Monroe v. State Court of Fulton County
| Decision Date | 21 September 1983 |
| Docket Number | Civ. No. C83-160. |
| Citation | 571 F. Supp. 1023 |
| Parties | Diane MONROE v. STATE COURT OF FULTON COUNTY, James Webb, Solicitor of Fulton County, and Michael J. Bowers, Attorney General of Georgia. |
| Court | U.S. District Court — Northern District of Georgia |
Stephanie Kearns, Atlanta, Ga., for petitioner.
Donald C. English, Asst. Sol. Gen., Atlanta, Ga., for the State of Ga.
Virginia H. Jeffries, Asst. Atty. Gen. for Ga., Atlanta, Ga., for Michael Bowers.
This action is before the Court on Diane Monroe's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons hereinafter stated, the Petition is DENIED.
The relevant facts in this matter were summarized by the Supreme Court of Georgia 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.
Monroe v. The State, 250 Ga. 30, 295 S.E.2d 512 (1982) (footnote omitted).
On January 17, 1980, Petitioner was convicted of misuse of the national flag in violation of Ga.Code Ann. § 26-28031 and sentenced to twelve months imprisonment. Her conviction was affirmed by the Supreme Court of Georgia on October 5, 1982. On January 28, 1983, she filed her Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, and also a Motion for Stay of her sentence. The Motion for Stay was denied on April 4, 1983. Ms. Monroe began serving her sentence on April 14, 1983.
Petitioner attacks the constitutionality of the Georgia flag statute as applied to her.2 Specifically, Ms. Monroe asserts that her judgment of conviction is Petition for Writ of Habeas Corpus at 2.3
The First Amendment to the Constitution provides in pertinent part: "Congress shall make no law ... abridging the freedom of speech ...." This amendment is applicable to the states by virtue of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).
Although the First Amendment's ban against the making of laws abridging free speech appears absolute, case law has made it clear that it is not. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54, 69, 93 S.Ct. 2628, 2633, 2641, 37 L.Ed.2d 446 (1973), reh'g denied, 414 U.S. 881, 94 S.Ct. 27, 38 L.Ed.2d 128 (1973), 419 U.S. 887, 95 S.Ct. 163, 42 L.Ed.2d 133 (1974); Roth v. United States, 354 U.S. 476, 483, 485, 77 S.Ct. 1304, 1308, 1309, 1 L.Ed.2d 1498 (1957) (); see also Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (). Therefore, even if Ms. Monroe's conduct is a form of speech, it does not necessarily follow that any infringement on her freedom of expression would be unconstitutional.4
As is discussed more fully below, a question is presented as to which of two potentially applicable legal standards applies in resolving Ms. Monroe's claim. Cf. Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); see discussion at pp. 1027-1028, infra. However, either legal standard requires the Court to identify the valid interest or interests served by the state statute and determine the degree of importance of such interests. The Court turns first to this task.5
In its decision affirming Ms. Monroe's conviction, the Georgia Supreme Court (Gregory, Justice) described the state's interest as follows:
For over two hundred years the United States flag has played a significant role in the human affairs of this country. It is symbolic of the ideology of our nation. The flag is our representative emblem of the union of the states and the independence of the country. It is clear that the people of this state and of the other states of the Union have a unique and compelling interest in protecting the flag as the symbol of our nation. What may not be as readily apparent is that the public's interest lies in having a symbol to represent the nation. This symbol belongs collectively to the people of the various states. While it is true that a physical reproduction of the symbol in the form of red, white and blue cloth may be privately purchased and owned, that which the flag represents is not subject to private ownership. We recognize that the people of this state have a substantial interest in protecting the symbol; this interest extends to regulating conduct which seeks to destroy the symbol by destroying copies of it. In enacting Code Ann. § 26-2803 the people, through their governmental representatives, have expressed their desire to safeguard the flag and all that it represents. See generally, Joyce v. United States, 454 F.2d 971 (D.C. Cir.1971), cert. den. 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972). (Emphasis in original).
250 Ga. at 32, 295 S.E.2d at 514-15.
Symbols are useful because they make tangible and concrete that which is intangible or otherwise incapable of meaningful observation. The amalgam of institutions, people and ideas, both past and present, which make up our nation certainly cannot be "observed." However, the flag can be. Thus, the flag facilitates a citizen's identification with his country. In that respect, it is a unifying factor which is useful in rallying the people's support for their country in times of peace and war. Thus, the state's interest as described by the Georgia Supreme Court is fundamentally related to the people's desire to perpetuate the union and the form of government it espouses.
The Georgia statute, then, recognizes that the extent to which citizens will be willing to use the flag to identify with their country correlates directly with the prestige it commands. Public ridicule of the flag dilutes its effectiveness as a symbol. The Court finds that the State's interest in preserving the integrity of the flag as symbol of the union is a valid one.6
The Court now turns to the issue of whether Georgia's interest in preserving the integrity of the flag as symbol may be termed a substantial interest. There are two ways of approaching this issue. On the one hand, one may argue that at this point in our history, the flag has come to enjoy a position of such prestige that government need no longer be concerned about isolated occurrences of the type involved in Monroe. Interestingly, Georgia's other valid interest in having a flag desecration statute — prevention of breaches of the peace — stems from this very assumption, i.e. because the flag is so revered by the citizenry, an attack on it is likely to provoke a breach of the peace.
On the other hand, the flag as symbol serves one of the most basic of all governmental interests — the interest in self-perpetuation and self-preservation. Viewed in this way, it is difficult to characterize an interest in preserving the integrity of the symbol as unimportant. Because the Court does not believe it is appropriate for analysis of the strength of the interest to depend upon the particular time in history at which the analysis is made, it adopts this latter approach and finds that the interest in maintaining the integrity of the flag is, as a general proposition, substantial.
Full consideration of this issue requires, however, that recognition be given to the fact that the interest in protecting the flag's integrity is being asserted here by a state, as opposed to the federal government. The State's interest is viewed as collateral to, and in aid of, the federal government's interest. See Jones v. Wade, 479 F.2d 1176, 1179 n. 1 (5th Cir.1973), rev'd and remanded on other grounds, 504 F.2d 427, 428 (5th Cir.1974). While this in no way undercuts the validity of the interest, it places the State's interest lower than that of the federal government on a scale of relative values. Thus, the Court finds that the State's interest in protecting the integrity of the national flag is material, but not substantial.
Even though the Georgia Supreme Court did not identify prevention of breach of the peace as an interest served by the statute, it is generally recognized that flag desecration statutes serve that purpose and that such purpose is valid and important. Jones v. Wade, 479 F.2d at 1179. Further, the Court finds that purpose was served in Ms. Monroe's case because her conduct — igniting an...
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Monroe v. State Court of Fulton County
...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 pe......