Monroe v. State Court of Fulton County

• Decision Date: 20 August 1984
• Docket Number: No. 83-8737,83-8737
• Citation: 739 F.2d 568
• Parties: Diane MONROE, Petitioner-Appellant, v. STATE COURT OF FULTON COUNTY, James Webb, Solicitor of Fulton County, and Michael Bowers, Attorney General of Georgia, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 568

739 F.2d 568

Diane MONROE, Petitioner-Appellant, v. STATE COURT OF FULTON COUNTY, James Webb, Solicitor of Fulton County, and Michael Bowers, Attorney General of Georgia, Respondents-Appellees.

No. 83-8737.

United States Court of Appeals Eleventh Circuit.

Aug. 20, 1984.

Stephanie Kearns, Atlanta, Ga., for petitioner-appellant.

Donald C. English, Atlanta, Ga., for State Court and Webb.

Susan V. Boleyn, William B. Hill, Jr., Asst. Attys. Gen., Atlanta, Ga., for Bowers.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

On September 17, 1980, appellant, Diane Monroe, was convicted in State Court of Fulton County for misuse of the national flag in violation of a Georgia statute, Ga.Code Ann. Sec. 26-2803, and was sentenced to twelve months imprisonment. Monroe was released from custody after posting an appeal bond. The Georgia Supreme Court affirmed her conviction. Monroe v. State, 250 Ga. 30, 295 S.E.2d 512 (1982). On January 28, 1983, Monroe filed a petition for writ of habeas corpus and a motion for stay of her sentence in the United States District Court for the Northern District of Georgia. The district court denied her motion for stay on April 4, 1983 and Monroe began serving her sentence on April 14, 1983. The district court denied the petition for writ of habeas corpus on September 21, 1983. Monroe v. State Court of Fulton County, 571 F.Supp. 1023 (N.D.Ga.1983). Because we hold that the Georgia statute is unconstitutional as applied, we reverse the denial of appellant's petition for writ of habeas corpus.

I. BACKGROUND

The relevant facts, as summarized by the Georgia Supreme Court, are as follows:

On November 29, 1979 two officers from the City of Atlanta Police Department were dispatched to the federal courthouse on Forsyth Street to observe a demonstration by the Iranian Student Association and the Revolutionary Communist Party "against the United States' involvement in Iranian affairs." Trial testimony by these officers indicated that from their parked patrol car they observed a number of persons peacefully picketing and, in turn, making speeches. During this time the officers were approached by Reuben Garland, a local attorney, who expressed his desire to press charges against the group. The officers testified that while they were discussing this matter with Mr. Garland they observed [Diane Monroe and another individual] unfurl a United States flag. Defendant Monroe ignited the flag with a cigarette lighter, but the flame went out. [Another individual] then took the lighter from Monroe and ignited the flag. When Garland observed these proceedings he ran into the crowd of demonstrators and began struggling for control of the flag. At that point police officers attempted to disperse the demonstrators and extinguish the burning flag.

250 Ga. 30, 30-31, 295 S.E.2d 512 (1982).

The Georgia statute under which Monroe was convicted provides that "[a] person who deliberately mutilates, defaces, or defiles the flag of the United States ... is guilty of a misdemeanor." Ga.Code Ann. Sec. 26-2803. ¹ Monroe does not challenge the constitutionality of the state statute on its face; she challenges it only as applied to her. Monroe claims that her conviction under the statute violates her right to free speech under the first and fourteenth amendments. ²

II. DISCUSSION

First, we must decide whether Monroe's act of burning the flag was a type of symbolic speech within the purview of the free speech clause of the first amendment. Nonverbal expression may be a form of free speech entitled to first amendment protection. See Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (attaching peace sign to flag is form of free speech); Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands in school is akin to pure speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (compulsory flag salute is form of utterance); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (display of red flag is a form of protected speech); Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir.1983) (police officers removing American flags from uniforms is protected speech); Smith v. United States, 502 F.2d 512 (5th Cir.1974) (wearing peace pin is within the free speech protection). The Supreme Court for decades has recognized that the flag is a symbol with special communicative connotations. Spence v. Washington, 418 U.S. at 410, 94 S.Ct. at 2730. In West Virginia State Board of Education v. Barnette, 319 U.S. at 632-33, 63 S.Ct. at 1182-83, the Court stated: "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." The Supreme Court does not, however, "accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).

To determine whether appellant's conduct is entitled to first amendment protection, "the nature of appellant's activity, combined with the factual context and environment in which it was undertaken" must be considered. Spence v. Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 2729-30, 41 L.Ed.2d 842 (1974). If appellant shows "[a]n intent to convey a particularized message ... and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it," id. at 410-11, 94 S.Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. ³

In the case before us, Monroe was convicted for burning the American flag during a public demonstration protesting the United States's involvement in Iranian affairs. As noted by the Georgia Supreme Court, at the date of the demonstration, November 29, 1979, relations between the United States and Iran were sensitive. 250 Ga. 30, 30 n. 1, 295 S.E.2d 512. Monroe burned the flag during a demonstration in which she had participated, and thus, it is clear that Monroe intended to convey a particularized message: her dissatisfaction with the United States's policies. Because the flag was burned during a larger demonstration that involved picketing and speeches, the likelihood that Monroe's message would be understood by those who viewed it was great. Her act was not one of "mindless nihilism." Spence v. Washington, 418 U.S. at 410, 94 S.Ct. at 2730. As in Spence, Monroe's act was a "pointed expression of anguish" about the foreign affairs of her government. Id. Therefore, we conclude that Monroe's burning of the flag constituted speech and symbolic expression within the purview of the first amendment.

Having concluded that Monroe's conduct was a form of speech, however, does not mean that any infringement on her freedom of expression would be unconstitutional. The first amendment ban against the making of laws abridging free speech is not absolute. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (obscene material is not protected by the first amendment); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (draft card burning is not constitutionally protected activity); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words are not protected speech).

Although the Supreme Court has not ruled on the constitutionality of convictions for politically inspired destruction of the American flag, it has had occasion to discuss closely related issues.

In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), appellant burned his selective service registration certificate in 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 found that the Act was constitutional because it met the following four requirements: 1) it was within the constitutional power of the government; 2) it furthered an important or substantial governmental interest; 3) the governmental interest was unrelated to the suppression of free expression; and 4) the incidental restriction on alleged first amendment freedoms was no greater than was essential to the furtherance of that interest. Id. at 377, 88 S.Ct. at 1679.

In applying the four criteria, the O'Brien Court found that the governmental interest was in preventing harm to the smooth and efficient functioning of the Selective Service System. When O'Brien deliberately destroyed his registration card, he willfully frustrated that governmental interest. "For this noncommunicative impact of his conduct, and for nothing else, he was convicted." Id. at 382, 88 S.Ct. at 1682. ⁴ According to the Court, "[t]he 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." Id.

In Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), appellant, upon hearing of the shooting of James Meredith, a civil rights leader, 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 ...