Opinion

Spence v. Washington

  • 418 U.S. 405
  • 94 S. Ct. 2727
  • 41 L. Ed. 2d 842
  • 1974 U.S. LEXIS 89
Court
Supreme Court of the United States
Filed
Jun 25, 1974
Status
Published
Author
Burger
On the bench
Burger, Rehnquist, Douglas, White, Blackmun
Cited by
705 cases

finding that an upside-down American flag with a peace symbol hung out a dormitory-room window was expressive conduct, and stating that “the nature of appellant’s activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.”

How later courts described this case

  • finding that an upside-down American flag with a peace symbol hung out a dormitory-room window was expressive conduct, and stating that “the nature of appellant’s activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression.”
  • holding unconstitutional a state statute that made it a criminal act to place "any word figure, mark, picture, design, drawing or advertisement of any nature upon any flag ... of the United States," and reversing the conviction of college student who attached a peace symbol to an American flag
  • holding person's nonverbal activity sufficiently imbued with elements of communication when "[a]n intent to convey a particular message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who [received] it"
  • finding petitioner’s expressive conduct protected by the First Amendment because “[a]n 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”

Written by the judges who cited it.

Distinguished

  • Distinguished by State v. Farrell, 1974 Iowa Sup. LEXIS 1167 (1974)

    At the threshold it is to us apparent, for reasons later set forth, Spence, supra, is inapposite.
    Supreme Court of IowaNov 13, 1974Read it

The opinion

Mr. Chief Justice Burger,

dissenting.

If the constitutional role of this Court were to strike, down unwise laws or restrict unwise application of some laws, I could agree with the result reached by the Court. That is not our function, however, and it should be left to each State and ultimately the common sense of its people to decide how the flag, as a symbol of national unity, should be protected.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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