First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Very little expression is “mere” speech. Conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist of flying a particular flag as a symbol1 or in refusing to salute a flag as a symbol.2

In one case, the Supreme Court concluded that “the flag salute is a form of utterance,” explaining that symbolism is communication, and “[t]he use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind.” 3 When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process.

The Court divided when it had to deal with one of the more popular forms of “symbolic” conduct of the late 1960s and early 1970s—flag burning and other forms of flag desecration. Thus, in Street v. New York,4 the defendant had been convicted under a statute punishing desecration “by words or act” upon evidence that when he burned the flag he had uttered contemptuous words. The conviction was set aside because it might have been premised on his words alone or on his words and the act together, and no valid governmental interest supported penalizing verbal contempt for the flag.5

A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. In Smith v. Goguen,6 a statute punishing anyone who “publicly . . . treats contemptuously the flag of the United States” was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard “so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.” 7

The First Amendment was the basis for reversal in Spence v. Washington,8 which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed. The defendant had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context considered by the Court included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The Court also emphasized that the act was intended to express an idea and it did so without damaging the flag. The Court assumed that the state had a valid interest in preserving the flag as a national symbol, but left unclear whether that interest extended beyond protecting the physical integrity of the flag.9

The underlying assumption that flag burning could be prohibited as a means of protecting the flag’s symbolic value was later rejected. Twice, in 1989 and again in 1990, the Court held that prosecutions for flag burning at a public demonstration violated the First Amendment. First, in Texas v. Johnson10 the Court rejected a state desecration statute designed to protect the flag’s symbolic value, and then in United States v. Eichman11 rejected a more limited federal statute purporting to protect only the flag’s physical integrity. Both cases were decided by 5-4 votes, with Justice William Brennan writing the Court’s opinions.12 The Texas statute invalidated in Johnson defined the prohibited act of “desecration” as any physical mistreatment of the flag that the actor knew would seriously offend other persons. This emphasis on causing offense to others meant that the law was not “unrelated to the suppression of free expression” and that consequently the deferential standard of United States v. O’Brien, discussed in an earlier essay, was inapplicable.13 Applying strict scrutiny instead, the Court ruled that the state’s prosecution of someone who burned a flag at a political protest was not justified under the state’s asserted interest in preserving the flag as a symbol of nationhood and national unity. The Court’s opinion left open the question whether the Court would uphold a “content-neutral” statute protecting the physical integrity of the flag.

Immediately following Johnson, Congress enacted a new flag protection statute providing punishment for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.” 14

, 103 Stat. 777, invalidated by United States v. Eichman, 496 U.S. 310 (1990). The law was designed to be content-neutral and to protect the “physical integrity” of the flag.15 Nonetheless, the 1990 decision in United States v. Eichman overturned convictions of flag burners, as the Court found that the law suffered from “the same fundamental flaw” as the Texas law in Johnson.16 The government’s underlying interest, characterized by the Court as resting upon “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals,” 17 still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court “a focus on those acts likely to damage the flag’s symbolic value.” 18 As in Johnson, such a law could not withstand strict scrutiny analysis.

Footnotes

1

Stromberg v. California, 283 U.S. 359 (1931).

2

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

3

Id. at 632.

4

394 U.S. 576 (1969).

5

394 U.S. at 591–93. In Radich v. New York, 401 U.S. 531 (1971), aff’g, 26 N.Y.2d 114 (1970), 257 N.E.2d 30 (1970), an equally divided Court, Justice William O. Douglas not participating, sustained a flag desecration conviction of one who displayed sculptures in a gallery, using the flag in apparently sexually bizarre ways to register a social protest. Defendant subsequently obtained his release on habeas corpus, United States ex rel. Radich v. Criminal Ct., 459 F.2d 745 (2d Cir. 1972), cert. denied, 409 U.S. 115 (1973).

6

415 U.S. 566 (1974).

7

Id. at 578.

8

418 U.S. 405 (1974).

9

Id. at 408–11, 412–13. Subsequently, the Court vacated, over the dissents of Chief Justice Warren Burger and Justices Byron White, Harry Blackmun, and William Rehnquist, two convictions for burning flags and sent them back for reconsideration in the light of Goguen and Spence. Sutherland v. Illinois, 418 U.S. 907 (1974); Farrell v. Iowa, 418 U.S. 907 (1974). The Court, however, dismissed, “for want of a substantial federal question,” an appeal from a flag desecration conviction of one who, with no apparent intent to communicate but in the course of “horseplay,” blew his nose on a flag, simulated masturbation on it, and finally burned it. Van Slyke v. Texas, 418 U.S. 907 (1974).

10

491 U.S. 397 (1989).

11

496 U.S. 310 (1990).

12

In each case Justice William Brennan’s opinion for the Court was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy, and in each case Chief Justice William Rehnquist and Justices White, John Paul Stevens, and Sandra Day O’Connor dissented. In Johnson the Chief Justice’s dissent was joined by Justices Byron White and Sandra Day O’Connor, and Justice John Paul Stevens dissented separately. In Eichman Justice John Paul Stevens wrote the only dissenting opinion, to which the other dissenters subscribed.

13

491 U.S. at 407–08. For discussion of the O’Brien intermediate scrutiny standard, see Amdt1.7.14.1 Overview of Symbolic Speech.

14

The Flag Protection Act of 1989, Pub. L. No.

101-131

, 103 Stat. 777, invalidated by United States v. Eichman, 496 U.S. 310 (1990).

15

See H.R. Rep. No. 231, 101st Cong., 1st Sess. 8 (1989) ( “The purpose of the bill is to protect the physical integrity of American flags in all circumstances, regardless of the motive or political message of any flag burner” ).

16

496 U.S. at 317–19.

17

Id. at 316.

18

Id. at 317.