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July 2016 Bar Bulletin

Spence v. Washington

Flag Protest Case among Free Expression Jurisprudence

By Gene Barton


It was May 1970. The U.S. had recently invaded Cambodia, further escalating the Vietnam conflict, and four students had been shot and killed by national guardsmen during a protest at Kent State University.

In a further show of protest, Seattle resident Harold Spence, a college student, hung his United States flag upside-down from his apartment window. Using “removable plastic tape,” Spence had superimposed a large peace symbol on both sides of the flag.1 However, Spence’s flag ran afoul of Washington’s statute regarding “improper display” of the American flag; he was arrested and convicted in King County Superior Court.

Spence’s case eventually reached the U.S. Supreme Court in 1974, after his conviction was reversed by the Washington Court of Appeals and reinstated by the state Supreme Court. His conviction was again reversed by the high court in an historic 6–3 decision.2

The statute at issue, RCW § 9.86.020, provided:

No person shall, in any manner, for exhibition or display:

(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state, or authorized by any law of the United States or of this state; or

(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement.3

Washington Court of Appeals

In reversing Spence’s conviction, the Court of Appeals, in a decision authored by Division One Chief Judge Charles Horowitz, in which Justice Robert Utter joined and Justice Ward Williams dissented, found the statute to be unconstitutionally infirm, relying largely on the then-emerging jurisprudence surrounding the unrest of the 1960s and 1970s.

At the outset, Judge Horowitz noted, “A flag may be considered from two aspects: (1) as a physical object, and (2) as a symbol of ideas.” He continued:

As a symbol, its regulation is … subject to the proper exercise of the state’s police power, but the use of the symbol is protectable, if at all, by the First and Fourteenth Amendments which provide a restraint upon the exercise of police power.

The basic question here involves a determination of whether the constitutional right of free speech is violated by RCW 9.86.020(1) and (2) enacted under the state’s police power, either as that statute is applied to defendant or on account of overbreadth.4

After reviewing the “long and worldwide history” of national flags and their symbolism, as well as statutory efforts “designed to protect the American flag and representations of that flag against both misuse and disrespect” and the case law applying those statutes, the Court noted “it is clear that even defiant or contemptuous words spoken of the flag are protected free speech; and the fact that the words would be offensive to the sensibilities of the average citizen is not a controlling consideration.”5 The Court further stated that “symbolic speech,” i.e., “[t]hought and ideas (that) may be conveyed by nonspeech symbols,” is protected under the First Amendment on a par with spoken words.6

It might be suggested that the state has the right to regulate the nonspeech aspects of conduct as long as the regulation does not impair or regulate speech itself…. Whatever workability this rule may possess in the presence of actual speech, the rule may well be unworkable in the presence of conduct which itself is constitutionally protected symbolic speech and is nonseverable therefrom. Thus, the wearing by high school students of black armbands to protest American policy in Vietnam is conduct and is nonseverable from the symbolic speech exemplified by the armbands; and a compulsory flag salute statute which regulates or mandates conduct also runs afoul of constitutional provisions which prevent government from prescribing what is “orthodox in politics, nationalism, religion, or other matters of opinion …”7

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