Flag Desecration and The Iowa Code

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:

    1. “Contempt” means an intentional lack of respect or reverence by treating in a rough manner.
    2. “Deface” means to intentionally mar the external appearance.
    3. “Defile” means to intentionally make physically unclean.
    4. “Mutilate” means to intentionally cut up or alter so as to make imperfect.
    5. “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.

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It’s a Swede*

When I was a teenager, before I could drive, I ran errands on Saturdays for a shut-in just a few houses up the street from us.  Swede Chamberlain [his first name was Lester; Swede was a nickname] was a tall, large, elderly man.  His house must have been one of the best-looking houses in Vail at one time, maybe 100 years ago.  It was located on a corner lot; it had a nice porch, and large maple trees accented the perimeter, giving him a lot of shade in the summer.

Swede sold greeting cards out of his house.  The only entrance he had available was the large step up into the kitchen.  “Come on in,” he would yell to visitors/customers after knocking.  He would be sitting in his rocking chair in the room next to the kitchen, which may have been a dining room at one point, smoking his pipe.  He wore the same sweater every time I saw him.  The converted dining room had three walls of greeting cards in wooden display boxes lined up according to birthday, anniversary, sympathy, etc.  He sat in his chair looking out a window that overlooked the intersection where the Nelsons drove through without looking for kids sledding. He also had a very good view of the entire southeastern part of Vail, including our house.

Prince Albert pipe tobacco stinks.  But Swede lit his pipe and didn’t care if you liked it or not.  It may not have been a very good business decision, but then, I think the Ryan family was his only customer.  Mom would say, “someone go up to Swede’s and get a card for me.”  That person was me.  Perhaps Kathleen did a time or two.  We were the only ones who knew Swede on a first-name basis.

I inherited the job of getting groceries for Swede from my sister, Kathleen.  It would have been Carol’s turn, but Swede freaked her out.  The grocery list always had a quart of milk, a loaf of bread, a tin of Prince Albert pipe tobacco, and a package of either Juicy Fruit or Double Mint gum.  Occasionally, he would include a box of stick matches.   I can’t remember other items he may have purchased outside of some lunch meat or similar protein but being a kid with a huge appetite and an over-functioning metabolism, I often wondered how he survived.  As I mentioned, he was a large man.  He was over six feet tall and must have weighed close to 250 pounds.  When he did walk, I could see that his legs were probably swollen to more than twice the usual size.

Kathleen and I always had to go to Eddie’s E & J Market and give the list to Eddie.  He would compile the merchandise and take the ten-dollar bill, hand us the change and off we would go.  Upon bringing the groceries into Swede’s house, he would pay us thirty-five cents and a package of gum – the one in the bag of groceries.  I’m sure it was more than the price of one of the cards he sold.  And actually, he had some very good cards.  I’m guessing they cost a dime or quarter during that era.

I don’t know much about Swede.  I have no idea if he ever had a real job, a wife, a family, or a business.  Once a month, an ambulatory limousine would come from Sioux City with a person or two already in the car and pick up Swede to take him to Iowa City.  Swede was enrolled in the State Papers Program at the University of Iowa.  The program was a service provided by the U of I in which indigent persons across Iowa were admitted for a day to receive compassionate care and diagnoses for ailments not addressed by small town doctors, or unrealistic for certain people to pay.  The program offered patients for med students training to become doctors.  The limo would drop Swede off at the sidewalk of the intersection late in the day after it picked him up.  I watched him walk up the steep sidewalk with his cane several times.  It was painful to watch.

I remember the Legislature preparing for debate on the matter of the State Papers Program.  Although it wasn’t terminated through the Iowa legislative process, it was discontinued, eventually.

Swede died in 1988 at the age of 90 and is buried at the Vail Cemetery.  His house was razed, and the new owner built a fallout shelter in its place.  That’s another story for another time.

*  “It’s a Hallmark”

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Teen Curfews Can Be Comical

A recent blog was focused on how us Vail, Iowa, kids got our exercise during the day.  We didn’t stop there; we also exercised at night.  Nighttime exercise was more vigorous than daytime exercise.

The town of Vail hired nightwatchmen for years.  My grandfather, John Ryan, was a nightwatchman for Vail.  I’ve heard stories about him, but I never knew him.  Supposedly, he had a blackjack sap, a bludgeoning weapon, and he wasn’t afraid to use it.  But things were more peaceful as I was growing up.

Nightwatchmen’s principal duties were to make sure doors were locked, and to keep municipal ordinances from being violated.  One of the ordinances in Vail was a curfew for minors.  Every kid under 18-years of age was to be off the streets at 9:00 pm.

Curfew “comes from the Anglo-French ‘coverfeu,’ made from the words ‘coverir’ (“to cover”) and ‘feu’ (“fire”).”  In other words, put out the fires and go home.

Vail had some reasonable nightwatchmen that knew kids could do anything at 10:00 am as well as 10:00 pm.  They ignored the curfew and chatted with some of us boys.  One nightwatchman shared his dirty books with us.  He was a little on the pervert side, but he never touched a kid.  There were no problems while he was there.  Another nightwatchman was supplied with a car and had a uniform.  He would drive you home if you were too drunk to drive.  Vail was a quiet place in those days.

However, there was one nightwatchman who was intent on upholding the curfew ordinance.  J.C. McCullough was a retired heavy equipment operator.  He had a faded-blue Ford pickup with a topper.  He was the nightwatchman during the height of my early teens, and he provided a great source of entertainment and exercise for those of us who loved excitement.

On a good clear night, about 9:30 or 10:00 pm, some Vail kids would sneak out of the house and get together at a meeting point.  We had several.  We would head downtown where J.C. would have his pickup parked in front of the firehall/city hall.  Depending upon whether he was in the pickup or on his rounds would determine what our action was going to be.

If J.C. was on the rounds, one of us would run across the street close to where he was checking doors.  He would move fast (not run) to his pickup, get in it, start it up, and begin driving to where the kid crossed the street.  By that time, the kid was back on the other side.

We kept poking up like a whack-a-mole in certain places all over town, waiting for him to spot one of us and drive his pickup in that direction.  We knew where every clothesline and hole in a yard were situated.  He never caught any of us.  However, one night he was homing in on me.  I laid down in a shallow ditch near a few rows of sweet corn someone had planted behind the hardware store.  He drove his pickup within a couple feet of where I was lying.  You would think an incident like that would have adrenaline pumping.  No, I couldn’t keep from laughing.  I’m surprised he didn’t hear me.

On more than one occasion, J.C. would be in his pickup.  Often, he would be sleeping.  Once, while he was sleeping, one of us (not me) let the air out of two of his tires and tapped on his window.  If he wasn’t sleeping, you could count on one kid or more running past the front of his pickup and scattering up between buildings.

I don’t remember what occurred first.  Either J.C. quit or we stopped having fun with him.

The last nightwatchman Vail had long after my childhood was a real prick.  The town had furnished him with a cruiser that belonged to a real police force at one time.  I came into town one evening after working the night shift and saw the cruiser parked on the side of the road next to the park.  The front door was open, and no one was around.  I heard the next morning that someone had taken a shot at him with a shotgun.  After that, Vail entered into a contract with the county sheriff to patrol the streets of Vail.

I have often wondered what J.C. would have done to one of us kids if he actually caught one.  On the other hand, I can’t imagine that he would have stepped out of his pickup to actually chase one of us.  We would have had to jump into the passenger side of the pickup if the door was unlocked.

Someday, I will write about why I think someone fired a shotgun at the police cruiser, but that story is too painful to tell – even after all of these years.

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Your Attention, Please . . .

Last week, it seems like it took me forever to read a New York Times article about whether I might have adult ADHD (Attention deficit hyperactivity disorder).  I had trouble focusing.

My spouse, with whom I associate ADD, would interrupt my reading to point out a pretty bird in the yard.  After admiring it for a bit, she forgot what she came to tell me. Oh, that’s okay, I had to find something on my disorganized desk, or check the mail, or get something to eat.

Perhaps I should not have read the article.  I have a To-Do list that is seven pages long.  I should be rearranging priorities on the list rather than reading something that has nothing to do with me.

The article did reveal something that I believe explained why my Iowa Test of Basic Skills tests had a huge slump on the graph when it came to reading comprehension.  My geography, math, English grammar, and other ratings were always 90 to 99.  However, reading comprehension caused a dip in my overall score.  Then I read last week “that adults who are diagnosed with A.D.H.D. must have also experienced significant symptoms of the disorder before the age of 12, even if they were not formally diagnosed during childhood, according to the Diagnostic and Statistical Manual of Mental Disorders, or D.S.M.”

I remember scoring in the 30s on the ITBS Reading Comprehension section.  Every time the results would come back, I wanted to argue.  I should have scored perfectly in those sections.  How else can you explain that I did well in the math sections when the questions went something like: “A train leaves Philadelphia at 6:00 am traveling west at 50 mph; another train leaves St. Louis at 7:00 am traveling east at 45 mph.  At what time and place will they meet?”  I could get the answers to the questions easily.  However, I did wonder who put those questions together because there wasn’t enough information.  Were they passenger trains or freight trains?  Did they have to pick up or let off passengers?  Were there stops to exchange boxcars along sidings, or pick some up, along the way?  There is also the problem of the United Transportation Union requiring breaks and shift changes for engineers and other personnel.

But I played their silly game as if the trains were remotely controlled and had no scheduled stops.  Not to mention the inability of having to maintain that speed going up and through mountains . . .

Now, where was I?  Oh, yeah.  Stephanie remembered what she came to talk about.  I’m sure it was important.

I am not going to waste my time reading about this condition again.  There is even a treatment plan for it.  If I had it, why would I want to change?  I sort of like myself.

It’s a good thing I am not afflicted with ADHD.  I wouldn’t want to live that way.

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Exercise Can Be Exhilarating

As we get older, exercise becomes more difficult.  I long for the days when I could ride my bicycle down the hill all the way to Homer’s, have a couple beers, and throw the bike in the back of someone’s pickup and catch a ride back up the hill.  All of that ‘throwing’ and ‘catching’ must have consumed a lot of calories.

Stephanie and I walk almost every day.  Well, Stephanie does.  I’m sporadic.  Last year, we walked between three and five miles daily.  This year, Stephanie is still at it; I’m a few miles behind – like a continent behind.

Growing up in Vail, several of us kids had a variety of ways to exercise.  When we were young, we played redneck, dangerous livestock farm hands against indigenous people.  We used water guns and water balloons as hand grenades (yes, cowboys and Indians didn’t have grenades, but our imaginations were creative).  We examined every square inch of the countryside within a mile with treks along creeks and the river, fencerows, pastures, alfalfa fields, and through corn rows.

In later years, during the day, you might find a few of us building tunnels and forts at Alley North’s haybarn.  Actually, you couldn’t find us.  That was the point.

The hay barn contained thousand of bales of hay.  These were not the huge round bales you see along fence rows in Iowa today.  These bales were two-string bales about 16” x 18” and 4-ft long.  Each weighed between 60 and 80 lbs., depending upon the contents (alfalfa, grass, mixtures, etc.).  The barn was constructed with poles and galvanized siding on three sides.  The southeast side of the barn was open.

If Alley came by and saw one of us, he would jump out of his vehicle and head into the barn to catch us.  We had so many tunnels, some connected, some not.  It must have looked like a whack-a-mole game to anyone trying to catch us.  Our system of tunnels was simple, and we built them so that the fattest of the gang could get through the tunnel with ease.  Underground rooms were supported with board we found inside and outside the barn.  We were careful not to add a lot of weight to the roof of the room.

On the open side of the barn, we would have three to four bales strategically placed so that they would pop out when we got to the end of a tunnel.  From several disguised lookouts, we could see where our pursuer(s) were located and plan our escape accordingly.  I don’t remember that any kid ever got caught.

I am sure that Alley thought we might be smoking.  We were not that dumb.  Yes, there were plenty of risks, but all of us pests are still alive to this day, or passed away from other ailments, naturally or unnaturally.  No one was ever harmed in the hay barn.

Alley would have things straightened out, and within a month, we were at it again.  Like gophers, we came back to pop our heads up out of the kid-made bales to get the adrenaline going when Alley spotted us again.

Alley North also owned the grain elevator at that time.  On an occasional Sunday, we would sneak into the basement from a window that was missing.  We would ride the one to two-person caged elevator up to the top.  One hundred twenty feet.  What a view from the headhouse.  I am not a person familiar with heights, so I didn’t go out onto the roof, but I know a few did.

If Alley came to the elevator, we had a little game we played with him.  Next to the caged elevator was a ladder you could use from the first floor all the way to the top.  It was dark in there.  In most places in the shaft, you couldn’t see the ladder from the passenger elevator.  We could climb down the ladder to a spot in the darkness and go to the back side of the ladder to hang on and lean against the wall.  The passenger elevator’s controls were wired in such a way that if you kept your finger on the up button (or down button), anyone pushing a button at the top, the first floor, or the basement, could not override the direction of the elevator.

Someone always made it to the first floor coming down the ladder.  While Alley was in the headhouse looking to see where we were hiding, the first person to the first floor pushed the ‘down’ button and held it.  Alley was stuck on top.  I’m not sure he knew about this button flaw, but the elevator would stop when a kid yelled, he would hop in the cage and push the ‘down’ button.  If Alley did happen to push the ‘up’ button, the kid in the cage would grasp a rung on the ladder and swing back behind it.  Depending on how many of us kids dared to do this, the game could go on for most of the afternoon.

No one was ever caught.  No one was ever hurt.  We were foolish, but we were invincible kids.  We probably left the elevator and ran to the haybarn to hide and plan our next incredibly stupid caper.

Next blog:  How we exercised at night, featuring J.C. McCullough.


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Pissed Off

A private sector employee from Iowa goes across the border on a Friday after work to Illinois and his friends ask if he wants a hit off a blunt.  He takes a hit and thinks nothing of it.  Recreational use of pot is legal in Illinois.  On his way home on Sunday, he realizes that there could be a random drug test early in the week and has heard that marijuana will stay in his system for up to 30 days.  He purchases a package of fake urine at a vape shop.  The following Monday morning, he is asked to take a random drug test.  He manages to get the fake urine into the beaker without anyone seeing him.

Days later, a lab result suspects that he may have used fake urine.  Depending upon a union contract; an employee handbook; or company policy that has been posted conspicuously, the employee may be disciplined, or in a severe case, terminated.  However, he can also be arrested for a simple misdemeanor: defrauding a drug or alcohol test.

The Iowa House of Representatives passed House File 283 by a vote of 61-30 last February with virtually no debate.  Of course, what’s the sense in debating a bill that is rammed down the minority party’s throat?  The bill creates “the criminal offense of defrauding a drug or alcohol test,” and establishes the penalty for the offense as a simple misdemeanor for the first offense and a serious misdemeanor for subsequent offenses.  The Iowa Senate did have debate prior to passing HF 283 along party lines.  The 32-16 vote had Republicans falling in line with its caucus, and most Democrats falling in line with their caucus (one Democrat – Sen. Kevin Kinney voted with Republicans).

The governor signed it into law in March.  It became law on July 1.

This must be one of the most wasteful uses of legislators’ time.  It reminds me of two other bills I saw enacted over the years.  In the 1990s, a bill became law that created the crime of not returning a video cassette to a movie rental business.  I know of no law enforcement officer who has ever been engaged in arresting someone for failing to return “Back to the Future” or any other videos.  It’s not worth their time.  They will tell you that.

Then, not that long ago, the Iowa Legislature passed a law that made the failure of returning farm equipment to an implement rental provider a crime.  I argued that the matter is for a civil court, not a criminal court.  I have no idea how many law enforcement hours have been used to corral lost implements of husbandry, but I’m sure it doesn’t happen that often.

This law falls into the category of law enforcement saying, “this is not worth our time to proceed with acquiring evidence, showing up in court for preliminary hearings, trials, etc.”  But the real story is going to be whether due process has been afforded to the employee.  The law does not distinguish between a private sector employee and a public sector employee; it covers both.  However, the public sector employee has more due process protection since the Iowa Supreme Court has said that “procedural due process protection must be afforded when an at-will public employee is discharged for reasons of dishonesty, immorality, or illegal conduct.”

Even a private sector employee has some protection.  Prior to this law, there would be no constitutional protection for a private sector employee.  Now that the legislature has made a segment of private sector employment criminal, there arises new arguments.

The statutory presumption of innocence is found in the Iowa Criminal Code. It requires a person’s guilt be proven beyond a reasonable doubt in criminal proceedings. Iowa Code § 701.3. We do not believe this statute implies a public policy applicable in the employment context. While a defendant charged with a crime is presumed innocent until proven guilty, this right is limited to criminal proceedings.

Borschel v. City of Perry, 512 NW 2d 565 – Iowa: Supreme Court 1994

 Why does the Iowa Legislature continue to pass legislation without researching constitutional case law?  One answer might be that the majority party believes that the case of Borschel is just an opinion; that only the legislature may create laws.  But my take is that the word “fraud” has a powerful political pull.

As I have claimed for over thirty years, a urine test will not indicate impairment.  It will show only that there are metabolites of a substance in the body.

Have you ever had a hangover?  You may not be drunk, but a urine test will show that you may still have traces of alcohol in your system.  This idea of thinking that employees will conduct themselves properly without using drugs or alcohol during their private time is superfluous.  The irony can be found with executives that hit the golf course during the day to entertain prospective clients, while having a drink or two, condemning the worker who tries to hold on to employment when the circumstances and odds are against her.

At the least, a conspicuous notice of some sort should be posted where employees can see it, warning them of the criminal act and its consequences.  In the long run, it might lead to a less expensive practice.  Not giving proper notice to a crime could lead to a dismissal of the criminal case and cost an employer punitive and compensatory damages.  This should have been included in the bill.

If the employee is at-will, which most Iowa employees are, why don’t employers just fire them?  Why is it necessary to have these feel-good laws that a lobbyist may have sold to a client to show that they can get a law passed?

Next up.  National Guard troops to search vehicles for liquor that was purchased across state lines in order to avoid paying Iowa’s higher booze taxes.


Posted in Fairness, Medical Cannabis, Privacy, Substance Abuse and Alcoholism/War on Drugs | Tagged , , , , , | 1 Comment