Upside Down Flag turns Free Speech Upside Down

By Matthew Rothschild, The Progressive. Posted July 12, 2006.

Scott Roe was practicing with his band, "Corruption of Blood," on July 3 at his home in Ottumwa, Iowa. The police came and said he was violating a new city noise ordinance. So that was the end of the practice session.

Roe wasn't happy about it, so he staged a protest the next day. He planted an upside down flag in his front yard and had a cutout of a police officer standing in front of it. The band's name was written in block letters across the flag.

It didn't take long for Officer Mark Milligan and Sergeant Chris Logan of the Ottumwa Police Department to show up.

A neighbor had evidently complained about the upside down flag in the yard.

The officers warned Roe that he'd be arrested if he didn't take the flag down.

He refused, asserting his First Amendment rights.

Whereupon he was arrested and charge with violating Iowa's flag desecration statute, Chapter 718A.

All of this according to the lawsuit that Roe has filed against Milligan and Logan and the Ottumwa Police Department.

Roe "faces 30 days in jail and a $500 fine," the Des Moines Register reports.

"No trial date has been set yet," says Randall Wilson of the ACLU of Iowa, who is representing Roe.

Roe's suit says the Iowa statute dates back to 1900 and is an "overly broad restriction of speech that is protected under the First Amendment."

Chapter 718A is a whopper. It reads: "Any person who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag, standard, color, ensign, shield, or other insignia of the United States, or upon any flag, ensign, great seal, or other insignia of this state, or shall expose or cause to be exposed to public view, any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose any article or substance, being an article of merchandise or a receptacle of merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached or otherwise placed, a representation of any such flag, standard, color, ensign, shield, or other insignia of the United States, or any such flag, ensign, great seal, or other insignia of this state, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed, or who shall 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, or who shall, for any purpose, place such flag, standard, color, ensign, shield, or other insignia of the United States, or flag, ensign, great seal, or other insignia of this state, upon the ground or where the same may be trod upon, shall be deemed guilty of a simple misdemeanor."

Wilson, legal director of the ACLU of Iowa, elaborates on the basis for the suit.

"The statute under which Mr. Roe is being prosecuted," Wilson tells me, "bans just about everything we do with flags these days: flag patches on clothing, bumper stickers, use in advertisements, and so forth. Amid all of this 'flag speech,' Mr. Roe's display was singled out for prosecution simply because he chose to criticize the police and how laws are enforced in his community. That's how it always goes: Flag desecration prosecutions are only used for political persecution.

Either this statute goes or the right to free speech goes. The two cannot peacefully coexist."

Roe does not have a listed phone number, and he did not contact me after I relayed my request through Wilson.

I spoke with the Ottumwa Police Department and was told that Milligan and Logan would not comment.

Ottumwa City Attorney Tom Kintigh says, "We've consulted our insurance company, and I don't know if they've assigned an attorney to it yet. We're waiting to hear back from them."

In his lawsuit, Roe is seeking the dropping of charges against him, a declaration that Iowa's flag desecration statute Chapter 718A is unconstitutional, and "an award of nominal and punitive damages from the Defendants in compensation for the deprivation of his constitutional rights."

Matthew Rothschild is the editor of The Progressive.

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