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):
- Flags and Speech:
- Judge Lets Flag Desecration Prosecution Go Forward:
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.
What if it was part of a Wiccan ceremony? Don't we protect freedom of religion anymore!?! :)
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
otherthe same things, like flags, in public, just because one is done "honorably" and the other not?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.)
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.
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.
I don't know about states, but the federal government apparently can. Haven't you heard about McCain-Feingold?
Or appeasing the mighty Snow Demons, to ensure a snowy winter?
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.
"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"?
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.
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.
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.
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.
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".
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.
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.
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.
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.