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.

Fast Facts: Spence v. Washington

  • Case Argued: January 9, 1974
  • Decision Issued: June 25, 1974
  • Petitioner: Harold Omond Spence
  • Respondent: State of Washington
  • Key Question: Was a Washington State law criminalizing the display of a modified American flag in violation of the First and Fourteenth Amendments?
  • Majority Decision: Justices Douglas, Stewart, Brennan, Marshall, Blackmun, and Powell
  • Dissenting: Justices Burger, White, and Rehnquist
  • Ruling: The right to modify the flag was an expression of freedom of speech, and as applied, the Washington State statute was in violation of the First Amendment. 

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 the 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 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.

The Supreme Court’s decision in Spence v. Washington was not unanimous. Three justices — Burger, Rehnquist, and White — disagreed with the majority’s conclusion that individuals have a free speech right to alter, even temporarily, an American flag in order to communicate some message. They agreed that Spence was indeed engaged in communicating a message, but they disagreed that Spence should be allowed to alter the flag to do so.

Writing a dissent joined by Justice White, Justice Rehnquist stated:

  • The true nature of the State’s interest in this case is not only one of preserving “the physical integrity of the flag,” but also one of preserving the flag as “an important symbol of nationhood and unity.” ... It is the character, not the cloth, of the flag which the State seeks to protect. [...]
    The fact that the State has a valid interest in preserving the character of the flag does not mean, of course, that it can employ all conceivable means to enforce it. It certainly could not require all citizens to own the flag or compel citizens to salute one. ... It presumably cannot punish criticism of the flag, or the principles for which it stands, any more than it could punish criticism of this country’s policies or ideas. But the statute in this case demands no such allegiance.
    Its operation does not depend upon whether the flag is used for communicative or noncommunicative purposes; upon whether a particular message is deemed commercial or political; upon whether the use of the flag is respectful or contemptuous; or upon whether any particular segment of the State’s citizenry might applaud or oppose the intended message. It simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications.
    [emphasis added]

It should be noted that Rehnquist and Burger dissented from the Court’s decision in Smith v. Goguen for substantially the same reasons. In that case, a teenager was convicted for wearing a small American flag on the seat of his pants. Although White voted with the majority, in that case, he attached a concurring opinion where he stated that he would not “find it beyond congressional power, or that of state legislatures, to forbid attaching to or putting on the flag any words, symbols, or advertisements.” Just two months after the Smith case was argued, this one appeared before the court — though that case was decided first.

As was true with the Smith v. Goguen case, the dissent here simply misses the point. Even if we accept Rehnquist’s assertion that the state has an interest in preserving the flag as “an important symbol of nationhood and unity,” this does not automatically entail that the state the authority to fulfill this interest by prohibiting people from treating a privately own flag as they see fit or by criminalizing certain uses of the flag to communicate political messages. There is a missing step here — or more likely several missing steps — which Rehnquist, White, Burger and other supporters of bans on flag “desecration” never manage to include in their arguments.

It’s likely that Rehnquist recognized this. He acknowledges, after all, that there are limits to what the state may do in pursuit of this interest and cites several examples of extreme government behavior which would cross the line for him. But where, exactly, is that line and why does he draw it in the place he does? Upon what basis does he allow some things but not others? Rehnquist never says and, for this reason, the effectiveness of his dissent completely fails.

One more important thing should be noted about Rehnquist’s dissent: he makes it explicit that criminalizing the certain uses of the flag to communicate messages must apply to respectful as well as contemptuous messages. Thus, the words “America is Great” would be just as prohibited as the words “America Sucks.” Rehnquist is at least consistent here, and that’s good — but how many supporters of bans on flag desecration would accept this particular consequence of their position? Rehnquist’s dissent suggests very strongly that if the government has the authority to criminalize burning an American flag, it can criminalize waving an American flag as well.

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Cline, Austin. "Spence v. Washington (1974)." ThoughtCo, Dec. 6, 2021, thoughtco.com/spence-v-washington-1974-249971. Cline, Austin. (2021, December 6). Spence v. Washington (1974). Retrieved from https://www.thoughtco.com/spence-v-washington-1974-249971 Cline, Austin. "Spence v. Washington (1974)." ThoughtCo. https://www.thoughtco.com/spence-v-washington-1974-249971 (accessed February 5, 2023).