Spence v. Washington – Oral Argument – January 09, 1974

Media for Spence v. Washington

Audio Transcription for Opinion Announcement – June 25, 1974 in Spence v. Washington

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Warren E. Burger:

We will hear arguments first this morning in Number 72-1690, Spence against Washington.

Mr. Greenfield.

Peter Greenfield:

Mr. Chief Justice and may it please the Court.

I think to give some perspective to the question before the Court this morning, I will relate a piece of history that I learned just in the last week involving President Lincoln’s favorite clown, it was discussed in an article that appeared in the New York Times Magazine of December 30th.

The clown in question was named Dan Rice and he dressed himself up in an outfit that was designed to look like the American flag.

It was in a reverent expression.

I think in the tradition of people like Mr. Goguen whose case was argued only recently before this Court.

Mr. Rice called himself Uncle Sam and the image which he conveyed has remained with us in various forms and I think its fair to say that Uncle Sam has been in cartoons and at the head of parades, a violator repeatedly of the kind of statute which is before the Court this morning.

This case comes here on appeal from the Supreme Court of Washington and my client, Harold Spence was convicted for flying a privately owned American flag with a black cape peace symbol, superimposed on it from the window of his apartment in Seattle, Washington.

Before you proceed, I kind of missed, who is Mr. Rice?

Peter Greenfield:

Mr. Rice was the clown whose — at least according to the New York Times was President Lincoln’s favorite.

I see.

He’s not a party to the —

Peter Greenfield:

He’s not a party to this action Your Honor.[Laughter]

I believe his reign extended in the mid 19th century.

I see.

He’s not your client.

Peter Greenfield:

No, he isn’t.

He was —

Harry A. Blackmun:

Mr. Greenfield, did I sense somewhere in the record that the flag was also upside down?

Peter Greenfield:

I’m not sure whether that appears in the record Mr. Justice Blackmun, but in fact was suspended upside down.

That does not constitute a violation of the statute here at issue.

As I understand it, an upside down flag is traditionally a symbol of distress and I think it was consistent with the message which Mr. Spence was attempting to convey.

However he was not convicted as a result of the position of the flag but merely because there was something superimposed on the flag and that something could have been under the broadly word at statute of our state, words such as I love America, the content would not have been of consequence.

This case doesn’t have any of the complicating features that some recent political protest cases have, that have been before this Court.

It doesn’t involve as the Tinker case did.

The black arm bands that were worn in a school room, that the location, that was across of some concern unlike the Papish case, the political cartoon that was published on college campus.

It doesn’t involve any question of the right of (Inaudible) campuses to state or regulate activity on college campuses.

It doesn’t involve any trespass on private or public property or any destruction of property or Government records as was the case in United States versus O’Brien.

The only factor which makes this case at all complicated or indeed at all interest in this that it involved an American flag.

Peter Greenfield:

And as to whether or not that makes the case difficult.

I would remind the Court of the observation of Mt. Justice Jackson in West Virginia versus Barnette, that is that the underlying principles arising out of the First Amendment are simple ones and it’s only — the only problem on a case like this is going beyond the emotional preconceptions that we have when our flag is involved in getting to those fundamental and basically simple principles.

Basically, there are two kinds of statutes that are currently the subject of a great deal of litigation throughout the country, criminal statutes promulgated by the states and referring to flags.

They are the desecration statutes, the kind of statute that were — was at issue in the Goguen case which punishes behavior which reflects some kind of contempt or intentional desecration of the flag either by words or by some other form of conduct.

That kind of statute is not at issue here today.

Washington statute which — under which Mr. Spence was prosecuted deals with what is referred to in the title as “Improper use of the flag.”

And I should start by saying that the flag is defined very broadly in the statute.

A flag, I believe the definition says flag etcetera defined, refers to any flag, emblem, a shield or color of the United States or of the State of Washington or any picture or representation of the flag of any substance that is of metal or stone.

The buttons which have flags on them and have the face of a political candidate are equally punishable under Washington statute as was — according to the Supreme Court of Washington the conduct engaged in by Mr. Spence.

And once again —

I take it, the state flag, there is no resemblance to the American flag.

Peter Greenfield:

Right.

The statute applies both to the state flag and the flag of the United States.

And I don’t know of any case in which the state flag has been at issue.

I don’t know whether the average citizen of the state Washington could recognize or describe the flag of the State of Washington if asked.

William H. Rehnquist:

If any, they probably don’t own one –.

Peter Greenfield:

Pardon?

William H. Rehnquist:

At any rate, they probably don’t own one, the average citizen.

Peter Greenfield:

I as — I certainly assume that that’s true Mr. Justice Rehnquist.

I think that if the average citizen of Washington were asked whether the flag of our state is a green flag with the face of the first president on it or the picture of Mount Rainier or a pine tree that the distribution of answers would probably be approximately —

Well, can you tell me what it looks like?

Peter Greenfield:

I’ll have to defer to Mr. Warne(ph) for that to answer Your Honor.

I’m sorry, I can’t.

Be that — however, vague or perhaps overbroad, the definition of flag maybe in a 9.86.010, in this case, this was a flag without question, there’s no contrary view of that, this wasn’t an emblem or standard or shield or —

Peter Greenfield:

Right.

I don’t think there’s any —

— copy or picture or representation, it was a flag, wasn’t it?

Peter Greenfield:

Right.

I don’t believe there’s any question that this was a flag whether or not there was a violation of the statute depends on some other things.

Right.

Peter Greenfield:

Which are in fact much more complicated because judges including Judge Lumbard of Second Circuit in Long Island Moratorium Committee versus Cahn, perhaps the most detailed explication of the statute of this sort and a case that’s pending before this Court, that is the jurisdictional statement that was filed several years ago, suggested that one could not read a statute of this sort literally because the results were too bizarre and consequently we get into something which I think is fair to characterize as symbolic speech as distinguished from literal speech in a statute which presents very serious problems.

The kinds of examples which that Chief Judge Lumbard gave of what seemed to him to be obvious violations of the New York statute which is very similar to the Washington statute or such things as the buttons which every presidential candidate in recent history including several chief justices of this Court have displayed that is, pictures of the American flag or part of it with their faces superimposed, it would go to a — the various magazine covers that have — almost every magazine of national circulation in the last few years had one or another with a flag or part of it and the title of the magazine in various stories superimposed.

Many examples of this kinds of seemingly patent violations of statutes of this sort occur in the appendix to the brief filed with this Court, the reply brief for appellant in Radich versus New York.

That is Number 169, October term, 1970.

I think thought that we all have some familiarity with these kinds of things.

I noticed on the plane flying East, United Airlines distributed to me a brochure with advertising a telephone, I’ll leave a copy of this with the clerk if anyone would like to see it, a patent violation of the statute.

This — the breadth of the statute —

Thurgood Marshall:

If the statute is improper to you —

Peter Greenfield:

Mr. Justice Marshall, the statute prohibits the placing of any more or word or sign or decoration or design on a flag as defined in the statute.

Now this has for example the dial.

Thurgood Marshall:

That didn’t have the word improper?

Peter Greenfield:

No, that — the —

That is in the preamble, the title —

Peter Greenfield:

The title is improper use but there is no room for interpretation that a court could pick up on a word such as improper.

Now the argument that the state makes is that because there is no distinction made between what we would — as a matter of common sense, perhaps think of improper use, disrespectful use or some other that the statute is therefore neutral and poses no threat to First Amendment activity but this kind of neutrality is nonetheless, if it is in fact neutrality, a neutrality which poses a burden on First Amendment rights.

If we cut out the tongues of all adult citizens, this may be neutral relative to their political persuasion but nonetheless it inhibits their ability to engage in First Amendment protected activity.

William H. Rehnquist:

What about the copyright statute which that the federal government prohibits the use of copyrighted works, now that certainly impairs some people’s First Amendment activities, doesn’t it? Supposing your client had wanted to get up and perform one of George M. Cohan’s flag songs and it was copyrighted and couldn’t — the statute would say, I take it, he couldn’t make a public performance of that.

Now do you think there are First Amendment implications to that?

Peter Greenfield:

Well, I think that if a statute were to — for example, prohibit criticism of one of these works, that there would clearly be First Amendment implications.

If I owned a copy of a book that was copyrighted and I made some marks in the margin and that were critical and that were viewed as prohibited by the copyright laws, I think that would pull serious First Amendment problems.

Of course, the purpose of copyright protection is extremely different than the purposes that both the Supreme Court and the state tenders its justification for this kind of statute.

William H. Rehnquist:

Well, but I gather the state is saying that we want to protect the integrity of the flag, whatever you want to call it, we don’t want people changing it in effect.

And so certainly, if your client would have a legitimate claim, I would think under your argument to say, I thought it were particularly apt for my kind of protest to perform a George M. Cohan song to a meeting and yet the copyright law prohibited me from doing so.

Peter Greenfield:

It’s interesting that the state doesn’t make the argument that the purpose of the statute is to promote respect for the flag.

The state concedes, I think that it’s at page 12 of their brief that as — if the statute were designed to promote and respect for the flag, to require citizens to give this evidence for their respect for what the flag symbolizes that that would be directly contrary to the holdings in this court in such cases as Street versus New York and I don’t know whether they cite it but it additionally, West Virginia versus Barnette.

The state argues and I think that the sole argument which they make here is that the purpose of this flag is to present breaches of the peace.

William H. Rehnquist:

Well, but supposing they say we’re not insisting on any sort of affirmative respect at all, that so West Virginia versus Barnette is out there, all we’re saying is that you shan’t tamper with the physical integrity of a flag.

Peter Greenfield:

Well, if the flag can be treated that way, that is, it can be —

Why don’t we — don’t you think the — how about burning the flag as a protest?

The argument would reach that, I suppose?

Peter Greenfield:

Well, I think that burning the flag poses a substantial —

Or cutting it up?

Peter Greenfield:

But I think that either of those cases, the cutting it up I think is closer to this case.

I think — let me take them one at a time, cutting it up is actually what was done in — well, what was done by the President of the United States when he campaigned by use of a button with his image superimposed.

That is, that the — there wasn’t a tearing but the statute reaches metal as well as other kinds of flags.

What interests us —

Are you suggesting us that the — is that the — because the president did this, this statute is constitutional?

Is that your argument?

Peter Greenfield:

Well, Your Honor, what Chief Judge Lombard argued and I think —

(Voice Overlap) how about the question, how about cutting up the flag, does that — made the state prevent that or not?

Peter Greenfield:

Well, the short answer, in my opinion would be no, that is, I think in order to answer that question, we have to consider what interest the state might have in preventing a cutting of the flag.

Now, if we find and there’s no dispute on this record that the appellant was engaged in an attempt to convey a political message and assuming that that’s the kind of situation that we have which I think is the simplest case but not like — not, I would say the only case in which the activity is protected.

Then we have to determine what is the state’s interest in preventing a physical alteration or tearing of the flag.

Do you say that it isn’t sufficient to override anybody’s desire to deliver a political message through dismembering the flag?

Peter Greenfield:

Your Honor I say that I don’t know what the state’s interest might be.

Now, if the interest is that which the state here urges, that is to prevent breaches of the peace then I think it’s simply implausible.

That is the average violation of one of these statutes and they are pervasive in our society.

It simply doesn’t spur the average citizen to violent retaliation and I think that that’s really the position that the state has pushed to in order to defend the position that its taken here.

Warren E. Burger:

Where do we get support for the conclusion that that conduct doesn’t disturb the average citizen to violent reaction where — that’s your argument not —

Peter Greenfield:

Well, let me say firstly that what we’re dealing here is basically an analogy or an attempt to apply the doctrine of the Chaplinsky case.

Now, there are — it was always thought and I assumed that its still the case that the state has the burden to show that the conduct which it seeks to punish poses an eminent threat to the peace.

In Chaplinsky or in Feiner versus New York for example, this Court found that over some dissents that the group which the defendant was addressing was ready to fight.

Feiner was warned I believe on three occasions to desist from the activity in which he was engaged and he refused to do so and sub –consequently he was arrested.

In this case, as far as the record discloses, nobody except the police saw (Voice Overlap) —

Warren E. Burger:

Are you suggesting that every statute of this kind must have as its predicate that it’s a — the statement show that the — it has the fighting words implication of the Chaplinsky case?

Peter Greenfield:

Well, that’s the position I think that one has lead to if one assumes as the state argues that the purpose of the statute is to preserve the peace.

That is here — what happened, my client flew his flag from his window.

The police came in and adverted to it and Mr. Spence said that he had no idea there was anything wrong with this.

He would be happy to take it down, contrast that to Mr. Feiner who refused after being asked by the police to desist from a speech.

But what happened in this case was that Mr. Spence was summarily arrested and taken off to jail.

Peter Greenfield:

The appellant has cited in its brief most of if not all of the cases that this Court has heard that have involved various uses of the flag, in none of them has — there’d been even a suggestion that some kind of violent reaction by any of the observers was likely to follow and I know of no such incident and the state has made no attempt to cite it, surely here, where only three policemen observed the appellant’s conduct, it stretches the imagination to ask this Court, I think to conclude that there was an eminent threat of violence.

But I would repeat that I think it’s presumptuous of the state to ask this Court to judicially notice that the average citizen of the State of Washington when confronted with a flag with, for example, I love America, superimposed on it is going to be moved to violent reaction and I don’t think I can emphasize too much the breadth of the statute.

The flag which is displayed in this courtroom is in blatant violation of the Washington statute that’s under review here.

It has attached to it a yellow a fringe and there’s nothing in Title IV in the description of the flag that makes the flag red, white, blue and yellow.

That fringe is attached in the same sense as Mr. Spence’s peace symbol was attached to the flag.

And yet he was prosecuted and I assume that no prosecution will arise out of this instance.

Well, we’re not the State of Washington.

Peter Greenfield:

No, but this — the District has a comparable statute under which, I’m sorry to advice the Court, this will — I would think is a blatant violation —

Thurgood Marshall:

I would –[Laughter]

I would suspect that we could uphold the statute and still let that flag stay there.

Peter Greenfield:

I’m sorry I couldn’t —

Thurgood Marshall:

I would suspect we could uphold the Washington statute, it would not apply to that flag.

Peter Greenfield:

Well, I find it difficult in a way to see how Mr. Justice Marshall, that is — this Court could rewrite the statute and read into it a — for example the —

Thurgood Marshall:

Why didn’t the statute say that you couldn’t have a fringe on it?

Peter Greenfield:

It says that one cannot attach a design.

Now —

Thurgood Marshall:

The design —

Peter Greenfield:

Well, let me —

Thurgood Marshall:

Well, what about the top of the flagpole, is that bad too?

Is that bad with the statute?

Peter Greenfield:

One of the problems with this kind of statute is of course, it’s always difficult to say.

Thurgood Marshall:

The difference is that your statute was in the man’s front — and was thing so wrong?

Peter Greenfield:

No, the record indicates that Mr. Spence used a form of tape so that there would be no harm done to the flag.

There’s nothing again, the state does not contend —

Thurgood Marshall:

Number two, how many people do you say at the State of Washington knew what he meant when he put the peace symbol on the flag?

Peter Greenfield:

Well, I think the average viewer would have known it and the reason —

Thurgood Marshall:

Would’ve known what?

Peter Greenfield:

Would’ve known what he was trying to communicate.

Thurgood Marshall:

Which is what?

Peter Greenfield:

Which was a protest to the then immediately proceeding events, the invasion of Cambodia —

Thurgood Marshall:

How in the world could he know that?

Peter Greenfield:

Well, Your Honor I think that —

Thurgood Marshall:

He could’ve been protesting the invasion of Timbuktu.

Peter Greenfield:

Well, let me give the Court an example.

Somebody is standing on a street corner with a big sign that says stop, or peace now.

This is a fairly ambiguous sign as is most language unless you put it into some specific context but the Court —

Thurgood Marshall:

Well, suppose you put a peace symbol on the flag there, what would it mean?

Peter Greenfield:

Well, I —

Thurgood Marshall:

Today?

Peter Greenfield:

Today?

Thurgood Marshall:

Yes.

Peter Greenfield:

Well, I think that it would depend in large measure on —

Thurgood Marshall:

On what?

Peter Greenfield:

On where it was displayed by whom and before whom.

Thurgood Marshall:

Suppose it was displayed outside of this building across the street on — an the American flag right now, what would the message be?

Peter Greenfield:

Well, it might well —

Thurgood Marshall:

You don’t have the slightest idea what it would look.

Peter Greenfield:

I would certainly concede that it would be ambiguous.

However, in this situation, I don’t think that it was all — at all ambiguous and I refer the Court to the state’s brief at page 2 and 3 where it fills in the background which I think gave very clear meaning to Mr. Spence’s words.

That is — or to his expression.

The United States had just invaded Cambodia and I think that as the state observes, millions of Americans have this on their mind, also the tragedy at Kent State University had just occurred.

Thurgood Marshall:

But do you think there are some people who write and they didn’t know what the peace symbol meant?

Peter Greenfield:

Well, the police officers who arrested Mr. Spence identified it —

Thurgood Marshall:

Do you think some people other than police officers in Washington might not have known what the peace symbol meant at all?

Peter Greenfield:

I’m sure that that’s the case Mr. Justice Marshall just as I am sure that in any —

Thurgood Marshall:

Well, then you agree it was a clear message.

Peter Greenfield:

Well, not to certain people but I think that if we impose too heavy a burden of clarity on people who are attempting to convey First Amendment messages then perhaps the average citizen is going to have to remain silent.

The record also clarifies to a substantial extent than I think the state concedes of what the message that my client was attempting to convey was — this case of course comes here on a stipulated set of facts and the message is — I think part of the stipulation.

The state paraphrases the testimony of Mr. Spence which I think again if it doesn’t convey something so clear that it could be reduced to a mathematical formula.

Thurgood Marshall:

What he meant to say?

Thurgood Marshall:

I would call it about what people understood him to say.

Peter Greenfield:

Well, if somebody is parading in front of the State Department with the sign that says peace now.

It’s not possible, I don’t think to infer from that sign just what their program for peace might be.

Thurgood Marshall:

It might be peace in Washington D.C.?

Peter Greenfield:

It might.

But I wonder whether on that ground this Court would want to go so far as to say that the message is not protected that if one can’t pinpoint a precise political program that therefore, one is foreclosed from speaking and I think under the circumstances this was relatively clear political message.

It showed, I think in opposition to the policies of the administration at that time and I think the average citizen would have taken it to advert both to the Cambodia incident and to that, the Kent State University.

Mr. Greenfield, I gather that the — your first question attacks the statute as applied.

Peter Greenfield:

Correct.

On it — your second question that attacks facially.

Peter Greenfield:

Correct Your Honor and here I think that the argument which appellant makes is precisely that which Judge Lombard made in Long Island Moratorium Committee versus Cahn.

You mean the facial attack —

Peter Greenfield:

Correct.

The state characterizes that.

I think inaccurately as applying only to the specific symbol which appeared as an appendix to that opinion but the language of Chief Judge Lombard’s opinion, I think is absolutely clear.

He was disqualifying the statute on its face.

This is the kind of statute that led the — that led Judge Creighton of the Fourth Circuit, in Parker versus Morgan to observe that for people in North Carolina with such a statute on the books, it was dangerous to posses any object that was red, white and blue.

If there are no further questions —

Lewis F. Powell, Jr.:

Mr. Greenfield, did you — have answered the question as to your view where a flag is burned in public?

Peter Greenfield:

I didn’t Mr. Justice Powell and I would say that under this particular statute, the flag burning would not be a violation.

Now, I think a state could properly design a statute which would prohibit burning of anything on the street for safety reasons and which could reach a flag.

I think just as the copyright example that Mr. Justice Rehnquist gave us.

We’re not saying that the state has its hands tied whenever anyone attempts to communicate a message.

However, if the the statute only applied to American flags rather than to, for example, Canadian flags that were burned on the street.

Then the object of the statute would be to get at the message and not to protect the safety of passersby from burning objects and I think that runs squarely counter to the theory expressed by this Court in West Virginia versus Barnette.

It elevates the flag to the level of an item.

When you refer to safety, I take it from what you have said, you are — you’re not thinking about possibility or breach of the peace but — of someone being burned?

Peter Greenfield:

Correct.

May I come back a moment to the statements you’ve made that you thought the statute was void on its face, is that because of vagueness or overbreadth?

Peter Greenfield:

It’s both, I hope that I may reserve some time for rebuttal but let me in response to your question say that — the statute is overbroad because all of these examples beginning with the flag in this courtroom in this — the buttons which Chief Justice Lombard — Chief Judge Lombard referred to in Cahn would be prohibited and it was inconceivable to that court and I think that it will be inconceivable to this court that that kind of traditional express of conduct could be a violation of any properly drawn statute.

Peter Greenfield:

If the purpose is to prevent — to promote respect for the flag, then the statute is overbroad if it prevents a citizen from saying, “I love the flag,” or as one of the exhibits in this court, in this case, exemplified prints in a newspaper, the declaration of independence superimposed on the flag on the occasion of independent state.

This is a plain violation of the statute and its for that reason overbroad, the vagueness argument basically takes off from the proposition that most of the courts who would view these kinds of statutes has said they can’t be taken literally because if they do, they have all these absurd consequences and consequently, one has to guess as to whether this flag constitutes a violation.

And Mr. Spence’s flag doesn’t and if one has to guess, the statute is vague.

Thank you.

Warren E. Burger:

Mr. Warme.

James E. Warme:

Mr. Chief Justice and may it please the Court.

I have taken some time in my brief to set out the facts in this particular case for the Court and I had attended to convey to the Court that the state does not consider the equities on this particular case, to be overwhelmingly on its side.

Mr. Spence was certainly one of the most pleasant people.

It has ever been my duty to prosecute and I recognize the equities in Mr. Spence’s position.

But that doesn’t mean that the statute itself is unconstitutional.

And I think if we concede the equities and deal solely with the statute then, we would be in a much better position to determine whether or not the statute itself is constitutional.

Warren E. Burger:

Do I correctly read the record that the essence of his defense was that he wasn’t showing contempt or disrespect but he was showing respect for the flag by associating it with the concept of peace?

James E. Warme:

That was his defense.

That defense was rejected as a matter of law by the trial court.

Warren E. Burger:

That was his testimony essentially was —

James E. Warme:

That it was his testimony but it was not relevant and the — jury was instructed that that was not relevant and the Court should understand the statutory scheme in the State of Washington, there are two statutes.

The first statute, and the statute which we are considering here is the improper display of the flag statute which is a misdemeanor.

There is a second statute which is a flag desecration statute in the same chapter which is a gross misdemeanor, more serious crime and which makes it a crime to cast contempt upon an American flag or to defile an American flag which would be the case if there were some type of burning or a dismemberment which — now that statute has been construed by the State of Washington in State versus Turner to require an intent to desecrate so that the ambiguous act of burning the flag may or may nor constitute of the flag under that statute.

Warren E. Burger:

That would protect a protect the person, would it not who has an old worn-out tattered flag and follows the procedure recommended in some Congressionally published flag book that the thing to do with such a flag is not to throw out in the garbage pail but to cremate it.

James E. Warme:

That’s correct.

And —

Warren E. Burger:

So that he would be protected because his purpose was a benign purpose.

James E. Warme:

That’s correct.

And it was originally the position of the — of Mr. Spence in the trail court that he was protecting under the same doctrine because the display was a benign display that its intention was good.

The Court said as a matter of law, that is not an element and it’s not a defense.

That it’s a malum prohibitum act.

The improper display of the flag and that it is not a crime in which intent is an issue.

Warren E. Burger:

In the — excuse me, in history books there’s a — some of the history books has a picture of the kind your friend referred to of, I think the campaign perhaps of Grover Cleveland or the McKinley’s day, that one of the campaign documents was the American flag with the picture of the candidate, Grover Cleveland, superimposed over it.

Now, if that were done today, that would violate the Washington statute, would it not?

James E. Warme:

If it were a picture of the flag?

Warren E. Burger:

No.

James E. Warme:

If it were the flag itself?

Warren E. Burger:

The flag itself.

James E. Warme:

If it were the flag itself, it would violate the statute, that’s correct.

Warren E. Burger:

But you say if it were reproduced as it is in the history book, it would not be.

James E. Warme:

It would not be.

Warren E. Burger:

To set the picture of the flag not a flag.

James E. Warme:

That’s correct.

Now, I think it is important to point out to the Court that the statute is very, very broad as counsel has urged but the —

Excuse me, I don’t understand that answer — this says the word flag, copy, picture or representation there.

James E. Warme:

That’s exactly right and that’s the point I’m coming to.

The statute itself is very, very broad.

As interpreted by the State Supreme Court in the case of Washington versus Spence, the statute is severable and we were only dealing with an actual American flag at the superior court level, the Court of Appeals level and the State Supreme Court level, Mr. Spence always urged that the statute had to be considered as a whole, that you have to consider the words, picture, representation, color scheme, what have you.

The Washington State Supreme Court said, “Not so.”

They said on — in their opinion and I’ll quote the words of the Court, “The only —

Warren E. Burger:

What page of the appendix is that on again?

James E. Warme:

Its at — I believe —

Warren E. Burger:

47, yes, 47.

James E. Warme:

Is it?

The only interdiction of free speech so far as this case is concerned is that one cannot alter or deface a flag of the United States and perhaps other official symbols which are not before us, although it was urged that this symbols were properly before the Court, they said, “No.

In interpreting the statute, we do not have to consider these other parts of the statute because we consider them severable, not an integrable — integral part of the statute.

That has always been the rule in the State of Washington, most clearly or recently set out in State versus Anderson which we have cited in our brief and which is also the federal rule on interpretation which is —

Well, of course, we have to include it by way of an interpretation here.

James E. Warme:

Well, that’s my position Your Honor.

That’s my position so that the question of the pictures, the representations, the buttons, the telephone with the red, white and blue color scheme are not properly before this Court under the statute because the State Supreme Court has said, we can consider those separately.

Thurgood Marshall:

The flag of the regiment, it has ribbons on it, that will be —

James E. Warme:

They’re not — the battalion flag?

Or the American flag?

Thurgood Marshall:

The American flag which the battalion puts on — at all of its battle ribbons.

James E. Warme:

I don’t believe they — that they’re generally attached to the flag.

James E. Warme:

I believe they’re usually attached to the staff of the flag itself.

Thurgood Marshall:

And they hang on down (Voice Overlap) —

James E. Warme:

And they hang on down and that’s not prohibited under the statute.

Thurgood Marshall:

Well, suppose they were attached to the flag.

James E. Warme:

That would be a violation, that would be a violation.

Thurgood Marshall:

I would like to see the State of Washington try to enforce them.

James E. Warme:

Well, there’s a — I’ve never seen a violation of it Your Honor in the State of Washington.

I don’t think it — I think generally in that type of situation where you have a military situation, there are rules of protocol which are enforced by the military itself.

So I don’t think that’s — it’s a hypothetical problem but I don’t think its an actual problem.

And I think that sufficiently answers the overbreadth argument of counsel.

I think that the State Supreme Court interpretation is such that — that is not an argument anymore.

Clearly the most overwhelming part of the argument is that this statute does constitute a violation or an infringement upon the appellant’s First Amendment rights.

As applied?

James E. Warme:

As applied, that’s correct Your Honor.

I think that’s really the heart of this particular case.

There are — a number of cases which deal the distinction between symbolic speech and free speech and of course, or pure speech.

In pure speech we have the clear and present danger test.

In symbolic speech, we have U.S. versus O’Brien where the interests are somewhat different —

How about Tinker, the armband?

James E. Warme:

Well, Tinker followed O’Brien.

They said there’s no legitimate state interest.

O’Brien was analyzed, the Tinker case.

But Tinker I gathered treated the wearing of the armband as if it were spoken word.

James E. Warme:

That’s correct and I’m assuming —

And isn’t that the problem here.

James E. Warme:

Well, this is not pure speech but I’m — lets first, for the sake of argument, we’ll assume that it is.

Well, maybe isn’t it arguably — ?

James E. Warme:

Well, I think it’s arguably like — and I will assume that for the sake of the argument that it is and I — although I don’t think that we have to go as far as the cases which the clear and present cases because I think we only have to go as far as O’Brien since what we’re talking about is symbolic speech which O’Brien is somewhat limited but I — but I’m going to address myself to the clear and present danger, this legitimate state interest in prohibiting this type of conduct.

There are three interests which I’ve heard the Court discussed with counsel and I think that that have to be distinguished.

The first interest is the interest in promoting respect for the flag.

James E. Warme:

That is not a legitimate state interest.

I conceded throughout my brief that the State Government cannot control people’s attitudes about the flag.

Totally improper whether it be through symbolic speech or pure speech, it’s an improper state interest.

But you don’t suggest that the — you don’t suggest that goes too far, say the state may not prevent someone from showing disrespect by burning the flag?

James E. Warme:

That would come under the other section of Title IX, Chapter 86. —

I don’t care what comes under it, do you suggest the state may not be there?

Warren E. Burger:

In other words you have —

James E. Warme:

I’m –(Inaudible) —

Warren E. Burger:

You’re not giving away your defilement statute that you referred to before —

James E. Warme:

No, I’m not giving away the defilement statute although I think about that statute and —

I don’t think if you are going to give away — give that away, you’ll get this statute, a fortiori.

Warren E. Burger:

Automatically.

James E. Warme:

I thought about that and I think the answer is —

I think you would.

James E. Warme:

I think the answer is no to that particular argument.

Why?

James E. Warme:

Because in that particular statute what you’re attempting to control is people’s attitudes towards the flag.

Again, an improper state interest.

Now, as that statute —

I suppose you’re suggesting that the state has —

James E. Warme:

That’s the second interest that we’re going to talk — that I was going to talk about.

That was the interest which the State Supreme Court found.

They said, the state has an interest in protecting the integrity of the flag and keeping it free from external adornments.

But you have not taken —

James E. Warme:

Well, I’m not —

— that petition here.

James E. Warme:

— I’m not going to say that the State Supreme Court is wrong but that was not the grounds that we urged before the State Supreme Court and that’s not the grounds that I’m urging before this Court.

Maybe they felt something was wrong with your ground.

James E. Warme:

Well, obviously they did Your Honor (Voice Overlap).

Well, you returned the compliment, don’t you?

James E. Warme:

I think doing that have been –[Laughter]

Where were you viewing their judgment, not yours?

James E. Warme:

Well, you are reviewing the statute as I understand it.

Its not a question of either my judgment or the —

Reviewing the judgment of the State Supreme Court.

There were judgment but not necessarily its opinion.

James E. Warme:

That’s correct.

And only — in the third State interest which and the interest which we’ve always —

I’m sorry, the second has escaped me, what was the second?

James E. Warme:

The second one is preserving the integrity of the flag.

What does that mean, do you think?

James E. Warme:

Well, it means that the state has established the flag as a national symbol and it has the same rights in the flag, for instance as Mr. Cohen would have in his song.

Well, no, no, no, those are property rights, those are statutory property rights that are protected by the copyright law and that’s for the appropriation of somebody else’s property.

Now the state has no property right in the flag, does it, vis-à-vis any individual citizen of the United States or the State?

James E. Warme:

I don’t particularly think so.

But I think that’s what the State Supreme Court said in its opinion.

But I don’t think that’s what the legislature said either.

You’re not defend — you’re not defending what the —

James E. Warme:

I’m not defending what the State Supreme Court said.

Now, that can be your third, —

William H. Rehnquist:

You’re not abandoning it either.

James E. Warme:

I’m not abandoning but I’m not –[Laughter]

That’s correct.

Well, now what do you rely on?

James E. Warme:

We rely upon the state interest of preserving the peace.

This was the same state interest that was found in Radich versus New York, the only other case which came from the Supreme Court but that — that was a case without an opinion where the New York Court said that there was a legitimate interest in preserving the peace.

Now, I think that same interest applies in the desecration statute and I think if it’s a public desecration of the flag, then the state interest is there.

If it’s a private desecration or defilement of the flag, I don’t think that there is a legitimate state interest and I think this answers Mr. Justice White’s judgement.

Then you have to read that into your statute.

Certainly there is nothing in the statute which speaks of —

James E. Warme:

Of preserving the peace?

Right.

James E. Warme:

I appreciate that Your Honor, In reviewing all of the criminal laws, I don’t know that any of them say that the state interest which we are promoting here is written into the statute.

The determination of state interest is a proper judicial determination and it’s not dependent upon the wording in the statute nor is it a question of fact to be proven at the trial court.

Thurgood Marshall:

But your State Supreme Court didn’t?

James E. Warme:

Pardon me?

Thurgood Marshall:

But your State Supreme Court read it in the statute?

James E. Warme:

They did not read it — no, they did not.

They did not, that’s correct.

Thurgood Marshall:

So how can we —

James E. Warme:

I think — we’re talking about statutory interpretation and the question in terms of —

Thurgood Marshall:

Do you admit that you urged this on your Supreme Court and your Supreme Court rejected it.

James E. Warme:

Now, the Supreme Court did not answer it at all.

Thurgood Marshall:

Why didn’t they answer at all?

Well, they didn’t accept it.

James E. Warme:

That’s right.

There — (Voice Overlap) —

Thurgood Marshall:

(Voice Overlap) — that even though they refused to accept it.

James E. Warme:

That’s correct.

William H. Rehnquist:

Well, you’re not really talking about statutory interpretation, are you talking about the basis on which the statute has written might be constitutionally sustained.

James E. Warme:

Absolutely correct.

William H. Rehnquist:

So that you don’t need to say that the legislature, you know, the legislative history shows this or the Supreme Court interpreted it to mean, this if in effect you can sell five justices in this Court on the idea.

James E. Warme:

That’s — I believe that’s correct.

Since we’re not talking about a practical construction of the statute and then the rules of interpretation are not binding on this Court.

What we’re talking about is the underlying state interest which this Court has to decide.

Now, —

Well, can we decide that when the Washington Court decided it to something else than you are urging here?

James E. Warme:

I think so.

I very definitely think so.

I think if — well, I think that this Court has consistently found or it’s the proper state interest or lack of proper state interest regardless of the opinion of the State Supreme Court, for instance, if the State Supreme Court were to say, there is a proper state interest in preserving respect for the flag under this statute, this Court would not hesitate to say, “No, that’s improper.”

This is the real question that no one has asked you is why do you not at least partially advance the thesis of the Washington State Supreme Court?

James E. Warme:

Well, I have set it forth in my brief.

I think it’s there to be considered but I don’t think it’s the strongest argument.

And that’s quite frankly my opinion — I feel that the stronger argument is that there is a legitimate state interest in preserving the peace and that’s what the statute stands for.

Even though the Washington Supreme Court has not said so?

James E. Warme:

Even thought they said that there were other grounds that they thought were sufficient for the statute, there were other legitimate state interest.

Well, did they say that, really?

James E. Warme:

They said — yes, they did.

They said, I don’t have the quote, but they said that, “This nation has established a symbol and the State has a legitimate interest in preserving its integrity and keeping it free from exopanding its adornment.”

May I ask this question?

Does the record show whether or not this statute has been uniformly applied, suppose, for example, somebody mentioned — quite had been placed on the flag or something like, say, God save America.

Have you ever brought a prosecution or had any occasion to consider bringing one?

James E. Warme:

I’ve never brought a prosecution.

I’ve never seen a prosecution brought — I have never seen the flag used that way either?

Well, is this the only prosecution that’s ever been brought?

James E. Warme:

As far as I know, this is the only prosecution that’s ever been brought under this particular statute in the State of Washington, that’s correct.

The record is devoid of any type of arbitrary enforcement by prosecutors or by police forces although its been asserted in the brief of the appellant that such arbitrary enforcement does exist, I have not seen it.

And the record is devoid of any type of proof of that.

Well, wouldn’t God save America on the flag is much a protest as the speech —

James E. Warme:

That’s certainly would.

Its — and if — and it would be prohibited, I think for the same reason that its an improper vehicle, a flag is an improper vehicle for conveying political or social ideas —

Because of the breach of the peace argument?

James E. Warme:

That’s correct because and I appreciate that on this Court, and in this Court, there are probably a greater proportion of people who do not attach the emotional involvement to the American flag than the general population does.

I think as you become more and more educated and you start thinking about things like particularly, I suppose the rise of Nazism in Germany, you become very suspicious about chauvinistic tendencies and as a consequence, more educated people I think have a tendency to shy away from strong emotional identification with symbols but that does not mean, either that it is improper for people to have that particular strong emotional identification or for the state to recognize that people have that particular strong emotional identification —

How much disorder would God save America on the flag provoke?

James E. Warme:

It depends on the circumstances.

It would depend upon the circumstances and the problem, the problem —

I suppose, if not be God save America from somebody.

James E. Warme:

God save America from Richard Nixon —

That’s right.

James E. Warme:

— would probably be a feeling that would invoke a certain amount of ire in the substantial portion of the population.

Thurgood Marshall:

(Inaudible)

James E. Warme:

Well, very — that’s not exactly correct Your Honor.

If I can explain the record in this particular case very briefly, the Washington rules provide for a stipulated statement of the facts.

Mr. Spence was indigent.

The state agreed that we would stipulate to the relevant facts and come to this Court on a stipulation of what those facts were.

The evidence at the trial was that a passerby first called the police.

That evidence was rejected although the state offered that evidence by the trial court before they even went to the jury on the grounds that that was not a proper or it was not relevant evidence to any element of the statute that it was a malum prohibitum statute and that the actual response of the people to the statute was —

Thurgood Marshall:

(Inaudible)

James E. Warme:

Well, again, my point is that the response of the people to the statute does not determine the constitutionality or in-constitutionality of the statute itself that that has to be determined from examining the statute, if we require that for the statute to be constitutional, that there’d be an actual present danger, then we come in to the position where its only a crime to yell “fire” in a crowded theater if the people actually react violently.

Thurgood Marshall:

(Inaudible).

James E. Warme:

Not a —

Thurgood Marshall:

(Inaudible).

James E. Warme:

No.

I appreciate —

Thurgood Marshall:

(Inaudible).

James E. Warme:

It would be hard to get a fight but that’s not the legit — well, the Supreme Courts said —

Thurgood Marshall:

(Inaudible).

James E. Warme:

That’s correct.

Thurgood Marshall:

(Inaudible).

James E. Warme:

This was — he was on either the second or the third floor.[Laughter]

Thurgood Marshall:

(Inaudible).

James E. Warme:

Out his window.

Thurgood Marshall:

Out his window?

James E. Warme:

That’s correct.

Thurgood Marshall:

He never went out the street?

James E. Warme:

He never went out the street.

I think he had it out about five minutes when —

(Inaudible).

James E. Warme:

No, it did not but I don’t think that in order to — for the statute to withstand constitutional scrutiny, there has to be an actionable violence.

Thurgood Marshall:

(Inaudible).

James E. Warme:

I appreciate Your Honor that my position will be much stronger if they’d only — if one police officer, given the man a citation.

I would prefer to be in that position but that still doesn’t change the fact —

Thurgood Marshall:

(Inaudible).

James E. Warme:

No, I would not have sent three police officers there.

The — even the police officers had a discussion about whether to give him a citation or — but that doesn’t have anything to do with the statute itself.

This —

William H. Rehnquist:

Since Mr. Greenfield relied on historical examples, you might offer Barbara Fritchie to support the possibility of public outrage at the waiving of a flag from the window.

James E. Warme:

That’s an interesting observation Your Honor.[Laughter]

I would —

Has the Attorney General of your State taken a position in this case?

James E. Warme:

No.

The Attorney General has not.

The Attorney General has no criminal jurisdiction in the State of Washington.

Who does, just the local prosecutor?

James E. Warme:

The local prosecutor who is an elected official.

I would direct this Court’s attention to the case of Halter versus Nebraska which probably is in a pro quo in the face of the challenge to the First Amendment but is not in pro quo5020 to the observation that was made by the Court at that time in recognizing the dynamic nature of the symbol of the flag where the Court said, “Recognizing legitimate state interest that we’re urging here, insults to the flags have been the causes of wars and have on occasion been punished summarily by those who hold it in reverence.”

That’s the type of situation that we are talking about here.

The flag is not a proper vehicle for expressing certain types of ideas.

And in order to avoid the constitutional problems of deciding or favoring ideas, the state has made the prohibition absolute.

It says, “Not only can we not express favorable ideas such as supporting the nation in an armed conflict, rallying behind the —

Suppose just the Congress, it hadn’t put this peace symbol on the flag but it simply put the peace symbol on his window.

James E. Warme:

No problem at all.

I know but would that not have provoked as much disorder as putting it on the flag?

James E. Warme:

No.

Because the nature of the offense —

At that time?

In that time —

James E. Warme:

No, I — well, I don’t think so Your Honor.

There are a lot of peace symbols in Seattle at that time.

James E. Warme:

But the nature of the offense is not — the nature of the insult is not to the policy so much as it is to the flag.

But the First Amendment in any event whether or not it provoked disorder would’ve protected the display merely of the peace symbol not of the peace symbol on the flag?

If he just put the peace symbol on his window.

James E. Warme:

If the peace symbol was on his window and there were a — an actual disturbance, then —

First Amendment would not protect it?

James E. Warme:

I don’t know that the First Amendment would not protect the display but I think that the police would be authorized to take appropriate action to preserve the peace and if that appropriate action were under the circumstances —

This will be only if in fact there were disorders, you suggest.

James E. Warme:

That’s correct.

That’s — because what we’re talking about —

If there were none, the mere fact that he displayed it, he could be protect — it would be protected by the First Amendment.

James E. Warme:

Absolutely correct.

Thurgood Marshall:

Suppose the peace symbol was pasted against the window and the flag was directed behind it but wasn’t attached to it.

James E. Warme:

Under the statute, it would not be a violation.

Thurgood Marshall:

That’s right.

James E. Warme:

Under the statute, it would not be a violation, that’s correct.

Thurgood Marshall:

But all of the problem could happen as a result of that.

James E. Warme:

If —

Thurgood Marshall:

And there’s nothing you could do until the problem, till the disorder occurred, am I right?

James E. Warme:

That’s correct.

Thurgood Marshall:

So the only thing here is that it was against the flag, touched the flag.

James E. Warme:

That’s correct.

Thurgood Marshall:

And that was the harm in touching of the flag.

James E. Warme:

That’s correct but I think if the Court dwells on the facts that tends to minimize the nature of the offense and if we go back to Chaplinsky where we have the citizen calling the police officer a goddamn fascist, I believe was the term that they used there.

This Court recognized that whether or not — whether or not the police officer became aroused, that whether or not the citizen really became aroused, the nature of the insult was such that it was the type of insult likely to provoke the disturbance of the peace and in the Halter versus Nebraska relying on the same test, they said, “The used of the flag is the same type of personal insult that’s involved in Chaplinsky.”

And I think this is to be distinguished from Cohen versus California where they have the young man who took the – wrote, “f**k the draft” on the back of his coat and wore in the courtroom”.

No one, I don’t think it was personally insulted by this person’s particular opposition to the draft.

I don’t think the draft is something that people have strong personal feelings about.

If he had written the same obscenity, perhaps on an American flag and substituted America for the draft, then you would have the same — you would have people who would be personally affronted by this particular type of obscenity.

And that’s the distinction that the Court made in Cohen.

William H. Rehnquist:

I’m wondering if your grounds for upholding the statute are as different from most of the Supreme Court of Washington as you intimated at one time.

William H. Rehnquist:

Basically your argument is that people may become aroused by insults to the physical integrity of the flag unless — isn’t it and that the state may use that as a basis for legislating.

James E. Warme:

I haven’t thought of it in that terms but I appreciate that the Supreme Court may have been thinking and just have not gone as far and said, the reason for preserving the integrity of the flag is to prevent people from insulting the flag.

William H. Rehnquist:

At least there are some overlap, I would think between the argument you’re making and the one used by the Supreme Court or what?

James E. Warme:

Yes, I think so.

Warren E. Burger:

But its clear that you concede that putting the words “God Bless America” over the flag would be as much a violation of the statute as the present case.

James E. Warme:

It would.

And the problem that we have is Chicago, the City of — the Police of Chicago versus Mosley where they said, “Now, you can protest labor disputes in front of the public schools but you can’t protest racial segregation.”

You have a selective type of choosing by the state, we’re going to favor certain attitude, we are going to favor certain expressions and we’re going to suppress other.

Then you have very serious constitutional questions.

Warren E. Burger:

Well, your friend says that the reason this — one of the reasons the statute is overbroad is because it would prohibit both of these expressions equally, the favorable and the ambiguous one.

That’s the core, a part of this argument, an over breadth.

James E. Warme:

Well, that’s the core part of it but I think Your Honor that it’s also appropriate for the Court to consider that using the flag even for the purposes of what one person may consider to be, a benign purpose may be considered by others to be a cause of insult.

As was in this particular case, the ambiguous nature of the symbol in this case could be interpreted either of two ways.

If there are no further questions, then I’ll submit my argument.

Warren E. Burger:

Thank you.

Mr. Greenfield, do you have anything further?

Peter Greenfield:

Let me just clarify that personal in the sense that Mr. Warme was using it slightly different, I think and personal in the sense in which it was used in Chaplinsky, that is, was the fighting words doctrine involves words directed at a person, not something that one may as a matter of his own feelings finds the troubling.

And let me say in response to Justice Powell’s questions, there are two examples of selected enforcement, and the record in this, Exhibits 1 and 2, one of which is an American flag and a picture with the declaration of independence superimposed.

There have been many such examples in the State of Washington and none of them have resulted in prosecution.

The Supreme Court did not narrow, that is the Washington Supreme Court did not narrow the statute in its decision here.

It simply refused to consider what it regarded as hypothetical examples of rejecting what appellant had asked that it invoked mainly the First Amendment overbreadth argument that would allow other instances to be considered in the statute as overbroad as this one.

I think also the observation of Mr. Justice White that actually there’s no difference between characterizing the Washington Court position as protecting the integrity of the flag and the respect for the flag argument.

There isn’t any distinction there.

The reason that one that purports to protect the integrity of the flag is to promote its respect otherwise we’re feeling a totally circular argument and if I can —

Well, that’s your feeling of his property —

Peter Greenfield:

Right, unless you deal with property which (Voice Overlap) —

— and it would be a property, in other words —

Peter Greenfield:

(Voice Overlap) which clearly is not the case here.

If this were someone else’s flag, we wouldn’t being here — be here making the argument.

If I can take one more example and I know I have very little time, the respect for the flag argument, I think it was aptly rejected in an analogous case by Thomas Jefferson, it was quoted in the opinion of this Court, the New York Times versus Sullivan.

Peter Greenfield:

He was making a statement which related to the Sedition Act and he referred to that defunct Act and said that it was a nullity as palpable as if Congress had directed us to fall down on our knees and worship a golden image.

And I think these flag statutes which are recently enacted —

(Inaudible)

Peter Greenfield:

Right and none of them arose before the end of the 19th century.

They’re recent statutes and I think that the threaten to make the American flag just the kind of golden image which would have horrified Thomas Jefferson —

Did you refer Mr. Greenfield, (Inaudible) the one and only prosecution over this statute in the history of your state?

Peter Greenfield:

I don’t — there are no other reported opinions Your Honor and there have been other flag prosecutions none of which have reached so far as I know the constitutional issue is involved but I think that they were under the desecration statute.

So far as you know under this statute, this is the one and only first and last prosecution since the statute was enacted in 1919.

Peter Greenfield:

Correct and since it was upheld, people in Washington will not know whether they dare wear a campaign button of the kind that’s been exemplified or use any of the other flag related messages that are simply a part of America.

William H. Rehnquist:

Mr. Greenfield, you say in Chaplinsky and of rightly that there — the it was personally directed to an individual. On the other hand, and Feiner as I recall, Feiner had referred to President Truman as a champagne sipping bomb are words that affect to an audience and the suppression there was not based on remarks, addressed to the individuals but the reaction of the individuals, to remarks about a third person.

Peter Greenfield:

Well, I think precisely that that the significance of Feiner was that one didn’t simply look at his words because I think Feiner’s words in a different context would have been protected beyond question but it was the fact that there was a crowd that was getting uneasy and that the Court found was about to erupt into violence and that Feiner had been warned to desist and that he refused after three warnings to do so.

That was what enabled the Court to find there was eminent threat of violence and therefore under the fighting words doctrine, Feiner could be prohibited from continuing with the speech.

But here the state says it can erect a conclusive presumption that if — because of the uneducated people of Washington that anyone who sees a flag with God Bless America over it, is likely to respond by violent retaliation and I submit that that’s a simply implausible.

None of the flag cases that — in any jurisdiction support in effect a judicial notice by this Court, that the people of this country conform into that degree to the description of harms.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.