State v. Waterman

• Decision Date: 13 October 1971
• Docket Number: No. 54643,54643
• Citation: 190 N.W.2d 809
• Parties: STATE of Iowa, Appellee, v. Kevin WATERMAN, Appellant.
• Court: Iowa Supreme Court

Page 809

190 N.W.2d 809

STATE of Iowa, Appellee, v. Kevin WATERMAN, Appellant.

No. 54643.

Supreme Court of Iowa.

Oct. 13, 1971.

Rosenberger, Petersen, Conway & Belz, Muscatine, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and Garry D. Woodward, Muscatine County Atty., for appellee.

STUART, Justice.

On March 31, 1970, defendant, eighteen-year old Kevin Waterman entered the lobby of the Hotel Muscatine wearing an American flag as a 'poncho.' He had cut a slit in the flag in order to put it over his head and it had torn further.

Defendant was an employee of the hotel and had gone there to cash a check. He went to the desk in the lobby for that purpose and had a short, verbal encounter there with the desk clerk, Mrs. Martineau. After cashing the check, the defendant went into another part of the hotel to visit with the person acting as his replacement. He then left through the lobby still wearing the flag.

An information was filed charging defendant with violation of § 32.1, Code of Iowa. Trial was held before the Municipal Court of Muscatine, and the defendant was found guilty of the charge against him. This appeal followed.

I. Code § 32.1 provides: 'Any person * * * who shall publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act (the) flag * * * of the United States, * * * shall be deemed guilty of a misdemeanor * * *.'

Defendant argues that as the statute seeks to punish 'words' as well as 'acts' it is unconstitutional on its face as an abridgment of free speech even though defendant may have been charged with and convicted of acts rather than speech.

Although we have found no cases in which this point has been precisely raised, the courts have proceeded on the assumption that they can consider the constitutionality of a statute as it applies to 'acts' separately, although 'words' is also in the statute.

In Street v. New York (1969), 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572, the United States Supreme Court reversed a conviction under a New York statute which makes it a misdemeanor 'publicly (to) mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act (any flag of the United States)' (former Penal Law § 1425, subd. 16, par d. now General Business Law, § 136, subd. d) because it was not clear whether the conviction was based solely on words or both words and acts or just defendant's acts. The court said: 'In so holding, we reiterate that we have no occasion to pass upon the validity of this conviction insofar as it was sustained by the state courts on the basis that Street could be punished for his burning of the flag, even though the burning was an act of protest.' 394 U.S. at 594, 89 S.Ct. at 1366, 22 L.Ed.2d at 586.

In Hodsdon v. Buckson (D.Del.1970), 310 F.Supp. 528, 533, the court says: 'Defendants here urge that the 'words' portion of the Delaware Statute is severable, and that insofar as the 'acts' portion is concerned, Street made no determination of its validity. This Court agrees. The crucial issue, therefore, is whether, although the state may not by a statute like the one here punish words defiant or contemptuous of the flag, it may nevertheless punish acts which convey identical ideas.' See also People v. Radich (1970), 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30.

Although it would seem the provisions are severable and that considering 'acts' separately from 'words' would best effectuate the legislative intent, we need not turn our decision on their severability.

The United States Supreme Court in Street did not hold the New York statute which used 'words' as well as 'acts' invalid on its face. It turned its attention solely to the words defendant uttered and examined them in the light of four governmental interests that might have been 'furthered by punishing (Street) for his words'. It concluded: 'In the circumstances of this case, we do not believe that any of these interests may constitutionally justify appellant's conviction under § 1425, subd. 16, par. d, for speaking as he did.' 394 U.S. at 591, 89 S.Ct. at 1365, 22 L.Ed.2d at 584.

We believe this indicates there are some Very limited instances in which a person may be punished for his words without violating the First Amendment. The Supreme Court held the statute had been Unconstitutionally applied.

We therefore conclude that the statute is not unconstitutional on its face even though it includes both 'words and acts'.

II. The instant case is clearly distinguishable from Street for although the information had been similarly couched in the language of the statute, the trial judge here delivered a written ruling in which he stated: 'It should be clearly understood that the Court reaches this decision based entirely on the conduct of the Defendant without relying upon any words spoken by him at the time the offense occurred.' Later in his ruling, the trial judge re-emphasized this point. We are therefore concerned here solely with the question of whether the state can constitutionally punish 'acts' which desecrate and disgrace the flag.

This question was specifically reserved by the United States Supreme Court in Street, over dissents by Chief Justice Warren and Justices White, Black and Fortas. The dissenters were in agreement that the appellant's conviction had in fact rested on his action in burning the flag and that this was not a constitutionally protected action. The Chief Justice stated: 'I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace. But because the Court has not met the issue, it would serve no purpose to delineate my reasons for this view. However, it is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise.' 394 U.S. at 605, 89 S.Ct. at 1372, 22 L.Ed.2d at 592.

Acts fall within the protection of the First Amendment only in those limited instances in which they are considered symbolic speech. In the case at bar, the defendant has not attempted to justify his conduct by claiming he was attempting to communicate ideas by his actions. Counsel forthrightly conceded on oral argument this case does not involve 'symbolic speech', and that if the statute itself is constitutional, it could be applied to convict defendant. This is borne out by the record. The defendant himself testified on direct: 'I really had no intentions whatsoever of anything by wearing this flag.' And again on cross: 'I had no purpose.'

Even if it could be maintained, however, that defendant's acts were 'symbolic speech' it does not follow that the same kind of freedom is afforded him by the First Amendment as is afforded to those who communicate ideas by pure speech.

In United States v. O'Brien (1968), 391 U.S. 367, 376--377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672, 679--680 the court stated:

'This Court has held that when '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. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; 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.' See also State v. Nelson (Iowa 1970) 178 N.W.2d 434, 439--441.

The government clearly has a substantial, genuine and important interest in protecting the flag from public desecration. That the state has a legitimate interest in preventing breaches of the peace which can result from reactions to any attempted defilement of the flag has long been recognized. As Justice Harlan stated in Halter v. Nebraska (1907), 205 U.S. 34, 41, 27 S.Ct. 419, 421, 51 L.Ed. 696, 701, 'it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.'

The fact that in this case no breach of peace occurred is immaterial. The record discloses, nonetheless, that the government's interest in protecting the sensibilities of witnesses to the act who might be shocked by it is very real. As Mrs. Martineau put it, 'I was more or less crushed.' Alvina Fitzgerald, also a desk clerk at the hotel, testified: 'It just made me sick.' It is only a short step from this feeling of revulsion to an act of retribution.

Beyond this, however, the state has an interest in assuring the defendant, regardless of the impact of his actions upon others, showed proper respect to our national emblem.

Accordingly, we conclude that § 32.1 is constitutional in that the state can in the legitimate exercise of its police power punish for acts of flag desecration.

The New York Court of Appeals concluded that a conviction for an 'act' of defilement infringed no constitutional guarantee under the previously quoted provisions of their statute in People v. Radich (1970), 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30. The defendant in that case was the proprietor of an art gallery which displayed 'sculptures' fashioned by an artist as expressive of protest against the war in Viet Nam. The 'sculptures' prominently incorporated the American flag, including constructions involving the wrapping of a phallic symbol with the flag and the use of the flag in the form of a human body hanging from a...