State v. Farrell , 1974 Iowa Sup. LEXIS 1167 ( 1974 )

McCORMICK, Justice

(dissenting).

I adhere to the views expressed in my dissent in State v. Farrell, 209 N.W.2d 103 (Iowa 1973), and in my concurring opinion in State v. Kool, 212 N.W.2d 518 (Iowa 1973). I believe Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), demonstrates that the United States Supreme Court shares those views.

I. The parties in this case stipulated that the purpose of the demonstration was to protest the Indo-China War and the presence of R.O.T.C. on campus. The parties also agreed:

“One member of the group was wearing as a cape a United States flag or replica thereof, approximately three feet by five feet in size. The flag was removed at the suggestion that it be burned in protest. The flag was passed to the center of the group until it came to the defendant who held it in front of her and off the ground while several other members of the group ignited it. As the flag burned, the group joined in singing ‘The Star Spangled Banner’.”

In the face of this stipulation I do not find any basis in the record for the majority’s present skepticism regarding defendant’s purpose in participating in the flagburning.

II. The majority opinion finds there was a “risk” of breach of the peace, after saying “risk” does not connote imminence. The opinion holds there only needs to be a “chance” of breach of the peace. In Tinker v. Des Moines Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731, 739 (1969), the Supreme Court said, “But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble.”

In State v. Kool, supra, 212 N.W.2d at 521, we added:

“We must not water down the guaranties by undifferentiated fear or apprehension. For our part, we will uphold incursions upon symbolic expression on the basis of probable violence only when we are convinced that violence really is probable." (Italics added).

I am unable to reconcile the position taken by the court today with the constitutional standard delineated in Tinker, recognized in Kool, and confirmed in Spence.

III.The majority also finds the conviction of defendant serves a viable state interest in preserving the physical integrity of the flag as a symbol. In the previous opinion in this case the court observed this theory has been criticized by courts and legal commentators alike. State v. Farrell, supra, 209 N.W.2d at 106—107, and citations. In addition the Supreme Court in Spence rejected its applicability upon reasoning applicable here.

I believe the majority opinion misreads Spence in this respect. After saying what is quoted in Division IV of the majority opinion, the Spence court added:

“But we need not decide in this case whether the interest advanced by the court below is valid. We assume arguen-do that it is. The statute is nonetheless unconstitutional as applied to appellant’s activity. There was no risk that appellant’s acts would mislead viewers into assuming that the Government endorsed his viewpoint. To the contrary, he was plainly and peacefully protesting the fact that it did not. Appellant was not charged under the desecration statute, see n. 1 supra, nor did he permanently disfigure the flag or destroy it. He displayed it as a flag of his country in a way closely analogous to the manner in which flags have always been used to convey ideas. Moreover, his message was direct, likely to be understood, and within the contours of the First Amendment. Given the protected character of his expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately-owned flag was significantly impaired on these facts, the conviction must be invalidated.” 94 S.Ct. at 2732, 41 L.Ed.2d at 849.

Significantly the court also said in a footnote to this text:

“If this interest is valid, we note that it is directly related to expression in the context of activity like that undertaken by appellant. For that reason and because no other governmental interest unrelated to expression has been advanced or can be supported on this record, the four-step analysis of United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673-1679, 20 L.Ed.2d 672 (1968), is inapplicable.”

Ibid, (footnote 8)

The court did not recognize the “unalloyed symbol” interest. It simply said that, even assuming it existed, it could not save the Washington statute as applied in that case.

It also put serious limitations on assertion of such an interest, giving special emphasis to the fact the use of the flag in protest is within the “spectrum of meanings” symbolized by it. Thus the court recognized a fundamental precept in our constitutional scheme, the right of a citizen to dissent from a policy of his government. The right to protest government policy is part of our patriotic tradition. The flag symbolizes this right when it embraces “the unity and diversity which are America.” Id., 94 S.Ct. at 2732, 41 L.Ed.2d at 848.

In this case as in Spence there was no risk anyone would be misled into believing the expression was endorsed by the government. In addition, insofar as defendant’s conduct was an expression of protest against government and university policy, the symbolism of the flag was unaffected. Spence recognizes that kind of expression is consistent with the flag’s symbolism. It is only insofar as defendant’s conduct also resulted in the termination of one flag’s existence as a flag that the national symbol was affected. As in Spence, the flag here was privately owned.

In light of the holding in Spence, I would conclude that the projected interest of the State in preserving one privately-owned flag is not sufficient to override the protected character of defendant’s expression.

IV. The majority opinion condemns defendant’s conduct without regard to its communicative content. In fact it equates the conduct with the idea sought to be expressed. In doing so it makes contempt for government policy the equivalent of contempt for the flag. These are not equivalent ideas.

The message defendant conveyed in this case was the same as the message delivered in Kool and Spence. In all three cases the defendants sought to protest Indo-China war policies. It could be said in all three cases, as it was said in Spence:

“It may be noted, further, that this was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” 94 S.Ct. at 2730, 41 L.Ed.2d at 847.

The conduct must be judged in its context as a means of expression. In this context each use of the flag was intended to symbolize the government’s alleged breach of faith with national ideals. The symbolic display in each case suggested that the government, not the protester, was dishonoring the flag. Spence teaches that the communicative content of this conduct is. constitutionally protected free expression.

The issue is whether the State has demonstrated any substantial state interest threatened by the non-speech elements of that conduct so great as to override the right of free expression. The two interests suggested by the majority opinion, a mere possibility of breach of the peace and concern for the physical integrity of one privately-owned flag, fall far short of the Spence standard.

It is obvious that our flag desecration statute was unconstitutionally applied to defendant.

I would reverse the case.