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Spence v. Washington

Supreme Court of the United States · 1974 · Constitutional Law

Constitutional LawFirst AmendmentSymbolic SpeechFirst Amendmentsymbolic speechexpressive conductflagas-applied challenge

Facts

A college student displayed his privately owned United States flag upside down from the window of his apartment on private property, with a large peace symbol attached to both sides using removable tape. He testified, without contradiction, that he did so to protest the invasion of Cambodia and the killings at Kent State and to associate the flag with peace rather than war and violence. Police seized the flag and arrested him; there was no disruption, altercation, trespass, or evidence of any risk of breach of the peace. He was prosecuted under Washington's statute forbidding public display of a flag bearing attached or superimposed figures or symbols, and the jury was instructed that mere display in that manner was enough to convict.

Issue

Whether Washington could constitutionally apply its improper-use flag statute to punish appellant for displaying his privately owned flag on private property with a removable peace symbol attached, where the display was intended as political communication. More specifically, the question was whether this application of the statute violated the First and Fourteenth Amendments.

Rule

Conduct is protected expression under the First and Fourteenth Amendments when, in light of its nature and surrounding context, it is sufficiently imbued with elements of communication. Where an actor intends to convey a particularized message and, in the surrounding circumstances, the likelihood is great that the message will be understood, the State may not, consistent with the First Amendment, punish that expression absent a sufficiently weighty supporting interest; on these facts, no asserted state interest justified the conviction.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Oregon, Lena Ortiz hung her privately owned United States flag from the balcony of her condominium and taped a large removable green leaf symbol to both sides the day after Congress announced a major environmental rollback. She told police she wanted neighbors to understand that she believed the country should stand for environmental protection, and there was no crowd, disturbance, or property damage.

If Oregon prosecutes Lena under a statute banning public display of any United States flag bearing an attached symbol, which is the best First Amendment analysis?

Explanation. The majority held that conduct is protected expression when the actor intends to convey a particularized message and, in the surrounding circumstances, the likelihood is great that the message will be understood. Here, Lena's display was on private property, involved her privately owned flag, used removable material, and was tied to a contemporaneous public controversy. Under that reasoning, the expression is protected, and neither possible offense to viewers nor a bare desire to suppress the message would justify punishment as applied.