In Somers, Iowa, Homer Martz flew his U.S. flag upside down to protest the future placement of an oil pipeline near his home. He has been charged with desecrating Old Glory under Iowa code 718A , which makes it a misdemeanor punishable by up to 30 days in jail to “publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque, either by words or act, such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state…”
The law, however, is unconstitutional. So said an Iowa Federal District Court judge in 2004, when he ruled Iowa’s flag desecration laws violated the First Amendment. Martz, a U.S. Army veteran, has told anyone who will listen that the Supreme Court has ruled citizens can burn the American flag, so presumably flying it Bizarro World-style is also okay. He’s right, too. In 1989, the Supreme Court ruled in Texas v. Johnson, 491 U.S. 397 (1989), that prohibitions on desecrating the American flag were unconstitutional.. It reaffirmed the holding in 1990.
Writes an exasperated Jonathan Turley, a Constitutional law expert, “The town of Somers appears to lack a single lawyer — or a telephone number for a single lawyer — to explain free speech protections to them.”
Is it too much to expect a municipality to absorb a First Amendment right that was settled almost a quarter century ago, and not persecute a veteran for exercising the rights he served to protect and preserve?
Apparently. They could google flag burning and learn that this law is void. Such incompetence in government, at any level, is unconscionable.
Ethics Alarms 
On the plus side, after he wins the ruinous lawsuit the town has earned, Martz will be able to move to a nicer house away from the pipeline…
Hmmmm, maybe that was the plan all along.
A few years back, my town tried to prevent a fortune teller from setting up a business. The opponents wore shirts that read “Team Jesus,” and the mayor at the time said he was standing up for the Bible.
That’s legally more defensible, though. Holding fortune tellers to be frauds has been upheld in some jurisdictions. I’ve got some posts here on the issue.
The justification put forward by the opposition wasn’t that they were fraudulent, it was that they violated the religious values of the community.
That IS stupid. They could have upheld the religious values of the community by prosecuting based on good law, for the “right” reasons.
I’d love to see a religious group prosecuting a fortune teller for fraud. “Oh, suddenly you want evidence for supernatural phenomena?” And heaven help them, if you’ll pardon the expression, if the fortune teller claims protection as a religion under the First Amendment.
Beyond this – flying the flag upside down isn’t desecration, it’s actually a recognized use for the flag. The upside down U.S. flag is an official signal of distress.
Strangely enough, flying the flag upside down is “none of the above” but is an accepted symbol of requiring assistance…URGENT assistance. May not be, any longer, but it once was.
That was the point I was going to make. If they wanted to get creative, there must be some law they could charge him under other than desecrating the flag – like pulling a fire alarm when there is no fire.
The reason pulling a fire alarm, or more colloquially, “screaming fire in a crowded theater” is not considered free speech is because it is a call to action. It is an action that will reasonably result in someone taking a dangerous action, i.e.. stampede out of a theater. Same thing with calling for physical violence against someone “hey, lets go kick that guys ass”.
Flying a flag upside down, sideways, or even burning it (assuming it is your flag, and you are not endangering anyone with your activities) is not a call to action, it is not slander or liable, it is not obscene.
It is, as you say, expressive speech, like performance art or wearing a costume.
If you haven’t read it, here is Ken White’s definitive explanation about how the “Shouting fire” example is misused by those favoring speech restrictions: https://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/
Jack,
In my opinion, this kind of “desecration” would have been protected even earlier, under Spence v. Washington (1974) — the one involving the taped on peace symbol, or even earlier still under Smith v. Goguen (1972). Hanging it upside down violates proper hanging, but it does nothing to alter or destroy the aesthetics or structural integrity. Silly
I’ll do you one better: I think it was always protected by the Bill of Rights. The idiotic GOP push for a flag protection amendment as an attack on the ACLU in the 1988 presidential race was embarrassing.
Then you’ll be excited to hear that the candidates for both major political parties have made noises to the effect of supporting such a thing…
Actually, it might possibly have been protected even earlier still under Street v. New York (1969), since the ruling stating “disparaging” the flag was protected, but left the issue of actual desecration alone.
Maybe Somers, Iowa had the same legal counsel as Moraine Community College.
Flying the flag upside down to some is simply disrespectful and the result is just what you see that flies in the face of legalities and common sense.
The town I live in has created some rather bizarre bylaws and some do occasionally surface and that results in a very public flap. Then end result is the bylaw is sent to the dustbin after Town Counsel reviews it and its application. If not the weight of public opinion and common sense do the trick.
Try to enforce a law that was already been deemed unconstitutional; wow, there’s some really fucking stupid people in that town.
I wonder if Martz knew ahead of time that they were this fucking stupid and got them to expose themselves with a well crafted flanking maneuver. It’s really irrelevant; they are idiots, and he got the unique change to prove it to the citizens.
Oops, a typo…
“…unique chance to prove it to the citizens.”
I thought that was the point of “Jim Crow” and the KKK
Orin T. Larson said, “I thought that was the point of “Jim Crow” and the KKK”
Was that an intentional or unintentional deflection?