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Judge Lets Flag Desecration Prosecution Go Forward:

Scott Wayne Roe is, according to the Ottumwa Courier, "accused of desecrating the United States flag June 4 when he displayed the flag upside down at his residence and wrote 'Corruption of Blood,' a phrase from the U.S. Constitution, on the flag." Roe is being prosecuted for violating Iowa Code 718A.1, which in relevant part reads:

Any person who ... shall place ... any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag ... of the United States, ... or shall expose ... to public view, any such flag ... upon which shall have been ... placed ... any [such item] ... shall be deemed guilty of a simple misdemeanor.

Now you'd think that given the Supreme Court cases Texas v. Johnson and U.S. v. Eichman, the Iowa law is clearly unconstitutional. If you can burn a flag for expressive purposes, you can also write things on it for expressive purposes. Given the logic of the Supreme Court's opinions, it should be an open and shut case. The defendant's behavior is constitutionally protected, and in any event the statute applies to a substantial amount of constitutionally protected behavior, so even if for some reason this particular defendant violated some other law (e.g., stole the flag) so that his conduct is unprotected, the statute is unconstitutionally overbroad.

But a magistrate judge in Iowa has rejected the constitutional challenge, with little First Amendment analysis, and has let the case go to trial next week. The court held:

To rule on an overbreadth challenge at this stage in the proceedings would be premature. The record has not been adequately developed. No evidentiary hearing has taken place. To rule at this time would require the court to make assumptions and conclusions which may or may not be supported by the evidence. Ruling on the overbreadth challenge will thefore be deferred and made if necessary at the time of ruling on the case in chief.

But whether this statute is substantially overbroad requires no evidence about what this particular defend did or did not do. The statute's overbreadth is apparent from the statute's text. The only way it can avoid overbreadth is if the courts have interpreted it, or are willing to interpret it, narrowly here, but that doesn't require any evidentiary hearing. No facts uncovered at trial could make this law valid.

So fifteen years after the Supreme Court decided that flag desecration may not be outlawed, Roe has to face a criminal trial for flag desecration, without the judge's seriously confronting Roe's quite solid First Amendment arguments. Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Flags and Speech:
  2. Judge Lets Flag Desecration Prosecution Go Forward:
Anderson (mail) (www):
Probably judicial immunity from suit is better than the alternative, but man, I can't help wishing for 1983/Bivens liability for such flagrantly out-of-line judges.
9.14.2006 4:22pm
M. Stack (mail):
Is this judge up for re-election anytime soon? Maybe that is why the judge is not dismissing the complaint. Flag burning is an unpopular act, and maybe the judge is concerned about the political ramifications of dismissing the complaint.
9.14.2006 4:22pm
jvarisco (www):
Does Iowa have any prosecutors named Wade?
9.14.2006 4:24pm
Steve:
In State v. Kool, 212 N.W.2d 518 (Iowa 1973), the Iowa Supreme Court rejected a claim that Iowa's flag desecration statute was unconstitutionally vague, but held that the statute could not be constitutionally applied to punish someone for flying the flag upside down.

In Bohman v. Petersen, 4:02-CV-70610 (S.D. Iowa May 7, 2004), a case brought by the ACLU, the court was faced with an identical fact pattern and chose to follow Kool, holding that it would violate the First Amendment to punish someone for peacefully flying the flag upside down, but refusing to enjoin the statute as facially unconstitutional. "The factual record in this case does not, in my opinion, present a suitable vehicle for adjudicating the validity of the entire statute." Slip op. at 7.

It seems the state court magistrate simply followed these precedents in declining to hold the statute unconstitutional on its face. Now, maybe all these courts have gotten it wrong, but perhaps we need to look a little more closely at the rules for facial and "as applied" challenges and whether they have truly been misapplied.
9.14.2006 4:28pm
MikeR:
The Iowa statute is on its face content neutral while the phrasing of statutes in question in both Texas v. Johnson and U.S. v. Eichman makes it clear that the statutes were intended to prevent disparaging treatment of the flag. It seems, therefore, that a judge would have to do the second level of analysis--whether the Iowa statute is being applied in a content neutral way, &etc. An evidentiary record may be helpful in this analysis. (It may also be superfluous.)
9.14.2006 4:32pm
tbaugh (mail):
I understand the flag-desecretion statute problem, but what has driven me crazy since Johnson are claims that no one can be stopped from burning a flag. They can't be prosecuted for flag desecretion, but most urban communities have general laws against "open burning"--one can no longer burn their leaves, and this has been so for quite some time. One who sets a flag on fire can certainly be charged with violation of the open-burning ordinance, if one exists in that community. I doubt I could burn my leaves and avoid a citation on the ground that this was expressive conduct, celebrating autumn.
9.14.2006 4:34pm
Eric James Stone (mail) (www):
I happen to believe that Texas v. Johnson was wrongly decided, because burning a flag is more conduct than speech IMO. But the Iowa law in question here is so broad that it encompasses things that are much more clearly forms of speech--like writing words on a flag. I don't think there's much room for argument on this one.
9.14.2006 4:34pm
liberty (mail) (www):
"I doubt I could burn my leaves and avoid a citation on the ground that this was expressive conduct, celebrating autumn."

What if it was part of a Wiccan ceremony? Don't we protect freedom of religion anymore!?! :)
9.14.2006 4:42pm
Justin (mail):
Eric,

Would you prosecute boy scouts who (correctly) burn a flag as the proper way of disposing it honorably?

If not, then are you really prosecuting the conduct, or the message it presents to others?

I realize this becomes borderline to the hate crimes 1st amendment issue, but there are two key differences - hate crimes go to motivation, not to expression of an idea, and hate crimes are based on a predicate crime as an enhancement, and cannot be by itself a crime.

I'd ask the same question of tbaugh, btw. If one can publicly burn some things, like flags, in public why can one prosecute people for burning other the same things, like flags, in public, just because one is done "honorably" and the other not?
9.14.2006 4:45pm
Legal Thoughts (mail):
Putting to aside for a moment the merits of the judge's decision, why the heck is this guy being prosecuted? Does the prosecutor have so little to do that this case seems an appropriate use of taxpayer money? And if he or she really has that much time on their hands, why not take a little to time to read Texas v. Johnson and the other relevant precedents? The judge may have goofed, but shame on the prosecutors who put the judge in the position to do so.
9.14.2006 4:45pm
Daniel Chapman (mail):
I'm sure there's something at play here besides rank incompetency.
9.14.2006 4:50pm
lucia (mail) (www):
MikeR:

I'm puzzled by your 3:32pm comment.

First: Are states permitted to prevent forms political speech as long as they prevent all types of political speech equally? (That is, are they allowed to do this in general. as opposed to some sort of situation like not permitting any political clubs to meet in schools. )

Second: The state is permitting people to display unbleminshed flags. Displaying unblemished flags following the rules thought respectful is generally thought to convey a certain idea. (Support of the country. Patriotism. Etc.) So, isn't permitting that while forbidding other displays favoring a type of speech?

(BTW. This is not meant as a rhetorical question posed to make a point. I'm not a lawyer; I'm actually asking hoping for an answer.)
9.14.2006 5:02pm
Houston Lawyer:
I'd be interested to see whether the magistrate judge gets the law wrong more often than a Federal judge.
9.14.2006 5:05pm
HLSbertarian (mail):

I happen to believe that Texas v. Johnson was wrongly decided, because burning a flag is more conduct than speech IMO.


Burning fabric is conduct. When you specify what's on the fabric, you're regulating speech. I don't believe in banning either, because I don't believe fabric has rights, but that's just me.
9.14.2006 5:08pm
KeithK (mail):

Would you prosecute boy scouts who (correctly) burn a flag as the proper way of disposing it honorably? ... If one can publicly burn some things, like flags, in public why can one prosecute people for burning other the same things, like flags, in public, just because one is done "honorably" and the other not?

Correct me if I'm wrong, but I don't think public burning is an appropriate way to dispose of a flag that is no longer suitable for display. The flag code isn't specific (saying only "The Flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.") but I wouldn't consider a public burning to be a dignified way.

Are states permitted to prevent forms political speech as long as they prevent all types of political speech equally?

I don't know about states, but the federal government apparently can. Haven't you heard about McCain-Feingold?
9.14.2006 5:15pm
unusedllm:
I'd like to know what ever happened to Gregory Johnson after his stunning First Amendment victory.
9.14.2006 5:27pm
Anderson (mail) (www):
What if it was part of a Wiccan ceremony?

Or appeasing the mighty Snow Demons, to ensure a snowy winter?
9.14.2006 5:32pm
John (mail):
Of course, an ordinary human might believe that speech is what happens when you open your mouth and say things. However, our lawyers and judges have taken us well beyond that understanding by now, leading to these endless litigations. For you Constitutional scholars, when did speech begin to include content-laden conduct? What was the Supreme Court case that took that first step?

Nevertheless, the statute on its face regulates use of the flag for several purposes, including advertising, and has been held not to be unconstitutional on its face. Thus, I don't blame the judge for wanting to know the facts before ruling, since this must be an "unconstitutional as applied" case.
9.14.2006 5:43pm
lpdbw:
I (Thank God) ANAL but I have participated in a Boy Scout ceremony where we burned about a hundred flags.

"Dignified" and "Honorable" only begin to express what went on that day. From the collection of the tattered flags to the invitation of veteran's groups to the speeches given, every action was with the intent of respecting the flag, the nation, and the patriotism of the participants.

It often pains me that Boy Scouts are held up to ridicule for their honor, respect, patriotism, and faith, while people who burn flags as protest are held up as heroes.

They are not heroes. They are simply fools who feel that insulting me and my beliefs in over-the-top fashions is somehow persuasive.

They deserve First Amendment protection in the same manner as the Nazis in Skokie did. That is, universal belief that extremists, being human beings, need and deserve free speech, and simultaneous scorn for the fact that they are extremists. It is my sense that the scorn is genreally absent.

As a bunch (gaggle?) of lawyers, I'm curious: In what manner is flag-burning (as protest) different from "fighting words"?
9.14.2006 5:46pm
pallen:
Steve:

I think your attempt to create a contra-positive argument has failed.

State v Kool's holding is that a law whose effect would be to ban upside-down flags is unconstitutional is consistent with later US Supreme Court precedent, but the section that says that statute in question was not unconstitionally broad is not consistent.

The logic of Bohman v. Petersen relies only on the first but not the second (invalided) holding. Indeed the logic is that if a law has the effect of banning upside down-flags, thaw law is unconstitutional--and no further analysis is necessary.

Now in this case, we no longer meet the "if" clause. You are attempting to say, "if not" then "not unconstitional"

But this is not a proper contrapositive and not logically valid. Bohman v. Petersen explicitly declines to say that if the activity in question is not upside-down flag hanging then the statute is constitutional. To have done so would have been to decide more than was necessary to dispose of the case.

I must therefore conclude that your citation of Bohman v. Petersen is a logical fallacy.
9.14.2006 5:46pm
Steve:
I'm sorry, pallen, I don't think I understand what you're saying. You seem to have gotten something entirely different from my argument than what I wrote, which is simply that two prior courts have declined to declare this very statute facially unconstitutional.
9.14.2006 5:52pm
Master Shake:

Of course, an ordinary human might believe that speech is what happens when you open your mouth and say things.
So clearly you believe the mute have no first amendment speech rights?
9.14.2006 6:10pm
MikeR:
Re Lucia:
The states are permitted to prevent certain types of speech--the general rules are that the prohibition is content neutral and that there are reasonable alternative venues, that there is a legitimate rational basis for the prohibition, and that the rule is being applied in a content neutral way. Thus all protests at a political convention may be moved to a designated protest zone (the rational basis being public safety), but protests may not be prohibited nor moved based on the content of the protest. (And of course, the first amendment doesn't protect against things like yelling "Fire!" in a crowded theater, fraud, harassment, etc. All speech is definitely not protected!)

Now, the Iowa law is content neutral, there are reasonable alternative venues, but I am having a hard time coming up with a legitimate rational purpose. Perhaps something along the lines of a trademark dilution argument--you don't want people to be confused as to whether a particular slogan is endorsed by the government. (I haven't made up my mind as to whether a legitimate rational purpose exists, just thinking out loud here.) As to whether it is being applied in a neutral way--I'm not sure how you determine this if this is a relatively recent law or if this is the first instance of prosecution.

I hope this helps.
9.14.2006 6:11pm
MikeR:
Re Lucia, again:
I notice I didn't address your second question, so here goes: It looks to me like an argument that such a statute can't be content neutral goes too far. For example, one could make an argument along the same lines about laws regarding where protesters may protest. Such laws clearly favor the content of the convention over the content of the protests, but have been upheld so far.
9.14.2006 6:16pm
Le Messurier (mail):
As to why the judge has let the case go forward I would suggest that perhaps he is anti-flag burning; knows that the statute is unconstitutional, but figures, "Hey, I can make this guy wish he'd flown the Iowa State flag upside down instead. This will cost him big bucks!" In other words, he's litigating him into what he regards as more "civilized behavior". Unless the defendant is pro se he might have to pay a pretty penny. Ottumwa Iowa is a pretty small town so the hourly's may be bad only in a relative sense. Remember also, that everybody in town probably knows this "activist" and he amy be getting his just deserts. (Hey, nobody said the law was perfect. It's just imperfect in different ways in different places.)
9.14.2006 6:29pm
lucia (mail) (www):
MikeR:
First thanks.
On your followup response, I guess I don't see the regulation of the protesting at a convention as violating the requirement that the regulation and implementation be content neutral for a two reasons.

Given that we already recognize a good reason to keep the two groups physically separate, the question left is: Who gets to occupy the venue during the slated time. So, we seem to use two entirely content neutral criteria to decide who gets to occupy a venue.

1) Rule 1: First come first serve. The conventioners pick a certain spot normally available for some sort of gathering. They protestors only want to protest there after they learn the spot. If the conventitioner ceded their spot, the protestors would too.

If we use "First come first serve", the actual content of the speech doesn't come into play. If Nazis pick Marquette Park for a demonstration, and protestors follow, the Nazi's have precedence. If the anti-Nazi protestors had scheduled their shindig first, they would have gotten the park. Then the Nazis could have decided whether or not to protest on the sidelines. (Yes, I am aware the Nazis initially wanted to march in Skokie.)


2) Those with private property claims take precedence over those who don't. Many conventions are on private property. Even if private means a hotel often accessible to many, it's still somewhat private. So, saying protestors can protest very near by while those who rented the hall get to be inside seems to be content neutral. The priority for who occupies a space isn't conferred by the speech content, but by who rented the hall. If the protestors had rented it, they'd have priority.
9.14.2006 7:09pm
jimbino (mail):
They guy who tries to resolve a situation of government repression of his speech by litigating is following the Amerikan way. But if he encounters a judge who wishes to drive him to "more civilized behavior" or to impoverish himself in the pursuit of his liberty, who is to blame him if he decides to invest in a pilot's license instead? Not me!
9.14.2006 7:12pm
Le Messurier (mail):

who is to blame him if he decides to invest in a pilot's license instead? Not me!

I would just hope that the farmer or co-op that owns the silo he crashes into has insurance. Then all of Ottumwa can have a big laugh. Otherwise, there are more important legal issues (like tort reform) to worry about. Don't you think? Iowan's answer: "You bet".
9.14.2006 7:45pm
Waldensian (mail):
Sure, his last name is Roe, and I guess that's kind of interesting from a legal standpoint. But I'm really getting freaked out by this phenomenon of miscreants having the middle name "Wayne."
9.14.2006 9:11pm
anohymous:
Bush better not go to Iowa with his flag pin on - that's a design!
9.14.2006 11:35pm
steve (mail):
Of course, an ordinary human might believe that speech is what happens when you open your mouth and say things. However, our lawyers and judges have taken us well beyond that understanding by now, leading to these endless litigations. For you Constitutional scholars, when did speech begin to include content-laden conduct? What was the Supreme Court case that took that first step?

You might want to read these: How to Do Things with Words, J.L. Austin and Speech Acts: An Essay in the Philosophy of Language, John R. Searle -- and then revisit your assumptions.
9.15.2006 7:23am
Waldensian (mail):

It often pains me that Boy Scouts are held up to ridicule for their honor, respect, patriotism, and faith, while people who burn flags as protest are held up as heroes.

I have never seen the former OR the latter. Are you saying you are often pained by relatively few instances of either, or are you saying that both things actually happen often?

I won't say they are non-existent, obviously, but I have to think that either position is a fringe view not worthy of serious consideration -- sort of like the "moon mission was a hoax" guys or Holocaust deniers. And I have actually read or heard their claims, which is more than I can say for ridiculers of Boy Scouts or hero-worshipers of flag burners.
9.15.2006 12:22pm
Steve:
Well, if we can have a War on Christmas, we can certainly have a War on Boy Scouts. I've seen criticism of the Boy Scouts organization, certainly, but never about Boy Scouts themselves. Nor do I run in the circles where flag-burners are seen as heroes. I think they must be very small circles.
9.15.2006 3:20pm
Unnamed Co-Conspirator:
The best that opponents of the law can do is a a fifteen-year old Supreme Court Case? Heck, W.Va. State Board of Ed. v. Barnette overruled a case that was merely two years old, establishing the precedent that Supreme Court cases expire by the close of the following term when the case has anything to do with a flag.

If capital punishment is at issue, then Supreme Court cases may lose their weighty influence after barely more than a decade (see Roper v. Simmons).

Or do the cases stand for the principle that only someone ostensibly seeking to expand the scope of a "right" can challenge existing authority, and those who suggest that various "rights" may be in conflict and that the expanding scope of one may impair another don't get access to the courts, but rather are to be dismissed summarily?

I happen to oppose flag desecration prohibitions on constitutional grounds, but it's a bit presumptious to suggest that a contrary view shouldn't be given fair consideration.
9.15.2006 3:40pm
dick thompson (mail):
If someone is burning flag in front of a veteran and that veteran smacks the crap out of the burner as his expression of speech against the flag burner, would you support both of them? They are both expressing themselves. The burner is inciting the onlookers and the veteran is answering the incitement. You can talk about assault but you also have a case of open burning.
9.15.2006 5:47pm
Brezh (mail):
Iowa magistrates are appointed for four-year terms by vote of the District Judges in the district in which they serve. They have authority only over simple misdemeanor offenses (fines of $65 - $650 and/or up to 30 days in county jail) and small claims actions.

Prospective District and Appellate Judges apply to a judicial qualifications committee, whose members are appointed by the governor for staggered terms. The committee selects three applicants and forwards those names to the governor who makes the final selection. The appointment is for life (mandatory retirement at 72), subject to retention votes at general election every four years. No campaigning, no contributions.

The bar association polls its members regarding judicial performance. This year's results should be out shortly. Most judges receive well over 90% approval from the bar members. The press doesn't seem to realize that approval ratings significantly below 90% indicate serious concerns about a judge. Judges are rarely voted out of office.
9.18.2006 6:59pm