THE STATE OF WASHINGTON, Respondent, v. HAROLD OMAND SPENCE, Appellant.
No. 854-1
Division One—Panel 1.
November 15, 1971.
Petition for rehearing denied December 17, 1971.
5 Wash. App. 752
Christopher T. Bayley, Prosecuting Attorney, and James E. Warme, Deputy, for respondent.
HOROWITZ, C.J.—Defendant, after jury trial, was convicted of violating
No person shall, in any manner, for exhibition or display:
(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state, or authorized by any law of the United States or of this state; or
(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement.
The words flag, standard, color, ensign or shield, as used in this chapter, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to
be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof.
The facts are these: Defendant, by the use of removable plastic tape, superimposed a peace symbol upon an American flag in his possession. He then displayed the flag containing the peace symbol to public view by hanging it out of his apartment window in Seattle, Washington, in an upside-down position. The plastic tape peace symbol consists of black lines forming a circle, which in turn contains black straight lines in much the form of an inverted trident. Defendant testified that his purpose in placing the peace symbol upon the flag displayed was to associate the flag with peace instead of war and violence, and to serve as a protest to the invasion of Cambodia and the killings at Kent State University, both of which events had occurred a few days before. He testified that he did not know that placing the plastic tape peace symbol upon the flag was against the law.
The state does not contend the information charged defendant with desecrating the flag—flag desecration being prohibited by
A flag may be considered from two aspects: (1) as a physical object, and (2) as a symbol of ideas. As a physical object, its ownership is subject to the proper exercise of the state‘s police power (see Cross, The Diminishing Fee, 20 Law & Contemp. Prob. 517 (1955), cited in Sutherland v. Southcenter Shopping Center, Inc., 3 Wn. App. 833, 847 n.6, 478 P.2d 792 (1970)), and such ownership is protected by the Fifth and Fourteenth Amendments implemented, for example, by laws relating to trespass. As a symbol, its regulation is also subject to the proper exercise of the state‘s police power, but the use of the symbol is protectable, if at all, by the First and Fourteenth Amendments which provide a restraint upon the exercise of police power. See Halter v. Nebraska, 205 U.S. 34, 51 L. Ed. 696, 27 S. Ct. 419 (1907); State v. Oyen, 78 Wn.2d 909, 913, 480 P.2d 766 (1971); Annot., 22 L. Ed. 2d 972 (1970).
The basic question here involves a determination of whether the constitutional right of free speech (
Flags have a long and worldwide history. 9 Encyclopedia Britannica 398, Flags (22d ed. 1970); E.M.C. Barraclough, Flags of the World (Rev. ed. 1965); Quaife, The Flag of the United States (1942). They serve a variety of functions. Thus, they may be used as a reminder of an historic past, a mirror of a peaceful or turbulent present, and a promise of conditions hoped for or of events to come. The American flag is similarly used. The American flag, however, has its own communicating function. Its content finds expression and use based on American experience, American values
If the flag says anything at all, and we agree it often may in a given context, we think it says everything and is big enough to symbolize the variant viewpoints of a Dr. Spock and a General Westmoreland. With fine impartiality the flag may head up a peace parade and at the same time and place fly over a platoon of soldiers assigned to guard it.
. . . Sometimes the flag represents government. . . Always it represents America—in all its marvelous diversity.
It is understandable that a concern for the preservation of the flag‘s symbolism should find expression, all over the land and in a variety of contexts, in federal and state statutes designed to protect the American flag and representations of that flag against both misuse and disrespect. See e.g.,
From the case law it is clear that even defiant or contemptuous words spoken of the flag are protected free speech; and the fact that the words would be offensive to the sensibilities of the average citizen is not a controlling consideration. Street v. New York, 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969). Thought and ideas, however, may be conveyed by nonspeech symbols as well as by words. Such symbols when so used constitute symbolic speech which is protected by the First Amendment. Tinker v. Des Moines School Dist., 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). Furthermore, a statute mandating respect for the flag, as in the case of a compulsory flag salute, is a violation of the First Amendment. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A.L.R. 674 (1943). Even the display of an alien red flag symbolizing opposition to the American government is constitutionally protected free speech. Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532, 73 A.L.R. 1484 (1930).
It might be suggested that the state has the right to regulate the nonspeech aspects of conduct as long as the regulation does not impair or regulate speech itself. Cf., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 93 L. Ed. 834, 69 S. Ct. 684 (1949); Adderley v. Florida, 385 U.S. 39, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966). This view is the rationale, for example, of the majority opinion in People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (1970), affirmed per curiam by an equally divided court, 402 U.S. 989, 28 L. Ed. 2d 287, 91 S. Ct. 1217 (1971). Whatever workability this rule may possess in the presence of actual speech, the rule may well be unworkable in the presence of conduct which itself is constitutionally protected symbolic speech and is nonseverable therefrom. Thus, the wearing by high school students of black armbands to protest American policy in Vietnam is conduct and is nonseverable from the symbolic speech exemplified by the arm-
It has also been pointed out that the constitutional right of free speech is not absolute and does not automatically and mechanically prevail against statutes protecting legitimate governmental interests by prohibition or regulation of designated conduct with respect to the flag. Thus, a statute may prohibit the use of a flag for commercial advertising purposes (see Halter v. Nebraska, supra); or a statute may protect the dignity of a foreign flag pursuant to an obligation imposed by international law (1 L. Oppenheim, International Law § 121 (7th ed. 1948); 2 G. Hackworth, Digest of International Law § 127 (1941); G. Wilson, Respect for National Flag, 29 Am. J. of Int‘l Law 662 (1935)); or a statute may protect the flag if so to do protects the safety of the state against a clear and present danger. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L. Ed. 1031, 62 S. Ct. 766 (1942); Schenck v. United States, 249 U.S. 47, 63 L. Ed. 470, 39 S. Ct. 247 (1919); State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952). It is conceivable, although we do not determine the matter, that a statute may properly seek to preserve a privately owned flag of historic importance; or a statute may protect the identifying function of the flag at home and abroad against substantial impairment; or a statute may regulate the form of a military salute in America‘s armed forces. Furthermore, it may be assumed that a statute may properly protect the encouragement of love of country. See Halter v. Nebraska, supra. These are independent and protectable governmental interests.
The problem of reconciling protection of legitimate gov-
In our opinion the statutory prohibition of the act of affixing a peace symbol to the American flag and displaying the flag with the peace symbol so affixed from a window is not constitutionally permissible as protection of a societal or governmental interest “unrelated to the suppression of free expression” as required by O‘Brien. The prohibition of defendant‘s conduct does not fall within the class of any of the constitutionally permissible prohibitions already discussed, nor are the possible societal interests listed by Mr. Justice Harlan in Street v. New York, supra, available as justification for the statutory prohibition concerning the flag use involved here. The interests held insufficient to justify the prohibition of words critical or even contemptuous of the flag are discussed as follows by Mr. Justice Harlan in Street v. New York, supra:
(1) an interest in deterring appellant from vocally inciting others to commit unlawful acts; (2) an interest in preventing appellant from uttering words so inflammatory that they would provoke others to retaliate physically against him, thereby causing a breach of the peace; (3) an interest in protecting the sensibilities of passers-by who might be shocked by appellant‘s words about the
American flag; and (4) an interest in assuring that appellant, regardless of the impact of his words upon others, showed proper respect for our national emblem.
394 U.S. at 591. If such interests are insufficient with respect to words considered in Street v. New York, supra, critical or contemptuous of the flag, they would clearly be insufficient as to symbols used conveying the same meaning as the words themselves; and a fortiori they would be insufficient as to symbols respectful of the flag and involving no physical destruction of any part thereof, the flag in conjunction with the peace symbol being used to passively communicate a constitutionally protected message. To prohibit defendant‘s conduct in the instant case when such conduct is nonseverable from a constitutionally protected message may in effect constitute a prohibition of free speech itself, and thus be violative of the First Amendment as construed in United States v. O‘Brien, supra.
The next question presented, therefore, is whether a peace symbol, which would be protected symbolic speech if used away from the flag (see Street v. New York, supra; Stromberg v. California, supra; Tinker v. Des Moines School Dist., supra; West Virginia State Bd. of Educ. v. Barnette, supra), has no such special constitutional protection when the peace symbol is placed upon the flag itself. If the flag mirrors American experience, past and present; and if respect for the flag cannot constitutionally be compelled by a mandatory flag salute; and if symbolic opposition to the flag cannot be prohibited; and if symbolic as well as actual speech is entitled to constitutional protection; and if the suppression of free expression cannot be upheld in the absence of an independent governmental interest to be protected, unrelated to the suppression of free expression and not broader than is necessary for that purpose; and if offense to the sensibilities of the average citizen is not enough to condemn the exercise of free speech—can it be said to really matter, on a balancing of interests, whether the words or symbols are used away from the flag or representations thereof even though in closest proximity
The doctrine of Long Island Vietnam Moratorium Comm. v. Cahn, supra, is necessarily supported by recent federal cases involving the flag itself that have invalidated flag desecration statutes as violative of the First Amendment because of overbreadth and vagueness. Parker v. Morgan, 322 F. Supp. 585 (W.D. N.C. 1971); Hodsdon v. Buckson, supra; Crosson v. Silver, 319 F. Supp. 1084 (Ariz. 1970). The case law on the validity of flag desecration statutes is not unanimous, however. See inter alia State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970), in which the validity of former
It should be noted that the decisions invalidating flag-desecration statutes or improper-use statutes do not hold that a flag-use statute or a flag-desecration statute cannot under any circumstances be enacted. We have already
When the issue is whether a statute violates the First Amendment, it was recognized in Adams v. Hinkle, 51 Wn.2d 763, 322 P.2d 844 (1958), following the federal rule, that there is no presumption that the statute attacked is constitutional and that “‘the State has a heavy burden to demonstrate that the limitation challenged . . .’ is constitutionally valid.” 51 Wn.2d at 769. Furthermore, a defendant charged with violating a statute ordinarily has no standing to assert the doctrine of overbreadth if he is not its victim (State v. Cashaw, 4 Wn. App. 243, 480 P.2d 528 (1971)); yet in a First Amendment case he does have standing to rely upon overbreadth on the face of the statute in either federal or state courts even if he thereby asserts overbreadth as to others. United States v. Raines, 362 U.S. 17, 21-22, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960); Dombrowski v. Pfister, 380 U.S. 479, 486, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965); Thornhill v. Alabama, 310 U.S. 88, 97-98, 84 L. Ed. 1093, 60 S. Ct. 736 (1940); Fort v. Civil Service Comm‘n, 61 Cal. 2d 331, 392 P.2d 385, 389-90, 38 Cal. Rptr. 625, 630 (1964); In re Davis, 242 Cal. App. 2d 645, 51 Cal. Rptr. 702, 716-17 (1966); 2 C. Antieau, Modern Constitutional Law § 15.23 (1969).
Should overbreadth exist the statute itself may be invalidated, or the overbroad application of the statute to the defendant will be negated. As stated in NAACP v. Button, supra at 432:
The instant case illustrates overbreadth on the face of
It would be irresponsible to suggest that the common use of flag representations to provide ideological emphasis or support for words or symbols considered public-spirited or patriotic, or in the course of political campaigns, proceeds upon any assumption other than the assumption that the use is entirely lawful and, to the more sophisticated at least, that such use is protected free speech. It must be remembered, however, that the right of free speech, symbolic or actual, is not limited to a message orthodox and uncontroversial, nor is it limited to words or symbols that would not affront the average citizen‘s sensibilities in the absence of a protectable governmental interest requiring otherwise. See e.g., Street v. New York, 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969); United States v. O‘Brien, supra; West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A.L.R. 674 (1943). It is not suggested that the constitutionality of a statute be determined by the logical application of a widely held public opinion. This is because wishes expressing strongly held values and constitutional text may differ. Should such a difference exist, it would be our duty to follow the text. Yet if the text speaks in general terms requiring implementing definition by the court, such implementing definition must be a rational and reasonable one. Should the implementing definition be in conformity with the logical implications of publicly held values, the rational character of the implementing definition would be supported by that fact. We think that support exists here.
This being a First Amendment case, the defendant, even though not the victim of the overbreadth described in Long Island Vietnam Moratorium Comm. v. Cahn, supra, with
In so concluding, we recognize that the problem here with respect to which we have both power and duty is only to determine whether the defendant had the constitutional right to do what he did. We judicially know that the exercise of the right of free speech often has emotional overtones. At one extreme such an exercise is regarded as a raw and irrational contest between government on the one hand and an irresponsible individual on the other. To others the exercise of the right of free speech is but the assertion of what the literal meaning of the First Amendment permits. The doctrines of symbolic speech and overbreadth as developed by the courts adopt neither extreme and seek to give effect both to the proper societal interest of the state and nation without rejecting the proper free speech demands of the individual. Under that doctrine, the American flag continues to be entitled to our affection and respect as described in Halter v. Nebraska, 205 U.S. 34, 51 L. Ed. 696, 27 S. Ct. 419 (1907). Halter, however, no more controls our decision in this case than does the latest case dealing with flag desecration which requires intent to desecrate as distinguished from flag use, which does not. Joyce v. United States, supra; State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970). Halter was concerned with a portion of the Nebraska flag statute similar to
In our opinion,
The judgment is reversed with directions to dismiss the charge.
UTTER, J., concurs.
WILLIAMS, J. (dissenting)—The principal question in this case simply stated is: Does the interest of the citizens of the state of Washington in the preservation of the integrity of the American flag transcend the desire of appellant to publicly proclaim his political views by the use of that flag as a backdrop or billboard? I believe the essential purpose of the flag should be preserved and that our state government has properly prohibited the use which appellant would make of it.
In essence, appellant‘s argument is that he has a right protected by the First Amendment to employ the American flag to express and convey his ideas and to make alterations to the flag best suited to his purposes. There is no doubt that an American flag so employed will attract attention and that a message placed thereon either in words or by symbol will be broadcast.
[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
The statute in question is well within the requirements of these criteria.
The United States Supreme Court in Halter v. Nebraska, 205 U.S. 34, 51 L. Ed. 696, 27 S. Ct. 419 (1907), decided that a state may prevent the misuse of the American flag, not only to prevent breaches of the peace generated thereby, but also because
[i]t is not extravagant to say that to all lovers of the country it [the flag] signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression. As the statute in question evidently had its origin in a purpose to cultivate a feeling of patriotism among the people of Nebraska, we are unwilling to adjudge that in legislation for that purpose the State erred in duty or has infringed the constitutional right of anyone. On the contrary, it may reasonably be affirmed that a duty rests upon each State in every legal way to encourage its people to love the Union with which the State is indissolubly connected.
Should the law be, as contended by appellant, that each citizen under the guise of “symbolic speech,” is free to mutilate or disfigure the flag to express his ideas, good or bad, then the essential purpose of the flag, which Woodrow
Our Supreme Court in State v. Oyen, 78 Wn.2d 909, 918, 480 P.2d 766 (1971) had this to say:
In applying the concept in situations where freedom of speech may be concerned, it is essential to bear in mind that an otherwise valid statute, which, in protecting important societal interests, makes a particular course of conduct illegal, does not run afoul of the constitution merely because the right of free speech may be intermingled with the condemned conduct. Cox v. Louisiana, supra, [379 U.S. 536, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965)]; United States v. O‘Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968); Cameron v. Johnson, 390 U.S. 611, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1968); Adderley v. Florida, 385 U.S. 39, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966); Kovacs v. Cooper, 336 U.S. 77, 93 L. Ed. 513, 69 S. Ct. 448 (1949).
In such situations, however, it is incumbent upon the court to weigh the purported impairment of speech engendered by the statutory provision against the importance of the societal interest sought to be vindicated by the statute, as well as the nature and extent of the threat which the statutorily forbidden conduct poses to that interest. And, too, the alternatives available to the state and the claimant must be evaluated, i.e., whether the state may achieve its ends in a less restrictive manner and/or the claimant effect his communication in a way less detrimental to the societal interest.
As seen, the statute protects an important societal interest, whereas appellant has suffered a very slight impair-
As to appellant‘s contention that the statute does not meet the constitutional test of due process because it is vague, I believe that it is sufficiently definite to inform a person with reasonable precision what acts are prohibited, so that he may have a certain, understandable rule of conduct and know what acts he must avoid. State v. Oyen, supra.
It is of no importance that appellant was arrested for violation of a flag misuse law rather than one for desecration containing an element of contemptuous intent because the power of the state to further the peoples’ interest by protecting the flag may be exercised irrespective of evil or malice. State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970). The statute with which we are concerned has for its purpose the preservation of unmarked national and state symbols. The prohibition is against all disfigurement, no matter how noble the thought behind it.
Freedom of speech does not, in my view, include freedom to publicly use the American flag in the manner employed by appellant, in the face of an acknowledged societal interest in the flag. Although it may be important to appellant to express his views in this novel way, he should remember that the United States, as symbolized by the American flag, is important too.
The judgment should be affirmed.
Petition for rehearing denied December 17, 1971.
Appealed to Supreme Court December 27, 1971.