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.

Some responses to my post about the flag desecration prosecution prompt me to repost (with some edits) something I wrote about in July 2004.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. Sure, flagburning isn't literally opening your mouth or talking (one meaning of "speech") or using a machine to print letters on paper ("press"). But neither is handwriting a letter; neither is waving a non-printed sign.

Most relevant here, neither is waving a flag. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first three decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag; such restrictions necessarily focus on the message that the flagburning (or the attachment of words to a flag, or flying the flag upside down) sends -- they'd be senseless if they weren't focused on the message. A law that bans the burning of all objects in certain public places, perhaps on the grounds that they are fire hazards, would be constitutional. But a ban on the burning just of the American flag, or even of flags generally, would be an attempt to suppress communication, just as a ban on handwritten picket signs, or a ban on public speeches that are derogatory towards America (or for that matter on speeches that are derogatory towards any nation).