United States v. William Charles Cary, Jr.

917 contango spec- to have no economic effect other than the its, genuine and losses benefits.”); generation And the odds of tax Kirchman v. create. ulation genuine specu- Commissioner, (11th [1,400] 862 F.2d 1493 against the trades of happening lators, profits, just Cir.1989) (“We where, seeking here, real hold that * * * of their exactly the amount to lose substance of a transaction is the It phenomenal. must be margin deposits, fee, of income creation tax benefits for to think a coin was might not reasonable taxpayer characterizes that however once, ‘heads’ it lands unbalanced because fee, the transaction is a sham for income far more rea- that conclusion becomes but purposes.”). tax up [1,400]times turns sonable when ‘heads’ holdings We adhere to the unanimous row.”) (emphasis original); Fried- in a hold that the tax our sister circuits. We Commissioner, F.2d 793- 869 man v. findings court did not error in its of fact or Cir.1989) (4th (“Every petitioner before options in its conclusion that these straddle Glass, including taxpayers court in op- were substantive shams. The London herein, the trades were matter when no designed, promoted, tion transactions were closing trades opened, no matter when purpose executed for the sole tax commodities place, no matter what took The transactions lacked eco- avoidance. traded, received, closing as a result were such, they nomic substance. As are out- ordinary loss in the first options, an sold 165(c)(2) purview side the and 108 of §§ * * * intentionally in- these year. Given the Internal Revenue Code. * * * uphold the we must curred losses judgment assessing of the tax court finding.”); Killingsworth v. court’s Glass against taxpayers af- deficiencies (5th Commissioner, F.2d firmed. Cir.1989) (“[T]he whole scheme smacks taxpayers fare no tax avoidance and the they than do objective under the test

better test.”); subjective

under the Ratliff (6th Commissioner, F.2d Cir. * * * 1989) (“Reduced to the bare essen- fee,

tials, transpired is that for a what advantages tax London sold

brokers did high-bracket taxpayers. The ‘investors’ America, Appellee, STATES of UNITED any profits from their transac- not receive tions, beyond or sustain actual losses ”); ‘margin deposits.’ initial Keats v. their CARY, Jr., Appellant. William Charles States, (6th Cir.1988) 865 F.2d 86 United summary (upheld grant district court’s No. 88-5458. Commissioner); judgment Yosha Appeals, United States Court Commissioner, (7th 499-501 Eighth Circuit. Cir.1988) (“The in this case transactions * * * only possible devices were whose 10, 1989. Submitted Oct. to avoid taxes and contemplated effect was Decided Feb. engaged were not a fortiori meaning of section profit within the * * * 165(c)(2). lack lies of substance pros- had zero

in the fact that the investor

pect gain or loss. The brokers were losses.”);

selling tax Keane v. Commis- Cir.1989) (9th

sioner, F.2d * * * (“[T]he correctly held that Tax Court year first losses were not deductible

under section 108 because the transactions designed and executed so as

at issue were Michel, Minn., Minneapolis,

Cecilia for appellant. Anderson, Jr., H. Minneapolis,

Thorwald Minn., appellee. McMILLIAN,

Before R. JOHN GIBSON, MAGILL, Judges. Circuit MAGILL, Judge. Circuit Cary, (Cary) William Charles ap Jr. peals knowingly casting his conviction1 of contempt upon flag of the United States by publicly burning it in violation of 18 (1988).2 U.S.C. district § two-day (b) jury "flag conviction followed a trial The term of the United States” as 22-23, August section, on any flag, used in this shall include standard, colors, ensign, any picture or or 2. 18 U.S.C. 700 provides: § either, representation any part or of or (a) either, knowingly contempt parts any Whoever casts made of substance or upon any flag substance, by publicly represented any United States size mutilating, defacing, defiling, burning, evidently purporting flag, to be either of said be, trampling standard, colors, upon ensign it shall fined not more of the United $1,000 imprisoned America, than picture for not more than represen- States of or a aor year, either, upon one or both. tation of which shall be shown grounds,7 court,3 against consti on other the district find- upheld court’s ing applied. 700 is constitutional attack,4 Cary to three tutional sentenced imposed special custody months twenty-five ap dollars. On assessment I. challenges constitutionality

peal, Cary the 18,1988, March On several hundred dem- only applied. as of the federal statute 8 gathered uptown in onstrators Minne- appeal is whether the presented issue apolis at the corner of Lake Street and in Supreme opinion recent Court’s Hennepin protest Avenue to the decision of — 2533, U.S. -, 105 the United States Government to send (1989), which held the Texas L.Ed.2d 342 3,200 troops to Honduras. Tr. at 116-17.9 flag desecration statute5 unconstitutional protect to order demonstrators from mo- applied, as mandates that we reverse torists, Minneapolis Department the Police the facts of Cary’s conviction.6 Because portions closed of the streets one block in in distinguishable from those this ease are either direction of the intersection of Lake the federal we believe Hennepin and with wooden barricades. Tr. halting pre interest Furthermore, inspector at 99. the peace in venting further breaches Minneapolis Department Police ordered the Armed Recruitment front of its Services making officers to refrain from arrests justifies Cary’s conviction for Center during Cary the demonstration. Tr. at 53. we affirm con burning. agrees providing atmosphere an affirm, doing, albeit where viction. In so we also demonstrators be safe from colors, any Cary alleges stripes, the stars and the 6. also the district court erred in thereof, any part or or failing jury number of either instruct to convict him of either, average parts person which the violating prove the state must he had the may seeing the same without deliberation be- flag. specific contempt upon intent to cast standards, represent flag, the same lieve colors, record, reviewing reject Cary's After we ar- ensign or of the United States of Amer- gument that the district court erred. The court ica. jury instructed the act is done know- “[a]n (c) Nothing in this section shall be con- ingly voluntarily intentionally if it done indicating part strued as an intent on the and not because of mistake or accident or other State, Congress deprive any territory, pos- 23, 1988) (Aug. innocent reason.” Tr. at 181 session, or the Commonwealth of Puerto Rico added). (emphasis Such an instruction was jurisdiction over offense over which it proper. both sufficient and jurisdiction would have in the absence of this section. appears upheld The district court to have Devitt, 3. The Honorable Edward J. Senior Unit- constitutionality 700 face as §of on its Judge ed States District for the District of applied upon based a Minnesota. symbol. protecting a national We as rely pre- instead on the Although Cary it clear attacked the statute face, venting peace. further breaches in the district court on its it is unclear applied. whether he attacked the statute as Tr. 25, 5-8, 1988); (Aug. (July 90 Tr. at 5-8 testimony differs as to the exact number 8. The 1988). challenges he now the statute Because sister, Cary, Cary’s testi of demonstrators. Lisa applied, assume that he also made an as we fied that there were "hundreds” demonstra applied attack in the district court. Carter, 1988). (Aug. Tr. at John a tors. officer, Minneapolis police that there testified (1989) provides: 5. Tex.Penal Code Ann. 42.09 people between 100 and 120 in the area. were (a) person commits an if he in- A offense 22, 1988). (Aug. Because we resolve Tr. at 56 tentionally knowingly desecrates: verdict, jury disputes we factual in favor monument; (1) presume there were hundreds of demonstrators. burial; (2) place worship York, See Street v. New a state or national (1969); 22 L.Ed.2d 572 United section, (b) purposes "desecrate" For of this Martin, (8th F.2d Cir. States v. deface, damage, physical- or otherwise means ly Willis, 1985); United States v. way mistreat in a that the actor knows will 1985). (8th Cir. seriously persons offend one or more observe or discover his action. transcript (c) are to the Au- 9. All references to An offense under this section is a Class 22-23, gust unless otherwise noted. 1988 trial A misdemeanor.

traffic, displayed cooperative tors left the scene because of the violence. police spirit. Cary Tr. at 138. Tr. at 101-02. Even characterized “dangerous.” the situation as Tr. at 126. Cary, approximately p.m., At 4:50 Lisa recognized that the de- He violence was sister, protest, which arrived at the engaged in “fun.” structive and Id.13 that time was still located at the inter- Hennepin her section of and Lake. From Upon hearing breaking of the win- in the demonstration until her involvement dows, Cary, talk- who was across street flag in burned the American front brother sister, ing to his walked towards the build- Center, the Armed Services Recruitment shooting ing. He encountered the man five other burn- Lisa witnessed through roman candles win- broken ings.10 Tr. at 100-01. No arrests were approximately dows. two min- Id. Within made in connection with these other break, Cary utes after heard the windows Furthermore, burnings. there is no evi- him, up an unidentified woman came of these dence the record that five flag light handed him a and told him to it. flag burnings accompanied were vio- taking steps Tr. at 146. Instead of calm lence. police, the crowd or call the Tr. at demonstration, During the course Cary flag. lit Cary, the unidentified protesters ten marched blocks down flag woman and two others held the as it Lake Street to the Recruitment Center. Cary burned. Government Exhibit No. 4. 100, 101, Cary at 124. arrived at Tr. When burning flag then threw the into an alcove wearing a the Recruitment Center slit Fearing of the Recruitment Center. Id. flag poncho,11 a American as a crowd of might ignite building,14 the flames sev- people demonstrating were still in front of persons eral unidentified rushed to the building. speaking There man was a building put out the fire. Id. through a bull Tr. at the crowd horn. 126. flag burning, police After the however, re- point, the character of the At description ceived a of the individual demonstration turned violent. who had set the on fire. One-half hour charged One unidentified individual later, Minneapolis Department Police Recruitment and Center broke its front Cary questioned arrested and him on a 58; Tr. at Government Exhibit windows. charge of arson. Tr. at He 82-83. was (video).12 People began yelling No. 4 days Monday, released three later on 101-02, 125; leaving the scene. Tr. at 21, 1988, charges March and the arson Exhibit No. 4. Another un- Government dropped. were Tr. at 82-83. The woman repeatedly identified vandal shot roman helped Cary who burn was not candles into the Recruitment Center 66; police arrested because the were unable to through Tr. the broken windows. at identify despite public appeal. her a Cary Government Exhibit No. 4. Lisa tes- Tr. at tified that she and several other demónstra- 84. There is no evidence in the record that place p.m. representation 10.One took at 5:15 in front place accurate of the events as yogurt shop. of a frozen A second took occurred. Tr. at 54. general p.m. 5:45 in the same area. A third place took while the demonstrators walked to During a March 1988 interview with Vir- place Center. the Recruitment the A fourth took Carlson, gil Minneapolis fireman of the Arson right group Center Recruitment before the Division, Cary necessarily stated that he did “not place arrived. A fifth took as some demonstra believe the demonstration as a whole was non- tors marched back to the intersection of Lake Attorney violent.” Tr. at 66-67. Assistant U.S. Hennepin. Cary Cary Lisa did not observe Anderson, closing argument, Thor in his re- flag burning burn the was the sixth ferred to the destructive acts as vandalism. Tr. and final noted in the record. at 175. 139; (vid- 11. Tr. at Government Exhibit No. 4 eo). alcove, person 14. As the burned in the one yelled, building.” yelled “Evacuate the Another According testimony Minneapolis living people building.” are in the “[t]here one-quarter Police Officer John Carter who was block from the Recruitment Government Exhibit No. 4. Center, the events portrayed tape in the video were a fair and conduct led 109 S.Ct. at 2538. If the violent the individuals whose danger- expression, was interest is related to Cary to conclude the situation then we pass must determine whether it ous were arrested. can a far demanding scrutiny. more standard of Id. release, Cary was days A few after his of 18 U.S.C. arrested for violation in the admitting participation

after A. during pre- burning. July On In order to determine whether hearing, Cary moved to dismiss trial motion Cary’s flag burning constituted that the federal the indictment on the basis conduct, inquire we must whether “[a]n was unconstitutional. district statute convey particularized message intent to After court denied this motion. present, was the likelihood [whether] 22, 1988, August government rested on great message would be un judgment acquittal for a on moved derstood Spence those who viewed it.” that the federal statute was un- basis 405, 410-11, Washington, constitutional. The district court also de- 2727, 2730-31, 41 L.Ed.2d 842 later, Nearly year one nied this motion. (per curiam). Cary burned an American Supreme decided June Court part political of a demonstration Johnson, holding that the Texas against decision to send un- applied desecration statute as was troops American to Honduras. The nature Because the cases are dis- constitutional. Cary’s of expressive action was both tinguishable, we find Texas v. Johnson political. Cary’s conduct demonstrated an controlling affirm on other to be and we convey disagreement intent to with grounds finding the con- district court’s foreign policy American in Central Amer Therefore, stitutionality. Cary’s affirm we ica. His actions were understood those conviction. being who viewed it as in furtherance of Cary’s that belief. we hold that II. “ ‘sufficiently conduct was with ele imbued Cary knowingly casting was convicted of implicate ments of communication’ ... contempt upon of the United the First Amendment.” Texas v. See John by publicly burning States it in violation of (dictum) son, (quoting 109 S.Ct. at 2540 18 U.S.C. In order to determine Spence Washington, 418 U.S. at whether or not this federal statute is con- 2730). S.Ct. at applied, stitutional as we must first deter- Cary’s burning mine whether of the B. conduct, thereby in- constituted voking the First whether Amendment. See Texas v. order to determine O’Brien’s Johnson, Second, relatively apply 109 S.Ct. at 2538. if lenient standard should punishment of Cary’s burning government’s of the constituted ex- evaluate the conduct, conduct, identify pressive we must decide whether we must government’s interest is related to the interest at stake and then de- suppression id.; sup- expression. termine whether it is unrelated See Unit- O’Brien, pression expression. ed id. 109 S.Ct. at States See (1968). interests are of- governmental 20 L.Ed.2d 672 If 2540. Two expression, justify the conviction the interest is not related to fered this case to support Texas offered to government’s Cary, just then we evaluate the federal (1) preserving actions under the standard which its conviction of Johnson: O’Brien unity; national designed “regulations symbol is of noncommu- as a Johnson, peace.15 preventing nicative conduct.” See Texas v. breaches argued preventing breaches of the This case after the decision in to its interest Johnson, might physi- peace peace the act of Texas v. where the breach of arise out of flag. Although the district interest was discussed in detail. In the oral cal destruction peace argument government pointed inter- court did not mention the breach of on this case Johnson controls identified woman burned an American ment’s assertion of the first interest aas violence, ongoing Because of the there was matter Suppression of law. ex- an immediate burning threat “ pressive pursuant thereto ‘is di- encourage the violence to continue.16 ” rectly expression,’ related precluding Texas v. Johnson was far situation application of O’Brien’s more lenient stan- case, different. In that the Court noted See id. 109 S.Ct. at 2542 dard. (quoting that “no peace actually disturbance of the Spence v. Washington, 418 U.S. at 414 n. occurred or threatened to occur because of 8). Texas v. S.Ct. at 2732 n. inAs Johnson’s Texas v. flag.” this interest is not sufficient Johnson, 109 S.Ct. at 2541. justify Cary’s height- conviction under the scrutiny. ened standard of See Texas v. C. Johnson, 109 S.Ct. at 2548. though government’s Even in However, unlike terest in protecting against breaches of the preventing implicated facts, is on these apply we

breaches of the implicated by 0 ’Brien if that interest is unrelated to facts in this case. inserted himself Cary’s expression. If the interest is relat concededly into a violent situation. Win ed expression, to his being apply we must People dows were broken. more yell were exacting ing. Roman standard of being candles were review. We hold that shot into Recruitment Center. federal pro As these events transpired, Cary tecting against walked fray. peace, into the breaches of the approximately facts, Within two minutes after these unrelated to the erupted, violence first he and an un- expression.18 upholding constitutionality Cir.1972) (within est in §of power the constitutional we will assume that it punish flag is an interest. See presents Mon- state to desecration which County, roe v. State peace; Court Fulton some 739 F.2d immediate threat of breach of Mas- of 568, (11th Cir.1984) (although providing: 573 & public- n. 5 sachusetts statute ly Geor- "[w]hoever mutilates, gia Supreme tramples upon, Court did not mention defaces or treats breach of peace misuse, contemptuously flag affirming interest in of the United States ... conviction for punished by shall be a fine Eleventh ..furthers that Circuit assumed breach of important governmental” peace "substantial Georgia interest); to be state Street v. cf. interest); Johnson, peace York, breach of 590-91, Texas v. New 89 S.Ct. cf. — -, 2533, 2541-42, 1364-65, (1969) ("We 22 L.Ed.2d think can (1989) (although peace L.Ed.2d 342 breach of governmental might of four interests which con- rejected because no disturbance of the ceivably by punishing ap- have been furthered peace occur, actually occurred or threatened to pellant words[.]"). for his implied court on different facts interest could statute); Spence arise from desecration v. Wash- by 16. This is unaffected conclusion the fact that ington, 418 U.S. 41 L.Ed.2d there is no evidence in the record that violence (1974) (breach (per curiam) peace of inter- actually flag burning. followed the It is suffi- rejected est of misuse statute because Cary interjected cient that himself into an atmo- appellants’ no purpose factual evidence of sphere creating of violence an immediate threat demonstration, public any gather- stimulate a ing of burning encourage that the the violence crowd, any attempt by appellant to attract to continue. beyond hanging attention outside his anyone window and because no evidence that 17. While there is some evidence in Texas v. flag). but officers observed the spray-painted Johnson that the demonstrators buildings the walls of plants, potted and overturned argument 18.On October after oral Johnson, see Texas v. 109 S.Ct. at case, Congress this amended 18 U.S.C. § 700 to Cary, there is no indication like inter- read as follows: jected directly himself into a violent situation in (a)(1) mutilates, knowingly Whoever defac- flag. order to burn the es, defiles, burns, physically maintains on the interest, arguing peace In a breach of it is not ground, tramples upon any flag floor or charged crucial that violating with the United States shall be fined under this title flag desecration statute and not with a breach of imprisoned year, for not more than one peace consistently statute. The courts have al- both. parties argue lowed peace a breach of prohibit any This subsection does not arising out of a desecration statute. consisting See disposal of a Smith, Goguen (1st 90 n. when it has become worn or soiled. seriously convey disagree- his offended Johnson’s Cary intended to flag. States Government’s ment with United 109 S.Ct. at 3,200 troops to Honduras. send decision to The Court noted that Johnson “was communicating message that His means of prosecuted he politi- because knew that his flag. burning of the American was the cally charged expression would cause ‘seri- ” punishing government’s interest Therefore, ous offense.’ Id. at 2543. prevent 700 was to violation depended Johnson’s conviction on “the like- which would further breaches ly impact communicative of his the reaction of the van- result from conduct.” Id. communicating dals to means It was the ex- Johnson’s violence, message in the context of pressive may conduct because it have of- Cary’s punishment is message itself. others which disturbed the Court in fended time, restric- place and manner akin to Texas v. Johnson. The Court also noted: tion, restriction. and not to a content-based therefore, position, State’s stan- appropriate is the O’Brien amounts to claim that an audience that id. 109 S.Ct. at 2540-41. Sever- dard. See particular takes serious offense ex- support this conclu- al additional factors pression necessarily likely to disturb sion. expression may and that the First, the concerns raised the Court prohibited precedents on this basis. Our punishing Johnson’s Johnson presumption. do not countenance such a flag burning would cut off debate contrary, they recognize On the that a present here. In order to convict are not principal speech ‘function of free under statute, the state Johnson under the Texas system our tois invite intentionally had to demonstrate that he may It dispute. indeed serve its best knowingly desecrated the Tex. high purpose it when induces a condition (1989). The Penal Code Ann. 42.09 stat- unrest, creates dissatisfaction with “physical- to mean ute defines “desecrate” are, they peo- conditions as or even stirs way that the actor knows ly mistreat ple anger.’ It would be odd indeed to seriously persons one or more will offend speaker’s that ‘if it is the conclude both likely to observe or discover his action.” offense, opinion gives that conse- added). fact, (emphasis Id. quence according it consti- is a reason for presented ment several witnesses John- protection,’ that the Govern- testify son’s trial to had been tutional section, (b) "flag As the term of The Committee believes that H.R. 10480 used in this any flag of the Unit- successfully the United States" means will withstand all constitutional States, thereof, any part any ed or made of may subjected challenges the to which it be in substance, size, of in a form that is com- prohibit speech, the courts. The bill does not monly displayed. ideas, political dissent or communication of 1989, Flag The Protection Act of Pub.L. No. prescribe protest. The bill does not orthodox 101-131, (1989). Stat. 777 require conduct or affirmative action. The Congress passing The motivation of the in the physical prohibit public dis- bill does acts of Flag helpful Protection Act of 1989 is not in flag honor destruction of the of the United ascertaining Congress the intent of the 90th language prohibits States. intentional, willful, of the bill passed appeal. the statute at issue in this inadver- not accidental or Congress subsequent The views of a “at best ... public physical tent acts of desecration inferring a hazardous basis for the intent ‘form Specific proscribed. Utterances are not Regan, of an earlier one.’” South Carolina v. examples prohibited bill of conduct under the 367, 1107, 17, 465 U.S. 379 n. 104 S.Ct. 1114-15 casting upon flag contempt would include the 17, (1984) (quoting n. L.Ed.2d 372 Consumer by burning tearing by spitting upon it and Safety Sylvania, v. GTE Product Commission nothing dirtying or otherwise it. 117, 2051, There 2060, vague (1980)). or uncertain about the terms used L.Ed.2d 766 This conclusion carries greater weight Congress’ the bill. the even because 90th Sen.Rep. Cong., unmistakably 2d Sess. re- intent is clear. No. 90th enacting Congress printed Cong, 18 U.S.C. did not Admin. in 1968 U.S.Code prohibit speech only physical added). intend to but the (1968) (emphasis News. Report act of destruction. Senate No. 1287 states: may expression ment ban the likely of certain communicative impact of ex- disagreeable pressive ideas on unsupported time, the conduct but to the place, and presumption very disagreeable- Cary that their manner in which chose to act. provoke ness will violence. Second, Supreme the Court noted in Tex- See Texas v. 109 S.Ct. at 2541-42 as Johnson that because the of interests (emphasis original) (citations omitted). the flag state the protecting as a nation- symbol al only person’s “blossom when a implicated These concerns are by of the flag treatment communicates some Cary’s conviction. His conviction was message,” that interest is related to the upon which, based federal statute unlike suppression expression. of Texas v. John- counterpart, its Texas require does not as son, added). 109 S.Ct. at 2542 (emphasis an element expressive of the crime that his The federal in this parties. Furthermore, conduct offend third case, however, does only not blossom when there is no evidence in the record that person’s treatment communi- anyone on the by scene was offended even message. They cates some also arise when Therefore, actions or his message. is a act simple of vandalism. in protecting In this case the interest arose when vio- against a continuing breach of on erupted Cary interjected lence himself these facts is not related suppressing into the by burning violence disputes debate or between opponents nor throwing it into the alcove of the Recruit- does it the First high offend Amendment’s ment Center. The violence and likelihood purpose inducing unrest, “a condition of continued violence did not stem from creatpng] dissatisfaction with conditions as being onlookers offended content are, stir[ring] people or even to an- Cary’s speech. Instead, the risk of further ger.” Terminiello Chicago, violence stemmed from vandals and (1949). 93 L.Ed. 1131 viewing a burning object onlookers —the The government’s punishment resorting to further violence for —and flag burning directly was related to “fun.” Tr. at 126. applied protecting against violence on part case, to the facts of govern- this the federal vandals who would spurred ment’s interest in prosecuting Cary for Cary’s means of expression, burning of casting contempt on flag by burning it object an a context of vio- in public is not related suppression —the —in lence and throwing his burning flag expression but finds additional basis the alcove building.19 protection against Suppression violence. punishment was not related to the element was inciden- Even in a circumstance preventing where the breaches of the related ment preventing seeks to vindicate its interest in expression. Id. at 573. Al- peace by breaches of punishing burn- though Supreme appear Court does not er others, might seriously because conclusion, offend accept this see Texas v. Supreme argu- Court has noted (dictum), 2541 n. 4 the Eleventh Cir- ing the suppres- interest is state's related the to holding cuit’s is nonetheless not inconsistent expression may sion of free overread Boos v. holding applied with our that as to the facts 312, Barry, case, 99 L.Ed.2d government’s this the federal interest is (1988), argument 333 "suggests insofar as the suppression speech. unrelated to the of Monroe prevent that a desire to a violent audience reac- resulting a involved threatened breach from expression’ tion is to way 'related same the hostile audience reaction. Id. at 575. The prevent that a desire being to an audience from government justified seeking punish to the offended expression.”’ is ‘related to flag burning in this case not because of the (dictum). 109 S.Ct. at 2541 n. 4 Be- Cary's message protesting of effect United States Cary’s cause depend upon conviction does not Honduras, Government involvement in but be- offending public, government the the federal introducing of cause the effect of stronger argument has an even Texas had than object a violent situation. As —the —into why peace its breach of is unrelated interest facts, therefore, applied to govern- these the suppression expression. to the of ment’s interest is related to the noncommunica- In Monroe State County, v. Court Cary’s Fulton 739 tive element of This conduct. conclusion of (11th Cir.1984), F.2d 568 the Eleventh Circuit does not conflict the with Eleventh Circuit’s facts, applied held that as reasoning. interest in the

925 O’Brien, government’s punishment of the tal the freedoms.” to 391 U.S. at 88 portion Cary’s of conduct communicative Therefore, S.Ct. the peace the breach of interest exists because regulation of First Amendment independent flag burning of whether the rights can justified (1) be sufficiently if: it message. some communicated is within the power constitutional upheld the conviction can if the be government; (2) it important an furthers the O’Brien test.20 See ment can meet governmental interest; (3) substantial Smith, Goguen also v. 471 F.2d 103 governmental interest is unrelated to the (1st Cir.1972) (breach peace of interest un- suppression of free expression;21 and punishes der statute which Massachusetts incidental alleged on restriction First publicly treating contemp- an individual for Amendment freedoms greater is no than tuously of the United States suffi- necessary promote to Id. at the interest. ciently suppression unrelated to of First 377, 88 S.Ct. at 1679. rights satisfy Amendment so as to third test). O’Brien of element First, it is within the constitutional power government of punish

D. poses an threat of imminent continu an ing ongoing breach See Cant peace. of O’Brien, Supreme Court not Connecticut, v. well 296, 304, U.S. 310 60 ed speech nonspeech that when ele 900, 903, (1940); intertwined, S.Ct. 84 L.Ed. 1213 Go are sufficiently ments “a im Smith, guen v. (1st portant governmental 471 F.2d 102 regulat interest Cir. Tavern, ing 1972); Grand Faloon nonspeech justify element can Inc. v. inci Wicker, limitations (11th dental First Amendment Cir.1982). 670 F.2d 949 government's 20. Because the interest is un test surplusage O'Brien would become mere if expression, apply related to we need not also to meet had the much incitement Brandenburg. imminent lawless action test of standard stricter Ohio, 444, 447, Brandenburg v. 395 Even if the Brandenburg incitement to immi- Instead, (1969). 23 L.Ed.2d 430 we however, applied, nent lawless action test were apply O’Brien’s more lenient standard. See Go note that ap- we interest as Smith, guen (1st Cir.1972) plied likely upheld. in this case would be This (since peace sup breach of interest unrelated to involving not a case a minor breach of the pression expression, applies); O’Brientest peace cf. as in Monroe v. Court State Fulton County, v. State Monroe Court Fulton Monroe, County, F.2d at 575. In one an- facts, (as applied F.2d breach of noyed spectator struggled with Monroe for con- suppression expression; related to breach, held, Such a trol the court objective state must introduce evidence that Brandenburg was not sufficient to meet the test. demonstrates imminence of unrest or case, danger- In the Id. instant violence was present danger peace). clear of breach of intervened, ongoing; Cary ous and burned a The Texas v. Johnson Court stated that where burning flag and threw the into the alcove expression, is unrelated to building. federal Such actions in that applied. lenient O’Brien more standard must be likely context are vandals to incite further 109 S.Ct. at 2538. The Court may imminent lawless actions and as such permit- in dictum later noted that "we have not Ohio, punished. Brandenburg See U.S. at every ted the Government to assume that ex- 1829; 89 S.Ct. at v. State Monroe Court cf. riot, pression provocative of a will incite a idea County, Fulton 739 F.2d at 575. required but instead have careful consideration surrounding 915-918, actual circumstances such supra, 21. See regarding discussion expression, asking expression whether the prong (government's ‘is the third of the O’Brientest inciting producing directed to imminent punishing law- violation of produce and is less action to incite prevent towas further breaches ” (dictum) (quoting action.’ Id. such at 2542 likely would result from the reaction of Ohio, Brandenburg v. at Cary’s communicating vandals to means 1829). Supreme appears violence, Court’s dictum message to in the context not itself; at a sup- directed circumstance where message time, Cary’s punishment is a akin to pression expression. is related to place On the facts and manner restriction and not to a case, government's regulation restriction; this is un- context-based concerns raised Cary’s expression, to related but related to his punishing in Texas v. Court Johnson that John- conduct. O'Brien and not Branden- flag burning son for cut off debate would burg appropriate. Finally, here). present the more lenient are not Second, suppression Cary’s III. important furthers an and substantial in- holding squarely Our rests on the facts protecting against terest in further breach- involving of this case. This is not a case a Smith, peace. Goguen es of the See engaging conviction for in speech. This is 102; Spilotro, F.2d at United States cf. involving protest not a case a violent dur- (8th Cir.1986) (effective ing protester flag which a burns a at a justice compelling administration of is a point place remote time and from the interest). Cary’s flag burning actions oc- violence. This is a not case where the

curred in a context of violence. Protesters violence threatened is from a breaking were the windows of the Recruit- heated dis- People yelling. agreement ment Center. were A man Cary’s with the content of com- began shooting then roman candles into the Finally, munication. this is not a case building. Approximately two minutes af- where the violence sup- threatened is from breaking window, ter the the first Cary porters respond who to the content of his flag. began lighting to burn the After communication protesting United in- States it, flag holding Cary threw it into the volvement in Honduras. The facts are crit- alcove of the Recruitment Center. His ac- ical to holding. our This is a case about a persons tions led several to take action to person voluntarily placed who himself into put out the building flames so the situation,23 a violent knowingly cast con- situation, not catch on fire. In such a tempt flag by publicly on the burning it in punishing breach- burning flag and threw the into the alcove activity es of the which is building, of a federal forcing to others rush a cause continuation of the breach is put over and out the flames so that the important. both substantial and building would not catch on fire. Under Finally, punishing Cary’s flag burning is circumstances, these hold that we greater necessary no a restriction than government’s punishment Cary passes further the in preventing breaches scrutiny. O’Brien’s more lenient There- peace. Because it was burn- fore, the federal interest in ing the context of violence preventing breaches of the directed provoke threatened to further vio- at and in front of its Recruitment Center lence, punishing Cary burning for justifies Cary’s knowingly conviction for necessary promote govern- casting contempt on the Furthermore, ment’s interest. the state’s regulation narrowly We affirm tailored. conviction. government punish Cary did not for burn- ing flag place in and time remote from McMILLIAN, Judge, dissenting. Circuit Instead, government

violence. directed I respectfully my opinion, dissent. regulation its burning in the context this Supreme case is controlled ongoing contemporaneous violence. — Court’s decision in Texas v. Applying a statute punishing Cary’s con- U.S. -, 105 L.Ed.2d go duct that context does beyond (1989). The promote prohibits what is first amendment essential ment’s interest of protecting against criminally from punishing ap peace.22 breach of the pellant burning of the United Although Goguen the First Circuit in v. Smith statute was overbroad was an outcome of its stated that Massachusetts’ statute was not nar- analysis. Cary facial attacks the federal statute rowly imposed great- drawn because it burdens applied. narrowly-tailored analy- The court’s er than essential to the furtherance of its inter- therefore, Goguen, sis in is not instructive be- preventing peace, est of breaches of the we do Cary's strategy cause of and the facts of the not arrive at the same conclusion in this case. case. Goguen involved a facial attack on the state Although pass statute. we do not destroying testified the vandals were propriety finding of the First Circuit’s government property just to have "fun” and "so the state statute was unconstitutional on its something.” could break Tr. at 126. face, we note that the court’s conclusion that the

927 if private destruction of a even protest. Ac- political as a means of States express contempt. to The conduct done judgment of I reverse cordingly, would only “publicly,” if punished is done that district court. is, circumstances that under such CONDUCT EXPRESSIVE by may contempt expressed the conduct appel- majority opinion, noted As to another. be communicated ex- flag constituted burning of the lant’s California, 283 Stromberg v. U.S. Cf. implicates the first that pressive conduct (1931) 532, 533, S.Ct. 75 L.Ed. 1117 51 913-914 Majority opinion at amendment. (state prohibiting display of red statute IIA). (Part As in Texas v. “[t]he public place sign, symbol in a “as a or nature of this overtly political expressive, opposition organized govern- emblem of over- intentional and was both conduct unconstitutional). ment” held 109 at 2540. whelmingly apparent.” S.Ct. Second, statute is not neutral with this particular- convey a Appellant intended respect viewpoint. prohib- This statute opposition message, specifically, ized only specific its conduct when conduct military in- continued the United States’ view, expresses particular point a and, Honduras, tim- given the volvement is, government, point a of view that and the context ing appellant’s conduct offensive, society, disagreeable considers occurred, the likelihood in which it Moreover, disrespectful flag. an- message would be under- great that this other statute recommends destruction of a it. by those who viewed stood 176(k) by burning. Title 36 U.S.C. § FACIALLY UNCONSTITUTIONAL flag, it provides that a “when is such 18 U.S.C. 700 is I hold that longer fitting § it em- condition that is no First, al on its face. unconstitutional display, destroyed in a blem for should be expres can restrict though government preferably by burning.” dignified way, more than it can written sive conduct Each statute addresses the same conduct— words, may proscribe not ... spoken burning flag. What differentiates “[i]t expres particular conduct because it has is the act from the authorized act criminal v. 109 each. De- message sive elements.” Texas or idea associated with original). respect That (emphasis prohibited; at 2540 is is authorized. S.Ct. fiance pro public display of only this statute does—it The fact that precisely is what nega prohibited empha- is contemptuous of its hibits certain conduct because importance of its communicative tive, eloquently stat sizes the message. As critical consistent impact. cannot dissenting Judge Browning in his ed “ensure that a the first amendment Crosson, with opinion in v. United States express only one view of symbol used to Cir.) (footnote omitted), (9th F.2d symbol or its referents.” Texas denied, cert. 2546; Johnson, 109 S.Ct. at see United (1972), L.Ed.2d 517 Crosson, n. 7 F.2d at 108 States simply 700 does not 18 U.S.C. [Title] J., dissenting), citing (Browning, Schacht punish- prohibit burning of a It 58, 63, States, 398 U.S. v. United “knowingly contempt” es one who casts (1970) (govern- 26 L.Ed.2d means, including upon flag, by various ac- persons not on ment cannot authorize is not burning. The military uniform as an duty to wear a tive see, inherently contemptuous, e.g., 36 armed portraying a member actor (k) (authorizing destruction U.S.C. § 176[ not tend to portrayal if does forces way, prefera- dignified “in a force). Boos discredit that armed Cf. ]; by its terms the bly by burning”) 312, 319, Barry, only flag burning that punishes statute (content neu- 1165, 99 L.Ed.2d 333 contempt. Flag burning that expresses trality). prohibited, not not communicative is EXPRESSION OF REGULATION matter, nor, flag burning or for that 700 is unconstitu- expresses loyalty Although 18 U.S.C. other conduct that above, this discussed for the reasons prohibit tional respect. The statute does 928 preserving serted its interest in under either

statute is also unconstitutional unity in relatively symbol lenient test set forth Unit of nationhood and national 367, O’Brien, 391 U.S. 88 S.Ct. justify appellant’s ed States conviction. After (1968) (O’Brien), 1673, 20 L.Ed.2d 672 government Texas v. federal here, which, view, my apply in does not longer rely can no on this interest. “Since demanding forth in the more test set patriotism, loyalty, interest in national 405, Spence Washington, 418 U.S. 94 unity censorship and does not warrant 2727, (1974), which I S.Ct. L.Ed.2d contemptuous disrespectful di- views apply. think does itself, against government it can rected hardly justify censorship of such views O’Brien, In the defendant was convicted symbol against when directed the mere knowingly destroying his selective ser- Crosson, government.” United States v. in registration vice certificate violation of J., (Browning, 462(b). dissenting) 462 F.2d at 110 App. provision That U.S.C. (federal government); knowing John- prohibited the destruction of the cf. certificates, son, (rejecting distinguish did not between 109 S.Ct. at 2542-48 state’s destruction, private preserving symbol and did not in as a interest punish engaged in destruction for the unity). of nationhood and national The purpose expressing views. 391 at government claims that in now its interest 375, 88 S.Ct. at 1678. The Court held that preventing peace justifies breaches of the ‘speech’ ‘nonspeech’ “when elements appellant’s conviction. are in combined the same course of con- view, my apply does not here O’Brien duct, sufficiently important governmental governmental regu- in because the interest regulating nonspeech interest in ele- lating conduct is not unconnected to the justify ment can incidental limitations on Here, suppression expression. of free 376, First Amendment freedoms.” at Id. governmental in preventing interest However, 88 S.Ct. 1678-79. the Court precisely breaches of the arises “be- limited this test to those in cases allegedly integral cause the communication governmental “the interest is unrelated to thought to the conduct is itself harm- suppression expression.” of free Id. at O’Brien, 382, ful.” 391 U.S. at 88 S.Ct. at 377, upheld 88 S.Ct. at 1679. The Court 1682. Because 18 U.S.C. 700 is aimed at O’Brien’s conviction because he was not communication, suppressing it cannot be punished conduct, for his regulation sustained as a of noncommuni- is, protesting against War, for the Vietnam Id., cative conduct. citing NLRB v. Fruit impact but for the noncommunicative of his 58, Union, Vegetable & Packers 377 U.S. is, conduct, frustrating the smooth 12 L.Ed.2d 129 functioning and efficient of the selective (1964) (Black, J., concurring). para- To system. service Id. at Nimmer, phrase Professor distinguished thus Court precisely particular it is idea con- in alleged O’Brien from a case which “the veyed by [burning flag] the act of governmental regulating interest con that it is feared will lead to a violent or

duct arises some measure because the Thus, unlawful reaction. insofar as the allegedly integral communication to the governmental objective suppres- is the thought conduct is itself to be harmful.” sion of the communication an citing Id. at 88 S.Ct. at idea Strom violence, California, resulting order to avoid berg v. it is an interest, anti-speech i.e., an speech. In order to decide whether the more le- Nimmer, here, applies Meaning Symbolic Speech nient O’Brien test we must Amendment, government decide whether the has Under the First assert- UCLA (1973)(footnotes support appellant’s omitted), ed an L.Rev. 53-54 Court, unrelated suppres- conviction cited in Monroe v. State expression. (11th Cir.1984). sion of free At trial and in its But cf. appeal, initial brief as- (suggesting 109 S.Ct. at 2541n. 4 Appellant later ar- the demonstration. a violent audience prevent that desire to charged to ex- with arson the local necessarily “related rested is not reaction way authorities, charge a desire to same that but that was subse- pression” in the being offended is dropped. from prevent quently an audience expression”). “related to IMMINENT LAWLESS ACTION analysis assuming purposes for of Even applicable demanding test is the prevent- in governmental interest that the Spence Washing set forth in v. standard peace the is unrelated ing of breaches ton, 418 U.S. 94 S.Ct. 2727—whether gov- expression, free the the of preventing the in preventing in breaches ernmental interest peace of the is so substantial as breaches these implicated not peace of infringement justify appellant’s first states, facts. Unlike federal rights. Assuming pur amendment police possess the government does not analysis govern poses that the federal peace, of the power prevent breaches preventing in ment has valid interest public sidewalks and least not on the peace, government of the can breaches Minneapolis city of where streets suppress expression keep in order to occurred. See United this demonstration peace ex unless it can show that the Crosson, at 110 & n. 11 v. States conduct, pression, expressive direct “is cases). J., dissenting) (citing (Browning, inciting producing ed to imminent law prose- have government could The federal likely produce less action and is to incite or attempted destruction appellant for cuted Ohio, 395 Brandenburg such action.” v. (the re- of the United States property 444, 447, 1827, 1829, 23 center, flag, not the which was cruitment omitted) (Ku (footnote L.Ed.2d 430 property), in violation of 18 U.S.C. private speech). Klux Klan This because “a 1361, or, cen- assuming the recruitment § speech our principal ‘function of free under property within military property or ter is government dispute. is to invite system of jurisdiction of the special territorial high purpose may indeed best serve its It States, military in property United arson unrest, cre it induces a condition of when 81, or malicious of 18 U.S.C. violation as ates dissatisfaction with conditions property viola- injury or destruction ” are, anger.’ people stirs or even Had the federal of 18 U.S.C. 1363. tion citing Ter prosecuted appellant for these 1, 4, 69 S.Ct. Chicago, miniello offenses, the federal or similar (1949) (speech L.Ed. 1131 con protecting property its ment’s racial demning political and various suppres- 'men unrelated to the would have groups). ssion. exprt sion of present in the I reviewed the record have government, federal the state Unlike the case, videotape of the demon- including the preventing breach- does have an interest stration, I cannot conclude prosecuted and could have es of appel- either that government established conduct, disorderly appellant for breach incite immi- flag in order to lant burned the riot, in a or even peace, participating that a breach of nent lawless action or See, e.g., Monroe State vandalism. appellant’s reaction to peace was Court, inter- 739 F.2d at 575. state’s fact, and violent the lawless conduct. preventing est breaches in connection with acts that did occur suppres- unrelated to the would have been demonstration, breaking of the win- emphasis expression. Despite the sion of and the the recruitment center dows of majority opinion government and the through the shooting fireworks broken disorderly disruptive nature of on the windows, minutes before occurred several demonstration, appellant imme- was not flag. Appellant’s appellant burned the charged with diately arrested or apparently signalled breach-of-the-peace type by the lo- offense immi- No the demonstration. the end of on the basis of his conduct. cal authorities a result of occurred as present during nent lawless action police officers were Local or in reaction to appellant’s con-

duct.

Finally, it makes no difference for first analysis

amendment appellant could expressed just

have effectively views manner, is, a different means

other than burning 109 S.Ct. at 2546 n. citing

Spence v. Washington, 418 U.S. at 411 n.

4, 94 S.Ct. at 2731 4.n. This statute can- upheld time,

not be place as a and manner

regulation.

Because I appellant’s would hold that

conviction is not consistent with the first

amendment, I judgment reverse the

of the district court. BANK,

ALTA Appellant, VISTA STATE KOBLISKA,

Linda First National Bank Minneapolis, Bank, First d/b/a

Minneapolis, Appellee.

No. 89-1496.

United States Appeals, Court of

Eighth Circuit.

Submitted Oct.

Decided March Holmes,

John Waterloo, Iowa, Wendell appellant. for Ranheim, David A. Minneapolis, Minn., appellee.

Case Details

Case Name: United States v. William Charles Cary, Jr.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 26, 1990

Citation: 897 F.2d 917

Docket Number: 88-5458

Court Abbreviation: 8th Cir.