First Amendment:

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

Very little expression is “mere” speech. If it is oral, it may be noisy enough to be disturbing,1 and, if it is written, it may be litter;2 in either case, it may amount to conduct that is prohibitable in specific circumstances.3 Moving beyond these simple examples, one may see as well that conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist in flying a particular flag as a symbol4 or in refusing to salute a flag as a symbol.5 Sit-ins and stand-ins may effectively express a protest about certain things.6

Justice Jackson wrote: “There is no doubt that, in connection with the pledge, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind.” 7 When conduct or action has a communicative content to it, governmental regulation or prohibition implicates the First Amendment, but this does not mean that such conduct or action is necessarily immune from governmental process. Thus, although the Court has had few opportunities to formulate First Amendment standards in this area, in upholding a congressional prohibition on draft-card burnings, it has stated the generally applicable rule. “[A] government regulation is sufficiently justified if it is within the constitutional power of Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that government interest.” 8 The Court has suggested that this standard is virtually identical to that applied to time, place, or manner restrictions on expression.9

Although almost unanimous in formulating and applying the test in O’Brien, the Court splintered when it had to deal with one of the more popular forms of “symbolic” conduct of the late 1960s and early 1970s—flag burning and other forms of flag desecration. No unifying theory capable of application to a wide range of possible flag abuse actions emerged from the early cases. Thus, in Street v. New York,10 the defendant had been convicted under a statute punishing desecration “by words or act” upon evidence that when he burned the flag he had uttered contemptuous words. The conviction was set aside because it might have been premised on his words alone or on his words and the act together, and no valid governmental interest supported penalizing verbal contempt for the flag.11

A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. These cases were decided by the Court in a manner that indicated an effort to begin to resolve the standards of First Amendment protection of “symbolic conduct.” In Smith v. Goguen,12 a statute punishing anyone who “publicly . . . treats contemptuously the flag of the United States” was held unconstitutionally vague, and a conviction for wearing trousers with a small United States flag sewn to the seat was overturned. The language subjected the defendant to criminal liability under a standard “so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.” 13

The First Amendment was the basis for reversal in Spence v. Washington,14 which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed; Spence had hung his flag from his apartment window upside down with a peace symbol taped to the front and back. The act, the Court thought, was a form of communication, and because of the nature of the act, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The nature of the act was that it was intended to express an idea and it did so without damaging the flag. The Court assumed that the state had a valid interest in preserving the flag as a national symbol, but left unclear whether that interest extended beyond protecting the physical integrity of the flag.15

The underlying assumption that flag burning could be prohibited as a means of protecting the flag’s symbolic value was later rejected. Twice, in 1989 and again in 1990, the Court held that prosecutions for flag burning at a public demonstration violated the First Amendment. First, in Texas v. Johnson16 the Court rejected a state desecration statute designed to protect the flag’s symbolic value, and then in United States v. Eichman17 rejected a more limited federal statute purporting to protect only the flag’s physical integrity. Both cases were decided by 5-to-4 votes, with Justice Brennan writing the Court’s opinions.18 The Texas statute invalidated in Johnson defined the prohibited act of “desecration” as any physical mistreatment of the flag that the actor knew would seriously offend other persons. This emphasis on causing offense to others meant that the law was not “unrelated to the suppression of free expression” and that consequently the deferential standard of United States v. O’Brien was inapplicable. Applying strict scrutiny, the Court ruled that the state’s prosecution of someone who burned a flag at a political protest was not justified under the state’s asserted interest in preserving the flag as a symbol of nationhood and national unity. The Court’s opinion left little doubt that the existing federal statute, 18 U.S.C. § 700, and the flag desecration laws of 47 other states would suffer a similar fate in a similar case. Doubt remained, however, as to whether the Court would uphold a “content-neutral” statute protecting the physical integrity of the flag.

Immediately following Johnson, Congress enacted a new flag protection statute providing punishment for anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States.” 19

(1989). The law was designed to be content-neutral and to protect the “physical integrity” of the flag.20 Nonetheless, in overturning convictions of flag burners, the Court found that the law suffered from “the same fundamental flaw” as the Texas law in Johnson. The government’s underlying interest, characterized by the Court as resting upon “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals,” 21 still related to the suppression of free expression. Support for this interpretation was found in the fact that most of the prohibited acts are usually associated with disrespectful treatment of the flag; this suggested to the Court “a focus on those acts likely to damage the flag’s symbolic value.” 22 As in Johnson, such a law could not withstand “most exacting scrutiny” analysis.

The Court’s ruling in Eichman rekindled congressional efforts, postponed with enactment of the Flag Protection Act, to amend the Constitution to authorize flag desecration legislation at the federal and state levels. In both the House and the Senate these measures failed to receive the necessary two-thirds vote.23

Footnotes

1

E.g., Saia v. New York, 334 U.S. 558 (1948); Kovacs v. Cooper, 336 U.S. 77 (1949).

2

E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939).

3

Cf. Cohen v. California, 403 U.S. 15 (1971).

4

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

5

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

6

In Brown v. Louisiana, 383 U.S. 131 (1966), the Court held protected a peaceful, silent stand-in in a segregated public library. Speaking of speech and assembly, Justice Fortas said for the Court: “As this Court has repeatedly stated, these rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest by silent and reproachful presence, in a place where the protestant has every right to be, the unconstitutional segregation of public facilities.” Id. at 141–42. See also Garner v. Louisiana, 368 U.S. 157, 185, 201 (1961) (Justice Harlan concurring). On a different footing is expressive conduct in a place where such conduct is prohibited for reasons other than suppressing speech. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service restriction on overnight sleeping as applied to demonstrators wishing to call attention to the plight of the homeless).

7

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).

8

United States v. O’Brien, 391 U.S. 367, 377 (1968).

9

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 & n.8 (1984).

10

394 U.S. 576 (1969).

11

394 U.S. at 591–93. Four dissenters concluded that the First Amendment did not preclude a flat proscription of flag burning or flag desecration for expressive purposes. Id. at 594 (Chief Justice Warren), 609 (Justice Black), 610 (Justice White), and 615 (Justice Fortas). In Radich v. New York, 401 U.S. 531 (1971), aff’g, 26 N.Y.2d 114, 257 N.E.2d 30 (1970), an equally divided Court, Justice Douglas not participating, sustained a flag desecration conviction of one who displayed sculptures in a gallery, using the flag in apparently sexually bizarre ways to register a social protest. Defendant subsequently obtained his release on habeas corpus, United States ex rel. Radich v. Criminal Court, 459 F.2d 745 (2d Cir. 1972), cert. denied, 409 U.S. 115 (1973).

12

415 U.S. 566 (1974).

13

415 U.S. at 578.

14

418 U.S. 405 (1974).

15

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

16

491 U.S. 397 (1989).

17

496 U.S. 310 (1990).

18

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

19

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

101-131

(1989).

20

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

21

United States v. Eichman, 496 U.S. at 316.

22

496 U.S. at 317.

23

In the 101st Congress, the House defeated H.J. Res. 350 by vote of 254 in favor to 177 against (136 Cong. Rec. H4086 (daily ed. June 21, 1990), and the Senate defeated S.J. Res. 332 by vote of 58 in favor to 42 against (136 Cong. Rec. S8737 (daily ed. June 26, 1990). In every Congress since then (though the 111th in 2009), constitutional amendments to allow Congress or the states to prohibit flag desecration have been proposed. In each Congress from the 104th through the 109th (1995-2006), the House passed such a proposal, but the Senate either rejected it or did not vote on it.