State v. Spence, 854--I

• Decision Date: 15 November 1971
• Docket Number: No. 854--I,854--I
• Citation: 490 P.2d 1321,5 Wn.App. 752
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Harold Omand SPENCE, Appellant.

Page 752

5 Wn.App. 752

490 P.2d 1321

STATE of Washington, Respondent, v. Harold Omand SPENCE, Appellant.

No. 854--I.

Court of Appeals of Washington, Division 1 Panel One.

Nov. 15, 1971.

As Amended Nov. 24, 1971.

Rehearing Denied Dec. 17, 1971.

American Civil Liberties Union of Washington David Allen, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., James E. Warme, Deputy, Pros. Atty., Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant, after jury trial, was convicted of violating RCW 9.86.020(1) and (2), which forbids the improper use for exhibition or display of any flag of the United States as therein defined. On appeal he contends his conviction should be reversed and the charge dismissed because the statute violates his First Amendment rights. For the reasons next stated, we uphold his contention.

RCW 9.86.020(1) and (2) provide:

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.

RCW 9.86.010 defines the word flag as follows:

The words flag, standard, color, ensign or shield, as used in this chapter, sign or shield, as used in this chapter, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof.

The facts are these: Defendant, by the use of removable plastic tape, superimposed a peace symbol upon an American flag in his possession. He then displayed the flag containing the peace symbol to public view by hanging it out of his apartment window in Seattle, Washington, in an upside-down position. The plastic tape peace symbol consists of black lines forming a circle, which in turn contains black straight lines in much the form of an inverted trident. Defendant testified that his purpose in placing the peace symbol upon the flag displayed was to associate the flag with peace instead of war and violence, and to serve as a protest to the invasion of Cambodia and the killings at Kent State University, both of which events had occurred a few days before. He testified that he did not know that placing the plastic tape peace symbol upon the flag was against the law.

'The state does not contend the information charged defendant with desecrating the flag--flag desecration being prohibited by RCW 9.86.030 as amended. Had flag desecration been the intended charge, it would have been necessary to include an allegation, in substance or effect, that defendant had committed 'acts * * * done knowingly and intentionally with an intent or purpose of defiling and desecrating (the flag) or holding it publicly up to contempt.' State v. Turner, 78 W.D. (Wash.Dec.)2d 276, 280, 474 P.2d 91 (1970). It is not claimed that such an intent was alleged in the information, nor is such intent relied upon to uphold the conviction below under RCW 9.86.020. Indeed, the state successfully contended below that intent to violate the statute under which the information was drawn was an unnecessary ingredient of the offense charged. We therefore confine ourselves, as we must, to a consideration of the actual charge on which defendant was convicted. U.S.Const. amend. 6; Const. art. 1, § 22 (amendment 10). As stated in State v. Frazier, 76 Wash.2d 373, 456 P.2d 352 (1969), at 376 (456 P.2d 352):

'HE CANNOT BE ACCUSED OF ONE CRIME AND CONVICTED OF ANOTHER.''

A flag may be considered from two aspects: (1) as a physical object, and (2) as a symbol of ideas. As a physical object, its ownership is subject to the proper exercise of the state's police power (See Cross, The Diminishing Fee, 20 Law & Contemporary Problems 517 (1955), cited in Sutherland v. Southcenter Shopping Center, Inc., 3 Wash.App. 833, 847 n. 6, 478 P.2d 792 (1970)), and such ownership is protected by the Fifth and Fourteenth Amendments implemented, for example, by laws relating to trespass. As a symbol, its regulation is also 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. See Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907); State v. Oyen, 78 Wash.Dec.2d 934, 937, 480 P.2d 766 (1971); Annot., 22 L.Ed.2d 972 (1970).

The basic question here involves a determination of whether the constitutional right of free speech (U.S.Const. amend. 1; Const. art. 1, § 5; ¹ Adams v. Hinkle, 51 Wash.2d 763, 322 P.2d 844 (1958)) 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.

Flags have a long and worldwide history. 9 Encyclopedia Britannica 398, Flags (22d ed. 1970); E.M.C. Barraclough, Flags of the World (Rev. ed. 1965); Quaife, The Flag of the United States (1942). They serve a variety of functions. Thus, they may be used as a reminder of an historic past, a mirror of a peaceful or turbulent present, and a promise of conditions hoped for or of events to come. The American flag is similarly used. The American flag, however, has its own communicating function. Its content finds expression and use based on American experience, American values and American outlook. The flag does not bear a single message, orthodox or unorthodox; nor is it the sole preserve of government or the sole preserve of any one person, group or interest. It does not serve to freeze past or existing institutions or past or existing points of view. Born out of the vicissitudes of change, and itself a striking and eloquent manifestation of that change, it would be strange indeed if it proved inhospitable to the constitutionally protected appeal for change by lawful means. Hence, the flag is both an appeal for loyalty to existing America, its policies and its ideals, and an invitation for peaceful change to bring America closer to heart's desire. In short, the American flag is an identifying, history-preserving and ideological symbol. As stated in Parker v. Morgan, 322 F.Supp. 585 (W.D.N.C.1971), at 588:

If the flag says anything at all, and we agree it often may in a given context, we think it says everything and is big enough to symbolize the variant viewpoints of a Dr. Spock and a General Westmoreland. With fine impartiality the flag may head up a peace parade and at the same time and place fly over a platoon of soldiers assigned to guard it.

* * * Sometimes the flag represents government. * * * Always it represents America--in all its marvelous diversity.

It is understandable that a concern for the preservation of the flag's symbolism should find expression, all over the land and in a variety of contexts, in federal and state statutes designed to protect the American flag and representations of that flag against both misuse and disrespect. See e.g., 4 U.S.C.A. §§ 1--3; 36 U.S.C.A. §§ 172--178, 182; RCW 9.86.010--9.86.070 (Uniform Flag Law); RCW 9.05.100--9.05.140. Indeed, a body of law--albeit somewhat small--has developed with respect to how statutory enactments dealing with the flag should be regarded. See generally, 35 Am.Jur.2d, Flags §§ 1--5 (1967, Supp.1971); 36 A. C.J.S. Flags §§ 1--6 (1967, Supp.1971); Annot., 22 L.Ed.2d 972 (1970); Note, Exploiting the American Flag: Can the Law Distinguish Criminal From Patriot?, 30 Maryland L.Rev. 332 (1970).

From the case law 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. Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). Thought and ideas, however, may be conveyed by non-speech symbols as well as by words. Such symbols when so used constitute symbolic speech which is protected by the First Amendment. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Furthermore, a statute mandating respect for the flag, as in the case of a compulsory flag salute, is a violation of the First Amendment. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Even the display of an alien red flag symbolizing opposition to the American government is constitutionally protected free speech. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1930).

It might be suggested that the state has the right to regulate the non-speech aspects of conduct as long as the regulation does not impair or regulate speech itself. Cf., Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). This view is the rationale, for example, of the majority opinion in People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (1970), affirmed per curiam by an equally divided court, 401 U.S. 531, 91 S.Ct. 1217, 28 L.Ed.2d 287 (1971). 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 non-severable therefrom. Thus, the wearing by high school students of black armbands to protest American policy in Vietnam is...