An American flag bearing a peace symbol and displayed upside down on private property was a protected expression of anguish by a defendant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.
Appellant, Spence, hung his United States flag from the window of his apartment on private property in Seattle, Washington. Affixed to both surfaces of the flag was a large peace symbol fashioned of removable tape. Three Seattle police officers observed the flag and entered the apartment house. Thereafter, the police officers seized the flag and arrested Spence. Spence testified that he displayed the flag to protest the Vietnam War and the killings at Kent State University, and to associate the flag with peace. Upon the conclusion of the jury trial, Spence was convicted under a Washington statute forbidding the exhibition of a United States flag to which was attached or superimposed figures, symbols, or other extraneous material. The Supreme Court of Washington affirmed Spence’s conviction, rejecting the appellant’s contentions that the statute under which he was charged, on its face and as applied, contravened the First Amendment, as incorporated by the Fourteenth Amendment, and was void for vagueness.
Did the State Supreme Court err in upholding Spence’s conviction under the circumstances presented in the case?
The Court held that that the statute was unconstitutional as applied to defendant. The Court noted that the flag was privately owned and was displayed on private property. Furthermore, the Court determined that Spence engaged in no trespass or disorderly conduct and that the record was devoid of proof of any risk of breach of the peace. Moreover, the Court held that Spence engaged in a form of communication. According to the Court, there was no risk that Spence’s acts would mislead viewers into assuming that the government endorsed his viewpoint. The Court concluded that no interest that the state could have had in preserving the physical integrity of a privately owned flag was significantly impaired under the facts.