KIME v. U.S. - 459 U.S. 949 (1982)


U.S. Supreme Court

KIME v. U.S. , 459 U.S. 949 (1982)

459 U.S. 949

Teresa Kay KIME and Donald Richard Bonwell
v.
UNITED STATES
No. 81-6773

Supreme Court of the United States

October 18, 1982

On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.

The petition for writ of certiorari is denied.

Justice BRENNAN, dissenting from denial of certiorari.

On The stated purposes of the demonstration were to call attention to a planned May Day demonstration and to protest the prosecution of a leader of the political party to which petitioners belonged. During the demonstration, petitioners set fire to a privately owned United States flag.

The United States Attorney filed an information in the United States District Court for the Middle District of North Carolina, charging petitioners with casting contempt on a United States flag by publicly burning it, in violation of 18 U.S.C. 700. That statute prohibits " knowingly casting contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it" (emphasis added).

Petitioners filed motions to dismiss the information on the ground that 700 is unconstitutional on its face and as applied to them. The motions were denied after an evidentiary hearing. Petitioners were tried by jury before a United States Magistrate. They were convicted and sentenced to eight months' imprisonment each. The district court affirmed the convictions in an unpublished opinion, and the Court of Appeals for the Fourth Circuit affirmed for the reasons stated in the district court's opinion (affirmance order reported at 673 F.2d 1318 (CA4 1982)).

Page 459 U.S. 949 , 950

I would grant certiorari and set this case for oral argument because I feel sure the Court would be persuaded after full briefing and oral argument that petitioners' convictions violate their First Amendment rights under the principles established in Spence v. Washington, 418 U.S. 405 (1974); Schacht v. United States, 398 U.S. 58 (1970); Street v. New York, 394 U.S. 576 (1969); United States v. O'Brien, 391 U.S. 367 (1968); and West Virginia State Board of Education v. Barnette, 319 U.S. 624 ( 1943).

It is not seriously contested that petitioners' action in burning a flag was, at a minimum, expressive conduct "sufficiently imbued with elements of communication to fall within the scope of the First ... Amendmen(t)", Spence v. Washington, 418 U.S., at 409. This Court has repeatedly recognized the communicative connotations of the use of flags, including the United States flag. 418 U.S., at 410. Stromberg v. California, 283 U.S. 359 (1931). It is likewise clear from the context of petitioners' act that in burning a flag they were making a statement of political protest; here, as in Spence, "it would have been difficult for the great majority of citizens to miss the drift of (petitioners') point". 418 U.S., at 410, 94 S.Ct. at 2730.1 Indeed, the Government could hardly contend otherwise. The statute under which petitioners were convicted requires, as an element of the offense, that they "knowingly cast contempt" on the flag by burning it. See infra, at 954-956. Thus, if the Government were to contend that petitioners were not engaged in expressive conduct, it would be con- [459 U.S. 949 , 951]




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