STATE OF IOWA, Appellee, vs. ROBERT CLARK GEDDES, Appellant.
No. 22-1009
IN THE SUPREME COURT OF IOWA
Submitted September 14, 2023—Filed December 1,
Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.
Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.
The defendant appeals his convictions for trespass as a hate crime, arguing that the evidence of guilt was insufficient and that the convictions violated his constitutional rights of free speech and due process. AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., Waterman, McDonald, Oxley, and May, JJ., joined. Waterman, J., filed a concurrence, in which Christensen, C.J., joined. McDermott, J., filed a dissent.
Martha J. Lucey, State Appellate Defender, and Ashley C. Stewart (argued), Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Aaron J. Rogers (argued), Assistant Attorney General, for appellee.
MANSFIELD, Justice.
I. Introduction.
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
II. Background Facts and Proceedings.
A. The June 2021 Notes and Resulting Charges. 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.
Geddes was initially charged by trial information with five counts of trespass as a hate crime, a serious misdemeanor, in violation of
B. Trial on the Minutes and Conviction. Geddes moved to dismiss the charges on free-speech grounds, alleging violations of the First Amendment to the United States Constitution and article I, section 7 of the Iowa Constitution. The State resisted, and the district court denied the motion, reasoning as to the trespass-as-a-hate-crime charge:
The statutes in question criminalize actions, specifically unlawful “entering[,]” which is enhanced due to a status of an owner or possessor‘s membership or association in a class of protection, the statutes do not criminalize thoughts or words.
. . . .
It is the defendant‘s entering (or trespassing) that is criminalized to the level of a hate crime because of the statutorily protected status . . . or association of the owner or possessor of the property onto which the defendant trespassed. Again, his words may be relevant facts upon which the state may rely to prove his intent, but the thoughts from which they spring in defendant‘s mind are not elements of the offenses under the statutes charged herein. Free speech protects the marketplace of ideas from government intrusion. Defendant‘s ideas (however society chooses to judge them) are not infringed or criminalized by the statutes charged.
Geddes raises three points on appeal. First, he argues that there was insufficient evidence to support his conviction. In this regard, he contends that
III. Standard of Review.
“We review the sufficiency of the evidence for correction of errors at law.” State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). “Pursuant to this review, ‘we examine whether, taken in the light most favorable to the State, the finding of guilt is supported by substantial evidence in the record.‘” Id. (quoting State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011)).
We review constitutional challenges de novo. State v. Aschbrenner, 926 N.W.2d 240, 245–46 (Iowa 2019).
IV. Legal Analysis.
A. Was the Evidence Sufficient to Find Geddes Guilty of Trespass as a Hate Crime? Geddes argues that the evidence was insufficient to find him guilty of trespass as a hate crime. Three statutes—
And
“Hate crime” means one of the following public offenses when committed against a person or a person‘s property
because of the person‘s race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or the person‘s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability: 1. Assault in violation of individual rights under section 708.2C.
2. Violations of individual rights under section 712.9.
3. Criminal mischief in violation of individual rights under section 716.6A.
4. Trespass in violation of individual rights under section 716.8, subsections 3 and 4.
1. Does hate crime trespass require that the defendant have the intent to commit a second trespass? Geddes‘s initial argument is that the evidence to convict him was insufficient because the law quoted above requires a defendant to commit trespass and also to intend to commit a distinct hate crime (not the predicate trespass) in order to be found guilty.
The State urges that Geddes did not preserve error on this issue. However, under Iowa law, a defendant need not file a motion for judgment of acquittal to preserve error on a challenge to the sufficiency of the evidence during a bench trial. State v. Crawford, 972 N.W.2d 189, 197–98 (Iowa 2022).
Geddes focuses on the text of
Notably,
Based on the foregoing texts, three possible constructions of
To avoid this problem, Geddes urges us to adopt a variant of the first construction described above. In his view,
It is most logical in our view to adopt neither of these constructions. Instead, we agree with the State that
When interpreting a statute, we begin with the plain meaning. State v. Nall, 894 N.W.2d 514, 518 (Iowa 2017). “If the statute is unambiguous, we will apply it as written.” Id. A statute is ambiguous “if reasonable minds can disagree on the meaning of particular words or the statute as a whole.” State v. McIver, 858 N.W.2d 699, 703 (Iowa 2015). In cases of ambiguity, we resort to our rules of construction. See State v. McCullah, 787 N.W.2d 90, 94 (Iowa 2010). This means that we steer away from odd results if possible. See
2. Is there sufficient evidence that Geddes‘s victims were targeted for their “association with” LGBTQ+ persons because they displayed the LGBTQ+ Pride flag? Geddes next argues that the State failed tо establish that he trespassed “because of” the sexual orientation of the property owners or lessees, or because of their association with persons of a particular sexual orientation, as required by
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. The issue thus boils down to whether Geddes targeted his victims because of their “association with” persons of a particular sexual orientation.
Geddes argues that there is no evidence that the property owners and lessees were involved in an actual “association” with persons of a particular sexual orientation within the LGBTQ+ community. He invites us to apply various dictionary definitions of “association.” But in interpreting statutory text, it is important “not to make a fortress out of the dictionary.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.). The issue here is not the meaning of the word “association” standing alone, but the meaning of the entire phrase “because of . . . the person‘s association with a person of a certain . . . sexual orientation.”
One can have “association with” persons of a protected class without being part of a formal association. Indeed, Geddes perceived the property owners and lessees that way. He trespassed because he objected to their flags or flag decals, and he objected to them because they were “gay” flags—to quote his terminology. In other words, Geddes connected the property owners and lessees in his own mind to people who were gay.
This case was tried on the minutes. We review a verdict from a bench trial on the minutes just as we would a jury verdict. See State v. Myers, 924 N.W.2d 823, 826 (Iowa 2019). “We view the evidence . . . in the light most favorable to the State,” State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013), although “[t]he evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture,” id. (alteration in original) (quoting State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)).2 We believe that threshold of sufficiency is crossed here.
The factfinder—here the district court—was entitled to conclude (as the defendant himself did) that the property owners and lessees were displaying the flags or flag decals to associate themselves with persons of lesbian, gay, and other sexual orientations within the LGBTQ+ community. And while it‘s possible that they weren‘t—e.g., it‘s possible that each LGBTQ+ flag was displayed purely for aesthetic reasons rathеr than to express solidarity with the LGBTQ+ community—a factfinder was certainly entitled to conclude otherwise. Here, the factfinder presumably drew on his personal experience and understanding to find that the targeted persons’ display of the LGBTQ+ flag or flag emblem was an expression of their solidarity with persons of particular sexual orientations. That is hardly a startling view. See Shurtleff v. City of Boston, 596 U.S. 243, 250, 256 (2022) (noting that “several flag raisings have been associated with other kinds of groups or causes, such as Pride Week” and that “the Pride Flag [was] raised annually to commemorate Boston Pride Week“).3
In State v. Hennings, we said that “[t]he legislature‘s use of the words ‘because of’ in section 729A.2 requires that the defendant‘s prejudice or bias be a factual cause of the act.” 791 N.W.2d 828, 835 (Iowa 2010), overruled on other grounds by State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016). We added that “to find a defendant guilty under section 729A.2, the jury must determine beyond a reasonable doubt the defendant would not have acted absent the defendant‘s prejudice.” Id. Hennings emphasized that motive in a
Accordingly, we hold that the minutes contain sufficient evidence that Geddes acted because of the victims’ association with persons of a certain sexual orientation, as required by
B. Does the Trespass-as-a-Hate-Crime Statute as Applied to Geddes Violate His Freedom of Speech Under the United States or the Iowa Constitution? Geddes argues that he is being unconstitutionally punished for exercise of his free-speech rights, in violation of the First Amendment to the United States Constitution and article I, section 7 of the Iowa Constitution. We begin our discussion of this issue with a review of relevant caselaw.
Over thirty years ago, in R.A.V. v. City of St. Paul, a cross-burning case, the United States Supreme Court sustained a First Amendment facial challenge to a St. Paul, Minnesota ordinance that provided,
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
505 U.S. 377, 380, 391 (1992).
The Court held that the ordinance amounted to an unconstitutional content-based restriction on speech. See id. at 391. Even though the ordinance dealt with fighting words, a category of speech that can be proscribed, it established a content-based restriction—prohibiting only a subset of that speech based on its content. See id. For example, the ordinance did not apply to speech known to arouse anger, alarm, or resentment in others on the basis of political affiliation, union membership, or sexual orientation. Id. As the Court put it, “The government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” Id. at 384. Or, to quote another illustration from the Court‘s opinion: “[B]urning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.” Id. at 385.
The Court acknowledged two exceptions under which content-based discrimination might be permissible. See id. at 388–90. One is where “the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.” Id. at 388. For example, “the Federal Government can criminalize only those threats of violence that are directed against the President, since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President.” Id. (citation omitted). Second, the government may legislate against certain conduсt even if those conduct regulations sweep up some speech incidentally. See id. at 389. “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” Id. at 390. This explains why, for example, antidiscrimination laws do not run into constitutional
A year after R.A.V., in Wisconsin v. Mitchell, the Supreme Court rejected a First Amendment challenge to a Wisconsin hate crime law. See 508 U.S. 476, 490 (1993). The jury found the defendant guilty of aggravated battery. Id. at 480. The jury further determined that the defendant had intentionally selected his victim on the basis of his race—indeed, the defendant had specifically commented on the victim‘s race. Id. As a result, the defendant received a longer sentence under Wisconsin‘s hate crime enhancement statute. Id.; see also
In turning aside the First Amendment challenge, the Court highlighted two key points. First, the underlying statute targeted conduct, not expression. Mitchell, 508 U.S. at 487. As the Court put it, “[A] physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.” Id. at 484. Second, in the criminal law generally, conduct may be punished more severely because of the defendant‘s motive, which is what hate crime laws do. Id. at 485–87. The Court distinguished R.A.V. on the ground that the Wisconsin statute was aimed at “conduct unprotected by the First Amendment,” not “expression.” Id. at 487.
A year after Mitchell, in State v. McKnight, our court tracked the Mitchell analysis in upholding a hate crime conviction. See 511 N.W.2d 389, 396–97 (Iowa 1994). There, the defendant assaulted a person of color, “striking [the victim] five or six times.” Id. at 390. Witnesses indicated that the defendant had yelled explicit racial epithets at the victim. Id. The defendant was convicted of infringement of individual rights. Id. At that time, Iowa hate crime law made it unlawful to “maliciously and intentionally intimidate[] or interfere[] with another person because of that person‘s race” while committing an assault or an act of criminal mischief. Id. at 391 (quoting
More recently, in Hennings, we again upheld a hate crime conviction—this time under the current version of the law. 791 N.W.2d at 837–39. In that case, the defendant drove his truck at a group of African-American boys who had been walking in the street, running over one of them. Id. at 831. He had used the “n” word beforehand and continued to use that word and other racial slurs when interviewed by police the next day. Id. at 831–32. The defendant was convicted of assault with intent to inflict serious injury, willful injury causing bodily injury, and assault in violation of individual rights with the intent to inflict serious injury (a hate crime) under
On appeal, the defendant urged that the evidence was insufficient to sustain his hate crime conviction. See id. at 837. Specifically, the defendant insisted that the record failed to show he had run down the boy “because of” his race rather than because of his presence in the street. Id. at 833, 837. We overruled the claim of error, reasoning that the defendant‘s motivation was a fact issue for the jury to decide. Id. at 837.
This case is different from Mitchell, McKnight, and Hennings. Geddes didn‘t
In People v. Rokicki, the relevant conduct involved a customer yelling antigay slurs at a restaurant server while pounding his fist on the counter. 718 N.E.2d at 335. This behavior went on for ten minutes; the customer left when his money was refunded. Id. The customer was subsequently charged with and found guilty of a hate crime based on a predicate offense of disorderly conduct. Id. at 336.
The defendant appealed, arguing that the statute under which he had beеn prosecuted was unconstitutional. Id. The Illinois hate crime statute at the time prohibited disorderly conduct when committed “by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals.” Id. (quoting 720 Ill. Comp. Stat. 5/12-7.1(a) (1994)). The Illinois Appellate Court rejected the defendant‘s First Amendment argument because the defendant was being punished for disruptive behavior, not distasteful speech. See id. at 339. As the court put it, “[T]he first amendment does not give [the defendant] the right to harass or terrorize anyone.” Id.
In People v. McDowd, the defendant threatened to burn down a house on his street if it was sold to a person of color. 773 N.Y.S.2d at 532. He also posted racist flyers, including one that said “N****** Beware.” Id. The defendant pleaded guilty to aggravated harassment and aggravated harassment as a hate crime. Id.; see also
In Lipp v. State, the defendant and others scribbled graffiti on a school, nearby sidewalks, and trash cans that “included swastikas, anti-LGBTQ phrases, and other offensive writings, including ‘KKK,’ ‘n****rs,’ and ‘f*** jews.‘” 227 A.3d at 819. The defendant was found guilty of violating a state statute providing that one “may not deface, damage, or destroy . . . the real or personal property connected to a building . . . if there is evidence that exhibits animosity against a person or group, because of the[ir]” membership in a protected class. Id. (first omission in original) (quoting
Finally, in State v. Nye, the defendant “affixed bumper stickers [on road signs and mailboxes] that read ‘NO I do not belong to CUT,’ ” referring to the Church Universal and Triumphant. 943 P.2d at 98. After the defendant‘s motion to dismiss had been denied, the defendant conditionally pleaded guilty to the hate crime of “defac[ing] any propеrty of another” because of the person‘s religion. Id. at 99 (quoting
We think this is a similar case to Nye. If one can be prosecuted for defacing property by posting notes that target a protected class, it seems logical that one can also be prosecuted for trespassing in order to post notes that target a protected class. The conduct may be communicative, but the statute is aimed at a broader scope of conduct, whether communicative or not. “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V., 505 U.S. at 390; see also People v. Barrigar, 134 N.Y.S.3d 144, 149 (City Ct. 2020) (holding that the defendant could be prosecuted for criminal tampering when he removed an LGBTQ+ Pride flag from the city hall flagpole and deposited it in the city hall drop box).
Geddes complains that he received felony convictions and a harsher sentence based only on what his notes sаid. But that isn‘t quite true. It is Geddes‘s motive or intent, the fact that he trespassed “because of . . . the person‘s association with a person of a certain . . . sexual orientation,” that led to the more serious criminal consequence.
Geddes also argues that “Burn that gay flag” does not amount to “fighting words” whose utterance the government can punish. In that regard, he relies on the following passage from McKnight:
Had McKnight limited his attack on Rone to mere words, the First Amendment would have protected his right to do so. He lost that protection when his racial bias toward blacks drove him to couple those words with assaultive conduct toward Rone, who is black. In these circumstances, the words and the assault are inextricably intertwined for First Amendment purposes.
511 N.W.2d at 395. But the issue here is not whether Geddes could have posted a note saying “Burn that gay flag” on his own property or even displayed it on public property. Geddеs entered the property of others without permission to place an object thereon without their permission. See
C. Is Iowa Code Section 716.7(2)(a)(1) Unconstitutionally Vague or Overbroad Under the United States or the Iowa Constitution? Geddes argues that
The void-for-vagueness doctrine centers on the concept of fair notice. State v. Baker, 688 N.W.2d 250, 255 (Iowa 2004); see also State v. Millsap, 704 N.W.2d 426, 436 (Iowa 2005) (“[T]he statute gives fair warning of the prohibited conduct and [therefore] does not violate the void-for-vagueness doctrine.“).
There are three components to this doctrine:
First, a statute cannot be so vague that it does not give persons of ordinary understanding fair notice that certain conduct is prohibited. Second, due process requires that statutes provide those clothed with authority sufficient guidance to prevent the exercise of power in an arbitrary or discriminatory fashion. Third, a statute cannot sweep so broadly as to prohibit substantial amounts of constitutionally-protected activities, such as speech protected under the First Amendment.
State v. Nail, 743 N.W.2d 535, 539 (Iowa 2007). The third facet is also characterized as “overbreadth.” Formaro v. Polk County, 773 N.W.2d 834, 841–42 (Iowa 2009) (“[O]verbreadth claims are derived from the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 9 of the Iowa Constitution. Overbreadth analysis applies where a statute sweeps too broadly and substantially chills First Amendment rights.” (citation omitted)).
Void-for-vagueness challenges to our criminal laws have been raised repeatedly, usually without success. For example, notwithstanding such challenges, we have upheld laws (1) prohibiting loitering by certain sex offenders, (2) requiring sex offenders to register when they change residence, (3) authorizing “a civil penalty of an amount not less than the amount of any criminal fine authorized by law for the offense” for a deferred judgment, and (4) prohibiting sexual exploitation by a counselor or therapist. State v. Coleman, 907 N.W.2d 124, 146–47 (Iowa 2018); State v. Showens, 845 N.W.2d 436, 448 (Iowa 2014); Nail, 743 N.W.2d at 537, 544; State v. Gonzalez, 718 N.W.2d 304, 310 (Iowa 2006).
We have stated that “[d]ue process merely requires that a standard of conduct be reasonably ascertainable ‘by reference to prior judicial decisions, similar statutes, the dictionary, or common generally accepted usage.‘” Baker, 688 N.W.2d at 255 (quoting State v. Sullivan, 298 N.W.2d 267, 270 (Iowa 1980)). We have also said that the concept of “objective reasonableness” may give fair warning and constrain governmental discretion. See Showens, 845 N.W.2d at 445–48.
As we noted earlier,
Significantly, Geddes doesn‘t even tell us what language in
sufficient minimal standards to guide law enforcement officers” and “fails to provide police with any standard by which they can judge whether an individual has an ‘apparent purpose’“). It is noteworthy that in State v. Showens, we discussed and distinguished Morales in upholding a loitering statute that prohibited a sex offender from:
remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the purpose or effect of the behavior is to enable a sex offender to become familiar with a location where a potential victim may be found, or to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.
845 N.W.2d at 440, 442-48 (quoting
Geddes does argue that “[i]n American society, it is often assumed by its citizens that a person has implied permission to approach a residential home to leave an object, often a piece of paper, such as a note or a flyer, on [the front] door or main entrance of a home.” He gives the examples of a Girl Scout leaving an advertisement for a cookie sale or a neighbor leaving a notice of an upcoming garage sale. See Florida v. Jardines, 569 U.S. 1, 8 (2013) (discussing the implied license of a visitor to approach the front door of a home and knock).
We think Geddes carries this argument too far. For one thing, the relevant question for vagueness and overbreadth purposes is not whether others engage in the prohibited conduct without being prosecuted, but whether the statute provides fair notice or intrudes substantially on protected freedoms. Nail, 743 N.W.2d at 539. The statute indicates that trespass consists of entering private property without express permission in order to place something thereon.
Moreover, as we noted earlier, there is an alternative definition of trespass that outlaws “[b]eing upon or in property and . . . placing thereon or thereinanything . . . without the implied or actual permission of the owner, lessee, or person in lawful possession.”
We don‘t think reconciliation is required here. Geddes didn‘t have either form of permission. He didn‘t leave an invitation at the doorstep for the resident to engage in a transaction, such as voting for a candidate, purchasing goods, or attending an event. Rather, he taped a scurrilous note to each front door. A reasonable person would not believe that someone else‘s front door is their own bulletin board. Thus, whether we treat Geddes‘s argument as a backdoor effort to get us to overrule Chase or simply another argument for why he should have been acquitted, it does not persuade us. See State v. Paye, 865 N.W.2d 1, 6 (Iowa 2015) (concluding that the front steps of a home are not a public place for purposes of Iowa‘s public intoxication law because people can only use those stairs “to approach [the] home for limited purposes—for example, to sell a product, to talk about important civic issues, or to borrow a cup of sugar“).
Geddes also argues that section
Lastly, Geddes urges that section
It is true that the First Amendment prevents the State from banning certain core First Amendment activities even on private property such as door-to-door canvassing and pamphleteering, Watchtower Bible & Tract Soc‘y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 168-69 (2002), and perhaps information-gathering, see Animal Legal Def. Fund v. Reynolds, 630 F. Supp. 3d 1105, 1121 (S.D. Iowa 2022) (appeal pending). See also City of Osceola v. Blair, 2 N.W.2d 83, 83 (Iowa 1942) (finding that an ordinance prohibiting solicitation violated article I, section 9 of the Iowa Constitution).
But the trespass law, unlike the St. Paul ordinance in R.A.V., is not a targeted restriction on First Amendment activity. As relevant here, it is a general ban against leaving objects on private property without permission, whether the object happens to be a posted handwritten note or a load of waste that the defendant prefers not to take to the dump. Geddes cites no authority that such a law raises First Amendment concerns. We therefore decline to adopt Geddes‘s void-for-vagueness and overbreadth arguments.
V. Conclusion.
For the reasons stated, we affirm Geddes‘s convictions and sentence.
AFFIRMED.
#22-1009
State v. Geddes
WATERMAN, Justice (concurring).
I fully join the well-reasoned majority opinion in this case of first impression in Iowa but want to further explain First Amendment protection under the U.S. Constitution in trespass prosecutions. I agree that Robert Geddes lost his First Amendment protection for speech when he walked onto the properties of persons displaying Pride flags and attached his hostile notes (“Burn that gay flag.“) to their front doors without their permission. Like the majority, I view this case as similar to State v. Nye, where the Montana Supreme Court affirmed a hate crime conviction of a defendant who affixed a disparaging bumper sticker on church property without permission. See 943 P.2d 96, 100-01 (Mont. 1997). The Nye court drew the line where we do:
Nye fails to recognize that the difference between his conduct and that of others in the Gardiner community is that the others he refers to placed the stickers on their own property while Nye placed the stickers on other people‘s property without their permission. As the State asserts in its brief, if Nye had limited his attack on [the church] to the display of a bumper sticker on his car or living room window, the First Amendment would have protected his right to do so. Nye lost his First Amendment protection when he coupled the message on the bumper sticker with defacement of the property of others.
Id. at 101. The Iowa trespass statute is content neutral, and Geddes‘s offensive notes affixed to other persons’ front doors—like the hostile bumper stickers attached to the church property in Nye—can be regarded as defacement of property committed during a trespass.5
I also agree with the majority that persons flying Pride flags are “associated” with the LGBTQ+ community within the meaning of Iowa‘s hate crime statute; indeed, that is exactly why Geddes admittedly targeted them. Our court‘s reasoning likewise would allow a hate crime prosecution of a defendant who tapes a swastika or a note depicting a Hamas paraglider to the front door of a home that displays an Israeli flag.
The majority opinion accurately observes that “[f]orty years ago, in State v. Chase, we upheld this statute against void-for-vagueness and overbreadthchallenges.” See 335 N.W.2d 630, 633-34 (Iowa 1983). The majority applies Chase to reject Geddes‘s overbreadth challenge. That case, however, is no insurmountable obstacle to other constitutional challenges to this trespass statute. First, as the majority pointedly observes, Geddes did not ask us to overrule Chase. “We do not ordinarily overrule our precedent sua sponte.” Goodwin v. Iowa Dist. Ct., 936 N.W.2d 634, 645 n.4 (Iowa 2019) (quoting Est. of McFarlin v. State, 881 N.W.2d 51, 59 (Iowa 2016)).
Second, Chase is easily distinguished on its facts: the defendant in that case did not leave a note or flyer at a doorway; rather, he removed property that wasn‘t his from an unoccupied home without the owner‘s permission. 335 N.W.2d at 631. In my view, if the trespass statute is enforced against common door-to-door activities such as delivering flyers for political campaigns, local church services, new restaurants, or Girl Scout cookie sales, the First Amendment may very well prevail on an as-applied challenge. Importantly, all the decisions cited by the majority that affirmed hate crime convictions involved underlying conduct constituting a separate criminal violation (assault, disorderly conduct, harassment, or property damage or defacement). Without some other criminal conduct, leaving an object at a doorway without permission ordinarily would not be actionable.
Door-to-door canvassing has long enjoyed constitutional protection. Eighty years ago, in City of Osceola v. Blair, we held that a municipal ordinance prohibiting door-to-door sales solicitations violated the due process clause of the Iowa Constitution because it “impose[d] an unreasonable restraint upon a lawful business.” 2 N.W.2d 83, 83-84 (Iowa 1942). More recently, the United States Court of Appeals for the Tenth Circuit held that a municipal ordinance imposing a 7:00 p.m. curfew on door-to-door sales violated the First Amendment. AptiveEnv‘t, LLC v. Town of Castle Rock, 959 F.3d 961, 968, 986-87 (10th Cir. 2020) (holding in favor of door-to-door seller of pest control services).
The majority recognizes that Geddes “engaged in expressive conduct” by affixing his notes on front doors. In Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, the United States Supreme Court addressed a municipal ordinance requiring a permit from the mayor‘s office before cаnvassers could go on private property to promote any “cause.” 536 U.S. 150, 154 (2002). Members of Jehovah‘s Witnesses sought to go door-to-door without getting a permit to proselytize and
The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.
Id. at 165-66. In my view, criminalizing the generаl distribution of flyers on private property could well implicate the First Amendment.
But Geddes wasn‘t “canvassing” a neighborhood in a manner protected by the First Amendment. He did not go to every house to proselytize, campaign, advertise an event, or sell a product or service.6 Rather, he visited only houses with Pride flags that he associated with a protected group to leave a message attacking the owners’ symbolic speech. His conduct—targeted trespassing to deface their doorways—fell outside First Amendment protection.
The Iowa trespass statute, however, will not always avoid a First Amendment defense simply based on the content-neutral requirement that a physical object be left on the property of another without permission. To the contrary, the Iowa trespass statute goes even further than the ordinance invalidated in Watchtower Bible by facially prohibiting Iowans from leaving any pamphlets on front doorsteps without the homeowner‘s express permission, regardless of whether the canvasser first obtained a permit from a government official. More should be required for criminal sanctions.
Notably, the hate crime enhancement in
for presidential
The majority correctly concludes that Geddes‘s overbreadth and void-for-vagueness challenges fail because the trespass “statute provides fair notice” of what is prohibited: leaving an object on another‘s property without permission. But there is force to Geddes‘s related argument raising the specter of selective enforcement. What if local officials only prosecuted canvassers for a rival political party? What if only those leaving pro-life flyers were criminally charged with trespass and not those advocating reproductive rights, or vice versa?
The First Amendment doesn‘t prevent private property owners from requiring unwanted visitors to leave. See People v. Goduto, 174 N.E.2d 385, 390 (Ill. 1961) (“We hold that freedom of speech and press guaranteed to defendants by the first and fourteenth amendments to the Federal constitution and by section 4 of article II of [the Illinois] constitution . . . did not give them the right to remain on the [private] parking lot after they were ordered to leave.“).
But the First Amendment can protect canvassers who deposit flyers at front doors without the owner‘s prior order to leave or a “no trespassing” or “no soliciting” sign. In Virginia v. Hicks, the Supreme Court rejected an overbreadth challenge to a local housing authority‘s trespass policy but emphasized that the defendant was not engaged in expressive conduct and had previously been ordered to leave and barred from returning. 539 U.S. 113, 117-18 (2003). No one apparently was prosecuted for trespass under the policy at issue without first receiving a “barment notice.” Id. at 122-23. The Hicks Court concluded, “Applications of the [no-trespass policy] that violate the First Amendment can still be remedied through as-applied litigation . . . .” Id. at 124. I reach the sameconclusion in this case: The majority opinion leaves the door open to other as-applied First Amendment challenges to
In my view, Iowa‘s trespass statute remains vulnerable under an as-applied First Amendment challenge by canvassers engaged in expressive political or commercial speech who leave behind flyers. With the foregoing explanation, I join the majority opinion in full.
Christensen, C.J., joins this concurrence.
#22-1009
State v. Geddes
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.”
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
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.”
The record doesn‘t provide an answer. We have no information about any homeowner‘s actual connection to a person having any of the characteristicsmentioned 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 Stаte‘s hate crime charge and requires reversal.
The majority attempts to bridge this chasm in the evidence by declaring that displaying a Pride flag shows “association with” “persons of lesbian, gay, and other sexual orientations within the LGBTQ+ community.” But how does displaying a flag connect its displayer to an actual person? A flag is a symbol. See Flag, Black‘s Law Dictionary 782 (11th ed. 2019). See generally United States v. Eichman, 496 U.S. 310, 315-17 (1990) (describing a law criminalizing the burning of an American flag as an attempt “to preserve the flag‘s status as a symbol of our Nation and certain national ideals“). As a symbol, a flag doesn‘t independently create or express actual association with particular persons. One can own and display a Pride flag without having any association with another person.
Examples abound exposing the illogic in finding “association with” other people based merely on the display of a symbol. Assume that I were to wear a Los Angeles Angels baseball cap. Does donning the Angels logo now make me “associated with” Mike Trout and Shohei Ohtani and the other players on the Angels’ roster? Am I also now “associated with” Angels fans in California or Japan or elsewhere—all of them complete strangers to me—because of the symbol on my cap? Of course not, despite whatever wish I might harbor to be assoсiated with big-league sluggers.
Or assume I place a bumper sticker on my car depicting the blue and yellow Ukrainian flag. Am I now “associated with” Ukraine‘s forty million citizens? Am I “associated with” President Zelenskyy? And then of course there‘sthe potential inverse: whatever creates association (under this mistaken view) presumably works in the opposite direction and creates dissociation. So by displaying a Ukrainian flag, am I now dissociated with Russia in light of the ongoing war? Am I now dissociated with American politicians who disfavor providing support to Ukraine in the war?
You get the picture. Not everyone who displays a pirate flag is associated with actual pirates. Taking someone‘s display of a flag and, from that act alone, making assumptions about the displayer‘s association with other humans can quickly become a fool‘s errand. This sort of dot-connecting is rooted in speculation, not evidence, and as a result is limited only by one‘s imagination. It‘s speculation to say
The statute requires proof of a victim‘s “association with a person of a certain” protected characteristic as the basis for a hate crime.
Nor do Geddes‘s notes amount to admissions by him that the property owners and lessees were “associated with” persons of lesbian and gay orientation. Four of the five notes include only four words: “Burn that gay flag.” They make no reference to any “person” with whom the homeowners are associated. The other note with the additional two sentences similarly makes no reference to any person “associated with” the homeowner. There‘s no admission to be found in the content of the notes Geddes left that satisfies the State‘sburden of proof on this point. At best, Geddes‘s notes might suggest a belief that the flag indicated the homeowners’ support for LGBTQ+ rights. But we cannot stretch a symbol suggesting support for a cause into evidence of a victim‘s actual association with persons. When the legislature means to refer to a general “affiliation” in our hate crime statute, it uses the word “affiliation.” See
The majority states that we should defer to the district court‘s findings because motive in a hate crime case is a factual determination and “[t]hat fact determination went against Geddes here.” But this is not a case where a factfinder in a lower court heard testimony from witnesses or had access to information that we, as an appellate court, lack. This was a bench trial on the minutes, meaning that all the evidence was presented to the judge without in-court testimony and instead through a document that summarized each witness‘s expected testimony. See
The district court, for its part, found a violation of both parts of the hate crime statute: that displaying the flag was enough to prove both (1) that the homeowners themselves were members of the LGBTQ+ community and (2) that the homeowners were “associated with” another person having the protected characteristic. The majority acknowledges that the district court erred in its finding on the first part as no evidence in the record supports such a finding. Yet the majority defers to the district court‘s finding on the second part despite an identical absence of
The majority‘s language here is telling in another way. In an effort to give meaning to the words “association with a person of a certain” characteristic in the statute,
The majority criticizes this dissent‘s adherence to the law‘s text as taking an “unduly narrow view of Iowa‘s hate crimes law [that] would leave uncoveredmany offenses that an ordinary person would view as a hate crime.” But convictions in our criminal justice system are not founded on what an ordinary person would view as a crime. The legislative branch defines what is criminal in our society. United States v. Santos, 553 U.S. 507, 523 (2008). It does so only through the written words of statutes. See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” United States v. Bass, 404 U.S. 336, 348 (1971). Crimes, including hate crimes, are not defined by judges, and they most certainly are not defined by what judges might speculate “an ordinary person would view as a hate crime.”
“The temptation to stretch the law to fit the evil is an ancient one, and it must be resisted.” Moskal v. United States, 498 U.S. 103, 132 (1990) (Scalia, J., dissenting). The majority, in my view, succumbs to this temptation today. Because the State failed to establish the statutory elements set forth in the text of