UPDATES & ANALYSIS

Iowa Supreme Court: ‘Scurrilous’ notes taped to doors of residents displaying rainbow flags amounted to hate crime

by Rox Laird | December 4, 2023

When Robert Geddes entered onto the private property of five Boone residents without permission, he violated Iowa’s trespass statute. It became a more serious crime when he taped “Burn that gay flag” messages on the front doors of those residences, which were displaying rainbow flags. That elevated the charge to trespass as a hate crime in violation of Iowa Code sections 716.7 and 716.8(3).

Geddes appealed his conviction in Boone County District Court to the Iowa Supreme Court, arguing his free speech rights under the U.S. and Iowa Constitutions were violated by his prosecution.

In a Dec. 1 decision written by Justice Edward Mansfield, the Supreme Court affirmed Geddes’ conviction. Justice Matthew McDermott filed a dissenting opinion, and Justice Thomas Waterman filed a separate concurring opinion joined by Chief Justice Susan Christensen.

Iowa Code Section 716.8(3) makes it a serious misdemeanor to knowingly trespass on the property of another with the intent to commit a hate crime, which is defined in section 729A.2 as an offense “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 . . . .”

Geddes’ first note 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 other four notes said simply, “Burn that gay flag.”

Since no evidence was presented that the residents were targeted by Geddes because of their sexual orientation, the question before the Court was whether he trespassed because of their “association with” persons of a particular sexual orientation.

Without focusing exclusively on the dictionary definition of “association,” or the degree of association, the Court concluded Geddes was motivated by the residents’ association with gay persons. The Court reasoned that Geddes himself understood the residents’ displays of rainbow flags to be a public display of support for the LGBT+ community, and that this provided the “association” required under the statute.

“One can have ‘association with’ persons of a protected class without being part of a formal association,” Justice Mansfield wrote. “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.”

The Court disagreed with Geddes’ argument that he received a harsher penalty based only on what his notes said. Rather, Justice Mansfield wrote, it was Geddes’ “motive or intent” to trespass because of the targets’ association with a person of a certain sexual orientation that led to more serious criminal consequences. “Our criminal law provides many examples where conduct is punished more harshly depending on the defendant’s motive,” Justice Mansfield wrote, such as possession of a controlled substance with intent to distribute.

Nor did Geddes’ prosecution under the trespass statute raise First Amendment concerns, the Court said. While the First Amendment protects activities such as entering private property to leave campaign brochures or sales materials on residents’ doors, Iowa’s trespass law “is not a targeted restriction on First Amendment activity,” Justice Mansfield wrote. “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.”

Writing in dissent, Justice McDermott argued that the display of a flag does not “independently create or express actual association with particular persons,” noting that the relevant statute requires association with “a person” of a protected class.

“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,” he wrote. “This sort of dot-connecting is rooted in speculation, not evidence, and as a result is limited only by one’s imagination.” Justice McDermott noted that there was no evidence in the record connecting the residents’ public displays with an “actual person.”

In a separate opinion concurring in full with the majority, Justice Waterman observed that the majority opinion left the door open to other as-applied First Amendment challenges to Iowa’s trespassing statute, saying many Iowans might be surprised to learn it is a crime under the statute to leave a flyer at a home without the homeowner’s “express permission.”

“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?” he asked.

“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.”

Tags: Iowa Supreme Court 2023-24