State v. Hardin, 91-1777

• Decision Date: 21 April 1993
• Docket Number: No. 91-1777,91-1777
• Citation: 498 N.W.2d 677
• Parties: STATE of Iowa, Appellee, v. Charles HARDIN, Appellant.
• Court: Iowa Supreme Court

Page 677

498 N.W.2d 677

STATE of Iowa, Appellee, v. Charles HARDIN, Appellant.

No. 91-1777.

Supreme Court of Iowa.

April 21, 1993.

Sally Frank of Drake University Legal Clinic, Des Moines, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas G. Fisher, Jr., Asst. Atty. Gen., John Sarcone, County Atty., and Jeff Noble, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, NEUMAN, and SNELL, JJ.

NEUMAN, Justice.

Defendant Charles Hardin and two friends intentionally disrupted a speech by President George Bush during a Republican fund-raising rally in Des Moines. Hardin now claims his subsequent conviction for disorderly conduct cannot stand because the statute's enforcement abridges his constitutional rights to speak freely and petition the government. We disagree, concluding under this record that Hardin's heckling prevented others attending the rally--including the speaker--from enjoying their own first amendment freedoms. Therefore we affirm.

The rally took place in October 1990 at the Civic Center. Anyone could attend by paying the $25 admission fee. The event was designed to raise funds and support the reelection of Representative Tom Tauke and Governor Terry Branstad. It was also designed to generate support for President Bush, the featured speaker, in connection with the government's attempt to oust Saddaam Hussein from Kuwait.

Because of the controversy surrounding the President's military policies in the Persian Gulf, organizers developed a plan to deal with potential protesters. Although a band and cheerleaders were on hand to generate enthusiasm for candidates Tauke and Branstad, the President's address was anticipated to be of a more serious tone. Thus a protocol was developed whereby anyone disrupting the speech would be asked to sit down and be quiet, asked to leave if they did not do so, and arrested by city police officers only as a last resort.

Hardin's testimony at trial revealed that he and his friends viewed the event as an opportunity to personally convey to the President their opposition to the government's Persian Gulf policy. Once the President began speaking, they planned to stand up and shout their concerns in turn. They then intended, in Hardin's words,

to keep chanting until we were no longer able to make our point, and I didn't know what was going to stop that. I mean, whether it was the crowd taking up a chant in response to us or kicked out or arrested. I really had no feel for what was going to happen.

At the appointed time during the President's speech, one of Hardin's friends stood up and shouted, "Bring the troops home from Saudi Arabia." Then Hardin stood and said, "Mr. President stop the build up." Another friend shouted, "No blood for oil." The trio then continued that chant. After three to five minutes, one of the event coordinators approached Hardin and asked him to sit down. Hardin said he looked at him and then "returned to what I was doing." The organizer repeated his request to no avail. The police were summoned and the three were escorted from the auditorium without further incident.

Hardin was charged with disorderly conduct, in violation of Iowa Code section 723.4(4) (1989). A person commits this simple misdemeanor when "[w]ithout lawful authority or color of authority the person disturbs any lawful assembly or meeting of persons by conduct intended to disrupt the meeting or assembly." Iowa Code § 723.4(4). Hardin demanded a jury trial.

By the time the case was tried in February 1991, the Persian Gulf War (also known as Operation Desert Storm) was in full swing. One of the potential jurors appeared in court wearing a "Desert Storm" T-shirt. Another showed support for American troops by attaching a red, white and blue ribbon to her purse. Others reported having seen combat duty or being related to persons currently serving in the military.

Although the record is unclear on the point, Hardin apparently sought to challenge certain jurors for cause outside the presence of the others. The court denied the motion. The court also denied Hardin's challenge for cause directed to the juror in the "Desert Storm" T-shirt and another who was a veteran.

The jury ultimately convicted Hardin as charged. When Hardin's posttrial motions were denied, he appealed to the district court which affirmed in a written ruling. See Iowa R.Crim.P. 54 (governing appeals of simple misdemeanors). He then successfully petitioned this court for discretionary review to contest the district court's ruling on the question of whether, as a matter of law, he was "without authority" to disturb the meeting at which President Bush was speaking. Without proof of this essential element of the crime, Hardin argues, he cannot be convicted of disorderly conduct. He also challenges the court's ruling on the jury issues.

I. Because Hardin contests his criminal conviction on constitutional grounds, our review of the trial court's findings is de novo. State v. Gregg, 464 N.W.2d 431, 432 (Iowa 1990). We are obliged to interpret the statutory phrase "without legal authority" in light of the free speech protections Hardin asserts. State v. Williams, 238 N.W.2d 302, 308 (Iowa 1976).

II. Hardin frames his principal contention this way: He had the right to act as he did under the petition and free speech clauses of the Constitutions of the State of Iowa and the United States. His claimed authority rests on the nature of the meeting--a political rally--and his view that, under those circumstances, the State cannot abridge his right to interrupt the President and express opposition to government policies. In response, the State concedes that the statute must be construed narrowly to avoid conflict with Hardin's constitutionally-protected right of free speech; but it contends that Hardin's first amendment freedoms do not extend to the conduct demonstrated here.

Although neither this court nor the United States Supreme Court has spoken directly on the issue before us, fundamental principles guide our analysis. Favoring Hardin's case is the recently reaffirmed notion that content-based regulation of speech is presumptively invalid. R.A.V. v. City of St. Paul, 505 U.S. 377, ----, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305, 317 (1992). Thus, for example, a state may prohibit libel, but it may not prohibit only libel that is critical of the government. Id. at ----, 112 S.Ct. at 2543, 120 L.Ed.2d at 318. As the Court in R.A.V. held in the context of "hate crimes" legislation, the state can prohibit all "fighting words" or it can prohibit all fighting words directed at certain persons or groups, but it cannot criminalize the use of certain fighting words that contain particular bias-motivated messages. Id. at ----, 112 S.Ct. at 2548, 120 L.Ed.2d at 323.

Hardin claims that just such content-based regulation was at work here. The record reveals that participants at the rally cheered and waived signs--without restraint--in support of Tauke and Branstad. They stood and applauded wildly as they welcomed the President to the podium. None were arrested for their expressive speech and conduct. Only those expressing a discordant view--like Hardin--were stopped.

Hardin's position is weakened, however, when considered in the context of the other interests at stake in an assembly of this sort. The Supreme Court has long rejected the notion that persons wanting to protest and propagandize "have a constitutional right to do so whenever and however and wherever they please." Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149, 156 (1966). Thus in McIntosh v. Arkansas Republican Party--Frank White Election Committee, 766 F.2d 337, 341 (8th Cir.1985), a federal court of appeals affirmed the dismissal of a § 1983 action brought by a political activist who was arrested for refusing to leave a $150-a-plate fund-raising luncheon after expressing his intent to disturb the gathering with an unsolicited speech. Rejecting McIntosh's claim that the purchase of a ticket gave him the right to speak on a topic of his own choosing, the court found McIntosh suffered no constitutional deprivation for he had no "right to enter and disrupt this private event by unilaterally altering the sponsor's program and placing himself and his message upon the agenda." Id.

Among the state courts that have attempted to reconcile the competing rights of speaker, audience, and protester, the leading case appears to be In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142 (1970). The case involved boycotting farm workers charged with disturbing a lawful meeting after they engaged in rhythmical clapping and shouting for five to ten minutes during a California congressman's speech in a city park. There was no evidence that the demonstration affected the program, and charges were not filed until two weeks after the event. Id. at 689, 464 P.2d at 145.

In its analysis of the competing constitutional interests at stake, the California Supreme Court observed:

Under most circumstances, of course, ordinary good taste and decorum would dictate that a person addressing a meeting not be interrupted or otherwise disturbed. The Constitution does not require that any person, however lofty his motives, be permitted to obstruct the convention or continuation of a meeting without regard to the implicit customs and usage or explicit rules governing its conduct. The constitutional guarantees of the free exercise of religious opinion, and of the rights of the people peaceably to assemble and petition for a redress of grievances, would be worth little if outsiders could disrupt and prevent such a meeting in disregard of the customs and rules applicable to...