|Spence v. Washington
[ Douglas ]
[ Burger ]
[ Rehnquist ]
Spence v. Washington
APPEAL FROM SUPREME COURT OF WASHINGTON
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE WHITE join, dissenting.
The Court holds that a Washington statute prohibiting persons from attaching material to the American flag was unconstitutionally applied to appellant. Although I agree with the Court that appellant's activity was a form of communication, I do not agree that the First [p417] Amendment prohibits the State from restricting this activity in furtherance of other important interests. And I believe the rationale by which the Court reaches its conclusion is unsound.
"[T]he right of free speech is not absolute at all times and under all circumstances." Chaplinski v. New Hampshire, 315 U.S. 568, 571 (1942). This Court has long recognized, for example, that some forms of expression are not entitled to any protection at all under the First Amendment, despite the fact that they could reasonably be thought protected under its literal language. See Roth v. United States, 354 U.S. 476 (1957). The Court has further recognized that even protected speech may be subject to reasonable limitation when important countervailing interests are involved. Citizens are not completely free to commit perjury, to libel other citizens, to infringe copyrights, to incite riots, or to interfere unduly with passage through a public thoroughfare. The right of free speech, though precious, remains subject to reasonable accommodation to other valued interests.
Since a State concededly may impose some limitations on speech directly, it would seem to follow a fortiori that a State may legislate to protect important state interests even though an incidental limitation on free speech results. Virtually any law enacted by a State, when viewed with sufficient ingenuity, could be thought to interfere with some citizen's preferred means of expression. But no one would argue, I presume, that a State could not prevent the painting of public buildings simply because a particular class of protesters believed their message would best be conveyed through that medium. Had appellant here chosen to tape his peace symbol to a federal courthouse, I have little doubt that he could be prosecuted under a statute properly drawn to protect public property. [p418]
Yet the Court today holds that the State of Washington cannot limit use of the American flag, at least insofar as its statute prevents appellant from using a privately owned flag to convey his personal message. Expressing its willingness to assume, arguendo, that Washington has a valid interest in preserving the integrity of the flag, the Court nevertheless finds that interest to be insufficient in this case. To achieve this result the Court first devalues the State's interest under these circumstances, noting that "no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts. . . ." The Court takes pains to point out that appellant did not "permanently disfigure the flag or destroy it," and emphasizes that the flag was displayed "in a way closely analogous to the manner in which flags have always been used to convey ideas." The Court then restates the notion that such state interests are secondary to messages which are "direct, likely to be understood, and within the contours of the First Amendment." Ante at 415. In my view, the first premise demonstrates a total misunderstanding of the State's interest in the integrity of the American flag, and the second premise places the Court in the position either of ultimately favoring appellant's message because of its subject matter, a position about which almost all members of the majority have only recently expressed doubt, or, alternatively, of making the flag available for a limitless succession of political and commercial messages. I shall treat these issues in reverse order.
The statute under which appellant was convicted is no stranger to this Court, a virtually identical statute having been before the Court in Halter v. Nebraska, 205 U.S. 34 (1907). In that case, the Court held that the State of Nebraska could enforce its statute to prevent use of a flag representation on beer bottles, stating flatly that
a State will be wanting in care for the wellbeing of its people if [p419] it ignores the fact that they regard the flag as a symbol of their country's power and prestige. . . .
Id. at 42. The Court then continued:
Such an use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of National power and National honor.
The Court today finds Halter irrelevant to the present case, pointing out that it was decided almost 20 years before the First Amendment was applied to the States and further noting that it involved "commercial behavior," a form of expression the Court presumably will consider another day. [n1] Insofar as Halter assesses the State's interest, of course, the Court's argument is simply beside the point. But even as the argument relates to appellant's interest, I find it somewhat difficult to grasp. The Court may possibly be suggesting that political expression deserves greater protection than other forms of expression, but that suggestion would seem quite inconsistent with the position taken in Lehman v. Shaker Heights, ante, p. 298, [n2] by nearly all Members of the majority [p420] in the instant case. Yet if the Court is suggesting that Halter would now be decided differently, and that the State's interest in the flag falls before any speech which is "direct, likely to be understood, and within the contours of the First Amendment," that view would mean the flag could be auctioned as a background to anyone willing and able to buy or copy one. I find it hard to believe the Court intends to presage that result. Turning to the question of the State's interest in the flag, it seems to me that the Court's treatment lacks all substance. The suggestion that the State's interest somehow diminishes when the flag is decorated with removable tape trivializes something which is not trivial. The State of Washington is hardly seeking to protect the flag's resale value, and yet the Court's emphasis on the lack of actual damage to the flag suggests that this is a significant aspect of the State's interest. Surely the Court does not mean to imply that appellant could be prosecuted if he subsequently tore the flag in the process of trying to take the tape off. Unlike flag desecration statutes, which the Court correctly notes are not at issue in this case, the Washington statute challenged here seeks to prevent personal use of the flag, not simply particular forms of abuse. The State of Washington has chosen to set the flag apart for a special purpose, and has directed that it not be turned into a common background for an [p421] endless variety of superimposed messages. The physical condition of the flag itself is irrelevant to that purpose.
The true nature of the State's interest in this case is not only one of preserving "the physical integrity of the flag," [n3] but also one of preserving the flag as "an important symbol of nationhood and unity." [n4] Although the Court treats this important interest with a studied inattention, it is hardly one of recent invention and has previously been accorded considerable respect by this Court. In Halter, for example, the Court stated:
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.
205 U.S. at 43. There was no question in Halter of physical impairment of a flag since no actual flag was even involved. And it certainly would have made no difference to the Court's discussion of the State's interest if the plaintiff in error in that case had chosen to advertise his product by decorating the flag with beer bottles fashioned from some removable substance. [n5] It is the character, not the cloth, of the flag which the State seeks to protect. [p422]
The value of this interest has been emphasized in recent as well as distant times. Mr. Justice Fortas, for example, noted in Street v. New York, 394 U.S. 576, 616 (1969), that "the flag is a special kind of personalty," a form of property "burdened with peculiar obligations and restrictions." Id. at 617 (dissenting opinion). [n6] MR. JUSTICE WHITE has observed that "[t]he flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it." Smith v. Goguen, 415 U.S. at 587 (concurring in judgment). I agree. What appellant here seeks is simply license to use the flag however he pleases, so long as the activity can be tied to a concept of speech, regardless of any state interest in having the flag used only for more limited purposes. I find no reasoning in the Court's opinion which convinces me that the Constitution requires such license to be given. The fact that the State has a valid interest in preserving the character of the flag does not mean, of course, that it can employ all conceivable means to enforce it. It certainly could not require all citizens to own the flag or compel citizens to salute one. 394 U.S. 576, 616 (1969), that "the flag is a special kind of personalty," a form of property "burdened with peculiar obligations and restrictions." Id. at 617 (dissenting opinion). [n6] MR. JUSTICE WHITE has observed that "[t]he flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it." Smith v. Goguen, 415 U.S. at 587 (concurring in judgment). I agree. What appellant here seeks is simply license to use the flag however he pleases, so long as the activity can be tied to a concept of speech, regardless of any state interest in having the flag used only for more limited purposes. I find no reasoning in the Court's opinion which convinces me that the Constitution requires such license to be given. The fact that the State has a valid interest in preserving the character of the flag does not mean, of course, that it can employ all conceivable means to enforce it. It certainly could not require all citizens to own the flag or compel citizens to salute one. Board of Education v. Barnette, 319 U.S. 624 (1943). It presumably cannot punish criticism of the flag, or the principles for which it stands, any more than it could punish criticism of this country's policies or ideas. But the statute in this case demands no such allegiance. Its operation does not depend upon whether the flag is used for communicative or noncommunicative purposes; upon whether a particular message is deemed commercial or political; upon whether the use of the flag is respectful or contemptuous; or upon whether any particular segment [p423] of the State's citizenry might applaud or oppose the intended message. [n7] It simply withdraws a unique national symbol from the roster of materials lat may be used as a background for communications. Since I do not believe the Constitution prohibits Washington from making that decision, I dissent.
1. The Court states in a footnote:
There is no occasion in this case to address the application of the challenged statute to commercial behavior. Cf. Halter v. Nebraska, 205 U.S. 34 (1907).
Ante at 413 n. 7.
2. The plurality opinion of MR. JUSTICE BLACKMUN took the position that a ban against political advertising on publicly owned buses was not unconstitutional, since "[n]o First Amendment forum is here to be found." MR. JUSTICE DOUGLAS, concurring in the judgment, stated that petitioner in that case had no "constitutional right to spread his message before this captive audience," but specifically noted:
I do not view the content of the message as relevant either to petitioner's right to express it or to the commuters' right to be free from it. Commercial advertisements may be as offensive and intrusive to captive audiences as any political message.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART, MR. JUSTICE MARSHALL and MR. JUSTICE POWELL joined, dissenting, stated:
There is some doubt concerning whether the "commercial speech" distinction announced in Valentine v. Chrestensen, 316 U.S. 52 (1942), retains continuing validity,
referring to MR. JUSTICE DOUGLAS' concurring opinion in Cammarano v. United States, 358 U.S. 498, 514 (1959). The dissent further stated:
Once a public forum for communication has been established, both free speech and equal protection principles prohibit discrimination based solely upon subject matter or content.
(Emphasis in original.)
3. Smith v. Goguen, 415 U.S. 566, 591 (1974) (BLACKMUN, J., dissenting).
4. Id. at 587 (WHITE, J., concurring in judgment).
5. It should be noted that Halter makes no mention of the argument that allowing use of the flag for a personal or commercial purpose might suggest endorsement of that purpose by the government. While this might be an additional state interest in appropriate cases, it is by no means an indispensable element of the State's concern about the integrity of the flag.
6. The majority of the Court in Street stated: "We add that disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history," 394 U.S. at 594, citing Halter.
7. It is quite apparent that the Court does have considerable sympathy for at least the form of appellant's message, describing his use of the flag as "a pointed expression of anguish," ante at 410, and commenting that
appellant chose to express his own views in a manner that can fairly be described as gentle and restrained as compared to the actions undertaken by a number of his peers.