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.