Crosson v. Silver, Civil 70-79 Tucson.

• Decision Date: 13 November 1970
• Docket Number: No. Civil 70-79 Tucson.,Civil 70-79 Tucson.
• Citation: 319 F. Supp. 1084
• Parties: Sharon CROSSON, Plaintiff, v. Rose SILVER, County Attorney, Pima County, Arizona, Defendant.
• Court: U.S. District Court — District of Arizona

319 F. Supp. 1084

Sharon CROSSON, Plaintiff, v. Rose SILVER, County Attorney, Pima County, Arizona, Defendant.

No. Civil 70-79 Tucson.

United States District Court, D. Arizona.

November 13, 1970.

Erik M. O'Dowd, Tucson, Ariz., for plaintiff.

Rose Silver, Pima County Atty., Stephen D. Neely, Deputy County Atty., Tucson, Ariz., for defendant.

Before ELY, Circuit Judge, and WALSH and CRAIG, District Judges.

OPINION

WALSH, District Judge.

Plaintiff brought this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-2202 seeking declaratory relief and an injunction restraining defendant from further criminal proceedings against plaintiff under the Arizona flag desecration statute, A.R.S. § 41-793, subsec. C (1956). This three-judge court was convened since the requests for relief meet the criteria of 28 U.S.C. §§ 2281 et seq. Our jurisdiction is founded on 28 U.S.C. § 1343(3) and (4).

From the statement of facts stipulated by counsel, it appears that on June 2, 1970, defendant filed in the Superior Court of the State of Arizona in and for the County of Pima an amended information¹ charging that on or about May 6, 1970,

Sharon K. Crosson did, by her act of burning a flag of the United States of America, wilfully, unlawfully, and publicly mutilate, deface, defile or cast contempt upon said flag, all in violation of A.R.S. § 41-793, subsec. C.

Section 41-793, subsec. C reads in pertinent part:

A person who publicly mutilates, defaces, defiles, tramples upon, or by word or act casts contempt upon a flag is guilty of a misdemeanor. * * *

Subsection D of Section 41-793 defines "flag" as including

any flag, standard, color, ensign or shield, or any copy, picture or representation thereof, made of any substance or of any size, purporting to be the flag, standard, color, ensign or shield of the United States or of this state.

Plaintiff entered a plea of not guilty and moved to quash the information. This motion was denied.

At the trial,² defendant intends to prove that on May 6, 1970, on the University of Arizona campus, plaintiff publicly burned or aided and abetted the public burning of a United States flag, and that the burning was done with intent to cast contempt upon the flag. The contemptuous intent will be shown by testimony that concurrently with the burning plaintiff made remarks of a derogatory nature directed at the flag and the foreign policy of the United States with respect to the Southeast Asia military involvement. Defendant will not, however, seek a conviction on the basis of any of plaintiff's remarks but only for the act of flag burning.

In this court, plaintiff has moved for summary judgment asking that we declare A.R.S. § 41-793, subsec. C violative of the First and Fourteenth Amendments. Specifically, plaintiff's attack charges the statute is overbroad in that it impermissibly infringes on protected expression and, further, it uses terminology so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

Defendant has moved to dismiss or in the alternative asks this court to abstain from passing on the statute's constitutionality. Defendant argues that if the statute is not constitutionally perfect, its vices are minor and clearly within the reach of an acceptable limiting construction readily to be anticipated as a result of the state criminal prosecution.

For the reasons set out below, we find A.R.S. § 41-793, subsec. C unconstitutional.

The controlling precedent on the issues before this court is United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Prior to analyzing these issues in light of the O'Brien formula, however, we must decide something O'Brien assumed, namely, whether the conduct drawn into question by the subject statute is conduct "so intertwined with expression" as to bring the First Amendment into play. See Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring). Plaintiff asserts, and we agree, that her act of publicly burning the flag was symbolic speech.

While we need not here determine whether all conduct intended to express an idea is symbolic speech, we think it is self-evident that most, if not all, conduct associated with the United States flag is symbolic speech. Such conduct is normally engaged in with the intent to express some idea. Further, such conduct is invariably successful in communicating the idea. There is nothing equivocal about a flag-draped casket or a flag flying at half-mast at the death of a dignitary. Nor in this day and time is anyone likely to mistake the nature of the ideas expressed by a young person who desecrates his country's flag at an anti-war gathering.

There is, then, a recognizable expressive element in conduct prohibited by A.R.S. § 41-793, subsec. C. Accordingly, such conduct is prima facie protected by the First Amendment and the statute must be scrutinized to determine whether its regulation of the conduct is constitutionally permissible. The method of scrutiny is that directed by O'Brien.

In O'Brien the Court noted that "when `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." 391 U.S. at 376, 88 S.Ct. at 1678. Whether the regulation in question properly effects the interest depends on whether

it is within the constitutional power of the Government * * * it furthers an important or substantial governmental interest * * * the governmental interest is unrelated to the suppression of free expression * * * the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 391 U.S. at 377, 88 S.Ct. at 1679.

The only state power this court perceives as a constitutional basis for a penal statute of the type here involved is the police power. We specifically reject the existence of a constitutionally recognized state power to prohibit flag desecration based on an interest in preserving loyalty or patriotism. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). But cf., United States v. Ferguson, 302 F.Supp. 1111 (N.D.Cal.1969). Whether the statute with which we are here concerned is a proper exercise of the police power necessitates an analysis of the statute to determine if it satisfies the last three O'Brien criteria.

Having decided that flag desecration can be symbolic speech, we must now determine what are the speech and nonspeech elements in such conduct in order to decide whether there is an important or substantial governmental interest in regulating the nonspeech element. The speech element is the readily recognizable expression of discontent with something the flag symbolizes. The nonspeech element in an act of flag desecration is the physical act of desecration.³ What governmental interest, then, could there be in regulating this element?

When accomplished in public, this nonspeech element of flag desecration has a dual impact. The first impact is on the flag itself: it is mutilated, destroyed, or otherwise desecrated. The second impact is on the viewers: the emotions they experience, approval, disapproval, or even indifference, at the sight of the flag being desecrated. Since these two "impacts" can fairly be characterized as part and parcel of the nonspeech element of public flag desecration, a statute prohibiting such behavior must be justified by virtue of a finding that there is a substantial or important governmental interest in preventing one or both "impacts."

We note the listing in Street v. New York, 394 U.S. 576, 591, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), of the possible governmental interests which could be furthered by a prohibition against casting contempt on the flag "by words." The characterization and disposition by Street of these interests is helpful, though not dispositive, since we are not prepared to say that there is no difference between the "impact" of pure speech on the listener and the "impact" on the viewer of the nonspeech element of symbolic speech. See Note, Freedom of Speech and Symbolic Conduct: The Crime of Flag Desecration, 12 Ariz.L. Rev. 72, 77 (1970).

We find that the State has no property interest in the flag sufficient to support a prohibition against the first "impact"; i.e., physical desecration of the flag. And we read Street as holding that the State cannot justify such a prohibition in order to insure that the potential desecrator shows proper respect for the flag. 394 U.S. at 593, 89 S.Ct. 1354.

Insofar as the second "impact" is concerned, we must decide whether there is some governmental interest connected with the reactions of viewers of an act of flag desecration. We find nothing inherent in the act which stimulates those viewers who sympathize with the aims of the desecrator to engage in unlawful acts, such as rioting. Nor is the protection of the "sensibilities of passersby" the proper concern of the State. On neither score is there a substantial or important governmental interest furthered by a prohibition based on the second "impact."

This court cannot say, however, that the state legislature could not validly find that certain types of public flag desecration are so inherently inflammatory that in and of themselves they are likely to provoke the average person to retaliation and thereby cause a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Just as the flag is a symbol to the desecrator, representing perhaps oppression, hypocrisy, ill-conceived military ventures, or whatever, so is it a symbol to many Americans of a love as strong as love of self, that of love of country. We think it is within the realm of legislative judgment to find that some types of public flag desecration will be as provocative...