On the Burning of an LGBTQ Flag
Last summer, Adolfo Martinez, 30, of Ames, Iowa, stole the LGBTQ pride flag hung above the entrance to the Ames United Church of Christ, and burned it in front of the nearby Dangerous Curves Gentleman’s Club. He pled guilty to the crime—for which he was sentenced to 16 years in the state penitentiary.
This surprising sentence will be infamously controversial. Of course, stealing and destroying property is very wrong. But when the property is a flag, 16 years in prison is ridiculously and obviously excessive.
The Facts and Disposition of the Case
By his own admission, as you can see in a video, Martinez tore down the flag from the church, took it in front of a local dive, and burned it. That was the whole extent of the crime.
Aggravating circumstances made it worse than just that. Martinez is not a pleasant character, to hear Cmdr. Jason Tuttle of the Ames Police tell it. Martinez was a “regular patron” of the bar—where he had been kicked out, after causing a disturbance—in front of which he burned the flag:
He came back [to the bar] at some point and told the bar, the people in the bar, that he was going to burn the place [presumably, the church, not the bar] down, and at that point made a reference to burning “their flag.”
The case files1 indicate that the charges against Martinez were: arson in the third degree (by itself, in Iowa, an aggravated misdemeanor), considered by the court a hate crime; harassment in the third degree (a simple misdemeanor); and reckless use of fire.
Martinez represented himself. Clearly, that was a bad idea.
Story County Attorney Jessica Reynolds said Judge Steve Van Marel “agreed to the 17-year sentence because Martinez has a long history of harassment and is a habitual offender and never showed any remorse.” Maybe he has a long history of serious crime elsewhere, but not in Iowa. According to Iowa court records, the worst he has done in the last four years in Iowa is one count of drunk driving.
Reynolds, the prosecuting attorney, also claimed, “The defendant stated that there was nothing the judge could [do] to stop him from continuing this behavior and that he would continue to do this no matter what.”
Not Actually a Nice Guy, But…
Martinez is shamelessly outspoken against the pieties of the Ames United Church of Christ. “It was an honor to [burn the LGBTQ flag]. It was a blessing from the Lord,” Martinez declared to a KCCI reporter on camera. My view is that this sentence is an official state repudiation of that religious view, and so it violates Martinez’ First Amendment freedoms of speech and religion.
“But given the threatening things he has said, why think so?” you might ask. “Surely it’s not so clear-cut.” That is true. Let me spend some time explaining why it is not, in fact, quite as clear cut as it might appear at first.
Martinez stole and burned a symbolic piece of cloth. He was clearly making a statement that was doubtless obnoxious to everyone in the courtroom. The statement itself is not the crime, but stealing and burning someone else’s property is. He was charged with arson, but of course it was only misdemeanor arson since the burned property was just a flag. Still, his crime was aggravated since it was a hate crime, and as the law is written, this label seems credible.
It is credible, in fairness, maybe not just because of the flag burning but especially because of what he said after the flag burning. See Iowa Code sect. 729A.2: “…committed against a person’s…property because of the person’s…sexual orientation…” He did say some pretty threatening things about the church. Not only did he reportedly (though this is hearsay) threaten to burn the church down, he said on camera: “It is a judgment and is written, to execute vengeance on a heathen and punishments upon the people.” You can easily imagine how ominous such Biblical-sounding language would sound to the worshipers at the Ames United Church of Christ.
So if we are going to be quite fair, we must admit that Martinez’s own statements make it clear that he lacked remorse, and he no doubt continues to believe that the church—and its LGBTQ community—deserved what he gave them. Moreover, if you can credit the prosecutor (I would need to see a direct quote), Martinez threatened to do the crime again.
But let us look even more closely.
The Sentence Represents a Violation of Martinez’s Free Speech
Martinez was not prosecuted or convicted for a barroom threat or invocations of divine justice. That was not his crime. Presumably, if he were imprisoned for a while, that might make him think twice about carrying out any such threats; prevention is a prime purpose of punishment, after all. But it is decidedly not a principle of Anglo-American jurisprudence that criminals should be punished in order to prevent them from committing crimes they have not committed, even if they have threatened to do so. Yet if we take the prosecutor, Reynolds, at her word, that seems to be what she and the judge did.
This is, however, not even why Martinez was punished. It is a fig leaf covering a shameful sentence. Let us concede that Martinez stole and burned a flag, was a reckless and drunk driver who smoked pot, issued barroom arson threats, and was wholly unrepentant—and he even implied that he might do it again.
Even if all that is the case, does it deserve 16 years? Of course not. If he were to do the same crime two or three more times, surely he still wouldn’t deserve 16 years, regardless of any sentencing guidelines. In this case, the maximum sentence for third degree arson as a hate crime was five years. Martinez was given 16 years in total just because he had priors. But what was his worst prior in Iowa? Drunk driving. Did you know that the average sentence for rape was about 12 years (in 2006)? So this man, who burned a flag—a gay pride flag—had a more severe sentence than most rapists receive.
Clearly, the real explanation for Martinez’s excessive sentence must be that he expressed something deeply offensive and hateful to the LGBTQ community, period.
Moreover, and importantly, the defendant’s right to free expression by the burning of a flag, upheld by the Supreme Court in Texas v. Johnson, seems not to have been considered in sentencing. After all, national origin is a protected class. But if someone were to steal and burn an American flag, making imprecations and calling for divine vengeance against (say) the outrageously immoral American way of life, would that be a hate crime? Of course not.
Martinez was certainly expressing his religious point of view by burning the flag. He is not free to burn other people’s things; I do not deny that, of course. But neither was the judge free to pretend that the presence of a “hate crime” made it possible to punish the content of Martinez’s speech, and to ignore his freedoms of speech and religion.
Stealing the flag and burning it are punishable misdemeanors, certainly. We can even concede that they should be punished harshly, because Martinez expressed no remorse and made threatening statements. But none of that removes the fact that expressing a religious statement by burning somebody else’s flag is protected free speech. The question is not whether you have a right to burn someone’s property to express your opinion. You absolutely do not. The question is whether the court has the right to mete out more severe punishments for offensive opinions. It absolutely does not, and yet that is precisely what happened in this case. Just because Martinez committed a misdemeanor, it does not follow that the court can regulate the content of Martinez’s speech by sentencing him more harshly for what he had to say.
When hate crime legislation was first introduced, I remember being disturbed and worried about the implications for free speech. This case perfectly illustrates that worry. What can we expect next? Doubtless, certain speech being outlawed on grounds of being the hate crime of harassment directed at a protected class.
Punishing the misdemeanor of third degree arson (flag burning) more severely than a serious felony, like rape, means the court had essentially treated a minor hate crime as hate speech—which, no matter how obnoxious it might have been to the court, is protected by the First Amendment.
Again, it was obnoxious, wrong, and deserving of punishment to steal and destroy the church’s flag. A fine was certainly warranted, and perhaps a bit of jail time. But 16 years for this misdemeanor is such an outrageously imbalanced response that the sentence itself should be made an example of.
– fin –
- To access the case files, click here, then input (exactly) “Martinez” for “Last/Firm Name”, “Adolfo” (with an “f”) for “First Name”, set County to Story.