Tip:
Highlight text to annotate it
X
>> William H. Rehnquist: We'll hear argument next in No. 88-155, Texas v. Gregory Lee Johnson.
Ms. Drew, you may proceed whenever you're ready.
>> Kathi Alyce Drew: Thank you, Mr. Chief Justice, and may it please the Court:
The issue before this Court is whether the public burning of an American flag which occurred
as part of a demonstration with political overtones is entitled to First Amendment protection.
The flag burning in this case occurred during the 1984 Republican National Convention in
Dallas, Texas. The flag was burning in front of Dallas City
Hall at the culmination of a demonstration march through downtown Dallas in the midst
of a crowd of demonstrators and on lookers. The flag burner, who was identified as Mr.
Johnson, was convicted under a Texas statute which prohibits desecration of the national
flag. His punishment was assessed at one year in
the county jail plus a $2,000 fine. The conviction was affirmed on direct appeal
by the Intermediate Court of Appeals. Mr. Johnson then filed petition for discretionary
review to the Texas Court of Criminal Appeals. That is the highest court in the state of
Texas which hears criminal cases. The court granted his petition, reversed his
conviction, and ordered the information dismissed. The Court of Criminal Appeals held that the
Texas statute was unconstitutional as applied to Mr. Johnson, since he was a political protester.
Judge Campbell of that court found that flag burning constituted symbolic speech within
the test enunciated by this court in Spence versus Washington.
That court also found that Texas' asserted interests in regulating the act of flag burning
were insufficient to outweigh a protestor's First Amendment rights to expression.
For purposes of this argument today and with the Court's indulgence, the state will assume
the symbolic speech standard and proceed directly to the question of Texas' compelling interest
in regulating this type of conduct. Throughout the course of the appellate history
in this case Texas has advanced two compelling state interests.
One is the preservation of the flag as a symbol of nationhood and national unity.
The second is the preservation of a breach of the peace.
>> William H. Rehnquist: Prevention of breach of the peace?
>> Kathi Alyce Drew: Yes, Your Honor, prevention as opposed to punishment for a breach of the
peace. I would like to address first the nationhood
interest. We believe that preservation of the flag as
a symbol of nationhood and national unity is a compelling and valid state interest.
We feel very certain that Congress has the power to both adopt a national symbol and
to take steps to prevent the destruction of that symbol, to protect the symbol.
>> Antonin Scalia: Now, why does... why does the... why did the defendant's actions here
destroy the symbol? His actions would have been useless unless
the flag was a very good symbol for what he intended to show contempt for.
His action does not make it any less a symbol. >> Kathi Alyce Drew: Your Honor, we believe
that if a symbol over a period of time is ignored or abused that it can, in fact, lose
its symbolic effect. >> Antonin Scalia: I think not at all.
I think... I think when somebody does that to the flag, the flag becomes even more a
symbol of the country. I... I mean, it seems to me you're running
quite a different argument, not that he's destroying its symbolic character, but that
he is showing disrespect for it, that you not just want a symbol, but you want a venerated
symbol, and you don't make that argument because then you're getting into... into a sort of
content preference. But I don't see how you can argue that he's
making it any less of a symbol than it was. >> Kathi Alyce Drew: Your Honor, I'm forced
to disagree with you. >> Unknown Speaker: All right.
>> Kathi Alyce Drew: Because I believe that every desecration of the flag carried out
in the manner that he did here... and certainly I don't think there can be any question that
Mr. Johnson is a hard-core violator of this statute... if his actions in this case under
the facts of this case do not constitute flag desecration, then I really am not quite certain
what would constitute flag desecration. >> Antonin Scalia: They desecrate the flag
indeed, but do they make it... do they destroy the symbol?
Do they make it any less symbolic of the country. That's the argument I thought you were running,
that... that we have a right to have a national symbol.
And if you let the people desecrate the flag, you don't have a national symbol.
I don't see how that follows. We may not have a respected national symbol,
but that's a different argument. Now, if you want to run that argument that
we have the right to insist upon respect for the flag, that's a different argument.
>> Kathi Alyce Drew: Texas is not suggesting that we can insist on respect.
We are suggesting that we have the right to preserve the physical integrity of the flag
so that it may serve as a symbol because its symbolic effect is diluted by certain flagrant
public acts of flag desecration. >> William H. Rehnquist: Well, in the sense
you're arguing a minimal form of respect for the flag, aren't you?
Not that you have to take your hat off or salute when it goes by.
Now, the state can't require you... but at least can it consist that you not destroy
it? >> Kathi Alyce Drew: Yes, Your Honor.
We... to the expect... to the extent that we are asking for any respect for the flag,
we are asking for respect for its physical integrity.
Certainly we do not demand that any individual view it with any discernable emotion whatsoever,
only that its physical integrity be respected. And I think that that is a very minimal basis
to ask from any individual. And that is really all Texas is suggesting
with this is that we have got to preserve the symbol by preserving the flag itself because
there really is no other way to do it. There is nothing that would accomplish this
particular purpose if you cannot protect the physical integrity of the flag.
>> Anthony Kennedy: Well, oh, over... over the years, over the centuries, the cross has
been respected. I recognize one's a religious symbol, the
other's a national one, but there's no legislation that has appeared necessary to protect, say,
the cross. >> Kathi Alyce Drew: That's true, Your Honor.
>> Anthony Kennedy: So, it may be that you can protect symbols by public respect and
by measures other than the imposition of the criminal law.
>> Kathi Alyce Drew: Your Honor, I don't believe, though, that a cross has quite the same character
that the American flag does because there are many people in this nation who would not
view a cross as a symbol. >> Anthony Kennedy: Even probably... probably
maybe arguably less than the flag. I'm not sure of the numbers, but it's been
preserved. >> Kathi Alyce Drew: And this particular statute,
Your Honor, would not go to that sort of a symbol.
This particular statute, I believe, in this respect recognizes that the flag is a national
property, that it belongs to all people, that all people are entitled to view it symbolically
in whatever way that they wish. Some people may give it great respect.
Others may not. That's not what we're regulating here.
We are simply trying to preserve the flag as a symbol for all people.
The issue-- >> Anthony Kennedy: Well, you begin by saying
that it's a symbol and by acknowledging, at least in this part of your argument, that
what the defendant did was speech, is that correct?
>> Kathi Alyce Drew: --We are assuming that standard for purposes today.
>> Anthony Kennedy: All right. At this point.
What is the juridical category you're asking us to adopt in order to say we can punish
this kind of speech? Just an exception for flags?
It's just a... there's just a flag exception of the First Amendment?
>> Kathi Alyce Drew: To a certain extent, we have made that argument in our brief.
With respect to the symbolic speech standard, we believe that there are compelling state
interests that will in a balancing posture override this individual's symbolic speech
rights, and that preserving the flag as a symbol, because it is such a national property,
is one of those. >> Anthony Kennedy: What are the others?
>> Kathi Alyce Drew: The other state interest advanced Your Honor, is a prevention of a
breach of the peace. >> Anthony Kennedy: That's the other state
interest. >> Kathi Alyce Drew: Yes, Your Honor.
>> Anthony Kennedy: But I assume under this statute, of course, it's not just one flag,
it's 51. >> Kathi Alyce Drew: 51 flags or all 50 state
flags but the national flag? I'm confused by your question.
I apologize. >> Anthony Kennedy: Well, this statute prohibits
the desecration of a state flag as well. >> Kathi Alyce Drew: Yes, it does.
>> Anthony Kennedy: Of the Texas state flag? >> Kathi Alyce Drew: Yes.
>> Anthony Kennedy: And I assume if we upheld the statute in every other state it would
have the same right? >> Kathi Alyce Drew: Yes, Your Honor.
>> Anthony Kennedy: So, your category for one flag is now expanded to 51.
>> Kathi Alyce Drew: The statute does say a state or national flag.
That is correct. And we do believe Texas certainly has a right
to protect its own flag. And I think that a similar interest would
be for sister states. So, the statute says a state or national flag.
>> Sandra Day O'connor: Could Texas prohibit the burning of copies of the Constitution,
state or federal? >> Kathi Alyce Drew: Not to my knowledge,
Your Honor. >> Sandra Day O'connor: That wouldn't be the
same interest in the symbolism of that? >> Kathi Alyce Drew: No, Your Honor, it would
not be the same interest I don't believe. >> Antonin Scalia: Why not?
Why is that? I was going to ask about the state flower.
[Laughter] You're not going to--
--The state flower? >> Kathi Alyce Drew: There is legislation,
Your Honor, which does establish the blue bonnet as the state flower.
>> Antonin Scalia: I thought so. >> Kathi Alyce Drew: It does not seek to protect
it. >> Antonin Scalia: Well, how do you pick out
what to protect? I mean, you know, if I had to pick between
the Constitution and the flag, I might well go with the Constitution.
I don't know. >> Kathi Alyce Drew: Your Honor, I think Texas
in this area has made a judgment that certain items... and the statute itself is not limited
to just the flag. The portion that is in question here is limited
to the flag. But it has made a judgment that certain items
are entitled to more protection. >> Antonin Scalia: I understand that.
But we up to now have never allowed such an item to be declared a national symbol and
to be usable symbolically only in one direction, which is essentially what you're arguing.
You can honor it all you like, but you can't dishonor it as a sign of disrespect for the
country. >> Kathi Alyce Drew: No, Your Honor.
We're not arguing that at all. >> Antonin Scalia: Oh?
>> Kathi Alyce Drew: Not at all. We are in no way arguing that one cannot dishonor
the flag or that one cannot demonstrate disrespect for the flag.
Individuals have that right. What we are arguing is that you may not publicly
desecrate a flag regardless of the motivation for your action.
>> Antonin Scalia: Well, one hardly desecrates it in order to honor it.
I mean, you only desecrate it in order to show your disagreement with what it stands
for, isn't that right? So, it is sort of a one-way statute.
>> Kathi Alyce Drew: I don't think that it is exactly, Your Honor, because I think that
there are other forms of conduct which are... equally prohibit... well, let me put it this
way. The same conduct is prohibited, regardless
of the motive of the actor. If this--
>> Antonin Scalia: But its motive... its motive... his motive will never be to honor the country.
It will always be to criticize the country. >> Kathi Alyce Drew: --Not necessarily.
>> Antonin Scalia: Will you give me an example where one... somebody desecrates the flag
in order to show that he agrees with the policies of the United States.
I-- [Laughter]
>> Kathi Alyce Drew: I think it is possible-- >> Antonin Scalia: Well--
>> Kathi Alyce Drew: --that an individual could choose to burn a flag as an honor for
all the individuals who died in Vietnam. This is their most prized possession.
They're going to take it in front of Dallas City Hall in the midst of a hundred people
in the middle of the afternoon, they're going to soak it with lighter fluid, and they're
going to ignite it, and they are doing this to honor the Americans who died in Vietnam.
>> John Paul Stevens: --They'll probably violate a federal statute while they're doing that,
too. >> Kathi Alyce Drew: Yes, Your Honor, there
is a federal statute that does regulate flag desecration.
This man was not prosecuted under it. He was prosecuted under the Texas statute.
>> Antonin Scalia: Your statute would cover that example that you just gave?
>> Kathi Alyce Drew: Yes, it would, Your Honor, because it does not go to the motive of the
actor. If a vandal takes a flag... same scenario...
in front of Dallas City Hall, a hundred people, middle of the afternoon, soaks it with lighter
fluid, sets it on fire, they are still liable under this statute.
They have desecrated the flag, but they have no intent to dishonor the country.
They have no intent to dishonor the flag. They have no intent to do anything except
oh, I'm... just an act of a vandal. I think I'll do this today.
>> Sandra Day O'connor: Well, actually, Ms. Drew--
>> Kathi Alyce Drew: Yes. >> Sandra Day O'connor: --I thought this statute
only applied if the desecration were done in a way that the actor knows will offend
one or more other people likely to discover it.
>> Kathi Alyce Drew: That is correct, Your Honor.
>> Sandra Day O'connor: There is that little added requirement, is there not?
>> Kathi Alyce Drew: Yes, Your Honor, that is correct.
>> Sandra Day O'connor: And do you think that that added requirement survives analysis under
this court's cases in Street and Grayned versus City of Rockford and so forth?
>> Kathi Alyce Drew: Yes, Your Honor, I believe it does.
>> Sandra Day O'connor: And why? >> Kathi Alyce Drew: Believe I believe the
import of that statute. Now, the statutory language there is that
it goes to the manner in which the act is effectuated.
It goes to the way in which the act is performed, that it has to be in a way that the actor
knows will seriously offend. Serious offense does not have to be caused
under this statute. >> Sandra Day O'connor: Well, I thought that
the court had held that it's firmly settled under the Constitution, that the public expression
of ideas may not be prohibited merely because the ideas are themselves offensive to some
of the hearers. >> Kathi Alyce Drew: That's correct, Your
Honor. >> Sandra Day O'connor: And this statute seems
to try to achieve exactly that. >> Kathi Alyce Drew: I don't believe that
it does, Your Honor, because I believe that the pivotal point is in a way how is the conduct
effectuated, how is it done, not what an individual may be trying to say, not how onlookers perceive
the action, not how the crowd reacts, but how is it done.
If you take your flag into your basement in the dead of night, soak it with lighter fluid
and ignite it, you probably have not violated this statute, because the Texas statute is
restricted to certain limited forms of flag desecration.
>> Harry A. Blackmun: Ms. Drew, it's probably of no consequence, but is there anything in
the record as to whether this flag was stolen? >> Kathi Alyce Drew: Yes, Your Honor, as a
matter of fact there is. The... one of the officers who was observing
the march testified that in front of the Mercantile Bank Building he saw several of the protestors
bend a flag pole and remove an American flag. They then handed this flag to Mr. Johnson,
who wadded it up and stuck it under his T-shirt. The march then proceeded.
The officer testified that when they got to City Hall, he saw Mr. Johnson remove the flag
from under his shirt. He tried to light it with a cigarette lighter.
It would not light. Someone from the crowd then handed him the
can of lighter fluid. He soaked it, ignited it, the flag burned.
>> Harry A. Blackmun: But you would be making the same argument if he owned the flag?
>> Kathi Alyce Drew: Yes, Your Honor, we would be.
I do not believe that there is a shred of evidence in this record to support the fact
that this was his privately owned flag. I believe just the opposite is very clearly
reflected. >> John Paul Stevens: Was he prosecuted for
stealing the flag? >> Kathi Alyce Drew: No, Your Honor, he was
not. >> John Paul Stevens: I wonder why not.
>> Kathi Alyce Drew: I believe, Your Honor, that problems were of proof there in that
no one saw him actually take it. In fact, the testimony was that others took
it and then gave it to him. And I believe that it was felt that there
were so many proof problems that a prosecution was very speculative under those facts.
There also might have been some problem with placing a monetary value on the flag for purposes
of prosecution, which is necessary under the statute.
>> Harry A. Blackmun: Isn't the real way of opposing this kind of action by this man to
have a large crowd out waving other flags in opposition to his posture rather than putting
him in jail? >> Kathi Alyce Drew: I'm sorry, Your Honor.
I'm not... I'm not afraid I got all of your question.
>> Harry A. Blackmun: Well, if you were out in front of the building today, there are
pseudo-demonstrators of one kind or another, and I'm merely saying isn't... wouldn't it
be better policy to rather than have a criminal statute like this to have 500 people out waving
flags and hooting him down, so to speak? >> Kathi Alyce Drew: Your Honor, I believe
that legislatures act in category equal manners, and that--
>> Harry A. Blackmun: Legislatures act the way they do, all right, no question.
You have to be up here defending them. >> Kathi Alyce Drew: --It is within their
judgment to penalize behavior that they feel is offensive to society.
>> Anthony Kennedy: But you gave that answer before.
You said the legislature has made the judgment. But you're asking us to define and to articulate
a constitutional category. And from what I can see, the constitutional
category is that we simply say the flag is different.
>> Kathi Alyce Drew: That is one possibility that we have advanced to this court.
That's certainly true, Your Honor. We have also suggested, though, that another
route is available to assume the symbolic speech standard and to take a look at what
the state's interests are in protecting and in prescribing this type of behavior.
>> Sandra Day O'connor: Do you suppose Patrick Henry and any of the founding fathers over
showed disrespect to the Union Jack? >> Kathi Alyce Drew: Quite possibly, Your
Honor. >> Antonin Scalia: You think they had in mind
then in drafting the First Amendment that it should be a prosecutable offense?
>> Kathi Alyce Drew: Of course, Your Honor, one has no way of knowing whether it would
be or not. >> Antonin Scalia: I think your response is
that they were willing to go to jail, just as they were when they signed the declaration.
They were hoping they wouldn't get caught. [Laughter]
>> Kathi Alyce Drew: Yes, Your Honor. I believe the classic line is "We hang together
or separately". >> John Paul Stevens: That's right.
Do you... you said that this flag may be possibly different from other symbols.
You don't argue that there's something unique about this flag?
>> Kathi Alyce Drew: Of course there is, Your Honor.
>> Antonin Scalia: When it's... do you think... when you have an equally strong case for the
flag of the State of Texas or the state flower. Do you think they're the same case?
Well, Texas may be, we'll say. [Laughter]
>> Kathi Alyce Drew: Texas, absolutely, Your Honor.
[Laughter] >> John Paul Stevens: Are you serious in that
answer? >> Kathi Alyce Drew: Yes, I am.
>> John Paul Stevens: That the Tex... that the Texas flower... and you could make the
same kind of argument as for this flag? >> Kathi Alyce Drew: No, I don't think you
could make the same kind of argument for the Texas flower.
I truly do not. >> John Paul Stevens: But you haven't really
made an argument that there's anything unique about this symbol.
>> Kathi Alyce Drew: Well, Your Honor, I disagree. I think in our brief we have detailed several
arguments of what is unique about the symbol. >> John Paul Stevens: Well, I mean, I've just...
what I've heard this afternoon is all I'm saying.
>> Kathi Alyce Drew: I think it's very clear that the flag is the manifestation, the visible
manifestation of over 200 years of history in this nation, and that it has remained virtually
unchanged in design. The 13 stripes represent the original 13 colonies,
and every state is represented on the field of blue by a star.
It is very unique. It is immediately recognizable to almost anyone
who would see it. >> Thurgood Marshall: Well, suppose... suppose
somebody burns an American flag with 48 stars on it.
>> Kathi Alyce Drew: I believe that is reachable under this statute, Your Honor.
>> Thurgood Marshall: You believe what? >> Kathi Alyce Drew: I do believe that that
could be reached under this statute. That is clearly a past flag.
Many people probably still own and display 48-star flags.
>> Thurgood Marshall: It would be just the same?
>> Kathi Alyce Drew: Yes, Your Honor, I believe that it would be.
>> Antonin Scalia: But 47 wouldn't work because there was never a 47-star flag, is that...
then you wouldn't reach it? >> Kathi Alyce Drew: That would depend, Your
Honor, on-- >> Antonin Scalia: So, all you have to do
is take one star out of a... out of the flag, ana it's okay.
[Laughter] That can't be right.
>> Kathi Alyce Drew: --That would depend, I believe, Your Honor, on how flag is defined.
There are certain definitions that are given. Congress itself has defined what it means
by the flag of the United States. And, as part and parcel of that definition,
there is language that says "The stars and stripes in any number which
to an individual who looks at it without... without deliberation, may be a flag. "
The flag behind you looks to me to be a flag, but I cannot count 50 stars on it.
>> Antonin Scalia: Now, that... so, you're saying 47 would be okay.
I tend to think that's probably right. >> Kathi Alyce Drew: If there were any question,
I would think that it would be appropriate for a jury to resolve that question, Your
Honor. I'd like to turn very briefly, if I may, to
the breach of the peace interest. We do feel that preventing a breach of the
peace is a legitimate state interest. And, indeed, the Texas Court of Criminal Appeals
recognized that preventing a breach of the peace is a legitimate state interest.
Again, the Texas legislature has made a judgment in this area that public desecration is likely
to lead to violence, that it can lead to violence. And I think the record in this case is abundantly
clear that it is merely fortuitous, it is our good luck that a breach of the peace did
not occur as a result of this particular flag desecration.
The appropriate test to be utilized in this area has not been decided by this court.
There are two lines of cases. One is that public desecration of a flag is
inherently inflammatory. Another is that immanence must be shown.
And I believe that this record is very clear that Texas could regulate under either theory.
And, again, the goal is a prevention of a breach of the peace, not a punishment for
a breach of the peace. And in analyzing this particular statute,
the Texas Court of Criminal Appeals utilized a much higher standard than any court has
ever used before. They went to an actual breach of the peace
and they said well, there was no actual breach of the peace.
That's true. Individuals who were seriously offended by
this conduct were not moved to violence. If they were, they exercised restraint.
But I don't believe that that is dispositive of the state's interest and because its interest
is different, the standard is different. And I believe that the Court of Criminal Appeals
suggestions in this regard are a bit too narrow; that if you have to show an actual breach
of the peace, your purpose in a flag desecration statute is obviated.
Some other statute would serve that interest, but not a flag desecration standard because
its purpose is prevention. >> Antonin Scalia: I suppose you could have
such a... if that theory alone is enough to support the statute, I suppose you could have
such statutes for Stars of David and crosses and maybe... I don't know... Salman Rushdle's
book or whatever, whatever might incite people you can... you can prevent such desecration.
>> Kathi Alyce Drew: Your Honor, again, there are other sections of this statute where other
items are protected, specifically public monuments, places of burial and worship.
I don't believe that anyone could suggest that one may paint swastikas on the Alamo
in San Antonio. That is desecration of the Alamo.
Legislatures made it up-- >> Anthony Kennedy: But that... but that's
because it's public property-- >> Kathi Alyce Drew: --True.
>> Anthony Kennedy: --and unless you want to say that the flag is somehow public property
of us all and ignore traditional distinctions of property, then your example just doesn't
work. >> Kathi Alyce Drew: Your Honor, I believe
that it does. I believe it does.
The amici brief filed on behalf of Mr. Johnson in this case by the American Civil Liberties
Union confesses that there is no First Amendment interest in protecting desecrations of either
public monuments or places of worship or burial because they are... and this is a direct quote
from Footnote 7, page 18 of their brief... "Someone else's cherished property".
I think the flag is this nation's cherished property, that every individual has a certain
interest. The government may maintain a residual interest,
but so do the people. And you protect the flag because it is such
an important symbol of national unity. >> Antonin Scalia: If we say so, it becomes
so. But it certainly isn't self-evident that...
I never thought that the flag I owned is your flag.
I mean-- [Laughter]
>> Kathi Alyce Drew: Many justices of this court have held that the flag is a national
property. Unless the Court has additional questions,
I would like to reserve my remaining time for rebuttal.
>> William H. Rehnquist: Very well, Ms. Drew. Mr. Kunstler.
>> William M. Kunstler: Mr. Chief Justice, may it please the Court:
Some of the steam has been taken out of me by some of the questions and some of the responses
and the concession by the state. But I would like to suggest briefly to state
that this particular act that we're concerned with here, this 42.09(a)(3) of the Texas statute
singles out communicative impact for punishment. Now, Ms. Drew has avoided that by now... and
virtually the state now apparently concedes that you can write out of a statute what Justice
O'Connor referred to, the question of whether the actor knows or means that what he's doing
will seriously offend one or more persons likely to observe or destroy or discover his
particular act. That's out of the statute, apparently, according
to the argument because in the reply brief and today she has said essentially what is
in the reply brief. Like Gertrude Stein, "A rose is a rose", they
now say "A flag burning is a flag burning. "
And they read out of the statute under which he was convicted and which went to the jury
and the charge on the question of seriously offend, that's all out as far as Ms. Drew
is concerned. But it's not out as far as this court is concerned.
That's what the conviction was about, that's what the argument to the jury was about, that's
what the charge was about. They all mention that.
That's what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously
offended. So, this depends on communicative impact for
punishment. They've conceded it's pure speech.
They raise no question arguendo, even, essentially that it is not speech, and concede that.
>> Antonin Scalia: Mr. Kunstler, I... I... I think you're stretching her argument.
I don't think she said that. I... I think she said that there has to be
a fence, but it doesn't have to be the intention to communicate that offense.
It doesn't have to be intended offense. >> William M. Kunstler: Well, that's--
>> Antonin Scalia: If... if you're doing it to honor the flag in your... in your crazy,
mistaken fashion, but it... but it would obviously offend anyone else, then you would violate
the statute. So, I think she... she still insists that
it be likely to offend somebody, but you don't have to intend to communicate a dishonor or
offense to the flag. >> William M. Kunstler: --I can understand
that rationale, but in reading the reply brief, the reply brief said in essence we virtually
take that out of the statute. We rewrite the statute now, and we say essentially
a flag burning is a flag burning, and that offense goes out of it, offense whether communicated
later or not communicated later, whether it occurs or it doesn't occur, I thought that's
what the reply brief did. Now, maybe I do misstate her argument slightly,
but I don't think I mistake the reply brief, because I got the impression that's... well,
the words, "A flag burning is a flag burning. "
is in the reply brief. Now, I remember, Justice Scalia, in reading
your dissent in Community for Creative Nonviolence that you said essentially,
"A law directed at the communicative nature of conduct must like a law directed at speech
itself be justified by the substantial showing of need that the First Amendment requires.
" I subscribe to that wholeheartedly.
In fact, you went on and you reviewed all of the cases that you thought were applicable
there, Stromberg, Brown, Tinker and Spence, and you made the following statement:
"Every prescription of expressive conduct in those cases was aimed at the communicative
effect of the conduct. " And that's what they had here.
That's what the jury got, that's what the testimony was, and that's what the statute
says. And I agree with... I think--
>> Antonin Scalia: I was just on the Court of Appeals, then, Mr. Kunstler.
>> William M. Kunstler: --I understand. [Laughter]
>> Antonin Scalia: I may have been wrong, you know.
I hope that the elevation doesn't change the thought.
[Laughter] >> William M. Kunstler: In any event, we subscribe
to that, of course, in our argument, and I think Justice O'Connor when she wrote Boos
she said essentially, this justification, folks, is only on the content of the speech
and the direct impact that speech has on its listeners.
And in Cohen I think Justice White in his concurrence said that the... that statute
made the communicative aspect of the proscribed conduct a crucial element of the violation.
That's the contemptuous treatment statute, and that's what we have here.
Everything depends on the communication that is made by the actor which may be communicated
to the people on the street, but you know in the statute, Justice Scalia, it goes even
further, "likely to observe or discover", which could be in the newspapers the next
day, for example, as well as being an onlooker. So, I think that given the concession that
the statute is pure speech, given the past decisions of this Court on what should happen
to a statute that makes communicative impact, the criterion of the punishment that this
statute fails that test, it certainly doesn't come under O'Brien because where... here the
government's interest is directly related to expression.
It's like Footnote 8 in Spence, and I think what you have here is a statute that depends
solely and exclusively on communicative impact on the audience, whether they're there or
they read it in the newspaper or they see it on the screen in the evening.
It all goes to that. And when you use the word desecrate, you don't
mean really in essence praising the flag. Desecrate has a... has a... has a meaning,
and I just looked at it in Webster's Second International about it, and desecrate means
to divest of a sacred character or office, to divert from a sacred purpose, to violate
the sanctity of, to profane, the opposite of consecrate.
Now, with reference to the compelling state interest, I listened to the argument of flower
to star against B.J.F. before here, and I don't want to hurt Mr. Rahdert's argument
in this argument, knowing nothing about the case except what I heard today, but I thought
that the protection of a *** victim was a compelling state interest.
I agreed with Justice O'Connor's comments on that.
That is a compelling interest, certainly. Here you have no compelling state interest
that is worth consideration. >> William H. Rehnquist: Mr.... maybe Mr.
Rahdert would feel differently. [Laughter]
>> William M. Kunstler: That may be true. Is he in the room yet?
I hope not. >> Antonin Scalia: He's waving a flag in the
back, I think. [Laughter]
>> William M. Kunstler: Now, we're getting back to my argument.
With reference to the nationhood and national unity, which Ms. Drew raised and which is
filled in the brief, both the reply brief and the main brief of the state, I think...
I thought Barnette set that to rest. I thought that when Justice Jackson said that
if there is any fixed star in our Constitutional constellation, it is that no official high
or petty can prescribe what shall be orthodox in politics, nationalism--
>> William H. Rehnquist: Well, the facts of West... West Virginia versus Barnette were
quite different from this. There the students were required to salute
the flag. >> William M. Kunstler: --And here, Chief
Justice, you're asking... people are required not to do something.
>> William H. Rehnquist: Yes. >> William M. Kunstler: And I think that's
a comparable situation. We order you... we can't order you to salute
the flag, we can't order you to do all these obeisances with relation to the flag.
Can we order you not to do something to show something about the flag?
>> William H. Rehnquist: Well, to me they're quite different.
You could say that if you can't do one, you can't do the other.
But it seems to me one could quite easily say you can't do one but you can do the other.
>> William M. Kunstler: Well, you know, I understand that, but I think that you get
into Street, I thought, which also relied on Barnette.
There he did exactly what we're talking about here.
He burnt the flag in the street over the question of James Meredith being shot in Mississippi
in 1966. >> William H. Rehnquist: And what was the
holding of the court in Street? >> William M. Kunstler: Well, in Street essentially
the court indicated that you couldn't tell whether it was speech or whether it was flag
burning and, therefore, the court reversed in the Street case.
But in so deciding in relying on Barnette, the court said, essentially I thought, that
it was an illegitimate interest in Street to compel respect by prohibiting criticism
of the flag, including flag burning. So, I think it's... I guess we have a little
difference of opinion on the facts. I know the facts are somewhat different except
a flag was burned in the street by Mr. Street in a political protest over a shooting in
Mississippi of a civil rights figure. But I think the analogy is the same.
Can you say you can't force them to salute the flag or pledge allegiance to the flag,
but can you then say we can force them not to show other means of disrespect for the
flag, other means of protest over the flag by saying you can't burn the flag?
I think they're the same, in all due deference. >> William H. Rehnquist: Well--
>> William M. Kunstler: I don't know if I've convinced you, but--
>> William H. Rehnquist: --Well, you may have convinced others.
[Laughter] But take... take, for example, the "Live Free
or Die" case. Do you remember that--
>> William M. Kunstler: --I certainly do. >> William H. Rehnquist: --from New Hampshire
where we said you can't... New Hampshire can't require you to carry around on your license
plate the expression "Live free or die". But certainly New Hampshire could have presumably
prohibited... New Hampshire couldn't compel you to make any affirmative statement on your
license. They certainly could have prevented you from
making some statements on your license plate. >> William M. Kunstler: No, but I think in
Wooley, as I recall it, they painted out. They did an affirmative act and painted out
the "Live free or die" motto. The Jehovah's Witnesses didn't believe in
that, so they painted it out. They did enact and then the question was was
that act violating some criminal code. >> William H. Rehnquist: And the court said
no, you... you... you can't pro... you can't prohibit that sort of thing, but the... the
reasoning of the Court was that you can't require someone to make an affirmation.
To me that's West Virginia versus Barnette. But, if someone applies for a New Hampshire
license plate that has a lot of foul language on it, very likely that limited thing can
be proscribed. >> William M. Kunstler: I know.
That... I would agree with you on that, but I think that to get away from Wooley against
Maynard would be a mistake here. That... that's putting something on the license
plate that is profane or whatever. But in... in Wooley, as I understood it, the
act that they, Jehovah's Witnesses did, was to paint out.
They burnt the flag. In essence.
They painted out. I don't think we're going to reach eye to
eye on this. [Laughter]
I have that distinct feeling. Getting back, then, to the no compelling state
interest, though, I don't think there is any compelling state interest in the state of
Texas... and by the way, the national flag does not just mean the American flag.
There is a presidential flag... they don't put it in capitals... there's a presidential
flag that is flown. The Secretary of State has a flag that's a
national flag. There are many national flags.
I counted 17 national flags. Each department here in Washington has a flag.
They're national flags, and the State of Texas would also include those as national flags,
certainly the President's flag. So, I think that the word "national" flag
needs definition in itself. >> Harry A. Blackmun: Does the Supreme Court
have a flag? >> William M. Kunstler: What was that?
>> Harry A. Blackmun: Does the Supreme Court have a flag?
>> William M. Kunstler: I don't know, but the Republican Party has one--
[Laughter] --because when they went by the Mercantile
Bank Building here... I just learned this from the record... the... one of their witnesses,
Jimmy Smith, who is the custodian of the flags at the Marcantile Bank said,
"We took down four American flags. " "We have 16 normally, because we put up four
Republican Party flags because the Republican Party was then meeting in its annual convention...
in its national convention. " So, I know the Republican Party.
If the Supreme Court doesn't have one or has one, I don't know.
I think you'd be in a better position than me to tell that anyway.
By the way, talking about flags in front of the Supreme Court, when I came by today, the
flags were up in the rain, and under 36 U.S. Code, the leading provision there is flags
shall not be displayed in inclement weather. >> Thurgood Marshall: Are we going to get
back-- >> Antonin Scalia: --Exemption one applies
to all weather flags. >> Thurgood Marshall: Are we going to get
back to this case? >> William M. Kunstler: That's in all weather
flags. [Laughter]
That could be physical mistreatment under the Texas statute.
You get into vaguenes. >> Thurgood Marshall: Mr. Kunstler, are you
going to get back to the case? >> William M. Kunstler: Yes, I'm getting back
to the case. [Laughter]
Seems to me we had this three weeks ago. In any event, I don't think that the... there
is a compelling state interest in this flag or any national flag whatsoever.
I think the Court has really held that-- >> John Paul Stevens: Mr. Kunstler, let me
ask you... and maybe this gets a little bit away from the case... do you think there is
any public interest at all in any of these regulatory measures about don't display the
flag in the rain or don't fly it upside down or so?
Is there any state interest at all to support that kind of legislation?
>> William M. Kunstler: --I don't know, but I don't think it matters because they're not
criminal statutes. They are recommendations.
It used to be you couldn't fly the flag at night.
Now, you can fly it if it's illuminated, and so on.
>> John Paul Stevens: Do-- >> William M. Kunstler: They're recommendations.
There are no criminal penalties. >> John Paul Stevens: --Do you think the federal
government has any power at all to... to regulate how this flag is displayed in public places?
>> William M. Kunstler: I don't believe so. I don't... I'm thinking in my mind whether
they have any injunctive power. >> John Paul Stevens: There's no state interest
whatsoever? >> William M. Kunstler: I don't see any state
interest whatsoever. >> John Paul Stevens: I feel quite differently.
>> Anthony Kennedy: Can the federal government prohibit use of the flag for commercial purposes?
Advertising? >> William M. Kunstler: I don't know.
Since Halter against Nebraska, where there was a Nebraska statute against using the flag
on beer bottles or beer cans, I don't know whether there can be any prohibition of that.
It's used all over for commercial purposes. I notice that Barbara Bush wore a flag scarf,
for example. There are flag bikinis, there are flag everything.
There are little cocktail flags that you put into a hot dog or a meatball and then throw
in the garbage pall. They're flags under the Texas statute, something
made out of cloth, but I think they're are all sorts of flags used commercially.
I'm not sure in my heart whether I think there's any control over the use of the flag, not
on the criminal side anyway. Whether there is a... in answering Justice
Stevens' question whether there is an injunctive process that can be employed or not... I...
I... I won't go into it. I don't know.
But I have an instinctive feeling that's different, apparently, then Justice Stevens' that there
is no control of the use of the flag commercially, although I don't think it's necessary for
this case because here we're only talking about a criminal statute.
Now, with reference to... when I read Justice White's concurrence in Goguen, I notice he
said that punishment for communicating ideas about the flag unacceptable to controlling
majority in the legislature is something that is wrong, to punish people for having a different
idea about the flag, different than the Texas legislature has with the flag in its desecration
statute. And by the way, that's called the desecration
of venerated objects. That's the classification they give to it.
And I agree with Justice Scalia that flag burning of a single flag in front of the new
City Hall in Dallas doesn't lessen the value as a symbol.
>> John Paul Stevens: Let me go back to the any state interest at all.
Do you think the military would have any legitimate interest in disciplining a member of the military
who showed disrespect for the flag on public occasions?
>> William M. Kunstler: You might have a case there.
>> John Paul Stevens: You might have a case. >> William M. Kunstler: If a person that joins
the army, the flag has even a more peculiar significance to people in the army.
I would have problems with it. I would represent such a person--
[Laughter] --because I would think that there's something
First Amendment in there. But if he destroyed a flag that was the property
of the army, I think he'd be court martialed for that.
I don't think there's a particular flag statute in the Uniform Code of Military Justice.
If you destroy someone's flag, you can be punished.
There are many statutes. I think the Texas Court of Criminal Appeals
pointed there are some statutes, this statute and that statute that would cover the situation
without getting into the First Amendment area. And I'm sure it would violate the article
of war... I used to call it the article of war... which says
"conduct unbecoming a member of the military. "
if you destroyed a flag... refused... even refused to salute a flag under the military
code. Now, with reference to the breach of the peace--
>> John Paul Stevens: I was only suggesting that maybe there is some... some identifiable
state interest that's involved here. >> William M. Kunstler: --Yeah.
I'm not saying... I don't want you to get the wrong--
>> John Paul Stevens: I think you're acknowledging that there is.
>> William M. Kunstler: --impression that I say it's totally out of reach.
I'm not saying that. I'm trying to confine it to this case.
>> John Paul Stevens: You did say that. >> William M. Kunstler: I know I did.
[Laughter] I guess I have too much of a First Amendment
consciousness, I guess, in my makeup. With reference to breach of the peace, I don't
think there's ever... none of the flag cases that you have before you... ever had before
you... have involved a breach of the peace. The only one I found where there was any violence
was what Judge Tuttle found in the Monroe case, where they burned an American flag in
front of the federal building and someone burned an Iranian flag.
When the Iranian flag was burned, there was one act of violence, but not when the American
flag was burned. And Judge Tuttle pointed out that there was
no clear and present danger. He went right into the old Holmesian doctrine
of "clear and present danger" just as there wasn't here.
If there had been a breach-- >> William H. Rehnquist: What about... what
about Finer against New York, remember, where that fellow was speaking up at Syracuse and
said President Truman is a champagne sipping bum, whereupon they told him he had to stop
speaking because of fear from the crowd was going to attack him?
>> William M. Kunstler: --Well, I don't think that changes the position yet because it's
no different than Terminiello, really. You're saying hard things.
>> William H. Rehnquist: Well, it came after Terminiello, and it went... it came out the
other way. >> William M. Kunstler: I know it, and apparently
the imminence there was so immanent-- [Laughter]
--thank you... was so immanent. But you don't have that here at all.
In Terminiello, as you know, when I was reading Terminiello's remarks in the transcript, there
was... it showed he ducked several times. Apparently someone threw something during
his rampage against the Jews, but they held... this Court held that that wasn't enough.
It wasn't really raised very much in the argument. But if it gets to imminent danger where you
really have something going on, which you didn't have here, and you haven't had in any
of the flag burning cases, there's no breach of the peace here and no imminence of the
breach of the peace here at all. >> Harry A. Blackmun: Well, then we come close
to the Skokie cases. >> William M. Kunstler: Well, Skokie presents
a situation, of course, where the attempt to parade through an all white community of
black demonstrators... but even there, of course, you can't stop it.
You can't stop it. >> Harry A. Blackmun: That's my point.
>> William M. Kunstler: It you're going to stop it, it has to be so imminent as the Chief
said... it has to be so imminent that it really reaches clear and present danger proportions.
That's where Judge Tuttle said in Monroe, and I think that is the rule here.
We haven't argued clear and present danger yet, but I think you must at least show some
clear and present danger, some imminence. The... the statute here is not limited to
an imminent breach, by the way. It doesn't say imminent breach of the peace
at all. It just says "likely" or "might" or,
"The actor could reasonably believe that someone might be seriously offended by it. "
The Texas Court of Appeals treated this, I think, in its opinion.
It said, "This statute is so broad that it may be used
to punish protected conduct which has no propensity to result in breaches of the peace. "
Serious offense does not always result in a breach of the peace.
The protest in this case did not lead to violence. And, I might add, in this protest they had
policemen right along with them, undercover police officers.
The crowd was not a large crowd. They estimate between 100, 110, and Texas
went on to say, as with most other protests of this nature, police were present at the
scene. A witness was obviously seriously offended
by appellant's conduct because he gathered the burned flag and buried it at his home.
Nevertheless so seriously offended, this man was not moved to violence.
Serious offense occurred, but there was no breach of the peace, nor does the record reflect
that the situation was potentially explosive. One cannot equate serious offense with incitement
to breach the peace. And I think that any breach of the peace argument
here falls on its face. It is... I think when Chief Justice Burger
said in O'Brien versus Skinner, "It is not our function to construe... to
construe a state statute contrary to the construction given it by the highest court of the state.
" They have construed this statue with reference
certainly to breach of the peace. On vagueness and overbreadth, I think the
vagueness is... is apparent. It's... by definition it's vague.
What does "serious offense" mean? What is "unserious offense" as against "serious
offense"? Some of the ACLU witnesses here testified
here they were offended. They thought it was repulsive, one of them
said, but they were not seriously offended. And I don't know what seriously offended means.
The state says it's in the dictionary, and therefore it must have a meaning.
I agree with that. Every word is in the dictionary, or at least
in some dictionaries. But just because they're in the dictionary
doesn't mean that you can define legally or on the spot what serious offense is.
It wasn't a serious offense, for example, to fly the flag outside the Supreme Court
in violation of 36 USC. The artists' amicus brief, which I think is
a most unusual brief, contains many, many of the artists' paintings where you might
say that they created paintings that would seriously offend by manipulating the American
flag or by cutting it up, destroying it, using it in different ways, many of them to protest
situations. Some of them go to the war in Vietnam.
Some of them go to other aspects. You don't even know what physical mistreatment
means in the statute. Does physical mistreatment mean wearing it,
twisting it, burning it? It's just an undefinable statute.
As far as overbreadth is concerned and even taking into consideration Justice White's
substantial overbreadth argument, this is substantially overbroad--
>> Byron R. White: That's the Court's doctrine. >> William M. Kunstler: --Pardon me.
But I read it and I saw the words "substantial overbreadth" in it, and I think this even
meets that higher standard of whether It's overbreadth.
It sweeps protected conduct under its aegis and is... it's just an overbroad statute,
so overbroad that I don't think anyone can really doubt it.
And, in fact, there's been no real argument against it, against the overbreadth argument
essentially the State of Texas. Now, with reference to as applied, we would
rely on the Street case. You can't tell here whether he was convicted
with reference to this statute as to the flag burning or as to the words or the acts he
did before the flag burning because the Texas prosecutor in his summation said as follows:
"If you look at this evidence from start to finish. "
--and they showed a lot of television shots of what was happening in Dallas
"If you look at this evidence from start to finish, the participating in the beginning,
the literature, the last notations, RCYB, the shirt, who he is, the chanting, the yelling,
the megaphone, the encouragement, the having the megaphone, being there, wanting this to
happen, there is no question he encouraged it all. "
"He's as guilty as sin as far as the law of parties is concerned. "
That's very much the summation... not as hyperbole in Street as was given in the Street case.
Was he really tried and convicted for the flag or for the encouragement or for the literature,
the megaphone, the loudspeaker. >> William H. Rehnquist: But he'd been charged
with a number of different offenses here? >> William M. Kunstler: No.
What happened, he was only charged initially with disorderly conduct.
>> William H. Rehnquist: What did the case finally... what was he charged with when it
was submitted to the jury? >> William M. Kunstler: He was charged with...
I have the charge here. >> William H. Rehnquist: I don't mean the
judge's charge, but the indictment or information, what offenses?
>> William M. Kunstler: It's an information, a misdemeanor.
And he was charged eventually only with the flag burning statute or the desecration statute.
But initially, Chief Justice, he was charged... they took in a hundred protestors a half hour
after all this happened, and he was charged initially with disorderly conduct.
All the rest were let go. And then they dropped the disorderly conduct...
that's in the record somewhere... the keeper... the sheriff came and testified that they dropped
disorderly conduct and substituted in its place the flag desecration charge, and that's
what he was charged with. Disorderly conduct was out of the picture.
Now, with reference to... so, he may easily here have been convicted for the words, the
encouragement as against... by the law of the parties as against the flag desecration
itself. I would just like to end my argument... I
think this is a fundamental First Amendment case, that the First Amendment to the written
Constitution is in jeopardy by statutes like this.
And I wanted to essentially close with two remarks.
One Justice Jackson said in Barnette. "Those who begin coercive elimination of dissent
soon find themselves eliminating dissenters. "
"Compulsory unification of opinion achieves only the unanimity of the graveyard. "
"The First Amendment was designed to avoid these ends by avoiding these beginnings. "
And I think that's an important statement over the years from Justice Jackson.
And then he goes... in just a recent article in the New York Times called
"In Chicago a Holy War Over the Flag. " by J. Anthony Lukas, a very excellent former
reporter for the New York Times, he said, "Whatever pain freedom of expression may inflict,
it is a principle on which we can give no ground. "
And I understand that this flag has serious important meanings.
The Chief has mentioned many times that it is not just pieces of material, blue and white
and red. That has real meaning to real people out there.
But that does not mean that it may have different meanings to other people out there and that
they may not under the First Amendment show their feelings by what Texas calls desecration
of a venerated object. I think it's a most important case.
I sense that it goes to the heart of the First Amendment, to hear things or to see things
that we hate test the First Amendment more than seeing or hearing things that we like.
It wasn't designed for things we like. They never needed a First Amendment.
This statute or this amendment was designed so that the things we hate, Terminiello's
remarks, burnings of flags, or what have you can have a place in the marketplace of ideas
and can have an area where protest can find itself, I submit that this Court should on
whatever ground it feels right, should affirm the Texas Court of Criminal Appeals with reference
to this statute and this conviction. Thank you very much.
>> William H. Rehnquist: Thank you, Mr. Kunstler. Ms. Drew, you have four minutes remaining.
>> Kathi Alyce Drew: Thank you, Your Honor. One or two points very, very briefly.
There is absolutely nothing in the information that was filed or in the jury charge that
was submitted to the court which would have authorized a conviction for any words that
had been spoken by Mr. Johnson. It is true that the trial prosecutor did make
about half a page in his 20 page summation to the jury, a reference to the law of parties
because an individual for a criminal offense in Texas can be held liable as a party if
certain factors are shown. And I think that was incumbent upon him, but
there is absolutely nothing that would have authorized a conviction for any words that
were spoken. I also fall to see how, if I understand Mr.
Kunstler's concession, If one can protect government flags why one cannot protect a
flag which is not necessarily the property of the government because the danger of a
breach of the peace is the same and the denigration to the symbol is the same.
Unless the Court has questions, that will conclude my remarks.
>> William H. Rehnquist: Thank you, Ms. Drew. The case is submitted.