Spence v. Washington

Notable Items:

• If this interest [it will lose its capability of mirroring the sentiments of all who view it] is valid, we note that it is directly related to expression in the context of activity like that, undertaken by appellant. For that reason, and because no other governmental interest unrelated to expression has been advanced or can be supported on this record, the four-step analysis of Need entry for United States-OBrien , is inapplicable. [Footnote 8]
• Because we agree with appellant's as-applied argument, we do not reach the more comprehensive overbreadth contention he also advances. But it is worth noting the nearly limitless sweep of the Washington improper use flag statute. Read literally, it forbids a veteran's group from attaching, e.g., battalion commendations to a United States flag. It proscribes photographs of war heroes standing in front of the flag. It outlaws newspaper mastheads composed of the national flag with superimposed print. Other examples could easily be listed. [Footnote 9]
• Core idea of Rehnquist dissent: It [the State of Washington] simply withdraws a unique national symbol [flag] from the roster of materials lat [sic] may be used as a background for communications. Since I do not believe the Constitution prohibits Washington from making that decision, I dissent.
• Rehnquist would seem to prohibit recent (2023) flags patterned on the US flag, black with one blue stripe, or black with one red stripe.

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• Appellant displayed a United States flag, which he owned, out of the window of his apartment.
• Affixed to both surfaces of the flag was a large peace symbol fashioned of removable tape.
• Appellant was convicted under a Washington statute forbidding the exhibition of a United States flag to which is attached or superimposed figures, symbols, or other extraneous material.
• A full recounting of the facts is available below

Procedural History:

• Appellant initially was tried to the bench in a local Justice court, where he was found guilty and sentenced to 90 days' confinement, with 60 days suspended.
• Appellant exercised his right to be tried de novo in King County Superior Court, where he received a Jury trial.
• He testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a few days prior to his arrest.
• Appellant further testified that he chose to fashion the peace symbol from tape so that it could be removed without damaging the flag. The State made no effort to controvert any of appellant's testimony.
• The jury returned a verdict of guilty. The court sentenced appellant to 10 days in jail, suspended, and to a $75 fine.
• The Washington Court of Appeals reversed the conviction. 5 Wash. App. 752, 490 P.2d 1321 (1971). It held the improper use statute overbroad and invalid on its face under the First and Fourteenth Amendments.
• With one justice dissenting and two concurring in the result, the Washington Supreme Court reversed and reinstated the conviction. 81 Wash. 2d 788, 506 P.2d 293 (1973).

Rationale

Per Curiam Majority Opinion (Blackmun concurs in the result)

• To be sure, appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, ....
• But the nature of appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.
• An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.
• ... we think it appropriate to review briefly the range of various state interests that might be thought to support the challenged conviction, drawing upon the arguments before us, the opinions below, and the Court's opinion in Street v. New York, 394 U. S. 576, 394 U. S. 590-594 (1969).
• The first interest at issue is prevention of breach of the peace. In our view, the Washington Supreme Court correctly rejected this notion. It is totally without support in the record.
• We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby.
• Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. See Cohen v. California, 403 U. S. 15 (1971).
• Nor may appellant be punished for failing to show proper respect for our national emblem. Street v. New York, supra, at 394 U. S. 593; Board of Education v. Barnette, supra.
• We are brought, then, to the state court's thesis that Washington has an interest in preserving the national flag as an unalloyed symbol of our country.
• Presumably, this interest might be seen as an effort to prevent the appropriation of a revered national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular product or viewpoint might be taken erroneously as evidence of governmental endorsement.
• Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol.
• The statute is nonetheless unconstitutional as applied to appellant's activity. [Footnote 9]
• Moreover, his message was direct, likely to be understood, and within the contours of the First Amendment.
• Given the protected character of his expression, and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts, the conviction must be invalidated.
• A full description of the rationale is available below

Douglas Concurrance (??)

• I would reverse the judgment for substantially the same reasons given by the Iowa Supreme Court in State v. Kool, 212 N.W.2d 518.
• The court held that defendant's conduct constituted "symbolic speech." The court, in reversing the conviction, said: "Someone in Newton might be so intemperate as to disrupt the peace because of this display. But if absolute assurance of tranquility is required, we may as well forget about free speech. Under such a requirement, the only 'free' speech would consist of platitudes. That kind of speech does not need constitutional protection." 212 N.W.2d at 521.
• That view is precisely my own. Hence, I concur in reversing this judgment of conviction.

Burger Dissent

• If the constitutional role of this Court were to strike down unwise laws or restrict unwise application of some laws, I could agree with the result reached by the Court.
• That is not our function, however, and it should be left to each State and ultimately the common sense of its people to decide how the flag, as a symbol of national unity, should be protected.
• [Rejects the question of constitutionality?]

Rehnquist Dissent

• Although I agree with the Court that appellant's activity was a form of communication, I do not agree that the First Amendment prohibits the State from restricting this activity in furtherance of other important interests.
• The Court today finds Halter [v. Nebraska prevent use of a flag representation on beer bottles] irrelevant to the present case, ... noting that it involved "commercial behavior," ....
• The Court may possibly be suggesting that political expression deserves greater protection than other forms of expression, but that suggestion would seem quite inconsistent with the position taken in Lehman v. Shaker Heights, ante, p. 418 U. S. 298 (1974), [Footnote 2/2] by nearly all Members of the majority in the instant case.
• Unlike flag desecration statutes, which the Court correctly notes are not at issue in this case, the Washington statute challenged here seeks to prevent personal use of the flag, not simply particular forms of abuse.
• Mr. Justice Fortas, for example, noted in Street v. New York, 394 U. S. 576, 394 U. S. 616 (1969), that "the flag is a special kind of personalty," a form of property "burdened with peculiar obligations and restrictions." Id. at 394 U. S. 617 (dissenting opinion).
• What appellant here seeks is simply license to use the flag however he pleases, so long as the activity can be tied to a concept of speech, regardless of any state interest in having the flag used only for more limited purposes. [emphasis added...core idea of dissent]
• It [the State of Washington] simply withdraws a unique national symbol from the roster of materials lat may be used as a background for communications. Since I do not believe the Constitution prohibits Washington from making that decision, I dissent.

Full Recounting of Facts

• On May 10, 1970, appellant, a college student, hung his United States flag from the window of his apartment on private property in Seattle, Washington.
• The flag was upside down, and attached to the front and back was a peace symbol (i.e., a circle enclosing a trident) made of removable black tape.
• The window was above the ground floor. The flag measured approximately three by five feet and was plainly visible to passersby.
• The peace symbol occupied roughly half of the surface of the flag.
• Three Seattle police officers observed the flag and entered the apartment house. `
• Appellant permitted the officers to enter his apartment, where they seized the flag and arrested him.
• Appellant cooperated with the officers. There was no disruption or altercation.
• A list of the material facts is available above

Per CuriamPer Curiam Majority Full Argument (Blackmun concurs in the result)

• Part I See Material Facts
• Part I Procedural History
• Part II -- Analysis and Conclusion
• A number of factors are important in the instant case.
• First, this was a privately owned flag.
• Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place, or manner restraints on access to a public area.
• Third, the record is devoid of proof of any risk of breach of the peace. It was not appellant's purpose to incite violence or even stimulate a public demonstration.
• Fourth, the State concedes, as did the Washington Supreme Court, that appellant engaged in a form of communication.
• To be sure, appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, ....
• But the nature of appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.
• The Court for decades has recognized the communicative connotations of the use of flags. E.g., Stromberg v. California (1931) . In many of their uses, flags are a form of symbolism comprising a "primitive but effective way of communicating ideas ... ," and "a short-cut from mind to mind." Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 632 (1943).
• On this record, there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag, but also the superimposed peace symbol.
• Moreover, the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol. See Tinker v. Des Moines Independent Community School District (1969) .
• An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.
• ... we think it appropriate to review briefly the range of various state interests that might be thought to support the challenged conviction, drawing upon the arguments before us, the opinions below, and the Court's opinion in Street v. New York, 394 U. S. 576, 394 U. S. 590-594 (1969).
• The first interest at issue is prevention of breach of the peace. In our view, the Washington Supreme Court correctly rejected this notion. It is totally without support in the record.
• We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby.
• Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. See Cohen v. California, 403 U. S. 15 (1971).
• Nor may appellant be punished for failing to show proper respect for our national emblem. Street v. New York, supra, at 394 U. S. 593; Board of Education v. Barnette, supra.
• We are brought, then, to the state court's thesis that Washington has an interest in preserving the national flag as an unalloyed symbol of our country.
• Presumably, this interest might be seen as an effort to prevent the appropriation of a revered national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular product or viewpoint might be taken erroneously as evidence of governmental endorsement.
• Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol.
• The statute is nonetheless unconstitutional as applied to appellant's activity. [Footnote 9]
• Moreover, his message was direct, likely to be understood, and within the contours of the First Amendment.
• Given the protected character of his expression, and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts, the conviction must be invalidated.
• The judgment is reversed.
• The core of the rationale is available above