Friday, December 1, 2023

Trespass And The First Amendment

The Iowa Supreme Court affirmed a hate crime conviction

In recent years, in our country, the rainbow flag has come to symbolize support for LGBTQ+ rights. Several individuals in Boone displayed that flag or a decal of it on the front of their properties. Another person entered their premises without permission and taped anonymous notes to the doors urging, “Burn that gay flag.” This individual was later found out and convicted of trespass as a hate crime. See Iowa Code § 716.8(3) (2021). He now asserts on appeal that his conviction violated the First Amendment to the United States Constitution and article 1, section 9 of the Iowa Constitution. We disagree. The statute in question does not criminalize speech, but rather conduct with a specific intent—namely, trespassing on property because of the property owner or possessor’s association with persons of a certain sexual orientation. The individuals’ display of the LGBTQ+ flag or flag decal on their own properties was an exercise of First Amendment rights; the defendant’s surreptitious entry onto those properties to post his harassing notes was not. For these reasons, and because we are not persuaded by the defendant’s other appellate arguments that would require us to construe the hate crime statute implausibly or to overturn a soundly reasoned forty-year-old precedent, we affirm the defendant’s convictions and sentence.

The conduct

In June 2021, renters and homeowners who displayed LGBTQ+ Pride flags or decals in Boone began receiving handwritten notes taped on their front doors.

The first note, discovered on June 16 and shaped like a warning sign, said, “Warning due to high levels of flaggotry an investigation has been launched to control the spread of HIV/AIDS. We are sad to say the bare back orgy has been canceled. Burn that gay flag.” The renters, who displayed an LGBTQ+ Pride flag or decal on their premises, contacted the Boone Chief of Police about the note and filed a police report. They specifically asked for information on whether the Boone Police Department “keep[s] track of crimes against LGBTQ people within the City of Boone” and “how many incidents against LGBTQ people have been reported to the Boone Police so far in 2021 and in each of the past five years.”

On June 19, four additional notes were located, omitting the opening words and stating simply, “Burn that gay flag.” The notes had the same handwriting. The recipients reported that they found the notes to be “alarming, annoying, and/or threatening.”

Video surveillance footage at some of the homes revealed a man approaching with a piece of paper in his hand and leaving a short time later. Based on the surveillance, Robert Geddes was identified as the individual. Geddes did not have prior permission to enter any of the five properties.

MCDERMOTT, Justice (dissenting).

The Iowa Code states that a crime becomes a “hate crime” when it is committed because of either “[(1)] the person’s [(i.e., the victim’s)] race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or [(2)] the [victim]’s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Iowa Code § 729A.2 (2021) (emphasis added).

The record in this case tells us almost nothing about the people on whose doors Geddes posted his notes except for one key fact: they each displayed a Pride flag or flag decal on their property. The court thus cannot find that Geddes committed a hate crime under (1) since we have no information about any of the homeowner’s characteristics. We have nothing that tells us, in other words, the homeowner’s race, religion, sexual orientation, or any other characteristic to show that the crime was committed because of the homeowner’s own characteristics. As the majority correctly concludes, “There is no evidence to indicate whether the recipients of Geddes’s notes were themselves members of the LGBTQ+ community or whether Geddes believed they were.”

So we turn to whether Geddes committed a hate crime under the alternative presented in (2). For this, the State must prove that Geddes left the note because of the homeowner’s “association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability.” Id. (emphasis added). So we must ask: Who is the other “person” (or other “persons” since we assume singular nouns can be plural, see id. § 4.1(17)) that the homeowner is associated with?

The record doesn’t provide an answer. We have no information about any homeowner’s actual connection to a person having any of the characteristics mentioned in the statute or about Geddes’s beliefs on this subject. Without being able to identify the homeowner’s association with a person of a certain protected characteristic, then under the plain terms of the hate crime statute, we lack evidence to uphold Geddes’s hate crime convictions. This failure is fatal to the State’s hate crime charge and requires reversal.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/12/trespass-and-the-first-amendment.html

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