speech. Pratt had ruled in 2007 that Iowa law on flag desecration and flag misuse was “facially void for vagueness as a matter of constitutional law.”

The Iowa Legislature slightly amended the statures, but did not cure the defects, according to Randall Wilson, interim executive director of ACLU of Iowa. It brought the lawsuit — not in support of the Westboro protesters, but in support of their right of free speech — after church members said law enforcement officers threatened them with arrest if they did not stop desecrating the flag during protests at military funerals in Red Oak and Council Bluffs.

However, there are limits on free speech, according to Kaufmann, who was re-elected to a second term in November.

“I value our 1st Amendment rights, but just like you cannot shout ‘fire’ in a crowded movie theater, you should NEVER, EVER, be allowed to spit and stomp on our flag while protesting the funeral of someone who died fighting for our freedoms,” he wrote in his email.

Kaufmann said he has had hundreds of responses from constituents and fellow lawmakers “and they’ve been 100 percent supportive”

He isn’t sure what the remedy is, “but if there is a way, I will find it.”

There is none, Wilson said, because any law directed at the expression by a group “whether they are the Westboro Baptist Church or the World Peace Organization” would be unconstitutional.

“The legal hurdles are formidable to say the least,” Wilson said.

A law would have to be directed at non-expressive desecration, which “likely would be unconstitutional because the flag itself is a manner of expression.”

Such a legislative fix, Wilson said, likely would require amending both the U.S. and Iowa constitutions.

Wilson, who said he shares Kaufmann’s respect for the flag, encouraged the lawmaker to try another approach.

“Meet speech you don’t like with counterpoint, he said. “Say ‘We don’t approve, we’re willing to go public and we’re even going to hold a counter-demonstration.’”

As a politician, Kaufmann is in a unique position to get that accomplished, Wilson said.

“If he wants to make a difference, he should start there,” Wilson said.

“Really, when you think about it, we don’t want to live in a society where patriotism is a compelled act,” Wilson said. “Reverence for the flag should be heartfelt and voluntary.”

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