Snider v. Cape Girardeau, City of et al

Filing 82

MEMORANDUM AND ORDER re: 62 MOTION for Summary Judgment filed by Intervenor State of Missouri, 73 MOTION for Permanent Injunction filed by Plaintiff Frank L Snider, III, 40 MOTION for Summary Judgment filed by Plaintiff Frank L Snider, III. IT I S HEREBY ORDERED that plaintiff's motion for summary judgment [Doc. #40] is granted with respect to Count I. IT IS FURTHER ORDERED that plaintiff's motion for a permanent injunction [Doc. #73] is granted. IT IS FURTHER ORDERED that the motion of intervenor State of Missouri for summary judgment [Doc. #62] is denied. A judgment consistent with this Memorandum and Order will be entered upon the disposition of all claims. Signed by Honorable Carol E. Jackson on 3/20/12. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
FRANK L. SNIDER, III,
Plaintiff,
vs.
CITY OF CAPE GIRARDEAU, et al.,
Defendants.

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Case No. 1:10-CV-100 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the cross-motions for summary judgment
filed by plaintiff Frank L. Snider, III, and intervenor State of Missouri on plaintiff’s claim
that Missouri’s flag desecration statute is unconstitutional. Plaintiff also moves for
entry of a permanent injunction barring enforcement of the statute.1
On October 20, 2009, plaintiff chose to express his anger with the government
by slashing a United States flag and throwing it to the ground. Initially, he was issued
a citation for violating a Cape Girardeau city ordinance.

He was later charged with

violating Missouri’s flag desecration statute, § 578.095, Mo.Rev.Stat. Plaintiff was
arrested on October 23, 2009, and was held in jail for eight hours before the
prosecuting attorney dismissed the charge.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, claiming that his rights
under the First, Fourth, Fifth and Fourteenth Amendments were violated. Relevant to
the present motions are plaintiff’s requests for a declaration that § 578.095 is

1

The plaintiff has asserted claims against defendants Matthew Peters, H. Morley
Swingle, and the City of Cape Girardeau arising from the same incident. The crossmotions for summary judgment pertaining to these claims will be addressed
separately.

unconstitutional on its face and for an injunction barring future enforcement of the
statute. The State was permitted to intervene to defend the constitutionality of the
statute.
I.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986).
II.

Discussion

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Missouri’s flag desecration statute provides:
1. Any person who purposefully and publicly mutilates, defaces,
defiles, tramples upon or otherwise desecrates the national flag of
the United States or the state flag of the state of Missouri is guilty
of the crime of flag desecration.
2. National flag desecration is a class A misdemeanor.
§ 578.095 Mo.Rev.Stat.
Plaintiff contends that § 578.095 is unconstitutional on its face because it is a
content-based restriction on speech that is not related to furthering a compelling
government interest, it is substantially overbroad, and it is unconstitutionally vague.
The State argues that any constitutional defect in the statute can be addressed by a
“narrowing construction” that would criminalize only non-expressive conduct.
The Statute Implicates the First Amendment
The First Amendment generally prevents government from proscribing speech
and expressive conduct because of disapproval of the ideas expressed. R.A.V. v. City
of St. Paul, Minn. 505 U.S. 377, 382 (1992) (citing Cantwell v. Connecticut, 310 U.S.
296, 309-311 (1940), and Texas v. Johnson, 491 U.S. 397, 406 (1989)). Accordingly,
content-based regulations such as § 578.095 are “presumptively invalid.” Id. In
determining whether specific conduct is “expressive,” the courts examine whether “an
intent to convey a particularized message was present and whether the likelihood was
great that the message would be understood by those who viewed it.” Johnson, 491
U.S. at 404 (citations and alterations omitted).
Conduct directed toward the United States flag has been recognized as
“‘sufficiently imbued with elements of communication’ to implicate the First
Amendment.”

Id. at 406 (quoting Spence v. Washington, 418 U.S. 405, 409-11

(1974)); see also Eichman v. Haggerty, 496 U.S. 310, 315 (1990) (government
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concedes, “as it must,” that the acts of flag burning at issue were expressive conduct);
Dunn v. Carroll, 40 F.3d 287, 291-92 (8th Cir. 1994) (wearing of flag patch on uniform
in defiance of policy banning such constituted speech). The State does not contest
either that plaintiff was engaged in expressive conduct or that the statute criminalizes
expressive conduct.
“A law directed at the communicative nature of conduct must, like a law directed
at speech itself, be justified by the substantial showing of need that the First
Amendment requires.”
omitted).

Johnson, 491 U.S. at 406 (emphasis in original; citation

In other words, the statute must be subjected to “the most exacting

scrutiny.” Eichman, 496 U.S. at 318; see also Brown v. Entertainment Merchants
Ass’n, 131 S. Ct. 2729, 2738 (2011) (act restricting children’s access to violent video
games must pass strict scrutiny); United States v. Playboy Entertainment Group, Inc.,
529 U.S. 803, 813 (2000) (content-based regulation of speech must survive strict
scrutiny).

Thus, the State must show that the statute “is necessary to serve a

compelling state interest and that it is narrowly drawn to achieve that end.” Boos v.
Barry, 485 U.S. 312, 321 (1988). The State must specifically identify “an actual
problem” that needs to be solved and the curtailment of expression must be actually
necessary to the solution. Entertainment Merchants, 131 S. Ct. at 2738. Here, the
State does not, and likely could not, articulate an interest that would justify restricting
expression.2 See Johnson, 491 U.S. 413-14 (state’s interest in preserving flag as

2

The State asserts that the statute, when limited to apply solely to
nonexpressive conduct, preserves its interest in “preserving the American flag’s status
as a symbol that can further public discourse.” The State argues that nonexpressive
misuse of a flag “tends to weaken the public’s perception of the flag as something with
symbolic content because such treatment fails to treat the flag as a symbol of
something.” [Doc. 80 at 2-3]. It is not so obvious to the Court that this claimed
interest is distinguishable from that proffered by the government, and rejected by the
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symbol of national unity does not survive strict scrutiny); Eichman, 496 U.S. at 31617 (government’s claimed interest in preserving flag’s physical integrity actually an
interest in preserving flag’s symbolic value).
In the present case, the State implicitly concedes that the statute improperly
regulates expressive conduct. Rather than declare that § 578.095 is unconstitutional,
however, the State urges the Court to subject it to a “limiting construction” by
construing the statute to apply solely to nonexpressive conduct. This argument is
addressed below.
Plaintiff’s Overbreadth Challenge
The “overbreadth doctrine” provides that “a statute is facially invalid if it
prohibits a substantial amount of protected speech.” Broadrick v. Oklahoma, 413 U.S.
601, 615 (1973)). The courts have “provided this expansive remedy out of concern
that the threat of enforcement of an overbroad law may deter or “chill” constitutionally
protected speech -- especially when the overbroad statute imposes criminal sanctions.”
Virginia v. Hicks, 539 U.S. 113, 119 (2003).

The First Amendment overbreadth

doctrine seeks to strike a balance between, on the one hand, deterring people from
engaging in constitutionally protected speech and, on the other, invalidating a law that
is constitutionally applicable to some conduct, especially “a law directed at conduct so
antisocial that has been made criminal.” United States v. Williams, 553 U.S. 285, 292
(2008) (addressing First Amendment challenge to child pornography criminal statute).

Supreme Court, in defense of the Flag Protection Act. Eichman, 496 U.S. at 315-16
(“Although the Flag Protection Act contains no explicit content-based limitation on the
scope of prohibited conduct, it is nevertheless clear that the Government’s asserted
interest is related to the suppression of free expression and concerned with the content
of such expression. The Government’s interest in protecting the physical integrity of
a privately owned flag rests upon a perceived need to preserve the flag’s status as a
symbol of our Nation and certain national ideals.”) (quotation and citations omitted).
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Where conduct and not merely speech is involved, the overbreadth of a statute must
be real and substantial. Broadrick, 413 U.S. at 615.
Plaintiff must show that the Missouri flag desecration statute is so broad that it
may inhibit the constitutionally protected speech of third parties. New York State Club
Ass’n v. City of New York, 487 U.S. 1, 11 (1988). That is, he must show that §
578.095 “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation
to the statute’s plainly legitimate sweep.’”
Broadrick, 413 U.S. at 615 ).

Hicks, 539 U.S. at 118-19, (quoting

The “overbreadth claimant bears the burden of

demonstrating, ‘from the text of the law and actual fact,’ that substantial overbreadth
exists.”

Id. at 122 (quoting New York State State Club Ass’n, 487 U.S. at 14)

(alteration omitted). Such a demonstration suffices to invalidate all enforcement of
that law, “until and unless a limiting construction or partial invalidation so narrows it
as to remove the seeming threat or deterrence to constitutionally protected
expression.” Id. at 119.
The overbreadth analysis has three steps. Powell’s Books, Inc. v. Kroger, 622
F.3d 1202, 1208 (9th Cir. 2010). The first step is to construe the challenged statute -“it is impossible to determine whether a statute reaches too far without first knowing
what the statute covers.”

Williams, 553 U.S. at 293; see also United States v.

Stevens, 130 S. Ct. 1577, 1587-88 (2010) (construing terms of federal statute banning
depiction of animal cruelty).

Second, the court examines whether the statute

criminalizes a “substantial amount” of expressive activity. Williams, 553 U.S. at 297.
Finally, the court asks whether the statute is “readily susceptible” to a limiting
construction that would render it constitutional. Virginia v. American Booksellers Ass’n,
Inc., 484 U.S. 383, 397 (1988) (internal quotation marks omitted); United Food and

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Commercial Workers Int’l Union, AFL-CIO, CLC v. IBP, Inc. 857 F.2d 422, 431 (8th Cir.
1988) (facial overbreadth has not been invoked when limiting construction can be
placed on challenged statute).
1. Construction of the statute
Section 578.095 bans conduct that is “purposeful,” rather than accidental, and
is done “publicly.” These terms in combination indicate that the statute’s target is
conduct undertaken with the purpose of conveying a public statement. See Eichman,
496 U.S. at 316 (government’s interest in preserving flag as symbol for certain ideals
is not implicated by “secret destruction of a flag in one’s own basement”). More
specifically, the statute targets conduct that is critical of the national ideals conveyed
by the flag: the proscribed actions -- mutilation, defacement, defilement, trampling,
and desecration -- all convey that the acted-upon object -- the flag -- has been
devalued. See id. at 317 (the words “defaces,” “defiles,” etc. “unmistakably connote[]
disrespectful treatment). For example, to “mutilate” is “to injure, disfigure, or make
imperfect by removing or irreparably damaging parts.” Random House College Dict.
880 (1st ed. rev. 1980). Similarly, to “defile” is “to make dirty, . . . physically soil, .
. . figuratively tarnish, . . . dishonor, . . . make ceremonially unclean, . . .desecrate,
. . . morally corrupt (someone), [or] debauch (a person), [or] deprive (a person) of
chastity.” Black’s Law Dictionary 487 (9th ed. 2009). These words convey more than
negligent misuse of the flag.
2. Criminalization of expressive activity
Plaintiff must show that the statute “punishes a ‘substantial’ amount of
protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’”
Hicks, 539 U.S. at 118-19.

Plaintiff has met his burden: evidence in the record

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documents other instances in which § 578.095 was applied to protected speech. In
Shirley L. Phelps-Roper v. Daniel Bullock, No. 4:10-CV-1125 (JCH), the court entered
a temporary restraining order barring the Sheriff of St. Francois County, Missouri, from
enforcing the statute against a member of the Westboro Baptist Church planning to
display a flag during a protest.3 Rebekah Phelps-Davis and Elizabeth Phelps, also
members of the Westboro church, testify by affidavit that they canceled a
demonstration in Webb City, Missouri, after a police official was unwilling to guarantee
that the statute would not be enforced against them. [Docs. 72-2 and 72-3]. And, on
July 11, 2011, Bradley Stubbs was charged in Livingston County, Missouri, with
violating § 578.095 “by yelling ‘fuck America and fuck the American flag’ while burning
and stomping the National Flag of the United States.” [Doc. 72-1].4
The State argues that the statute can be legitimately applied to nonexpressive
conduct. Thus, the State argues, the statute should be preserved to prosecute those
who blow their noses in a flag because no tissues are handy, or use the flag as a
doormat because its fabric is absorbent, or display a tattered flag. However, there is
no evidence in the record that the statute has ever been applied to such nonexpressive
conduct. At the second step of the analysis, the Court concludes that the statute
reaches a substantial amount of expressive conduct judged in relation to its plainly
legitimate sweep.

3

Members of the Westboro Baptist Church hold frequent protests in Missouri.
Their protests often include a flag held upside down or marked with red paint to
connote blood to express their opinions.
4

The evidence submitted in this case distinguishes it from Roe v. Mulligan, 479
F. Supp. 2d 995, 1007 (S.D. Iowa 2007), where the district court concluded that the
Iowa flag desecration and misuse statutes were not overbroad, in part, because
plaintiffs did not make a showing that there was a realistic danger that protected
conduct would be substantially chilled.
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3. Limiting construction
The Court considers whether the statute can be brought within the bounds of
the constitution through a narrowing construction. United Food, 857 F.2d at 431 (“[A]
state statute should be deemed facially invalid only if . . . it is not readily subject to a
narrowing construction by the state courts”) (citing Erznoznik v. City of Jacksonville,
422 U.S. 205, 216 (1975)). The State proposes that the statute be limited to extend
only to nonexpressive conduct. As an example of such a limitation, the State points
to the City of St. Louis ordinance, § 15.22.010, which makes it illegal for anyone to,
inter alia, “publicly mutilate, deface, burn or trample upon” the flag. The St. Louis
Metropolitan Police Department “charge code” for this ordinance defines the prohibited
conduct as “public mutilation, defacing, burning, or trampling,” or public display of a
defaced flag. The charge code appends to the language of the ordinance the following
statement: “NOTE: Charge may not be used when person legitimately exercising right
of free speech.”
Federal courts are generally without authority to construe or narrow state
statutes. United Food, 857 F.2d at 431 (citing Boos v. Barry, 485 U.S. 312, 330
(1988); Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); Gooding v. Wilson,
405 U.S. 518, 520 (1972)). “Federal courts do not sit as a super state legislature,
[and] may not impose [their] own narrowing construction . . . if the state courts have
not already done so.” Id. (quoting Hill v. City of Houston, 789 F.2d 1103, 1112 (5th
Cir. 1986)) (alterations in original; internal quotations omitted). No state court has
construed § 578.095; thus, this Court is barred from accepting the State’s invitation
to limit the statute’s application to nonexpressive conduct.

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Foreseeing this eventuality, the State proposes that the Court certify the
question of § 578.095’s constitutionality to the Missouri Supreme Court. That avenue
is foreclosed as well: the Missouri Supreme Court does not have jurisdiction to render
opinions on questions of law certified by federal courts. Grantham v. Missouri Dept.
of Corr., 1990 WL 602159 (Mo. July 13, 1990); see also Glosemeyer v. United States,
45 Fed. Cl. 771, 780 n.19 (Ct. Cl. 2000) (noting that Missouri does not have process
by which federal courts can certify question to state supreme court); Doe v. Nixon, No.
4:08CV1518 CEJ, 2009 WL 2597925 (E.D. Mo. Sept. 10, 2009) (declining to certify
question regarding state’s “Halloween statute”). In addition, there is no guarantee
that the Missouri Supreme Court would deem it appropriate to rescue § 578.095 by
construction. “The courts cannot transcend the limits of their constitutional powers
and engage in judicial legislation supplying omissions and remedying defects in matters
delegated to a coordinate branch of our tripartite government.” Board of Educ. of City
of St. Louis v. State of Missouri, 47 S.W.3d 366, 371 (Mo. 2001) (finding terms of
statute of “such uncertain and contradictory meaning” as to obscure legislative intent
and declaring statute void for vagueness). Finally, plaintiff makes a persuasive case
that, even if the question could be certified to the Missouri Supreme Court, no limiting
construction can be crafted that would be consistent with any plausible understanding
of the legislature’s intent in enacting § 578.095.
In summary, the Court concludes that plaintiff has demonstrated, “from the text
of the law and from actual fact,” see Hicks, 539 U.S. at 122 (quoting New York State
Club Ass’n, 487 U.S. at 14), that § 578.095 criminalizes a substantial amount of
protected expressive conduct and that the Court does not have the authority to limit

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its reach to nonexpressive conduct. Thus, plaintiff is entitled to summary judgment
on his claim that § 578.095 is overbroad.
Plaintiff’s Vagueness Challenge
“[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense [1] with sufficient definiteness that ordinary people can understand
what conduct is prohibited and [2] in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citing
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982); Smith v. Goguen, 415 U.S.
566 (1974); Grayned, 408 U.S. 104 (1972); Papachristou v. City of Jacksonville, 405
U.S. 156 (1972); and Connally v. General Construction Co., 269 U.S. 385 (1926)).
“Flag contempt statutes have been characterized as void for lack of notice on the
theory that what is contemptuous to one man may be a work of art to another.”
Goguen, 415 U.S. 566, 573 (1974) (addressing a Massachusetts statute that
criminalized treating the flag “contemptuously”) (citation and internal alterations
omitted). The phrase “treats contemptuously” fails “to draw reasonably clear lines
between the kinds of nonceremonial treatment [of the flag] that are criminal and those
that are not.”

Id. at 574. The Wisconsin Court of Appeals similarly found that a

prohibition on “casting contempt” on the flag was “so vague as to set no standard by
which an individual’s conduct may be measured.” State v. Janssen, 570 S.W.2d 746,
750 (Wis. Ct. App. 1997).

The Iowa flag misuse statute prohibited “show[ing]

disrespect” for the flag. The United States District Court for the Southern District of
Iowa concluded that the term was subjective. Similarly, the phrases “flag”5 and “with

5

The Iowa statutes defined the words “flag, standard, color, ensign, shield, or
other insignia of the United States” as “any flag, standard, color, ensign, shield, or
other insignia of the United States, or any picture or representation of any of them,
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the intent or reasonable expectation that such use will provoke or encourage another
to commit a public offense” were unconstitutionally vague. Roe v. Milligan, 479 F.
Supp. 2d 995, 1101 (S.D. Iowa 2007).
The Missouri flag desecration statute bars specific, well-defined actions and
avoids the ambiguity of phrases such as “cast contempt” or “show disrespect.” The
statute also specifically identifies the two flags to which the statute applies – the
national flag of the United States and the state flag of Missouri. The Court concludes
that the statute, as written, is not void for vagueness. Paradoxically, the State’s
proposed limitation of the statute to apply only to nonexpressive activity might
introduce vagueness by failing to give law enforcement authorities sufficient guidance
regarding the distinction between expressive and nonexpressive uses.
III.

Conclusion

In summary, plaintiff has established that: (1) § 578.095 regulates expressive
conduct and thus implicates the First Amendment; (2) § 578.095 is overbroad in that
it punishes a substantial amount of protected free speech judged in relation to its
legitimate sweep; (3) and the Court cannot apply a limiting construction that would
bring render the statute constitutional. The Court declines to find that the statute is
void for vagueness. Plaintiff is entitled to a declaratory judgment that the statute is
unconstitutional. The plaintiff is also entitled to a permanent injunction enjoining
enforcement of the statute.
Accordingly,

made of any substance or represented on any substance, and of any size, evidently
purporting to be any such flag, standard, color, insignia, shield, or other insignia of the
United States of America, or a picture or a representation of any of them.” Iowa Code
§ 718A.3.
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IT IS HEREBY ORDERED that plaintiff’s motion for summary judgment [Doc.
#40] is granted with respect to Count I.
IT IS FURTHER ORDERED that plaintiff’s motion for a permanent injunction
[Doc. #73] is granted.
IT IS FURTHER ORDERED that the motion of intervenor State of Missouri for
summary judgment [Doc. #62] is denied.
A judgment consistent with this Memorandum and Order will be entered upon
the disposition of all claims.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 20th day of March, 2012.

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