United States v. Ferguson, Crim. No. 42387.

• Decision Date: 08 August 1969
• Docket Number: Crim. No. 42387.
• Citation: 302 F. Supp. 1111
• Parties: UNITED STATES of America, Plaintiff, v. Norma Louise FERGUSON, Defendant.
• Court: U.S. District Court — Northern District of California

302 F. Supp. 1111

UNITED STATES of America, Plaintiff, v. Norma Louise FERGUSON, Defendant.

Crim. No. 42387.

United States District Court N. D. California.

August 8, 1969.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

Gerard J. Glass, San Francisco, Cal., for defendant.

MEMORANDUM OPINION AND ORDER

GEORGE B. HARRIS, Chief Judge.

This matter is before the Court on defendant's motion to dismiss the information. Defendants Norma Louise Ferguson and John Edward Kangas were charged in one information with having, on November 14, 1968, burned a United States flag. Both defendants were attending a demonstration or rally on the front steps or "plaza" of this United States District Courthouse. During the course of the rally the defendants publicly burned a United States flag. Shortly thereafter F.B.I. agents took both into custody, and this prosecution followed.¹

The instant motion is made upon the grounds that the defendant's act of burning an American flag, if said flag was in fact burned, was an act of political protest falling within the free speech and expression guarantees of the first amendment of the United States Constitution; since the defendant's conduct is prohibited by the Statute, the Statute includes within its ambit constitutionally protected activity and therefore is unconstitutional.²

Defendant's argument is analogous to that made in the draft card burning case of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In that case the Court held:

We cannot 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. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "non-speech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms * * * we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. pp. 376-377, 88 S.Ct. p. 1679.

As in O'Brien, this court cannot accept the view that the actions charged can be labeled "speech" merely because defendant intends thereby to express an idea. However, even assuming the defendant's conduct was sufficient to bring into play the protection of the First Amendment, the court finds the statute valid under the test set forth in O'Brien.

Applying the test set forth in O'Brien the first consideration is whether the statute is within the constitutional power of the government. The United States Constitution, Article I, Section 8, sets forth the powers of the federal government. In addition to these powers the government has the power, set forth in the last paragraph of that section, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The government does not argue, nor can this court find, that this statute is authorized by any of the enumerated powers in Section 8.

It is clear from the necessary and proper clause, however, that the federal government has powers not enumerated in Article I, Section 8. Among these are the sovereign powers. These have been defined as "the natural and necessary concomitants of nationality." United States v. Curtis-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L. Ed. 255 (1936). See also, Burnet v. Brooks, 288 U.S. 378, 53 S.Ct. 457, 77 L.Ed. 844 (1932).

Among these natural and necessary concomitants of nationality is the selection of a national symbol or flag. The importance of a flag in developing a sense of loyalty to a national entity is without question. Countries and movements of whatever political persuasion adopt a banner in their incipient stages because of its psychological impact upon those who would serve in their behalf. Our own country was no exception to this fundamental rule. During the early efforts of the Continental Congress to forge a union, the Congress, less...