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by Kennedy Leavens
Staff Writer
For the first few weeks of school, the sight of an upside-down flag hanging out of a Younker third story window was part of the walk along Park street from the academic buildings to North Campus dorms. Then, in late September, two Grinnell police officers told the students who hung the flag that such a display was illegal, and the students took it down.
But the upside-down flag may soon fly again. On Monday, Dec. 2, the Iowa Civil Liberties Union (ICLU) filed suit on behalf of the students, Juan Díaz ’06 and John Bohman ’06.
The suit names as defendants both officers and the Poweshiek County attorney, whose assistant told the officers that the county would be willing to prosecute.
The officers allegedly told Díaz and Bohman that the students were violating Iowa’s “flag desecration” statute, Section 718A.1 of the Iowa Code. The law makes it illegal to “publicly mutilate, deface, defile or defy, trample upon, cast contempt upon, satirize, deride or burlesque” the American flag.
Traditional flag etiquette says that the flag should only be flown upside-down as a signal of distress.
However, the students, who hung the flag to protest an anticipated war in Iraq and American foreign policy in general, believe that their action constitutes free expression and is therefore protected under the First Amendment. The ICLU agrees; its suit requests that the court declare the law “unconstitutional on its face,” and prohibit its enforcement.
“This law has no place in a democracy,” said Bohman. “A win in this case is a win for freedom and democracy.”
“As a device of eliminating freedom of speech, this law is a disgrace to our national emblem and everything it stands for,” said ICLU Legal Director Randall Wilson.
He called the law “highly confusing and inconsistent,” and maintained that it is “more about harassment of protestors” than about guarding the flag against inappropriate and disrespectful treatment.
The legal process ahead could take anywhere from one week to two years, according to Wilson. “This case seems fairly simple,” he said. “It shouldn’t take long unless the other side resists settling, because of the request for damages…Sometimes [the government] gives these things up quickly; sometimes they fight until the bitter end.”
Poweshiek County Attorney Mike Mahaffey, who is named as a defendant in the case for allegedly advising the police officers that he would be willing to prosecute the students, declined to comment on the lawsuit other than to point out a minor error in the complaint that the ICLU filed.
He said that it was not him but the assistant county attorney who spoke with the officers.
Filing the official complaint and a request for permission from the court to hang the flag while action on the case is pending, actions the ICLU took Monday, was the first step in this legal process.
Next, according to Wilson, there will be a hearing at which both sides will present evidence. There, a judge will either grant or deny the ICLU’s request for permission to hang the flag while a decision on the case is being made.
Finally, at a second hearing, a judge will consider the evidence presented at the first hearing and enter a final decision.
ICLU Cooperating Attorney Philip Mears will try the case. He is the father of S&B Editor-in-Chief Katie Mears ’03, and learned of the case through an S&B article on the issue.
The ICLU believes it has a strong precedent on its side. Thirty years ago, in State v. Kool (1973), the Iowa Supreme Court ruled that hanging a flag upside-down as a form of protest was constitutionally protected speech, and not punishable under 718A.1, the law now in question.
That ruling, however, did not take the statute off the books, as the present suit seeks to do.
Also, in the more famous Texas v. Johnson, (1989), the United States Supreme Court held that burning the flag as a form of protest was also protected as symbolic speech under the First Amendment. The ICLU argues that these two cases make it clear that the Constitution protects the desecration or misuse of the flag as political expression.
Though several student political groups initially discussed getting people together to desecrate the flag in protest of the law, Díaz and Bohman, at the request of the ICLU, decided not to engage in any such civil disobedience.
According to Bohman, the Radical Students Collective did want to stage some sort of demonstration, but he and Díaz “told them we weren’t going to participate in that,” because, for financial reasons, the ICLU did not want a criminal trial.
In a lawsuit like the current suit, where the plaintiff is suing the government because it believes a law is unfair, the plaintiff, if victorious, can request reimbursement for legal fees from the government. In a criminal trial, however, such is not the case.