This is my favorite unconstitutional statute in the Iowa Code. The Iowa Supreme Court has never ruled on Iowa Code Section 718A, but the Federal District Court of the Southern District of Iowa has. In Phelps v. Powers, 63 F.Supp.3d 943 (2014), the ACLU of Iowa Foundation assisted Margie J. Phelps, an attorney and daughter of Fred Phelps, pastor and founder of the infamous Westboro Baptist Church in Topeka, Kansas, in challenging the constitutionality of the statute, which prohibits desecration of the flag or insignia.
Flag burning statutes have never fared well in the federal courts. Texas v. Johnson, 491 U.S. 397 (1989), is the landmark case in which Justice William Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . .” —Justice William Brennan, speaking for the majority. Johnson at 414.
Justice Brennan believed that “the flag’s deservedly cherished place in our community will be strengthened, not weakened, by” the holding in Johnson. Indeed, it has been a while since most of us can cite an activity in which the flag was treated with disrespect. One of the biggest factors in stopping flag burning was the manufacturers’ change from cloth to a fire-retardant material. It’s almost comical to see someone today attempting to burn a flag.
Congress has made several attempts to change the law regarding desecration of the flag, each attempt failing again and again in the courts. Acknowledging that they could no longer create a law that would satisfy the constitutionality of Free Speech applicability, several members of Congress attempted to amend the constitution. At one point, the process failed by one vote.
Occasionally, we will see another feeble attempt at trying to amend the U.S. Constitution to incorporate contradictory language about the flag. Hopefully, constituents will see through the politicizing of the issue and demand Congress work on worthwhile projects.
The Phelps v. Powers case is not the only Iowa-related flag desecration case that caught the eye of federal courts. On June 4, 2006, an Ottumwa man, Scott Wayne Roe, a local musician playing rock music in his garage, was cited for playing the music too loud after neighbors complained. In protest, he hung a flag upside down and wrote “Corruption of Blood” across it. “Corruption of Blood” happens to be a part of the U.S. Constitution. It came as a shock to those of us at the ACLU of Iowa. Article III, Section 3, clause 2: “The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person Attained.”
In another case, which occurred about the same time, a Corydon man was charged with displaying his flag upside down. Dale Klyn was protesting what he believed to be an unfair bankruptcy proceeding and to call to mind the lack of mental health care services for veterans.
Charges against Roe and Klyn were dismissed. Federal Judge Robert Pratt ruled that “Iowa laws violate a due process clause in the 14th Amendment of the U.S. Constitution.” He did not go as far as to claim the laws also violated the First Amendment’s protection of free speech. He did strike down the portion of Iowa’s disorderly conduct code, which makes it a simple misdemeanor to “knowingly and publicly use the flag as to show disrespect for the flag as a symbol of the United States,” and a state code that prohibits desecration of the flag.
Nonetheless, Iowa Code Section 718A not only remains in the Code, but it was amended in 2007, one year after the federal court struck portion of the statute, to include the following:
As used in this chapter:
- “Contempt” means an intentional lack of respect or reverence by treating in a rough manner.
- “Deface” means to intentionally mar the external appearance.
- “Defile” means to intentionally make physically unclean.
- “Mutilate” means to intentionally cut up or alter so as to make imperfect.
- “Trample” means to intentionally tread upon or intentionally cause a machine, vehicle, or animal to tread upon.
Since this new language was enacted, I see flags that are entirely blue, flags with blue stripes through the middle of them, used as window curtains, pasted onto auto bumpers with words running through them, but most of all, misused in political advertisements.
I can’t really tell if the statute is unconstitutional or not. I guess it depends upon who is in power.