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Spence v. Washington (1974)

Can You Attach Symbols or Emblems to the American Flag?

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Should the government be able to prevent people from attaching symbols, words, or pictures to American flags in public? That was the question before the Supreme Court in Spence v. Washington, a case where a college student was prosecuted for publicly displaying an American flag to which he had attached large peace symbols. The Court found that Spence had a constitutional right to use the American flag to communicate his intended message, even if the government disagreed with him.

Spence v. Washington: Background

In Seattle, Washington, a college student named Spence hung an American flag outside the window of his private apartment — upside down and with peace symbols attached to both sides. He was protesting violent acts by the American government, for example in Cambodia and the fatal shootings of college students at Kent State University. He wanted to associate the flag more closely with peace than war:

    I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace.

Three police officers saw the flag, entered the apartment with Spence’s permission, seized the flag, and arrested him. Although Washington state had a law banning desecration of the American flag, Spence was charged under a law banning “improper use” of the American flag, denying people the right to:

    Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state ... or

    Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement...

Spence was convicted after the judge told the jury that merely displaying the flag with an attached peace symbol was sufficient grounds for conviction. He was fined $75 and sentenced to 10 days in jail (suspended). The Washington Court of Appeals reversed this, declaring that the law overbroad. The Washington Supreme Court reinstated the conviction and Spence appealed to the Supreme Court.

Spence v. Washington: Decision

In an unsigned, per curiam decision, the Supreme Court said the Washington law “impermissibly infringed a form of protected expression.” Several factors were cited: the flag was private property, it was displayed on private property, the display did not risk any breach of peace, and finally even the state admitted that Spence was “engaged in a form of communication.”

As to whether the state has an interest in preserving the flag as “an unalloyed symbol of our country,” the decision states:

    Presumably, this interest might be seen as an effort to prevent the appropriation of a revered national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular product or viewpoint might be taken erroneously as evidence of governmental endorsement. Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol.

    For the great majority of us, the flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice, and valor of the millions of Americans who in peace and war have joined together to build and to defend a Nation in which self-government and personal liberty endure. It evidences both the unity and diversity which are America. For others the flag carries in varying degrees a different message. “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.”

None of this mattered, though. Even accepting a state interest here, the law was still unconstitutional because Spence was using the flag to express ideas which viewers would be able to understand.

    Given the protected character of his expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts, the conviction must be invalidated.

There was no risk that people would think the government was endorsing Spence’s message and the flag carries so many different meanings to people that the state cannot proscribe use of the flag to express certain political views.

Spence v. Washington: Significance

This decision avoided dealing with whether people have a right to display flags they have permanently altered in order to make a statement. Spence’s alteration was deliberately temporary and the justices appear to have thought this relevant. However, at least a free speech right to at least temporarily “deface” the American flag was established.

More: Spence v. Washington Dissents »

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