State v. Farrell

• Decision Date: 03 July 1973
• Docket Number: No. 55658,55658
• Citation: 209 N.W.2d 103
• Parties: STATE of Iowa, Appellee, v. Patricia M. FARRELL, Appellant.
• Court: Iowa Supreme Court

Page 103

209 N.W.2d 103

STATE of Iowa, Appellee, v. Patricia M. FARRELL, Appellant.

No. 55658.

Supreme Court of Iowa.

July 3, 1973.

Mark E. Schantz, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins and Richard Winders, Asst. Attys. Gen., Carl J. Goetz, County Atty., and Thomas M. Martin, Asst. County Atty., for appellee.

Heard en banc.

RAWLINGS, Justice.

Defendant, Patricia M. Farrell (Patricia), was found guilty of flag desecration and judgment accordingly entered. She appeals. We affirm.

The offense charged stems from activities occurring on the University of Iowa campus February 11, 1971. That evening a student demonstration took place for the avowed purpose of protesting the Indo-China War and presence of R.O.T.C. on the campus. Approximately one hour after first gathering the demonstrators separated into two groups. Defendant's assemblage ultimately congregated in the Quadrangle dormitory courtyard. Shortly thereafter a United States flag was handed to defendant, which she held while others ignited and burned it.

February 25, 1971, a preliminary information was filed charging Patricia with flag desecration in violation of The Code 1971, Section 32.1 (the statute). In Iowa City Police Court defendant pled not guilty, then subseqently withdrew that plea and demurred to the information. This was premised on alleged vagueness and overbreadth of the Statute in abridgment of her First and Fourteenth Amendment rights, United States Constitution. The demurrer being overruled the case proceeded to trial and defendant was resultantly found guilty. Thereupon Patricia exercised her right to trial de novo in Johnson County District Court. For that purpose defendant and State stipulated the facts heretofore set forth. Additionally, two Iowa University security officers testified to the effect each felt personal distress upon witnessing the flag burning incident. Defense witnesses stated no interaction occurred between demonstrators, and no hostility was 'sensed'. Patricia did not testify.

Trial court found: (1) the act complained of was not speech; (2) valid governmental interests existed to regulate such conduct; (3) the statute was not vague as to the portion thereof regulating defendant's conduct; and (4) the overbreadth issue need not be ruled upon. Defendant was again convicted and sentenced to pay a $50 fine plus costs.

In support of a reversal Patricia urges trial court erred in, (1) holding § 32.1 could be constitutionally applied to her act of symbolic political protest; and (2) not determining § 32.1 unconstitutionally overbroad.

I. First considered is defendant's claim to the effect the statute is unconstitutional as applied to her conduct.

The controverted conviction was premised on that portion of Code § 32.1 which states:

'Any person * * * who shall publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag * * * of the United States * * * shall be deemed guilty of a misdemeanor * * *.'

The initial question posed is whether Patricia's instantly involved conduct is accorded a First Amendment protection.

That amendment unquestionably protects nonverbal expression as well as 'pure speech'. See e.g., Cohen v. California, 403 U.S. 15, 18--20, 91 S.Ct. 1780, 1784--1785, 29 L.Ed.2d 284 (1971); Tinker v. Des Moines Independent Com. Sch. Dist., 393 U.S. 503, 505--506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).

And in determining whether conduct constitutes symbolic expression the factor accorded most weight is the actor's intention to communicate an idea. See Goguen v. Smith, 471 F.2d 88, 98--100 (1st Cir. 1972), 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 969; Thoms v. Smith, 334 F.Supp. 1203, 1208 (D.Conn.1971), aff'd sub. nom. Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973). See also 56 Iowa L.Rev. 614, 618 (1971).

On the other hand, not all behaviorism designed to express an idea can be labeled speech. See United States v. O'Brien, 391 U.S. at 376, 88 S.Ct. at 1678.

Although Patricia's protesting message may have been obscured rather than clarified by the mode of expression employed, we assume, without deciding, the communicative element of her conduct was sufficient to bring the First Amendment into operation. See Sutherland v. DeWulf, 323 F.Supp. 740, 744 (S.D.Ill.1971). Even so, for reasons later set forth, such symbolic action may be subject to reasonable regulation.

II. In determining the extent to which expressive action can be constitutionally regulated, we turn inceptionally to these guidelines in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678--1679, 20 L.Ed.2d 672 (1968):

'(W)hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.'

The court also demonstrably stated, Id., at 391 U.S. 377, 88 S.Ct. 1679:

'(W)e think it clear that a government regulation is sufficiently justified * * * if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'

Many fractionated views have been expressed regarding viability of flag desecration statutes such as here involved, in the context of the above stated O'Brien test. Compare (1) United States v. Crosson, 462 F.2d 96, 99--102 (9th Cir. 1972); Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971, 981--990 (1971), cert, denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972); Deeds v. Beto, 353 F.Supp. 840, 841--843 (N.D.Tex.1973); Jones v. Wade, 338 F.Supp. 441, 444 (N.D.Tex.1972); Sutherland v. DeWulf, 323 F.Supp. at 744--746; United States v. Ferguson, 302 F.Supp. 1111, 1113--1114 (N.D.Cal.1969); People v. Cowgill, 274 Ca.App.2d Supp. 923, 78 Cal.Rptr. 853, 855 (1969), appeal dism'd, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970); People v. Sutherland, 9 Ill.App.3d 824, 292 N.E.2d 746, 748--749 (1973); State v. Waterman, 190 N.W.2d 809, 810--813 (Iowa 1971); People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30, 32--36 (1970), aff'd by an equally divided court, 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287 (1971); Deeds v. State, 474 S.W.2d 718, 719--722 (Tex.Cr.App.1971), With (2) Goguen v. Smith, 471 F.2d 88, 96--100 (1st Cir. 1972), prob. juris. noted 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 969; Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344, 348--350 (2d Cir. 1970), cert. denied, 400 U.S. 956, 91 S.Ct. 353, 27 L.Ed.2d 264 (1970) appeal docketed, No. 1507, Supreme Court, May 1971; Thomas v. Smith, 334 F.Supp. 1203, 1207--1211 (D.Conn.1971), aff'd sub. nom. Thoms v. Heffernan, 473 F.2d 478, 486--487 (2d Cir. 1973); Parker v. Morgan, 322 F.Supp. 585, 589--592 (W.D.N.C.1971); Crosson v. Silver, 319 F.Supp. 1084, 1086--1087 (D.Ariz.1970); Hodsdon v. Buckson, 310 F.Supp. 528, 533 (D.Del.1970), rev'd on other grounds sub. nom. Hodsdon v. Stabler, 444 F.2d 533 (3d Cir. 1971). See also Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907). No useful purpose will be served by an extensive discussion of these citations. See, however, 12 Ariz.L.Rev. 71 (1970); 68 Colum.L.Rev. 1091 (1968); 3 Ind. Legal F. 159 (1969); 56 Iowa L.Rev. 614 (1971); 60 Ky.L.J. 885 (1972); 7 U. San Fran.L.Rev. 149 (1972); 1 N.M.L.Rev. 352 (1971); 32 U.Pitt.L.Rev. 513 (1971); 1972 Wash.L.Q. 193; 22 Wes.L.Rev. 555 (1971).

Our review of this case will necessarily be limited to existent, albeit meager, guidelines.

Also, as heretofore indicated, we deal with Code § 32.1 only in the context of defendant's physical conduct, because Street v. New York, Supra, in effect, mandates application of the statute be so limited. Stated otherwise, § 32.1 is no longer applicable to the utterance of pure speech. But see Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571--573, 62 S.Ct 766, 769--770, 86 L.Ed. 1031 (1942).

III. In employing the O'Brien test, Supra, it must be first ascertained whether an important or substantial governmental interest exists in regulating conduct of the nature here involved.

Within that ambit judicial recognition has been accorded at least four sovereign interests in furtherance of flag desecration statutes: (1) preventing breaches of the peace; (2) preserving dignity of the national symbol; (3) protecting sensibilities of onlookers; and (4) manifesting proper respect to our national emblem. See generally United States v. Crosson, 462 F.2d 96, 101 (9th Cir. 1972); Deeds v. Beto, 353 F.Supp. 840, 843 (N.D.Tex.1973); Sutherland v. DeWulf, 323 F.Supp. 740, 744 (S.D.Ill.1971); State v. Waterman, 190 N.W.2d 809, 811--812 (Iowa 1971); People v. Cowgill, 274 Cal.App.2d Supp. 923, 78 Cal.rptr. 853, 855 (1969), appeal dism'd, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1971); People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30, 32 (1970), aff'd by an equally divided court, 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287 (1971).

State argues it has an additional valid interest in regulating destruction of chattels by their owners. This theory, suggested by Justice Fortas' dissenting opinion in Street v. New York, Supra, does not appear to have as yet been adopted by any court. Furthermore, the act in question does not purport to be an arson prohibitive enactment. In other words, although arson may in some circumstances be punishable under § 32.1, it still remains the statute is neither basically nor specifically directed towards furthering the sovereign's interest in proscribing arson.

Research reveals, however, all of the above...