People v. Vaughan

• Citation: 514 P.2d 1318,183 Colo. 40
• Decision Date: 01 October 1973
• Docket Number: No. 25279,25279
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Patten VAUGHAN, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 1318

514 P.2d 1318

183 Colo. 40

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Patten VAUGHAN, Defendant-Appellant.

No. 25279.

Supreme Court of Colorado, En Banc.

Oct. 1, 1973.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Eugene C. Cavaliere, Jerry W. Raisch, Robert C. Lehnert, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Blewitt, Bisbee & Geil, John H. Bisbee, Boulder, for defendant-appellant.

KELLEY, Justice:

The defendant, David Patten Vaughan, was arrested on a public street in Boulder wearing a pair of blue jeans on the seat of which a portion of the American flag had been sewn. In an information filed by the district attorney, it was charged that the defendant,

'did unlawfully by his acts mutilate, deface and defile a flag of the United States of America with intent to cast contempt thereupon;' Contrary to 1969 Perm.Supp., C.R.S.1963, 40--23--3(1). ¹

In a trial to the court, the court found that the defendant was not making any speeches, and, in fact, no words were spoken by the defendant which were significant. The sole reason for the arrest was the conduct of the defendant. The trial court found the defendant guilty. For reasons hereinafter set forth, we reverse.

All fifty states and the United States Government have passed laws relating to flag desecration. Numerous courts, both state ² and federal, ³ have considered the application of these statutes, reaching somewhat inconsistent results. In considering the arguments of the parties, we are guided by these words of the United States Supreme Court:

'The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. . . . (F)reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.'

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).

The defendant challenges the validity of the statute on three grounds: (1) it is unconstitutional on its face in that it constitutes an invasion of his right of free expression guaranteed to him by the First and Fourteenth Amendments to the United States Constitution; (2) it is overbroad in that it lends itself to improper application in the area of constitutionally protected expression; and (3) it is so vague and indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application.

I.

The threshold question is whether the acts and conduct of defendant, under the circumstances here, constitute 'speech' within the meaning of that term in the First Amendment to the United States Constitution. ⁴ In order to determine whether defendant's actions are 'speech,' we must look to judicial interpretation of the First Amendment by the United States Supreme Court.

The peculiar symbolic nature of the United States flag was noted by the Supreme Court in Halter v. Nebraska, 205 U.S. 34, 43, 27 S.Ct. 419, 422, 51 L.Ed. 696 (1907):

'(T)he flag is the symbol of the nation's power, the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.'

The continuing vitality of the flag as a symbol in today's world is unquestioned. It drapes the caskets of all who have served in the armed forces and of our national leaders, and signifies our national presence in foreign lands and on the moon. See Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971 (1971) cert. denied 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972).

West Virginia Board of Education v. Barnette, Supra, which held that a state could not compel a flag salute from students as a condition of attendance in the public schools discussed the communicative nature of conduct in relation to the flag:

'There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. 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. . . . Symbols of State often convey political ideas just as religious symbols come to convey theological ones. . . . A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.' 319 U.S. 624, 632, 633, 63 S.Ct. 1178, 1182, 87 L.Ed. 1628.

See also Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

More recently in Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Supreme Court held that the wearing of black armbands by school children to protest United States' involvement in Vietnam was 'closely akin to pure speech' and that such symbolic conduct was entitled to comprehensive protection under the First Amendment. The symbolic conduct in Tinker has two analytical aspects which make it 'akin to pure speech.' First, it was an intentional effort at communication. Secondly, it was widely understood as having a communicative content.

When a primary symbol such as the American flag is the object of public activity (other than purely custodial activity) it, by its very nature, conveys a message. Although the content of such expression depends upon the perceptions and values of the viewer, it is nonetheless 'closely akin to pure speech,' and is expression by the exhibitor which is protected by the First Amendment. Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972); Crosson v. Silver, 319 F.Supp. 1084 (D.Ariz.1970). See also Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (2d Cir. 1970); Hodsdon v. Buckson, 310 F.Supp. 528 (D.Del.1970); Thoms v. Smith, 334 F.Supp. 1203 (D.Conn.1971), aff'd sub nom. Thoms v. Heffernan, 473 F.2d 478 (2d Cir. 1973). Note, Symbolic Conduct, 68 Colum.L.Rev. 1091 (1968). Note, Freedom of Speech and Symbolic Conduct: The Crime of Flag Desecration, 12 Ariz.L.Rev. 71 (1970).

Where a statute proscribes certain acts or conduct when done with the specific intent to cast contempt on the flag, the statute necessarily contemplates that the actor's intellect will be brought to bear upon such acts or conduct. In other words, it is obvious that such statute was not designed to proscribe mutilating or misusing the flag per se. There is no violation of the statute where the proscribed acts are the result of thoughtlessness, inadvertence, accident or the like. A violation occurs only when the specific intent accompanies the acts or conduct. Thus, as noted above, a violation occurs only when the surrounding circumstances manifest the exercise of the intellect in such a manner that inferences may be drawn therefrom that the acts or conduct were done with the specific intent of casting contempt on the flag. It is this manifestation of the exercise of the intellect by the proscribed conduct which constitutes 'symbolic speech.'

From the trial court's finding of guilt we must conclude that the defendant's actions were committed with the specific intent to cast contempt upon the flag. To make this finding the trial court must have found that his conduct manifested an expressive intent and a communicative content. From this we conclude that defendant's conduct was 'symbolic speech' and, consequently, is protected 'speech' under the First Amendment.

The flag affixed to the seat of the defendant's pants was a gesture of defiance and dissent to those who revere the flag as a symbol of the blessings of American citizenship, ⁵ and evidences an intent to communicate an attitude of political antagonism to those who support legitimate authority represented by the flag. Just as some citizens paste flag decals on their car windows to indicate their support of certain political philosophies, defendant adorned the seat of his jeans with a flag to indicate his contempt for those things which the flag symbolizes.

The ideas expressed by defendant's conduct may seem to some to be juvenile and inarticulate, and perhaps his actions are subject to interpretations other than we have given, but this does not strip his 'speech' of constitutional protection. The First Amendment is not the exclusive property of the educated and politically sophisticated segment of our population; it is not limited to ideas capable of precise explication. In the words of Mr. Justice Harlan:

'(W)ords are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.' Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971).

The state can no more censor ideas on the basis of their intellectual or artistic merit than on the basis of their political content.

II.

Having found that defendant's conduct was expression 'closely akin to pure speech' protected by the First Amendment, we must now determine whether the state may constitutionally impose criminal sanctions upon such protected expression.

At the outset we emphasize that our ruling is limited to the factual situation presented by this case: a prosecution for mutilating the flag with intent to cast contempt thereupon. We do not reach the question of the state's power to...