Caseflicks

Supreme Court of the United States • 1974

Spence v. Washington

418 U.S. 405 | 94 S. Ct. 2727 | 41 L. Ed. 2d 842 | 1974 U.S. LEXIS 89

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Takeaway

In short, this case protects symbolic political expression when a speaker uses a privately owned flag peacefully to convey a clear message and the State lacks a sufficiently weighty, non-speech-related justification for punishment.

Background

In May 1970, shortly after the Cambodian incursion and the Kent State shootings, college student Harold Spence displayed his privately owned American flag from the window of his Seattle apartment. The flag was upside down and bore a large peace symbol made from removable black tape on both sides. Spence testified that he meant to associate America with peace rather than war and violence. The display was peaceful, occurred on private property, and caused no crowd, disruption, or altercation.

Police saw the flag, entered the apartment building, seized it, and arrested Spence. Washington prosecuted him under its "improper use" statute, which prohibited publicly displaying a flag bearing an attached or superimposed word, figure, mark, picture, design, or other extraneous material. A jury was instructed that displaying the altered flag itself was sufficient for conviction, without proof of a further specific intent. Spence was convicted and fined.

The Washington Court of Appeals reversed on the ground that the statute was facially overbroad. The Washington Supreme Court reinstated the conviction, reasoning principally that the State had an interest in preserving the flag as a national symbol. The U.S. Supreme Court reversed the conviction as an unconstitutional application of the statute.

Issues

Issue #1

Whether Spence's display of an upside-down American flag bearing a peace symbol was expressive conduct protected by the First and Fourteenth Amendments.

Holding

Yes. In its specific historical context, Spence's display was protected symbolic expression.

Reasoning

The Court rejected the notion that any conduct becomes speech merely because the actor intends to convey an idea. But Spence satisfied the relevant threshold: he intended to communicate a particularized message, and the surrounding circumstances made it highly likely that viewers would understand it.

Flags have long been recognized as potent symbols capable of communicating ideas quickly and effectively. Here, the American flag, its upside-down display, and the prominent peace symbol worked together to express opposition to war and violence.

Context gave the display its meaning. Spence acted shortly after the Cambodian invasion and the Kent State killings, events of intense national concern. In that setting, most viewers would have understood the display as a political protest rather than meaningless or bizarre conduct.

Issue #2

Whether Washington could constitutionally apply its flag-improper-use statute to punish Spence's peaceful display on private property.

Holding

No. As applied to Spence, the statute impermissibly burdened protected expression.

Reasoning

The setting weakened any claim of a regulatory interest unrelated to expression. Spence used his own flag on private property, committed no trespass or disorderly conduct, and did not seek access to a public forum subject to ordinary time, place, and manner regulation.

The record provided no basis for a breach-of-the-peace justification. No crowd gathered, no violence or disturbance occurred, and Spence neither intended nor attempted to incite one. The Washington Supreme Court itself had rejected that rationale.

Washington also could not punish the display merely because it might offend viewers or show insufficient respect for the flag. The First Amendment does not allow the State to suppress public expression simply because some people find its message offensive, especially where viewers could avoid the display rather than being forced to confront it.

The Court assumed, without deciding, that the State might have a legitimate interest in preserving the flag as an unalloyed national symbol. Even so, that interest did not justify this conviction. Spence did not destroy or permanently deface the privately owned flag, and there was no realistic danger that viewers would mistake his antiwar message for government endorsement.

Because Spence's message was direct, understandable, and constitutionally protected, while any state interest in the physical integrity of his privately owned flag was only minimally affected, the conviction could not stand. The Court therefore did not decide Spence's broader facial-overbreadth challenge.

Issue #3

Whether Washington's improper-use statute was void for vagueness.

Holding

No. The statute was not unconstitutionally vague, although its application to Spence was unconstitutional.

Reasoning

The statute mechanically prohibited attaching or superimposing material on an American flag or representation of one. Its terms gave clear notice that the peace symbol affixed to Spence's flag fell within the prohibition.

The Court acknowledged that the statute swept broadly and could invite selective enforcement in practice. But that concern arose from prosecutorial discretion under a broad yet intelligible rule, not from vague statutory language comparable to a prohibition on treating a flag "contemptuously."

Concurrences

Justice Douglas

Reasoning

Justice Douglas concurred in the reversal and relied substantially on the reasoning of the Iowa Supreme Court in State v. Kool, a closely analogous case involving an upside-down flag and a peace symbol displayed in a home window.

He emphasized that the possibility that an onlooker might react violently cannot justify suppressing peaceful symbolic speech. Requiring absolute assurance of public tranquility would leave protection only for safe platitudes, rather than for the controversial expression the First Amendment most needs to protect.

Dissents

Chief Justice Burger

Reasoning

Chief Justice Burger would have affirmed. In his view, even if Washington's law was unwise or unwisely applied, correcting such policy choices was not the Court's constitutional role. States and their citizens should retain authority to decide how to protect the flag as a symbol of national unity.

Justice Rehnquist

Reasoning

Justice Rehnquist agreed that Spence's conduct communicated a message, but maintained that expressive conduct may still be restricted when the State pursues important countervailing interests. The First Amendment does not make every preferred medium of expression constitutionally immune from regulation.

He argued that the majority misunderstood Washington's interest by treating it as an interest in preventing physical damage to a piece of cloth. Washington instead sought to preserve the flag's special character as a symbol of national unity and to prevent it from becoming a general backdrop for innumerable private messages.

In Justice Rehnquist's view, the State could withdraw the flag from the range of materials available for private communication without discriminating based on viewpoint, political versus commercial content, or whether the message was respectful or offensive. The law did not compel patriotism, require a salute, or punish criticism of the nation; it only prohibited using the flag itself as a vehicle for superimposed messages.

He also warned that the majority's reasoning could make the flag available for an unlimited range of political and commercial uses. Justice Rehnquist considered the State's interest in preserving the flag's symbolic integrity sufficient to sustain this neutral restriction; Chief Justice Burger and Justice White joined his dissent.