As it turns out, such activity could result in an arrest for public intoxication, and rightly so -- at least under the language of Iowa Code section 123.46, the statute prohibiting public intoxication. Section 123.46(2) states:
A person shall not use or consume alcoholic liquor, wine, or beer upon the public streets or highways. A person shall not use or consume alcoholic liquor in any public place except premises covered by a liquor control license. A person shall not possess or consume alcoholic liquors, wine, or beer on public school property or while attending a public or private school-related function. A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor. (emphasis added)I blogged about this section previously when the Iowa Supreme Court decided that you can be as drunk as the heck you want on your porch because it is not a "public place." In that previous post, I speculated that criminalizing simulated intoxication may violate the First Amendment, but I did not look into the question further.
For those who were disappointed with the short shrift I paid to this unusual law, you are in luck! At long last, here is my analysis on whether the law violates the First Amendment...
There are two scenarios I will discuss in this post. First, could any actual intoxicated person challenge the law on First Amendment grounds, even if they were truly intoxicated when arrested? And second, what about somebody who is arrested for merely simulating intoxication?
Under the overbreadth doctrine, one may challenge a law on First Amendment grounds if that law is likely to substantially restrict protected speech. A defendant can lodge this challenge even if his or her conduct is not protected speech. The logic behind this doctrine is that allowing such a challenge will lead to a constitutional evaluation of the law when lawful actors may feel chilled from exercising protected speech that the statute would prohibit.
So, let's say that Joe Sixpack drinks his namesake and is subsequently arrested. Could he successfully challenge the constitutionality of Section 123.46 on First Amendment overbreadth grounds?
In short, probably not. the Iowa Court of Appeals has held here and here that the prohibition of simulated intoxication does not prohibit a substantial amount of activity protected by the First Amendment. From the Court of Appeals' decision in State v. Gear:
The Supreme Court has held that, "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2917, 37 L. Ed. 2d 830, 842 (1973). Even if one of the alternative means of violating section 123.46(2), simulating intoxication, could be interpreted as restricting free speech as shown by actions, application of overbreadth principles would result only in partial invalidity of the statute. See Clark v. Miller, 503 N.W.2d at 424. Gear was convicted of actual intoxication in public. This falls within the statute's "plainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S. Ct. at 2917, 37 L. Ed. 2d at 842; see also Iowa Code § 123.1. We reject Gear's overbreadth argument. Accordingly, we conclude the district court did not err in denying Gear's motion to dismiss on this ground.The Gear Court also dismissed the defendant's argument that the law was unconstitutionally vague, although that analysis was less intensive:
Although the statute does not reference an explicit, objectively measurable standard for "intoxication," such as the 0.08 blood alcohol concentration used in section 321J.2, describing operating a motor vehicle while intoxicated, we do not agree the language of section 123.46(2) that applies to Gear's case encourages arbitrary and discriminatory enforcement. We conclude the statute provides sufficient guidance to law enforcement personnel so that they can understand what conduct is prohibited and does not encourage arbitrary and discriminatory enforcement.Loathe as I am to concede a constitutional challenge to such a peculiar law, I agree with the Court's overbreadth analysis. Even if the law restricts activity protected by the First Amendment, instances of simulated intoxication are so infrequent and distinct from actual intoxication that any chilling effect is likely to be minimal. The vagueness argument is a bit more of a problem, especially as "intoxicated" is undefined (compare with California's law against public intoxication [Penal Code 647(f)] which requires that one be unable to exercise care for one's own safety or that one obstruct a road or sidewalk). I suspect, in light of the Gear Court's reasoning, that a vagueness argument would also fail.
But what about Tommy the Teetotaler who refuses to drink alcohol but has a penchant for reenacting plays or books in which the main character is constantly intoxicated? If Tommy decided to put on a play in a public park, would his arrest under Section 123.46 be subject to a First Amendment challenge?
Yes it would. Tommy's public recitation of a play would likely be found to be protected speech, and prosecuting him for merely portraying an intoxicated character in the course of the act would violate the First Amendment.
I, however, am not aware of any Iowa cases involving a set of facts like Tommy's case. This is not surprising, however, because the probability of somebody being arrested for merely simulating intoxication is minimal. Arresting these people is a low priority, especially when there are people who are truly intoxicated in the vicinity. And law enforcement officers may not even realize that simulated intoxication is technically illegal.
A tougher question might be where a troublemaker feigns intoxication simply to prompt their own arrest by a law enforcement agent. Why somebody would do something so stupid is beyond me, and the probability of this person admitting to acting intoxicated simply to get arrested is extremely low. Such a case would fall into gray area between my Tommy the Teetotaler hypothetical and the Gear case. The troublemaker isn't drunk, and therefore does not appear to fall into the "plainly legitimate sweep" of the statute under Gear. But the troublemaker would have a difficult time arguing that their simulated intoxication is expressive activity protected by the First Amendment, especially if it was done for the sole purpose of distracting and provoking a police officer.
Perhaps one day an Iowa court will find itself confronted by such a troublemaker. I won't hold my breath, however, since it would take some remarkably misguided actions on a defendant's part for such a scenario to arise.
While Iowa's law against public intoxication could criminalize some activity protected by the First Amendment, I do not expect any arrests for this protected activity to happen anytime soon. By that same token, I do not expect any successful First Amendment overbreadth challenges to the law.
So to all my Iowan readers, feel free to portray your favorite drunk character in play and song in both public and private places. But if you do decide to partake, don't gamble on finding redemption in the First Amendment.