United States v. Eichman

PETITIONER:United States
RESPONDENT:Eichman
LOCATION:Congress

DOCKET NO.: 89-1433
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT:

CITATION: 496 US 310 (1990)
ARGUED: May 14, 1990
DECIDED: Jun 11, 1990

ADVOCATES:
Kenneth W. Starr – Argued the cause for the United States
William M. Kunstler – Argued the cause for the appellees

Facts of the case

In 1989, Congress passed the Flag Protection Act which made it a crime to destroy an American flag or any likeness of an American flag which may be “commonly displayed.” The law did, however, allow proper disposal of a worn or soiled flag. Several prosecutions resulted from the Act. Eichman set a flag ablaze on the steps of the U.S. Capitol while protesting the government’s domestic and foreign policy. Another prosecution (United States v. Haggerty) resulted from a flag-burning in Seattle protesting the passage of the Flag Protection Act.Both cases (Eichman’s and Haggerty’s) were argued together.

Question

Did the Act violate freedom of expression protected by the First Amendment?

William H. Rehnquist:

We’ll hear argument now in No. 89-1433, United States against Shawn D. Eichman, et al., and 89-1434, United States against Mark John Haggerty, et al.–

General Starr.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

These two cases bring before the Court a single question: whether the First Amendment prohibits the United States from prosecuting individuals for knowingly burning a flag of the United States.

Two district courts, the United States District Court for the District of Columbia and the United States District Court for the Western District of Washington, held that the Flag Protection Act of 1989, passed by Congress in response to this Court’s decision in Texas against Johnson, was unconstitutional as applied to the conduct of the individuals here.

In both cases it is undisputed that each of the appellees knowingly burned a flag of the United States and thus violated the statute.

In our view, there are four reasons that argue powerfully in support of the constitutionality of this statute.

First, Congress acted carefully and with great respect for this Court’s decisions concerning flag protection statutes.

It took seriously the Court’s expressed statement in Texas against Johnson that the inquiry there was bounded not only by the facts of the case, but by the state’s statute there in question.

In relying on this Court’s various writings and decisions Congress amended the Federal statute in response to Texas against Johnson to eliminate the prior, clearly content-laden language of Section 700, the language, “cast contempt upon” and “publicly”.

Second, Congress acted very narrowly.

It focused, as this Court said in Smith v. Goguen, that it could lawfully do, on certain specific areas of conduct where legislative latitude is greater.

And Congress carved out a narrowly crafted set of protections as to certain conduct, while permitting robust and uninhibited speech to continue unabated.

There was no prohibition on Congress’ part against the publication or the dissemination of ideas.

Third and relatedly, as I will seek to show in the context of the facts of these two cases, flag burning leaves a major message gap, a gap that needs to be filled in with words, either written or spoken, as happened in both the District of Columbia and Seattle demonstrations.

It is, in our judgment, the equivalent of shouting or screaming or using a loudspeaker at full blast to arrest the audience’s attention.

This is not in our judgment an especially weighty value on the First Amendment scales.

Fourth, on the other side of those scales are interests of the highest order in the national community.

Those interests are intangible, to be sure, just as the concept of human dignity is intangible.

But those interests are no less real, rooted as they are in the Nation’s history and experience, and especially our history as a community of people in this century in which so many of our co-members of the national community have been asked to sacrifice so much.

To focus now on the facts and the nature of flag burning.

In evaluating the expressive content, the content of this conduct, it is useful to examine precisely what happened here and what it is that flag burning conveys.

This can be seen by way of example in the statement of Shawn Eichman, one of the District of Columbia appellees.

Ms. Eichman’s concerns that animated her conduct were quite varied in nature.

They ranged from civil rights concerns to concerns about the environment, and concerns about certain aspects of U.S. foreign policy.

The same is true with respect to the Seattle demonstration, a videotape of which is in the record.

The concerns that were animating the Seattle appellees ranged from a then ongoing labor strike at Boeing Aircraft facilities in the area to the treatment afforded Hispanic Americans and national policies concerning the homeless.

Now a passerby happening on these acts of flag burning would, in our judgment, likely and reasonably conclude that the actor is in a state of profound disagreement.

But it does not tell us with what.

That message, the what, comes, if at all, from the speech that is incident or tied to the conduct as occurred in Street against New York.

Kenneth W. Starr:

And that speech, of course, is fully protected, no matter how offensive that speech may be to the majority.

Antonin Scalia:

General Starr, I don’t understand this line of argument.

Is… is it that you’re saying that somehow the expression “I hate the United States” is entitled to less constitutional protection than

“I disagree with our policy in Eastern Europe? “

Is that the point that… that if it’s a political expression, it’s too generic, too generalized, it’s not entitled to the same degree of protection?

Kenneth W. Starr:

The message itself enjoys the same protection.

The question is what message is being conveyed.

If one reads the statement–

Antonin Scalia:

Well, what you convey by burning the flag is, “I hate the United States”.

Kenneth W. Starr:

–With all due respect, that is not what is set forth in any of the statements in this record.

What was animating the conduct in this case is as set forth in the statements in the record.

They are in the joint appendix.

And with respect to Carlos Garza, his concern, as he stated in his statement, was with the treatment afforded Hispanic Americans.

Not a word about hating the United States.

Antonin Scalia:

By reason of which he felt so strongly about it that it moved him to… to have feelings of animosity towards the country.

What else does burning… surely burning the flag conveys something.

What do you think it conveys if it does not convey the notion that, for whatever particular reason it may be,

“I am in opposition to this country? “

Kenneth W. Starr:

I think that assumes too much, with all respect.

When Mr. Street burned the flag at issue in Street against New York, his stated concerns were with the failure to provide protection to James Meredith, who was not–

John Paul Stevens:

General Starr, I wonder if, given Justice Scalia’s interpretation of the obvious meaning of this conduct, maybe you should try to ban it on the grounds that it’s misleading speech?

[Laughter]

Kenneth W. Starr:

–It may in say… in fact say too much, and more than the actor intended to convey, if in fact Justice Scalia is correct.

William J. Brennan, Jr.:

Are you saying that this is an invalid form of protest?

Kenneth W. Starr:

In our judgment, it is conduct, and conduct gives much greater latitude to Congress as long as Congress does not do as the State of Texas did in Texas against Johnson, and that is, pass a statute that was not viewpoint neutral.

The way Texas v. Johnson was presented to this case… to this Court was that a conviction in that case depended upon the communicative impact.

That is not so here.

An individual runs afoul of this statute regardless of what message, if any, that individual is seeking to convey.

It is the conduct, the six enumerated, proscribed acts that are forbidden, regardless of the message.

William J. Brennan, Jr.:

Well, suppose… suppose we uphold the statute and sustain your position, and on sentencing, a district judge said, because you have outraged the community, because your protest was so public, because you have offended so many, I’m going to give you a harsh sentence.

William J. Brennan, Jr.:

Is that a proper exercise of the sentencing function?

Kenneth W. Starr:

I think that’s one of the reasons Congress saw fit to pass the reform statute that has given us sentencing guidelines.

That is precisely the sort of concern–

William J. Brennan, Jr.:

I don’t know if it’s in the guidelines or not, but suppose that, permissibly within the guidelines, the district court said that.

Would that be constitutionally permitted?

Kenneth W. Starr:

–As long as it were within the statutory maximum, I believe it would be constitutionally permitted, yes.

As long as it’s within the maximum.

William J. Brennan, Jr.:

But isn’t that precisely what we said could not be done in… in the Gregory case?

Kenneth W. Starr:

Well, what… it seems to me that is going on here is that Congress has focused on a specific act of conduct, and it has said, why is it that we are prohibiting this conduct.

It is because this symbol is important to us as a nation.

And Congress in fact protects that are important to the Nation in a variety of ways, by virtue, at times, of its symbolic importance.

But what we have learned from Texas against Johnson and other decisions is that those protections, those prohibitions, cannot be tied to the specific viewpoint.

As to the discretion that is afforded to a district judge in taking in a wide variety of circumstances, I think that raises a whole host of considerations that do not attain with respect to a congress or a state legislature making the policy determination: this is important to us because of its symbolic value.

And we can protect it not against criticism, not against criticism… and it… and… and in your district judge hypothetical there may be that danger, but that is not so here.

Congress read this Court’s decision very carefully, very respectfully, as well as prior indications from this Court, most clearly stated in Smith against Goguen, that nothing prohibits a legislature… as long as it avoids vagueness concerns, nothing prohibits a legislature from providing physical protection to symbols.

In the legislative history it was quite clear that Congress had presented to it by eminent scholars examples of exactly this kind of protection.

The statutes in force with respect to prohibitions of desecration of houses of worship, additional protections… stepped up protections for the bald eagle, not because it is a living thing, not because it is an endangered species… it’s not in all western states… but because of its symbolic value and because it was chosen by the Continental Congress to be the symbol of the Nation.

That is why that criminal prohibition is on the books, in addition to any protection–

Antonin Scalia:

Does desecration of one’s own… one’s own self-constructed house of worship–

Kenneth W. Starr:

–It may very well… it may very well–

Antonin Scalia:

–Do you think that would be allowed?

Kenneth W. Starr:

–I think that… I think that raises–

Antonin Scalia:

It raises the same question we have here.

Kenneth W. Starr:

–I don’t think so, with all due respect.

I think, and I would urge the Court in considering this entire issue of the protection of symbols… this isn’t just flags.

It’s the protection of symbols.

But with respect to the flag, Justice Fortas, the author of the plurality opinion in Brown against Louisiana, the author of the opinion in Tinker against Des Moines School District, a great friend of the First Amendment and of symbolic speech, said in his opinion, his dissenting opinion in Street against New York, the flag is property but only in a sense… it’s not like building your own house of worship… because the Nation has an interest in that flag.

Antonin Scalia:

But let’s come back to house of worship.

Is it your… your position that… that it would be constitutional to ban bible burning, an individual burning his own bible?

Kenneth W. Starr:

Well, I think that once we move into the religious area, we are raising other values, namely, values in the establishment clause with respect to how government acts.

Kenneth W. Starr:

The government can protect symbols but it cannot protect symbols in a way that runs afouls… afoul of other provisions of the Constitution.

And there, in my judgment… I’m not answering the question authoritatively, but it does seem to me that it clearly raises establishment clause concerns.

Antonin Scalia:

We prohibit Torah burning and all religious symbols that are sacred to any religious group.

Kenneth W. Starr:

If in fact–

Antonin Scalia:

That would be all right?

Kenneth W. Starr:

–If it is protecting it not from criticism but from physical destruction or mutilation… that’s what we’re talking about, physical destruction or mutilation, that one can protect those things that are special to us as a people.

The fact that the flag is individually owned, in my judgment, makes the analysis more complicated, but it does not get us home by any means because, as I was starting to say, what Justice Fortas said is that it is property even in the hands of a private citizen in a sense, but only in a sense, because it is property that comes to us with special restrictions and obligations with respect to its use.

It is because the flag only exists by virtue of copies.

The flags that exist in this courtroom–

William H. Rehnquist:

General Starr, does the record show the ownership of the flag in these particular cases?

Kenneth W. Starr:

–In the… yes, the record does.

In the District of Columbia those were individually owned flags.

In the Seattle case, in contrast, the flag was property… we have alleged, they have not admitted but we have alleged that the flag there was the property of the Postal Service.

William H. Rehnquist:

And in Seattle they were also indicted for destruction of government property, were they not?

Kenneth W. Starr:

That is exactly right.

Count 1 of the indictment in Seattle charges destruction of government property, and Count 2 of the indictment charges a violation of the Flag Protection Act of 1989.

William H. Rehnquist:

And Count 1 remains pending?

Kenneth W. Starr:

Count 1 remains pending by virtue of this being on a motion to dismiss.

Anthony M. Kennedy:

We don’t like, Mr. Starr, to compare our flag with any other flag, but would you be concerned if in Eastern Europe or some foreign country a government punished demonstrators for marching with a defaced flag in support of the demonstrators’ cause for freedom?

Kenneth W. Starr:

I think those are considerations, Justice Kennedy, that are very important for Congress to weigh in the balance.

But I would refer the Court to the Senate–

Anthony M. Kennedy:

Well, but isn’t the point that this is a recognized… internationally recognized form of protest?

Kenneth W. Starr:

–It certainly, at this particular stage in our history, is affiliated or associated with forms of protest.

We don’t deny the fact that these individuals were engaged in a protest.

What we are saying is the message of the burning of the flag itself is extremely limited, is… we are going to have to have additional context including, here, words.

William J. Brennan, Jr.:

Well, you can take it two ways.

On the one hand it’s limited.

On the other hand it’s so pervasive, so general.

Your original argument was that it was so general, so all-encompassing that it was not worthy of protection.

Now you’re saying that it’s very narrow.

William J. Brennan, Jr.:

I not sure which it is.

Kenneth W. Starr:

I’m sorry.

The protections are very narrow in response to this Court’s statements time and again and certainly intimations in opinions of the Court that the physical integrity of the flag could be protected as long as, now with Texas against Johnson, it’s done in a viewpoint neutral way.

One cannot punish a flag protestor because he or she is expressing outrage about policies to the country.

What one can do under this Court’s teachings in prior cases and as we read Texas against Johnson in terms of its holding, that Congress does and should have power to protect the physical integrity of the flag as long as it is not saying we single out certain viewpoints for disfavored treatment.

That is the critical point that Congress was responding to in reading Texas against Johnson and the prior flag cases.

Antonin Scalia:

But in fact there is only one viewpoint: that you do not mutilate, deface, defile or trample upon the flag in order to show your love for the country.

Kenneth W. Starr:

I would urge the Court, before it came to that view driven by today’s newspapers, to read carefully the Senate’s brief, the House of Representative’s leadership brief which sets forth the history of flag statutes but of instances in the country in our history where individuals were not expressing any outrage at all against the country.

They may have been expressing only a specific partisan sentiment.

For example–

Antonin Scalia:

But Mr. Starr, you’re missing my point.

You made… General Starr, I’m sorry.

Kenneth W. Starr:

–Thank you.

I was afraid I had been demoted.

[Laughter]

Antonin Scalia:

You started by pointing out to us that Congress had taken out of the original Section 700(a) the phrase “casts contempt upon the flag”, but do you really think that in fact there is any difference so long as the words that they describe to protect the physical integrity of the flag are

“mutilate, deface, defile, burn or trample. “

–I guess burn is pretty neutral, but if I get a spot on my tie I don’t say, gee, I’ve defiled my tie–

[Laughter]

Or if I tear my jacket I don’t say, my, I’ve mutilated my jacket.

These are words of… cast contempt upon.

You can take out those words, but the other verbs you’ve used contain the same suggestions, don’t they?

Kenneth W. Starr:

The term “defaces” would in fact encompass activity, conduct.

It was inspired by patriotism as in emblazoning onto a flag permanently, not in Spence v. Washington, why did this Court spend a good deal of effort in its opinion emphasizing that Mr. Spence did not deface the flag, did not injure the physical integrity of the flag.

An individual may deface the flag by virtue of emblazoning the words onto that flag, “I love the Supreme Court”.

That constitutes defacement.

Byron R. White:

Well, General, I thought at the outset you suggested that burning this flag really didn’t have any message of its own anyway in this case, on the facts of this case, that it was just… that there was just a flag burning to call attention to some other messages that had nothing to do with the flag.

It was just like… like you burned anything else at the site.

Kenneth W. Starr:

Exactly right.

In fact–

Byron R. White:

The only thing is that in this case they burned the flag.

Kenneth W. Starr:

–They burned in addition… not these appellees, but during the course of the demonstration there was also burned the McDonald’s Golden Arches flag from a nearby restaurant.

[Laughter]

Now, I think this is what this Court was getting at when it spoke of, in Spence against Washington, acts of mindless nihilism as opposed to the acts that this Court has focused on in Spence and in other cases where it has found what the Court called an intent to deliver a particularized message.

There is no particularized message, I agree, Justice White, being delivered by these individuals here.

Byron R. White:

This is like just an over-loud loudspeaker?

Kenneth W. Starr:

That, I think, is the most apt analogy.

I will reserve the balance of my time.

John Paul Stevens:

General Starr, can I ask you one question?

Kenneth W. Starr:

Please.

John Paul Stevens:

I may have missed it because there are so many briefs here, but do you know what the experience of our other democratic nations is?

Do they all have flag protection acts such as this?

Kenneth W. Starr:

Most do, and as the ACLU’s brief points out most go considerably farther, and in fact make punishable acts of defamation, saying words of disrespect to the president of the country and the like.

Congress was very clear in response to Texas against Johnson that it wanted the debate to go forward in a robust and uninhibited way and merely to protect the physical integrity of the flag.

Anthony M. Kennedy:

General Starr… excuse me.

I assume that in a country like… I assume that in a country like that we would get very annoyed if they let their people burn the American flag.

I mean, an ally of ours at least.

Let’s say the French, who do have a law against burning the Tricolor.

I assume our State Department would protest if they allowed people to burn–

Kenneth W. Starr:

We do not.

We do not–

Antonin Scalia:

–Don’t you think they would protest if we allowed our people to burn the Tricolor, although we do not allow our people to burn–

Kenneth W. Starr:

–In response to your question, the State Department does not in fact register protests as a matter of routine policy when a flag of the United States is burned in another country.

Antonin Scalia:

–Now, what if the French feel differently and they protest to our State Department?

Isn’t it useful for the State Department to say, hey, we can’t even stop them from burning our own flag?

But assuming they… assuming that we can stop people from burning our own flag, don’t you think the French would have good cause to be insulted if we didn’t let people burn the French flag?

Or if we allowed it?

Kenneth W. Starr:

Oh, it may be with respect to the consideration of the interests of foreign governments we might in fact seek to provide protections informed by international law, but we would have to be guided, if we were to do that, by Booz against Barry.

We could not in fact punish any kind of act of desecration or physical destruction based simply on the viewpoint.

Antonin Scalia:

So you are saying we could prohibit the burning of the German flag, or, you know, the Iranian flag… whatever?

Kenneth W. Starr:

I am not saying we could or we could not.

I think that has to be informed by international norms.

I will admit to the Court that I am not deeply steeped in international norms with respect to flag protection, but what I do know is this, is that Congress was focusing on the flag that it created.

This symbol, unlike other symbols… unlike the bald eagle… exists only because Congress created it.

The flag of the United States is defined by Federal law.

Congress created this flag, and it is seeking in a neutral way, without regard to the message, to protect the physical integrity of that flag without… without in any way interrupting the flow of free ideas in the marketplace.

Anthony M. Kennedy:

Did Congress identify its constitutional source of authority for enacting the flag statute?

Kenneth W. Starr:

There is nothing to my knowledge specifically in the legislative history.

There is nothing in the statute, but I would suggest, in my own view, Justice Kennedy, and that is as an inherent act of sovereignty and certainly even if one draws that into question, certainly with respect to the Army’s and the Navy clause, there is, it seems to me coupled with the necessary and proper clause–

Anthony M. Kennedy:

We have no authority for making a criminal act against something that violates our inherent sovereignty, I take it?

Kenneth W. Starr:

–I beg your pardon?

Anthony M. Kennedy:

There is no authority in this Court for making a criminal act out of something that violates inherent sovereignty?

Kenneth W. Starr:

Oh, if it lies within the proper power of Congress to create, then it seems to me… as long as one answers that question yes, Congress had the power to create the flag, then it seems to me it has the power to protect that flag neutrally.

I would like to reserve the remainder of my time.

William H. Rehnquist:

Very well, General Starr.

Mr. Kunstler, we’ll hear now from you.

William M. Kunstler:

Mr. Chief Justice, and may it please the Court:

We pose the question somewhat differently than was posed by the government.

We think the question before the Court is can the government criminally prohibit flag burning, a form of political expression deeply critical of the government and anathema to its officials?

And I will address three points, and during them respond to some of the points raised by General Starr.

We hold, one, that Texas v. Johnson controls these two cases.

Number two, that the Flag Protection Act can simply not be upheld as an attempt to protect the physical integrity of the flag in all circumstances.

And three, that there is no basis whatsoever to accept the government’s invitation to overturn Johnson.

On the first point, that Texas v. Johnson controls, all parties have conceded that the defendants’ conduct below was expressive enough to raise First Amendment concerns, and I do not think there is any argument on that.

Number two, all parties conceded as well that the congressional intent behind this statute was to protect the flag as a national symbol, and by definition the governmental interest was only harmed by conduct expressing some message of disrespect or dissent, as indicated by Justice Scalia.

In other words, the interest was related to the suppression of free expression.

Ergo, the strict scrutiny rule applies.

Then lastly, that the government interest in preserving this symbolic value is not a compelling interest to justify a criminal penal statute and jail flag-burners.

That is what Johnson held.

Now, the Court… I must say to the Court, in rereading what I said last time in the Texas v. Johnson case, I want a little mea culpa.

William M. Kunstler:

In responding to Justice Stevens, I believe, I said that the government had no legitimate interest in enacting any legislation about the flag.

I think I was wrong in that respect, and this Court, of course, did not adopt that argument, and I think rightly so.

I am persuaded that there are things the government can do with reference to the flag.

They can do many things to persuade people to respect it, to fly it, to indicate how it should be flown, to indicate the dimensions, to indicate the type of flag it should be and how it should appear, and they do that in part under Title 36 U.S.C. 173 to 177, but they cannot do it in a penal way.

So I express my mea culpa here in response to that question a year ago that Justice Stevens asked of me.

They can… they have a legitimate right to regulate the flag, but not under a penal statute.

Now, the government is now arguing, apparently, that there’s now a compelling interest that they have in the flag because they passed a new act, because a new act was enacted and became effective on October 28th of last year.

If the Court were to accept that argument that the mere adoption of a new act would mean that you would reverse yourself in Texas v. Johnson, then I think it would require reversing Marbury against Madison.

But that’s not a sufficient reason, merely because Congress says that it is now enacting a new act in an attempt, direct attempt, to get around Texas v. Johnson.

And I call the Court’s attention that when Johnson was decided there was a prior Federal statute on the books itself.

They already had enacted an act, and this Court was quite conscious of the prior Section 700 of Title 18.

And lastly, maybe stranger than all, even the congressional amici didn’t argue for this position at all, only for the application of a more lenient O’Brien standard or time, place and manner standard.

And they cannot change what is obviously the Court’s duty in this case merely by passing legislation.

Secondly, with reference to the question of the physical integrity in all circumstances that are now claimed by General Starr, this was a claim raised by the congressional amici that it was a content-neutral statute that was enacted here and only to protect the physical integrity of the flag in all circumstances.

Well, it’s obviously that is not true on the face of the statute itself.

First of all, it is not content neutral.

It is content and viewpoint base.

It singles out a political symbol, one political symbol, and in our brief we indicated what if that political symbol had been instead of the flag the Democratic Party flag or another official flag of the United States.

And as Justice Fortas so well put it in Tinker, he said it is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance.

The record shows the students in some of the schools wore buttons relating to national political campaign, and some even wore an Iron Cross.

The order prohibiting the wearing of armbands did not extend to these.

Instead, a particular symbol, black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam were singled out for prohibition.

Clearly, the prohibition of expression of one particular opinion is not constitutionally permissible.

So it is a content-based statute.

It singles out one particular political symbol, just as in Stromberg the red flag was singled out as one particular political symbol.

And it is viewpoint-based because it proscribes conduct which was associated with dissent, irrespective of the effect on the physical integrity of the flag.

It permits, as the Court knows, conduct which shows respect, and that is the ceremonial burning of the flag, which was put in there in order not to penalize patriotic groups who burn the flag… old and soiled flags, and burnt them in a ceremonial fashion.

And then the language of the statute itself is just to pick up all disrespect examples, all dissenting examples maintained on the floor or ground.

Senator Dole wanted that in there because that was days after Fred Scott Tyler, one of the Appellees before this Court, had placed a flag on the ground in that rather well-known Chicago Art Institute exhibit.

Physically defiles, that was Senator Wilson’s contribution to the statute for… and he said that’s for acts that do not do permanent harm to the flag.

William M. Kunstler:

Senator Biden said in response to that, well, we have “defaces” in there.

We don’t need “defiles”, but both “defiles” and “defaces” went into the statute.

And both Senators Biden and Wilson referred to conduct that does not do permanent damage but injures the flag as a symbol.

And the word “defile” has a dictionary meaning of dishonor.

And yet it permits conduct which is in essence which is dangerous to the flag such as, I’ve already mentioned, the burning of worn or soiled flags, but it permits other type of conduct that would be, for example, flying in a hurricane, flying in a thunderstorm, flying in a tornado.

And, therefore, it is totally viewpoint based.

And as I think Mr. Fried points out in the brief for the ACLU, he says far from protecting the physical integrity of the flag in all circumstances, these terms protect the flag only from those who would hurt it or cast it in a bad light.

And any statute, I submit to this Court, even one designed to protect physical integrity, in all circumstances would be content based because Congress’ interest is… ultimately indistinguishable from the flag’s symbolic value.

Why protect–

Antonin Scalia:

Mr. Kunstler, excuse me.

Can you–

William M. Kunstler:

–Oh, pardon me.

Thank you.

Antonin Scalia:

–Could the Congress prohibit use of the flag for commercial purposes, let’s say a law preventing printing the flag on beer cans?

William M. Kunstler:

I think myself that that could be… and we’ve had decisions in that respect–

Antonin Scalia:

Now that worries me.

Why does that differ from your case?

William M. Kunstler:

–Well, I think when you’re dealing with commercial use of the flag, you’re not expressing an idea that I think is worthy of protection under the First Amendment.

This is not expressive conduct.

It’s expressive only in a commercial sense, and this Court has never held commercial speech to have that value.

Well, I see what’s bothering you because it’s the same thing in… on the surface of it, but it is not expressive… to me, expressive conduct, which the First Amendment stands for.

Antonin Scalia:

Well, what about–

William M. Kunstler:

It’s unworthy of First Amendment protection.

Antonin Scalia:

–What about an American automobile company that wanted to urge people to buy American cars rather than Japanese cars and could do so more effectively if they… you know, interspersed replicas of the flag throughout their ads regularly?

Why wouldn’t that be protected?

William M. Kunstler:

Justice Stevens, I don’t think that’s a worthy purpose.

That’s a commercial purpose as far as I’m concerned.

You’re reading into it a sort of a patriotic purpose–

John Paul Stevens:

And also… they also think it would help the American economy, say, to do this.

William M. Kunstler:

–I know, but also help the company itself, too.

William M. Kunstler:

So I think that… to me, that’s–

John Paul Stevens:

Well, maybe the people who burn these flags thought they’d get something out of it, too.

Will that mean they lose their rights?

William M. Kunstler:

–No, but the… people that burned these flags–

John Paul Stevens:

They got a lot of publicity, didn’t they?

William M. Kunstler:

–were, I think, under the First Amendment resorting to politically expressive conduct, politically expressive sentiments that are not present in your example.

The only thing that makes your example different than Justice Scalia’s is that you are putting into it a competition between American and Japanese cars and giving that a patriotic tinge.

But I think it’s still commercial speech.

Antonin Scalia:

So you think if a bunch of college kids at a fraternity party just get together and say, you know, just for a kick let’s burn an American flag and they’re really not expressing any idea, then the statute would be okay as applied to–

William M. Kunstler:

No, I don’t think so.

I think the statute, both on its face–

Antonin Scalia:

–I thought that’s what you just said–

William M. Kunstler:

–No.

Antonin Scalia:

–that it hinges on whether you’re expressing a political idea or not.

William M. Kunstler:

No.

I think the statute is… on its face is unconstitutional, and I think that if a bunch of college kids burn an American flag you’d come under the facial aspect of the Constitution… of the statute, that it would be facially unconstitutional.

It doesn’t differentiate–

Antonin Scalia:

No, I thought–

William M. Kunstler:

–it’s vague.

Antonin Scalia:

–It’s not facially invalid if… if there is a situation in… in which its application would be all right and if its application would be all right as applied to these college students who have no political idea, they’re just having a grand old time.

Let’s burn a flag.

William M. Kunstler:

Yes, but it’s facially invalid because the student doesn’t know on the vagueness argument or the overbreadth argument, doesn’t know, one, whether it’s the flag of the United States.

There are many flags of the United States.

And doesn’t know that the conduct itself is prohibited.

I would put it on the… on the grounds of… that it would be facially invalid.

Now on the grounds that you mentioned, that it’s college students… well, I’d say it’s not this case anyway.

That’s… I guess that’s the best way to worm out of this.

[Laughter]

If I have to worm out, that’s the way I’m going.

It’s not this case.

William M. Kunstler:

It’s a hypothetical, and it’s not this case.

Here there is no question, as General Starr indicates, about the political message.

Antonin Scalia:

But you’re making a facial attack, aren’t you?

I thought your attack was facial.

William M. Kunstler:

We’re making a facial attack–

Antonin Scalia:

You just want us to let your clients off and… and… and say, you know, in other situations it may be all right, but here it was no good?

William M. Kunstler:

–Well, in–

Antonin Scalia:

I didn’t think that that was the argument you were making, but if you want–

William M. Kunstler:

–Well, in Texas v. Johnson we also made a facial attack, and this Court, as the district courts below, did not go into the facial aspect of the statute.

They decided, as you did in Texas v. Johnson, on the as-applied standard.

Byron R. White:

–So if… if… if a person burned a flag in order to stay warm on a cold winter night, you would have… in order to get your client off on… on those facts you would get into overbreadth?

William M. Kunstler:

You’d have to get into the facial aspect of it.

But that, again, is not this case.

John Paul Stevens:

But this case is a case involving a special message, as I understand it.

And what was that message?

William M. Kunstler:

Well, there were a number of messages.

They issue–

John Paul Stevens:

Well, which one do they convey by burning the flag?

William M. Kunstler:

–I think they convey them all.

They’re saying that… in burning the flag, that they don’t like what the United States is doing or stands for, either on domestic or foreign policy.

They all broke it down into specifics.

One didn’t like the treatment of Mexican-Americans.

One didn’t like the treatment of women.

One didn’t like United States military involvement abroad.

There were many.

But you… the… and the burning of a flag, which doesn’t specifically say each one of those… that was the argument I guess that General Starr–

John Paul Stevens:

It doesn’t say any one of them; it says all of them.

Is that what you’re saying?

William M. Kunstler:

–General Starr made that… well, it’s one or all.

It’s one or all.

William M. Kunstler:

No one seeing the flag burn could fail to get the message.

John Paul Stevens:

But how… if I just see the flag burning, how do I know which one it is, or is that irrelevant?

William M. Kunstler:

It’s only irrelevant in the sense there are documents being handed out, flyers, declarations, that a person will… he’ll know from that that the burning of the flag exhibited dissatisfaction.

He’ll know initially that the burning exhibited a dissatisfaction.

That person doesn’t like something the United States is doing.

And then it’s broken down.

John Paul Stevens:

Call this… call this number and we’ll tell you why we burned the flag.

Hand out telephone numbers, call this number and we’ll tell you what the message is.

William M. Kunstler:

Well, they did… they did give the messages out, why they burnt the flag.

But the burning of the flag itself, I think, even without a message, would convey a message.

You see, General Starr says, essentially, that the burning of a flag by itself carries no message.

How do you know what they’re burning it for, and so on.

But, in essence, that’s true, his argument could prevail in any non-verbal demonstration.

How do you know why anybody is doing anything with a non-verbal expression?

What if they drew a picture of Uncle Sam being hanged, for example, a caricature?

How do you know what they… express purpose is?

But that’s true of all non-verbal communication.

And his argument would prevail… or would be the same I guess for all non-verbal expression.

And you can’t relegate non-verbal expression to the scrap heap.

Antonin Scalia:

Well, why just non… why do you limit it to non-verbal?

I… it’s verbal, too.

I mean, I assume you’re free to say, you know, down with the United States, or down with Germany, or down with anybody you want, right?

That’s–

William M. Kunstler:

Why you burn the flag.

Antonin Scalia:

–No.

Not even burning.

I mean, even with verbal expression, you don’t have to be precise in order to be protected, do you?

William M. Kunstler:

That’s true, you do not have to be precise.

But with non-verbal, where you have an imprecise situations… burning a flag, the burning of the flag I think is significant and it doesn’t need a prefatory explanation of why and each reason why the flag is being burnt.

In this case you have it.

William M. Kunstler:

The record has it.

You have the declarations, and you have the flyers in the record.

Anthony M. Kennedy:

Mr. Kunstler, suppose that a defendant broke into government property in violation of a valid statute, took a government flag, burned the government flag and was charged for breaking and entering and for destroying government property, not a flag statute at all.

And the judge, on sentencing, then says, you have outraged the community, this is highly offensive, and I’m going to give you the maximum sentence.

Permissible under the Constitution?

William M. Kunstler:

I say no; General Starr says yes.

Because I think he’s basing the sentence on the language, the First Amendment language.

I think he can sentence within the guidelines.

Anthony M. Kennedy:

Then you must… then you must give the same sentence for spray painting the side of a building that faces a government alley as for spray painting the Lincoln Memorial?

William M. Kunstler:

Within the guidelines, I think the judge can give anything–

Anthony M. Kennedy:

I’m assuming that it’s all within the guidelines, but he gives a maximum because people are outraged, they are offended and the conduct was very public.

William M. Kunstler:

–If he says that–

Anthony M. Kennedy:

He says that.

William M. Kunstler:

–If he says that, I think it’s unconstitutional.

Anthony M. Kennedy:

But that happens in sentencing all the time.

William M. Kunstler:

I’m not sure–

Anthony M. Kennedy:

And… and… and based… and based on your rule, it has to be the same sentence for spray painting the side of a government building that faces an alley and spray painting the Lincoln Memorial?

William M. Kunstler:

–No, it doesn’t have to be the same because there are other factors to be considered under the uniform sentencing guidelines.

There’s past record.

There are other guidelines–

Anthony M. Kennedy:

No, I’m assuming everything is… is the same.

William M. Kunstler:

–Everything the same?

Anthony M. Kennedy:

Sure.

William M. Kunstler:

I think enhancing the sentence because of the nature of the communication would be unconstitutional.

And I would certainly appeal.

Anthony M. Kennedy:

Well, what about the fact that it’s public, that people are outraged, that this is highly offensive?

William M. Kunstler:

I still think you’re going on the language itself.

You’re enhancing not for the act but for the language.

And I think if you do that, I think it’s unconstitutional.

And I would appeal that sentence.

William M. Kunstler:

General Starr thinks it’s constitutional, but I don’t think so.

Byron R. White:

Well, that’s probably why we’re here today.

[Laughter]

William M. Kunstler:

Now, with reference… I’m just… with reference to the invitation… oh, by the way, before I leave the flag and the… I guess the position that this statute was designed solely to protect its physical integrity in all circumstances, I think I’ve shown that it does not.

But I was very interested essentially in what Chief Justice Rehnquist said when… in his Spence dissent when he said it is the character not the cloth of the flag which the state seeks to protect.

And I think that is essentially the truth of this statute, both in the congressional debates and in… and in the position that was taken below, which has changed dramatically now on the part of the government from the position it took below and from the position it took before Congress when Assistant Attorney General Barr testified before the Senate and the House Judiciary committees.

As far as my last point, the invitation to overrule Texas v. Johnson, this is a last resort argument, I think.

It’s an argument based on a recognition that Texas v. Johnson applies here.

There have been all sorts of methods here to try to get around Texas v. Johnson.

They’ve even gone back to the bald eagle argument, which they said down below was a fallacious argument, and they’ve resorted to that here.

But it’s a last resort argument.

They know… the government knows that Texas v. Johnson applies.

They knew it when Mr. Barr testified before the Senate and House judiciary committees, they knew it in the district court and they know it here… that it applies.

They want… so they’ve devised a method by which this Court can say it doesn’t apply.

And they want you to carve out another exception.

They want… like child pornography.

They throw that in.

They throw in fighting words again, which was specifically rejected in Justice Brennan’s opinion in Texas v. Johnson.

They throw–

Antonin Scalia:

Let’s… let’s… let’s try fighting words, Mr. Kunstler.

You know Texas v. Johnson was a year ago, and fighting words is no good why?

I mean, it’s certainly… it’s certainly the case that whenever somebody tramples a flag or burns a flag there is a real potential for causing a riot, isn’t there?

William M. Kunstler:

–Well, that isn’t really what fighting words are as I understand Chaplinski.

Antonin Scalia:

Well… it’s… it’s… it’s the same… it’s the same thesis, that you don’t have any rights to engage in conduct that’s likely to provoke a riot.

William M. Kunstler:

It really isn’t, Justice… that isn’t really fighting words.

Fighting words, as I understand it, is what the Jehovah’s Witness did in Chaplinski when he went up to the sheriff and directly to him said words which would lead to a fist fight between two individuals.

But much of speech provokes listeners, this Court has said many times, but maybe the highest purpose of speech is to provoke that kind of reaction.

Terminello, how far can you go… I think Terminello indicates how far you can go.

At one point they were even throwing things.

William H. Rehnquist:

What do you do with Feiner against New York?

William M. Kunstler:

I don’t think that’s really applicable here, because… well, that’s not totally a fighting words case.

You’re not dealing here–

William H. Rehnquist:

It was held permissible for the sheriff to silence the speaker because he would… the audience was… was about to riot.

William M. Kunstler:

–But… but there’s a point, I guess, where you have a riot develop, and on the verge of developing, where a police officer can stop.

And I think everybody would admit that, there comes a point.

Terminello I guess was close.

Feiner was over the edge.

But I think that to burn a flag is not that point.

You have no record here of any incident occurring whatsoever.

William H. Rehnquist:

Well, if we had a record, would it make it a different case?

William M. Kunstler:

No, I don’t think so, unless it were a record were a riot did ensue and police were forced to come in and take the speaker off the rostrum.

That might be a different case.

It’s certainly not this case, and it wasn’t Texas v. Johnson, because I think Texas argued that most stringently here, that it might provoke a breach of the peace, and that was one of the considerations that Texas said we were advancing, outside of the symbolic value.

But I think you’ve got to have more.

You’ve got to go over the… at least over the Feiner limit… I’m using Feiner, F-e-i-n-e-r… in expressing that–

Antonin Scalia:

So there has to be a high probability of an injury occurring?

William M. Kunstler:

–Well, I remember the phrase “clear and present danger” floating around in my cranium at this moment, but there has to be something that is way… so probable that you are going to have bloodshed here, you’re going to have a riot, and that doesn’t exist here at all.

Antonin Scalia:

You don’t think a potential… a potential for a riot is enough?

Not a potential?

William M. Kunstler:

I think the potential has to be a probability of a riot, and not–

Antonin Scalia:

So you disagree with our decision in Austin, that just came down a couple of months ago?

William M. Kunstler:

–In Austin?

Antonin Scalia:

Yes, involving the restriction of corporate speech, and there we said, to quote it, that the mere… presents the potential for distorting the political process.

We said it was not–

William M. Kunstler:

No, I don’t disagree with it, because you were going to corruption, to something that would–

Antonin Scalia:

–Oh–

William M. Kunstler:

–wreck the whole political system.

Antonin Scalia:

–I see.

William M. Kunstler:

And I think that is a little different.

Antonin Scalia:

Oh.

William M. Kunstler:

Now, I take it from that “oh” that you’re not buying this.

[Laughter]

Antonin Scalia:

I didn’t buy it.

William M. Kunstler:

But I think essentially that is a different case, too.

It does involve First Amendment, no question about it, in Austin.

And the compelling governmental interest was the prevention of the corruption of the entire political process.

Antonin Scalia:

Is preventing desecration of the flag–

William M. Kunstler:

Well, you’re using the word–

Antonin Scalia:

–And defending the sensibilities of the American people?

William M. Kunstler:

–Well, I think that’s a lot different than what you have in… going to the corruption of the entire political system.

I think you have something here that will offend a lot of people, maybe a majority of the American people, but you know what offends a majority today may not offend a majority tomorrow.

We have had many things that offend people.

Marching in Birmingham in 19–

Antonin Scalia:

More… more specifically, the potential is for causing a riot.

I mean, the potential is for physical harm to people.

That is the potential we are talking about.

It won’t… but that is a great potential.

Whenever somebody does something like this to the flag, people get mad.

William M. Kunstler:

–But Justice Scalia, there’s always a potential in free speech, but it’s got to go beyond… I think Justice Kennedy used the word probability.

It has to go beyond the potential.

That’s what Texas argued here a year ago, and in this particular statute, the Congress’ interest in this statute had nothing whatsoever to do with breaches of the peace.

It wasn’t mentioned, it didn’t come up in the debates and was really not the gravamen of what they were doing.

Now, with reference to overruling Johnson, getting back to this argument that they’re saying it’s like defamation, it’s like libel and slander, it’s like obscenity, child pornography and fighting words.

I think that’s where we stop for a moment, with fighting words.

They’re trying to carve out another exception here.

They’re trying to say that flag burning is not protected.

We should put it aside with child pornography and defamation and libel and slander, and excise it from the First Amendment.

That’s what they’re essentially… what they’re saving, the same kind of argument that I guess was rejected by this Court in Cohen against California.

And in the area of political speech, a government cannot make judgments of what is overly offensive or unimportant speech.

That simply cannot be done.

William M. Kunstler:

The First Amendment was designed to forestall the majority, forestall their inclination to suppress what the government deems offensive at any one time or another, and many times there have been many things that have been held to be offensive to various parts of our community, or our national community, which this Court has protected against… protected against government stopping it, arresting it, inhibiting it or deterring it.

I would just like to close with the fact that, number one, that respect for the flag must be voluntary.

We can understand people’s enormous feeling for it.

I think that’s not difficult to understand.

But it must be voluntary, and once people are compelled to respect a political symbol, then they are no longer free and their respect for the flag is quite meaningless.

To criminalize flag burning is to deny what the First Amendment stands for, just what was said in Texas v. Johnson:

“We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished symbol represents. “

I would just like to indicate that when I reread Times… New York Times against Sullivan and reread Justice Brennan’s words about the Alien and Sedition Acts, it was just 193 years ago, virtually to the day… May 16 of 1793… that the President of the United States in a special message to Congress asked for a statute which he said would repel insinuations so derogatory to the honor and aggression, so dangerous to the Constitution, union and even independence of the Nation, it’s an indispensable duty of the Congress.

And they provided him with that statute, and part of that statute, the Alien and Sedition Acts, had in it a punishment… severe punishment… for derogatory remarks about the President, the Congress, the government and so on.

This Court did not have its review power then.

Marbury against Madison was three or four years into the future, into 1803, and the statute was never brought to this Court.

It expired by its terms in 1801, but Thomas Jefferson, when he became President of the United States, pardoned everyone who had been convicted under that statute, which is not too dissimilar from what we are talking about here… pardoned everyone… and the Congress voted to restore all the fines, and in writing to… a letter… Thomas Jefferson said, after becoming President, he said,

“Under that statute it is as if Congress had ordered us to fall down and worship a golden image. “

And essentially, that is what we are dealing here with now… a statute that attempts to make the American flag a political symbol, cherished as it is by many people, into a golden image, which takes it out of the political arena–

William H. Rehnquist:

Thank you, Mr. Kunstler.

Your time has expired.

Mr. Starr, do you have rebuttal?

You have three minutes remaining.

Kenneth W. Starr:

Very briefly, Mr. Chief Justice, this is not a sedition act.

This is not, as has been suggested in briefs by our colleagues on the other side, punishment for civil blasphemy.

Robust, uninhibited debate goes on, unimpeded.

Congress felt very strongly about that.

Congress had the deepest regard for this Court’s teachings, as well as our system of free expression.

What it sought to do was to comply with Texas against Johnson.

It heard testimony from eminent scholars who reviewed the entirety of this Court’s handiwork in the First Amendment area and in flag protection specifically, and it say a way, appropriately, respectfully, to, in a narrow way, prohibit conduct, not words.

Secondly, it is not so that an act of flag burning means “I hate America”.

Carlos Garza is one of the Washington State appellees.

In his sworn statement as to why he engaged in flag burning, he said

“The American flag represents the system and the government for which it stands. “

“I love and respect America. “

Kenneth W. Starr:

“I love and respect the American people. “

“I do not love and respect the way Hispanic-Americans are treated. “

In his sworn statement, Darius Strong, one of the Seattle appellees, said that his sole objection was with any statute that might in any way prevent someone from doing whatever that person sought to do by way of free expression.

This statute does not inhibit free expression.

It prohibits a very narrow form of conduct.

I thank the Court.

William H. Rehnquist:

Thank you, General Starr.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.