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 The district court affirmed the convictions in an unpublished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-
Page 459 U.S.
949 , 951
fessing that petitioners did not commit the crime charged.
[
Footnote 2] Cf., e.g., Smith
v. Goguen,
415 U.S.
566, 588, 1254 ( WHITE, J., concurring in the judgment); id.,
at 593 ( REHNQUIST, J., dissenting).
Nor can there be any doubt that the subject matter of
petitioners' communication is well within the core of the First
Amendment's protection. Nearly four decades ago, this Court held
that the First Amendment does not permit a legislature to require a
person to show his respect for the flag by saluting it. Board of
Education v. Barnette, supra. The same constitutional principle
applies when the legislature, instead of compelling respect for the
flag, forbids disrespect. As we said in Street v. New York, supra
:
"We have no doubt that the
constitutionally guaranteed 'freedom to be intellectually ...
diverse or even contrary,' and the 'right to differ as to things
that touch the
Page 459 U.S.
949 , 952
heart of the existing order,' encompass the freedom to express
publicly one's opinions about our flag, including those opinions
which are defiant or contemptuous." 394 U.S., at 593, quoting Board
of Education v. Barnette, 319 U.S., at 641-642.
The only difference between this case and Street is that
petitioners here communicated their contempt for the flag through
expressive conduct rather than through spoken or written words (or
through both words and conduct, as in Street ). The First Amendment
standard for government regulations of expressive conduct is the
now-familiar four-part test first announced in United States v.
O'Brien, 391 U.S., at 377:
"(A) government regulation (of
expressive conduct) 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."
(Emphasis supplied)
It is the third branch of the O'Brien test (here italicized)
that is dispositive of this case. The Government suggests only one
possible " substantial governmental interest" underlying
700-"preservation of the flag, not as a mere chattel, but as the
'visible embodiment of the Nation.' " Brief for the United States,
at 4. Not surprisingly, however, the cases that the Government
cites for this proposition all predate our decision in Spence v.
Washington, supra. [
Footnote 3]
In Spence, we expressly rejected this alleged governmental interest
as a basis for meeting the "unrelated to expression" branch of the
O'Brien
Page 459 U.S.
949 , 953
test. We assumed arguendo that the state has a valid interest in
protecting the integrity of the flag as a national patriotic
symbol. Even if that interest exists, we held, such an interest is
directly related to expression, at least where it is invoked
against one who would use the flag to make a political statement.
418 U.S., at 413-414, and n. 8, 94 S. Ct., at 2732, and n. 8. There
is nothing surprising about that conclusion; it follows from the
nature of the alleged governmental interest at stake. The
Government has no aesthetic or property interest in protecting a
mere aggregation of stripes and stars for its own sake; the only
basis for a governmental interest (if any) in protecting the flag
is precisely the fact that the flag has substantive meaning as a
political symbol. Thus, assuming that there is a legitimate
interest at stake, it can hardly be said to be one divorced from
political expression. Hence, the one governmental interest
suggested as support for this statute, and these convictions, is
one clearly foreclosed by both precedent and basic First Amendment
principles.
The Government attempts to distinguish Spence on the ground that
the defendant in that case merely displayed a flag in his own
window with a peace symbol superimposed, whereas petitioners
"contumaciously burned (the flag) in a public place." Brief for the
United States, at 6, n. 5.4 It is true that we noted the absence of
physical destruction of the flag in Spence, 418 U.S., at 415. Yet
that fact does not dispose of the key principle at stake-that any
governmental interest in protecting the flag's symbolism is one
that cannot pass muster under the third branch of the O'Brien test.
So long as petitioners were engaged in expressive conduct, and so
long as their conduct impaired no non-speech- related governmental
interest, it is entirely irrelevant what specific physical medium
petitioners chose for their expression. See also Spence, 418 U.S.,
at 420-421-2736 (REHNQUIST, J., dissenting);
Page 459 U.S.
949 , 954
Cline v. Rockingham County Superior Court,
502
F.2d 789 (CA1 1974). Section 700 is neither an arson statute
nor a breach-of-the-peace statute; the Government does not and
cannot suggest that the statute's prohibition is directed at any
interest other than enforcing respect for the flag. [
Footnote 5]
So far I have analyzed this case simply as one governed by
Spence. But even if that case were somehow distinguishable (on the
basis of burning or otherwise), there is an entirely independent
reason why the Court, after argument, would be persuaded that 700
is flagrantly unconstitutional on its face-indeed, a ground much
stronger than anything in Spence. For 700 contains an odious
feature not shared by the statute in Spence. [
Footnote 6] Section 700 makes it a crime
"knowingly (to) cas(t) contempt upon any flag of the United States
by publicly ... burning it". Thus, it is an indispensable element
of the offense under 700 that one intend to engage in political
expression-and not just any political expression, but only that
espousing a particular, unpopular point of view. This is indeed a
narrowly drawn statute; it is drawn so that everything it might
possibly prohibit is constitutionally protected expression. This
statute is thus different from one that simply outlawed any public
burning or mutilation of the flag, regardless of the expressive
intent or
Page 459 U.S.
949 , 955
nonintent of the actor. [
Footnote 7] To put it bluntly, one literally cannot
violate 700 without espousing unpopular political views. 8 That is
the very definition of a censorship statute.
In Schacht v. United States, 398 U.S., at 62-63- 1559, this
Court unanimously struck down an actor's conviction for the
unauthorized wearing of a military uniform. The statute in question
contained an exception to the prohibition for theatrical
productions-but only those productions that did not tend to
discredit the armed forces. We held that such a content-based
exception constituted impermissible censorship.
The same principle applies in the context of selective flag
desecration statutes. In his concurring opinion in Smith v. Goguen,
supra, Justice WHITE succinctly and soundly stated the reasons why
such a statute is impermissible:
"To violate the statute in this
respect, it is not enough that one 'treat' the flag; he must also
treat it 'contemptuously,' which, in ordinary understanding, is the
expression of contempt for the flag. In the case before us, ... the
jury must have found that Goguen not only wore the flag on the seat
of his pants but also that the act-and hence Goguen himself-was
contemptuous of the flag.
Page 459 U.S.
949 , 956
To convict on this basis is to convict not to protect the
physical integrity or to protect against acts interfering with the
proper use of the flag, but to punish for communicating ideas about
the flag unacceptable to the controlling majority in the
legislature.
"... It would be difficult ... to believe that the conviction in
O'Brien would have been sustained had the statute proscribed only
contemptuous burning of draft cards." 415 U.S., at 588-590-1255
(emphasis supplied; footnote omitted). See also, e.g., 415 U.S., at
591 (BLACKMUN, J., dissenting); 415 U.S., at 597-598 (REHNQUIST,
J., dissenting); Spence v. Washington, 418 U.S., at 422-423
(REHNQUIST, J., dissenting).
In short, 700 constitutes overt content-based censorship, pure
and simple. Under this statute, one may freely burn, mutilate, or
otherwise abuse a flag for any reason in the world, except for the
purpose of stating a contemptuous political message about the flag
and what it stands for. This censorship goes to the heart of what
the First Amendment prohibits. Of course, 700 does not bar
petitioners from seeking to express their message by other means;
but that is immaterial. It has long been settled that a government
may not justify a content-based prohibition by showing that
speakers have alternative means of expression. [
Footnote 9] This statute is unconstitutional on
its face. I would grant certiorari because I am confident the Court
after argument would reverse these convictions and uphold the vital
constitutional principle forbidding government censorship of
unpopular political views.
Footnotes
Footnote 1 Petitioners, over
their own objection, were forbidden to introduce any evidence or
argument at trial as to the purpose of the March 27 demonstration
or as to their intent in burning a flag. Indeed, the trial
magistrate refused even to allow petitioners to make an offer of
proof for appellate purposes. The Government, however, does not
contradict petitioners' statement of their own intent, nor is there
any room on the present record to doubt their statements. Certainly
the courts below credited petitioners with communicative intent,
see infra, 268 n. 2.
Footnote 2 Besides raising
the First Amendment point, petitioners contend that their
convictions are infirm because there was no evidence on the record
that would show that, by burning the flag, they intended thereby to
cast contempt on it. This alleged absence of evidence is
compounded, they argue, by the trial court's refusal to allow them
to testify or argue as to their purpose. The district court,
affirming the convictions, rejected this argument, stating that
"the Court has difficulty imagining a situation in which someone
could burn a flag as a means of doing anything other than casting
contempt unless it was done inadvertently or to dispose of a soiled
or worn flag." Petition, Appendix B, at 28. Although I express no
opinion on this point in the case's present posture, I suggest that
petitioners' contention is not frivolous. The district court's
reasoning amounts to a virtual presumption that petitioners
intended to express a contemptuous message about the flag (a
crucial element of the offense) based on nothing more than the bare
act of burning. Yet one can conceive of other messages that
petitioners might have intended to convey. For example, petitioners
point out that person might burn a flag to vilify particular
policies with which the flag is identified, rather than to cast
contempt on the flag itself. Petition, at 11. Whether the jury
would have accepted this explanation is unknown; petitioners' point
is that they were not even allowed to make it.
Footnote 3 United States v.
Crosson,
462 F.2d
96 (CA9), cert. denied, 409 U.S. 1064 (1972); Joyce v. United
States, 147 U.S. App.D.C. 128,
454 F.2d
951 (1971), cert. denied, 405 U.S. 969 (1972); Hoffman v.
United States, 144 U.S.App.D.C. 156,
445 F.2d
226 (1971).
Footnote 4 The courts below
were not similarly troubled at the need to distinguish Spence. On
the contrary, they dealt with the case by ignoring it entirely. It
is not cited in the opinions of the district court or court of
appeals.
Footnote 5 In Spence, we
mentioned four factors important to our decision. First, the flag
was privately owned; second, the defendant displayed the flag on
private property, so that he committed no trespass or disorderly
conduct; third, there was no evidence of breach of the peace; and
fourth, the defendant was engaged in communication. 418 U.S., at
408-410-2730. All of those factors are present here as well.
Petitioners, unlike Spence, made their demonstration on public
property, but in both cases there was no suggestion of trespass or
disorderly conduct. Petitioners were where they had a right to be,
and they were not charged with violating any regulation purporting
to regulate use of public areas.
Footnote 6 The statute at
issue in Spence, in fact, was not a flag desecration statute at
all, but a so-called "improper use" statute, forbidding the
superimposition of any advertising or other extraneous matter onto
a flag. Wash.Rev.Code 9.86.020; see 418 U.S., at 406-407, and n.
1-2729 and n. 1.
Footnote 7 I do not mean to
be read as suggesting that such a statute would be constitutional.
On the contrary, it would be invalid for the reasons stated in my
discussion of Spence, supra. My present point is that even if we
had reached the opposite conclusion in Spence from the one we
stated, there would be an independent fatal flaw in 700.
Footnote 8 The Government's
brief gives the game away when it argues that " 'the legislation
was enacted to prohibit the physical act of contemptuously burning
a flag, rather than to in any way suppress (sic) free speech.' "
Brief for the United States, at 5, quoting United States v.
Crosson, 462 F.2d, at 102. There is no such thing as a "physical
act of contemptuously burning a flag". As Justice REHNQUIST said in
Smith v. Goguen, 415 U.S., at 593 (dissenting opinion), "I have
difficulty seeing how Goguen could be found by a jury to have
treated the flag contemptuously by his act and still not to have
expressed any idea at all."
Footnote 9 E.g.,
Consolidated Edison Co. v. Public Service Commission,
447 U.S.
530, 541 n. 10, 2335 n. 10 (1980), and cases cited.