United States v. Sharon K. Crosson

BROWNING, Circuit Judge

(dissenting).

Most of the First Amendment issues that once might have been raised on the facts of this case have been settled by the Supreme Court adversely to the government. On the basis of principles announced in the most relevant Supreme Court decisions, it is reasonably clear that appellant’s act of protest, ineffectual and offensive as it may have been,1 cannot be punished by government consistent with the First Amendment.2

I

A. The Court has held that under the First Amendment, the government has no legitimate interest in compelling an individual to express respect for the flag and what it symbolizes. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L. Ed. 1628 (1943). This conclusion was held to follow from the central notion that in this country it is not the business of government to prescribe the “right” opinion in political matters.

When first confronted with this question in Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940), the Supreme Court had held to the contrary. In Gobitis, the Court sustained the power of the state to require school children to salute the flag as an appropriate means of fostering “patriotic impulses,” “an attachment to the institutions of their country,” and “[n]ational unity [which] is the basis of national security.” Id. at 595, 60 S. Ct. at 1013. But Gobitis was shortlived.

*105In Barnette, decided three years later, the Court recognized that the flag salute was symbolic speech, a form of expression requiring an “affirmation of a belief and an attitude of mind”, 319 U.S. at 632-633, 63 S.Ct. at 1083, and that it was therefore subject to the First Amendment. The Court rejected the Gobitis premise that the government could require an individual to express respect toward the flag in the interest of national unity. It adopted precisely the opposite premise. The Court held that the First Amendment guaranteed the individual’s right “to be intellectually and spiritually diverse or even contrary.” Id. at 641, 63 S.Ct. at 1187. The “freedom to differ,” the Court said, “is not limited to things that do not matter much”; it includes “the right to differ as to things that touch the heart of the existing order.” Id. at 641-642, 63 S.Ct. at 1187. Under the First Amendment, the Court concluded, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Id. at 642, 63 S.Ct. at 1187.

Barnette stands for the proposition that because government in this country cannot compel an individual to entertain or express respect for the institutions and ideas that the flag symbolizes, government cannot compel an individual to entertain or express itself.

B. In Barnette the government sought to compel the expression of respect toward the flag; in this case the government seeks to prevent the expression of disrespect. There is no apparent reason why this difference should be significant in applying the Constitution’s guaranty against interference with free expression, and Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L. Ed.2d 572 (1969), establishes that it is not.

Street holds that under the First Amendment, there is no legitimate governmental interest in punishing expressions of disrespect for the flag. The reason is the same as that underlying Bar-nette. The individual’s right to express disagreement with the government includes the right to express that disagreement in terms of the symbol the government has chosen to represent itself.

Upon hearing of the shooting of James Meredith, a civil rights leader, Street carried his American flag into the street and burned it, shouting, “We don’t need no damn flag,” and “If they let that happen to Meredith we don’t need an American flag.” The State of New York convicted him under a statute making it a crime to “publicly . cast contempt upon [any American flag] by words.” The Supreme Court reversed, holding that the state statute “was unconstitutionally applied in appellant’s case beause it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag.” 394 U.S. at 581, 89 S.Ct. at 1360.

The Court concluded that no interest of the state justified Street’s conviction for speaking disrespectfully about the flag.3

*106The Court expressly relied upon the decision in Barnette, thus rejecting any difference, for constitutional purposes, between the “affirmative compulsion” of the flag salute struck down in Barnette and the “negative prohibition” of flag desecration statutes. Quoting from Bar-nette, the Court said:

“We have no doubt that the constitutionally guranteed ‘freedom to be intellectually . . . diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.” Id. at 593, 89 S.Ct. at 1366.

II

A. Street differs from the present case in only one respect. Street was convicted of having “cast contempt upon [the flag] by words,” 4 while Mrs. Cros-son was convicted because she “knowingly cast contempt upon a flag of the United States by burning.” This difference between words and conduct, it is said, distinguishes the two cases for First Amendment purposes.

As Barnette demonstrates, First Amendment limitations upon governmental power to directly regulate the expression of views regarding the flag apply to nonverbal expression as well as to verbal expression.5 And the Court’s reliance upon Barnette in Street demonstrates that the First Amendment standards applicable to direct governmental regulation of verbal and nonverbal expression are the same.

In Street, it is true, the Court saved the question of whether “Street could be punished for his burning of the flag, even though the burning was an act of protest.” Id. at 594, 89 S.Ct. at 1366. The question thus reserved is the effect of the First Amendment upon governmental power to regulate conduct per se (i. e., for reasons unrelated to any communicative aspect) where it appears that, in a particular case, the conduct was intended to express an idea — the question dealt with in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The question presented in the present case is the quite different one of the effect of the First Amendment upon the government’s power to regulate the expression of opinion in nonverbal, rather than verbal, form.

As noted, Barnette and Street, together, suggest that the answer to the latter question is that direct governmental regulation of nonverbal expression is subject to the same limitations under the First Amendment as direct regulation of verbal expression, as distinguished from the less stringent standards applied under United States v. O’Brien, supra, 391 U.S. at 377, 88 S.Ct. 1673, to regulation aimed at controlling conduct which may involve expression only incidentally.

This conclusion is supported by Stromberg v. California, 283 U.S. 359, *10751 S.Ct. 532, 75 L.Ed. 1117 (1931), as interpreted in O’Brien.

In Stromberg, the Court considered the constitutionality of a statute prohibiting the act of displaying a red flag in a public place “as a sign, symbol or emblem of opposition to organized government.” 283 U.S. at 361, 51 S.Ct. at 533. The statute was a direct prohibition of the expression of an idea through conduct. It punished not the act of displaying a red flag, but rather the communication of the idea of opposition to government by the act of displaying a red flag. Because the statute permitted the punishment of peaceful and orderly opposition to government, the Court held the statute invalid as a denial of the constitutionally guaranteed opportunity for free political discussion.

Stromberg was re-examined in O’-Brien. While distinguishing Stromberg, the Supreme Court in O’Brien emphasized its scope and continuing vitality.

O’Brien burned his Selective Service registration certificate as a demonstration of protest against the Vietnam conflict. He was convicted under a section of the Selective Service Act providing for the punishment of one who “knowingly destroys, [or] knowingly mutilates” such a certificate. The Court rejected O’Brien’s contention that his conviction violated the First Amendment.

The Court distinguished Stromberg, noting that the Selective Service Act simply prohibits the destruction of a certificate without regard to circumstances or purpose; it “does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views,” as did the statute in Stromberg. 391 U.S. at 375, 88 S.Ct. at 1678.

The Court pointed out that the prohibition against the destruction of a Selective Service certificate served many important government interests wholly unrelated to the suppression of expressions of protest. The certificate provided the government with a ready means of verifying the registration and classification of the individual; it provided a potentially 'useful notice device; and the information it contained facilitated communication between the registrant and his local board. All these purposes were frustrated by destruction of the certificate ; and none of them had any relation to the suppression of any message the registrant might intend to convey by destroying his certificate. Under the statute, the Court said, O’Brien was punished for “this noncommunicative impact of his conduct, and for nothing else.” Id. at 382, 88 S.Ct. at 1682 (emphasis added).6 The Court continued:

“The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. [People of State of] California, 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed. 1117] (1931), for example, this Court struck down a statutory phrase which punished people who expressed their ‘opposition to organized government’ by displaying ‘any flag, badge, banner, or device.’ Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommuni-cative conduct. See also, NLRB v. *108Fruit & Vegetable Packers Union, 377 U.S. 58, 79, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964) (concurring opinion).” Id. (emphasis added).

Thus, a statute nominally directed at the regulation of conduct but in substance aimed at suppressing communication must meet the First Amendment standards applied to the suppression of speech itself, and not merely the standards applied in O’Brien to the regulation of conduct in its noncommunicative aspect.

B. In the present case, the statute, the charge, and the evidence were all directed at punishing the communicative aspect of Mrs. Crosson’s conduct — the expression of an idea, and, more specifically, the expression of an idea the government found abhorrent.

18 U.S.C. § 700 does not simply prohibit the burning of a flag. It punishes one who “knowingly casts contempt” upon a flag, by various means, including burning. The burning of a flag is not inherently contemptuous, see, e. g., 36 U.S.C. § 176(j); and by its terms the statute punishes only flag burning that expresses contempt. Flag burning that is not communicative is not prohibited, nor, for that matter, is flag burning or other conduct that expresses loyalty and respect.7 The statute does not prohibit the private destruction of a flag even if done to express contempt. The conduct is punished only if done “publicly,” that is, under such circumstances that the contempt expressed by the conduct may be communicated to another. Thus, precisely contrary to the statute upheld in O’Brien, 18 U.S.C. § 700 “does . . . distinguish between public and private destruction, and does . . . punish only destruction engaged in for the purpose of expressing views.” United States v. O’Brien, supra, 391 U.S. at 375, 88 S.Ct. at 1678 (emphasis added).

Section 700 accurately reflects the interest the government seeks to serve. That interest is in the flag as a symbol, not as a physical object. The physical destruction of a flag- — the noncommuni-cative element of the prohibited conduct ■ — affects no governmental interest. The value of the flag as a symbol is not diminished by the physical destruction of one flag or of many. The government is interested only in the suppression of the public display of defiance and contempt for the flag — the communicative element of the prohibited conduct — for it is thought that the value of the flag as a symbol may be adversely affected by the public manifestation of such attitudes.

The majority disposes of the matter by stating that section 700 prohibits only “the physical act of contemptuously burning a flag . . .” (emphasis *109added). See also Joyce v. United States, 454 F.2d 971, 983 (D.C.Cir.1971). This is a contradiction in terms. “Burning” is a physical act, but “contemptuously burning” is necessarily an expression of an attitude or idea. And only such communicative burnings are prohibited by section 700.

The indictment against appellant followed the statute, charging that she “did knowingly cast contempt upon a flag by publicly burning such flag.”

The government proved more than the mere burning of the flag. Evidence was offered that appellant intended by her act to cast contempt upon the flag as a means of expressing her opposition to the government’s participation in the Vietnam conflict. Witnesses described the anti-war demonstration that preceded the burning, the gathering of the demonstrators on the second floor of the ROTC building, the bringing in of the flag appellant had carried in the parade, appellant’s words,8 and the burning itself. The public nature of the area in which the burning occurred was carefully established.

The jury was instructed, “it is not sufficient for the Government to prove beyond a reasonable doubt merely that the defendant burned a flag of the United States of America. The proof must also show beyond a reasonable doubt that the burning of such flag was performed as a means of casting contempt upon such flag.” “Casting contempt” was defined as “showing or indicating open disrespect or scorn.”

It is thus indisputably clear that appellant was punished because of the communicative element of her conduct. It is of no moment, of course, that a Senate Report asserts that the statute “does not prohibit . . . the communication of ideas, or political dissent or protest.” See note 5, majority opinion; see also Joyce v. United States, supra, 454 F.2d at 990. Congress cannot bootstrap the statute into conformity with the Constitution by self-serving declarations that the statute does not do what on its face and as applied it clearly does.

Accordingly, Mrs. Crosson’s conviction can be sustained only if it meets the constitutional standards under which government may punish speech.

Ill

It has been said that the cases reflect two such standards, applied in different contexts, or at least at different times in the somewhat uneven development of First Amendment doctrine: (1) Whether the speech presented a “clear and present danger” of substantive evils the government is empowered to prevent, and (2) whether on balance the government’s interest in suppressing the speech outweighed the interest in free expression.9 Whether there are two distinct tests, and whether the one or the other applies in a case such as this, is of no moment. It is evident that Mrs. Crosson’s prosecution should not be sustained under either.

A. It may be that in some contexts flag desecration to convey a message of protest would create a clear and present danger of breach of the peace or of incitement to crime.10 The government concedes, however, that neither section *110700 nor this prosecution can be supported on these grounds, even assuming the national government possesses the equivalent of the states’ police power to prevent such evils.11

As the government states, “The legis-látive history of 18 U.S.C. § 700 .' . indicates that this was never intended to be a peace-preserving statute” (Appellee’s brief 37); and further, “there was no evidence at the trial one way or the other of the effect on the public peace of the community which resulted from appellant’s burning the flag” (Appellee’s brief 36).

B. Nor can Mrs. Crosson’s conviction be sustained by balancing the governmental interest served by the prosecution against the adverse impact on free expression. The government relies upon a single interest, namely, “its interest in the preservation of the flag as a symbol of unity on national ideals and purpose.” 12 As important as this interest undoubtedly is,13 it could not be more clear that it cannot justify compelling expression of respect for the flag, West Virginia State Board of Education v. Barnette, supra, 319 U.S. at 640-642, 63 S.Ct. 1178, 87 L.Ed. 1628); see also Long Island Vietnam Moratorium Comm’n v. Cahn, 437 F.2d 344, 349 (2d Cir. 1970), or justify suppressing expression of disrespect for the flag, Street v. New York, supra, 394 U.S. at 593, 89 S.Ct. 1354.

Since the national interest in patriotism, loyalty, and unity does not warrant censorship of contemptuous and disrespectful views directed against the government itself, it can hardly justify censorship of such views when directed against the mere symbol of government.

No doubt the government and those who lead it should, indeed must, foster patriotism and loyalty, for these are powerful forces channeling dissatisfaction and disaffection into efforts to improve society rather than to destroy it. See note 13, supra. “Under the Constitution, however, there is no governmental power to enforce a particular norm of patriotism, no matter how desirable it might appear to be.” Thayer, Freedom of Speech and Symbolic Conduct: The Crime of Flag Desecration, 12 Ariz.L. Rev. 71, 84 (1970). “National unity is an end which officials may foster by persuasion and example,” but not by compulsion. West Virginia State Board of Education v. Barnette, supra, 319 U.S. at 640, 63 S.Ct. at 1186.

IV

Although it seems clear that the O’Brien test is not applicable to the prosecution of Mrs. Crosson under section 700, for the reasons suggested in Part II A, this prosecution would fare no better if the O’Brien test were applicable.

The most obvious deficiency is the failure to satisfy the requirement that the governmental interest served by the regulation and punishment of the conduct must be “unrelated to the suppres*111sion of free expression.” 391 U.S. at 377, 88 S.Ct. at 1679.

As noted earlier, Part II A, the O’Brien court distinguished that case from one “where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful,” and stated that if a statute were “aimed at suppressing communication, it could not be sustained as a regulation of noncom-municative conduct.” Id. at '382, 88 S. Ct. at 1682.

As demonstrated above, Part II B, the sole interest served by the prosecution of Mrs. Crosson is the suppression and punishment of her expression of contempt for the flag and the ideas and institutions it represents. This stands in marked contrast to the neutrality toward expression required under O’Brien.

V

The power of the flag to evoke emotion and to influence judgment is great, for to many the flag symbolizes the qualities and ideals of the society they treasure most. A case such as this “is made difficult not because the principles of its decision are obscure but because the flag involved is our own.” West Virginia State Board of Education v. Barnette, supra, 319 U.S. at 641, 63 S. Ct. at 1187. Justice Harlan’s conclusion in Street v. New York, supra, 394 U.S. at 594, 89 S.Ct. at 1367, would be equally appropriate here:

“We add that disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history. Cf. Halter v. Nebraska, 205 U.S. 34 [27 S.Ct. 419, 51 L.Ed. 696] (1907). Nevertheless, we are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects.”

The conviction should be reversed.

. Appellant’s behavior was crude and pointless. As a school teacher, she presumably possessed the verbal skills to articulate her opposition to involvement in the Vietnam conflict and the means to communicate her views effectively to a reasonably large audience. Instead, she elected to express her disapproval through a melodramatic and ineffective charade calculated to offend the deep sensibilities of many patriotic people.

It is also true, however, that there were far more important uses for the professional skill and devotion of state and federal law enforcement officers than spying upon a handful of young people engaged in a peaceful demonstration and doggedly pursuing a foolish but harmless young woman through state and federal criminal courts.

Neither the freedom of our society nor its security is seriously at stake in this litigation.

. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907), an early case upholding a state law against commercial use of the flag, was decided before the First Amendment was held applicable to the states in Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). No First Amendment issues were considered or decided in Halter.

. The Court rejected the contention that Street could be punished because his . words may have offended persons passing by. The Court observed that “[ejxcept perhaps for appellant’s incidental use of the word ‘damn’, upon which no emphasis was placed at trial, any shock effect of appellant’s speech must be attributed to the content of the ideas expressed”; and “[i]t is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” 394 U.S. at 592, 89 S.Ct. at 1366.

The Court further held that “such a conviction could not be supported _on the theory that by making the above-quoted remarks about the flag appellant failed to show the respect for our national symbol which may properly he demanded of every citizen,” Id. at 593, 89 S.Ct. at 1366.

The Court recognized that the state had a legitimate interest in preventing breaches of the peace, but held that the New *106York statute, on its face and as applied to Street, could not be sustained as a prohibition of words that might provoke retaliation or incite others to commit unlawful acts. Id. at 591-592, 89 S.Ct. 1354.' For reasons noted later, the governmental interest in preventing breaches of peace cannot support Mrs. Crosson’s conviction either.

. The statute, the information, and the evidence encompassed both Street’s contemptuous words about the flag and his act of burning it. The Supreme Court concluded that his conviction may have rested either on his words alone or on both his words and Ms act. 394 U.S. at 590, 89 S.Ct. 1354.

. The ceremony involved in Barnette included a verbal pledge as well as a hand salute, but the Court made it clear that compelling the salute itself, given added symbolic meaning by the pledge, was barred by the First Amendment. “There is no doubt that, in connection with the pledge, the flag salute is a form of utterance.” 319 U.S. at 633, 63 S.Ct. at 1182. The Court cited a number of illustrations of coerced salutes that did not involve words. Id. at 633 n. 13, 63 S.Ct. 1178.

. For purposes of comparison the Court cited other examples of statutes directed solely at the suppression of conduct inim-oal to legitimate governmental interests : “A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a tax law prohibiting the destruction of books and records.” 391 U.S. at 375, 88 S.Ct. at 1678.

Neutral and nondiscriminatory regulation of traffic and use of the streets is another example. “One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest.” Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed. 2d 471 (1965).

. Destruction of the flag “in a dignified way, preferably by burning” is authorized by 36 U.S.C. § 1760. The lack of neutrality toward the point of view expressed by flag burning, evidenced by this statute and 18 U.S.C. § 700, raises an additional problem under the First Amendment. The Supreme Court has held that a statutory regulation that permits particular conduct when it reflects approval of government but prohibits such conduct when it reflects disapproval, offends First Amendment standards. See Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970). Schacht was convicted under 18 U.S.C. § 702, which prohibits the wearing of a uniform of the armed forces of the United States “without authority.” The evidence was that Schacht wore portions of such a uniform while portraying a soldier in a skit performed in a demonstration opposing American participation in the Vietnam conflict. He asserted as a defense the provision of 10 U.S.C. § 772(f) that persons not on active dnty (like Schacht) were authorized to wear a uniform as an actor portraying a member of one of the armed forces “if the portrayal does not tend to discredit that armed force.” Obviously, Schacht did not satisfy the quoted condition. The Supreme Court held that the defense was good nonetheless. “The final clause of § 772(f) which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of § 772(f) that final clause must be stricken from the section.” 398 U.S. at 63, 90 S.Ct. at 1559. See also Comment, Flag Burning, Flag Waving and the Daw, 4 Valparaiso L.Rev. 345, 356 (1970).

. Undercover agents of Arizona’s Department of Public Safety testified that Mrs. Crosson said, in an “emotional tone,” “We are going to burn this fucking rag”; and that she later “advised everybody to throw a match on the flag so that the pigs couldn’t blame any one person for burning the flag.”

. See, e. g., Note, Symbolic Conduct, 68 Colum.L.Rev. 1091, 1118-21 (1968) ; Comment, Flag Burning, Flag Waving and the Law, 4 Valparaiso L.Rev. 345, 352-54 (1969) ; see, also Note, The New Metaphysics of the Law of Obscenity, 57 Calif.L.Rev. 1257, 1259-61 (1969).

. See generally Street v. New York, supra, 394 U.S. at 591-592, 89 S.Ct. 1354. Of course, a statute based on these interests could be sustained only if narrowly confined to avoid unnecessary suppression of expression. Id. at 592, 89 S.Ct. 1354; O’Brien v. United States, supra, 391 U.S. at 377, 88 S.Ct. 1673. The government concedes that § 700 would not *110meet their test, stating “since the federal statute on its face was not designed to be limited to proscribing acts which resulted in breaches of the peace it is not so limited” (Appellee’s brief 87).

. As authority that the federal government lacks such power, appellant cites United States v. DeWitt, 9 Wall 41, 76 U.S. 41, 19 L.Ed. 593 (1869); Keller v. United States, 213 U.S. 138, 29 S.Ct. 470, 53 L.Ed. 737 (1909); and Craig v. Steele, 123 F.Supp. 153 (W.D.Mo. 1954), to which the amicus curiae adds Tennessee v. United States, 256 F.2d 244 (6th Cir. 1958).

. Adopted by the government from Sutherland v. De Wulf, 323 F.Supp. 740, 744 (S.D.Ill.1971).

. See generally Prosser, Desecration of the American Flag, 3 Ind.Leg.Forum 159, 220-27 (1969); Comment, Flag Burning, Flag Waving and the Law, 4 Valparaiso L.Rev. 345, 356 (1970).