State v. Spence

Finley, J.

(dissenting)—On May 10, 1970, thousands of young Americans felt moved to protest the United States’ invasion of Cambodia and the killings at Kent State University which had occurred a few days previously. The young man before this court joined in this expression of dissatisfaction by displaying an American flag (his own personal property) from a window of his apartment. The flag was displayed in an upside-down position. A reasonable facsimile of the symbol of peace, currently well-recognized as such by most young people and also by many older people, had been superimposed on the flag by the use of adhesive black electrical tape. This same peace symbol is worn as a medallion: It is embroidered or otherwise made a part of various parts of the wearing apparel of many young people, ranging from college down to high school and grammar grades. This, as I view the circumstances, is the factual picture which emerges from this case. It is obviously significantly different from what arises from the majority’s interpretation and extrapolation of the evidence. It seems to me that this is, in essence, a case of a perhaps over-exuberant youthful advocate for peace and for ending the war in Vietnam.

His was an advocacy with which most people now rather wholeheartedly and well-nigh unanimously agree. The President of the United States and his recent political opponent for the presidency apparently agreed upon this, if nothing else. Even a majority of Congress—despite political party affiliations—I daresay are in substantial agreement. The only area of disagreement is in terms of the time and manner of ending the war and restoring peace in our time. The young man’s action in displaying the flag adorned with the peace symbol in the manner indicated above might be regarded as an example of an idealistic and courageous appeal for world peace. However, he has apparently of *803 fended the sensitivities of certain more sedate citizens. In any event, that any pernicious or baleful thing was contemplated or any evil intent actually involved is not substantiated by the evidence in this case. And here, in essence, hangs the tale of my very respectful but nevertheless firm and substantial disagreement with the majority in this case. In other words, (a) there is, in ancient criminal law parlance, no proof of mens rea, i.e., evil intent, and (b) proof of intent is, in my judgment, an essential element of the crime provided by RCW 9.86.020. Thus, as this court held in the opinion written by Hale, J., in State v. Turner, 78 Wn.2d 276 , 474 P.2d 91 (1970), the prosecution failed to prove a necessary element of the crime charged and the case simply should be dismissed on this basic and traditional ground.

It should be rather obvious that the majority’s much sterner view, in construing and applying the facts of this case, leads not only to an oversimplified application of legal principles and rules, but to a grossly erroneous result. One consequence of the majority’s approach, in addition to the failure to recognize the requirement that evil intent be proved, is that any objective consideration of First Amendment freedom of speech rights and concepts is brusquely swept aside, apparently simply to sustain conviction of the hapless young defendant. Contrariwise, the majority opinion of the Court of Appeals, in my best judgment, objectively construes the facts of this case, and reaches a better-reasoned, more rational disposition of this matter. In this connection, I intend to emphasize certain important considerations dealt with at considerable length in the majority opinion of the Court of Appeals by Horowitz, J., and to more fully discuss the requirement of the pertinent statute that evil intent must be proved.

The Court of Appeals objectively observed that a flag may be considered from two points of view: “(1) as a physical object, and (2) as a symbol of ideas.” State v. Spence, 5 Wn. App. 752, 756 , 490 P.2d 1321 (1971). In short, the view quite generally held is that “the American flag is an indentifying, history-preserving and ideological sym *804 bol.” 5 Wn. App. at 757 . Indeed, the majority opinion itself contains more than one reference to the United States flag as a “symbol”.

A symbol by its very being is expressive; so to display the American flag, if not pure expression or articulation, is certainly a traditionally recognized and effective form of communication. See Note, 30 Md. L. Rev. 332 , 346 (1970). This conclusion is borne out by the determination of the United States Supreme Court in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 , 87 L. Ed. 1628 , 63 S. Ct. 1178 (1943) that “[sjymbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind.” Indeed, the well-recognized symbol of peace, which was here attached to the American flag, is equally a form of expression when displayed. The symbolic speech which is expressed by the display of such symbols is protected by the first amendment to the United States Constitution. Police Dep’t v. Mosley, 408 U.S. 92 , 33 L. Ed. 2d 212 , 92 S. Ct. 2286 (1972) (picket signs); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 , 21 L. Ed. 2d 731 , 89 S. Ct. 733 (1969) (black armbands); Stromberg v. California, 283 U.S. 359 , 75 L. Ed. 1117 , 51 S. Ct. 532 , 73 A.L.R. 1484 (1931) (display of a red flag). See Note, 69 Colum. L. Rev. 1091 (1968). Consequently, one of the significant issues clearly before this court is whether the immediate statutory prohibition against affixing any design upon the flag is to take precedence over the defendant's invocation of the First Amendment protection of symbolic speech. The majority either myopically or arbitrarily brush this issue under the rug. The Court of Appeals did not duck the issue, but, in my judgment, evaluated it properly and determined that “a statute may protect the flag if so to do protects the safety of the state against a clear and present danger.” (Italics mine.) State v. Spence, supra at 759 . In other words, the Court of Appeals held that no “clear and present danger” *805 existed to support the statute and its application in the instant case. 5 Wn. App. at 759 . See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 , 86 L. Ed. 1031 , 62 S. Ct. 766 (1942); Schenck v. United States, 249 U.S. 47 , 63 L. Ed. 470 , 39 S. Ct. 247 (1919); State ex rel. Holcomb v. Armstrong, 39 Wn.2d 860 , 239 P.2d 545 (1952). In this regard, the Court of Appeals also determined that, where the demands of free speech seem to conflict with a protection of legitimate governmental interests, such competing interests must be evaluated and balanced against each other in order to determine whether the speech sought to be exercised will be constitutionally protected. See United States v. O’Brien, 391 U.S. 367 , 20 L. Ed. 2d 672 , 88 S. Ct. 1673 (1968). But, in this regard, the majority herein rather too simplistically and also arbitrarily state that they think it is “beyond argument” that the nation and state have a “recognizable interest” in keeping the flag free of “extraneous adornment”. This is not the law as is clearly shown by the cases cited above, and certainly does not address the issue before us. The mistaken and perhaps somewhat result-oriented conclusions of the majority seem to me to fall far short of appropriate judicial treatment and resolution of the indicated very real constitutional question presented by this case. Furthermore, by adopting this incomplete approach to the serious question regarding the extent of the competing interest in protecting freedom of speech, the majority actually completely ignores the requirement established by the United States Supreme Court that these conflicting interests be resolved by a careful balancing procedure. As stated by the court in Thomas v. Collins, 323 U.S. 516, 529-30, 531-32 , 89 L. Ed. 430 , 65 S. Ct. 315 (1945), substantial weight must be given First Amendment freedoms in applying this required balancing test:

The case confronts us again with the duty our system places on this Court to say where the individual’s freedom ends and the State’s power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced *806 by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . .

. . . [I]n our system where the line can constitutionally be placed presents a question this Court cannot escape answering independently, whatever the legislative judgment, in the light of our constitutional tradition. Schneider v. State, 308 U.S. 147, 161 . And the answer, under that tradition, can be affirmative, to support an intrusion upon this domain, only if grave and impending public danger requires this.

(Italics mine.) As to what constitutes legitimate means of securing governmental interests in competition with the First Amendment freedoms, the United States Supreme Court has recently stated:

The nature of a place, “the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.” Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U. S. 131 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved;

(Citations omitted. Italics mine.) Grayned v. Rockford, 408 U.S. 104 , 116, 33 L. Ed. 2d 222 , 92 S. Ct. 2294 (1972). In applying the balancing test required, it is my judgment that the Court of Appeals correctly determined that the passive means of communication utilized by the defendant in this case, under the particular circumstances involved, certainly constituted no “clear and present” or “grave and impending danger”, and, on balance, outweighed the interest of the state—no matter how “recognizable”—in keeping the flag free of “extraneous adornment”. As in Police Dep’t v. Mosley, supra, the defendant’s silent vigil was a peaceful *807 means of communication, not prone to violence, and therefore is protected by the First Amendment. Additionally, as noted by the Court of Appeals, where the United States Supreme Court has held that words critical or contemptuous of the flag are protected by the First Amendment, certainly the attachment of a symbol to the flag—an innocuous act containing no disrespect for the flag—constitutes a protected form of speech, and is to be accorded greater weight than the competing interest of the state in this matter. See Street v. New York, 394 U.S. 576 , 22 L. Ed. 2d 572 , 89 S.Ct. 1354 (1969).

The majority states as its reason for ruling that the defendant’s means of expression should not receive the protection of the First Amendment that “whatever impairment might be said to arise from this statute trenching upon the defendant’s rights to speak his mind freely and communicate his personal views by sign and symbol is minimal” that “there are thousands of other means available to the defendant for the dissemination of his personal views.” It is historically undeniable that this type of reactionary, if not personally biased reasoning was the very sort that has led to and perpetuated unconstitutional deprivations of fundamental liberties in the past. In Plessy v. Ferguson, 163 U.S. 537 , 41 L. Ed. 256 , 16 S. Ct. 1138 (1896), the United States Supreme Court noted that the statute being contested there provided for equal accommodations for blacks and whites in railway coaches, and ruled essentially that, since blacks had other adequate seats on the train, no need existed to allow them to occupy seats reserved for whites. This “other means available” logic of the “separate but equal” doctrine began to crumble in Sweatt v. Painter, 339 U.S. 629 , 94 L. Ed. 1114 , 70 S. Ct. 848 (1950), and was finally held by the Supreme Court to afford an unconstitutional treatment of blacks in Brown v. Board of Educ., 347 U.S. 483 , 98 L. Ed. 873 , 74 S. Ct. 686 , 38 A.L.R.2d 1180 (1954). In ruling as it did, the court explicitly rejected the reasoning which the majority in this case advances in support of its conclusion. The fact that there may well be “other means available” is *808 certainly no basis for depriving one of fundamental liberties, whether such freedom takes the form of choosing to sit in any seat in a train, or expressing personal views through the combined display of chosen symbols. In view of the United States Constitution’s powerful protection of the freedom to speak one’s mind, and almost innumerable decisions of the United States Supreme Court to this effect, it seems not only highly irregular and unnecessary but arbitrary and oppressive for the majority to hold otherwise in this case. I am therefore in agreement with the holding of the Court of Appeals that RCW 9.86.020, the improper display statute, as interpreted by the majority and applied in this case constitutes an unconstitutional abridgment of free speech.

The majority, as indicated above, also suggests that proof of evil intent is not required in a prosecution under the immediate statute (RCW 9.86.020). I cannot agree. Although the conviction of the defendant should be reversed upon the basis that the statute violates the defendant’s constitutionally-protected freedom of speech, I am firmly convinced that the trial court erred in refusing to instruct the jury that evil intent is an essential element of the offense charged. If proof of evil intent were not required, then the Court of Appeals correctly concluded that the patriotic editions of two Seattle newspapers (Seattle PostIntelligencer, July 4, 1970, at 1, and Seattle Times, June 14, 1970 § A, at 1), in displaying a picture of the American flag with words and pictures over it, would be equally susceptible to criminal charges, since RCW 9.86.020 applies both to an actual flag and to a representation of the flag. RCW 9.86.010. Certainly I cannot distinguish, and I submit the majority herein cannot distinguish the defendant’s actions from the pictures in the two publications simply because the patriotic message or communication of the newspapers seems to be a more preferable instance of the exercise of freedom of speech:

But, above all else, the First Amendment means that government has no power to restrict expression because *809 of its message, its ideas, its subject matter, or its content. Cohen v. California, 403 U. S. 15, 24 (1971); Street v. New York, 394 U. S. 576 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 269-270 (1964), and cases cited; NAACP v. Button, 371 U. S. 415, 445 (1963); Wood v. Georgia, 370 U. S. 375, 388-389 (1962); Terminiello v. Chicago, 337 U. S. 1, 4 (1949); De Jonge v. Oregon, 299 U.S. 353, 365 (1937).

Police Dep’t v. Mosley, 408 U.S. 92 , 95, 33 L. Ed. 2d 212 , 92 S. Ct. 2286 (1972). Indeed, such a distinction need not be made. Neither the publications of the newspapers nor the conduct of the defendant herein appear to have contained the element of evil intent which is necessarily required under RCW 9.86.020. We stated in State v. Turner, 78 Wn.2d 276, 282 , 474 P.2d 91 (1970), in determining whether the flag desecration statute (RCW 9.86.030) required proof of intent for conviction, that if such proof of evil design or purpose were not necessary, “the legislature could readily have said otherwise.” It is therefore significant here that the legislature has also been silent regarding the element of intent in the crime of improper display of the flag (RCW 9.86.020). Certainly proof of evil intent must be necessary here as well. This conclusion is further supported by the very pertinent, applicable, and decisively phrased language of Justice Hale in setting forth the holding of the court in State v. Turner, supra at 283:

Accordingly, unless the statute expressly eliminates the element of intent or design or defines the kinds of offenses which, by their very nature, are classified judicially as mala prohibita, the ingredients of intent, design and purpose should be deemed indispensable to a proof of guilt.

(Italics mine.) Actually, the reasoning of the court and the decision in Turner are absolutely inconsistent with the reasoning and result reached by the majority in the instant case. Furthermore, try as I may, I can find no reasonably convincing justification for the inconsistency. In the instant case, the jury should have been instructed and should have considered and decided whether evil intent was present in *810 the alleged violation of RCW 9.86.020, ie., whether the defendant intended, for example, to provoke a public disturbance, disorder, breach of the peace, or a riot. The task for the jury in determining the subjective intent of the defendant, is facilitated by such objective manifestations as the character of the design upon the flag, the manner of display, the circumstances of time and place, and the activities which accompanied such display. Unless the element of evil intent be proved beyond a reasonable doubt, no conviction under RCW 9.86.020 can be sustained.

Finally, in rejecting the defendant’s overbreadth argument, the majority has confused and misapplied the distinct constitutional doctrines of “vagueness” and “overbreadth”. This distinction was most recently recognized by this court in State v. Oyen, 78 Wn.2d 909 , 480 P.2d 766 (1971). “Vagueness” is found where the legislation fails to provide fair notice to the public of that which is being prohibited by the law. Papachristou v. Jacksonville, 405 U.S. 156 , 31 L. Ed. 2d 110 , 92 S. Ct. 839 (1972); Keyishian v. Board of Regents, 385 U.S. 589 , 17 L. Ed. 2d 629 , 87 S. Ct. 675 (1967); Edwards v. South Carolina, 372 U.S. 229 , 9 L. Ed. 2d 697 , 83 S. Ct. 680 (1962); Seattle v. Drew, 70 Wn.2d 405 , 423 P.2d 522 (1967). It is an element of due process which demands precision in penal legislation. NAACP v. Button, 371 U.S. 415 , 9 L. Ed. 2d 405 , 83 S. Ct. 328 (1963). On the other hand, the “overbreadth” doctrine applies where the penal legislation prohibits not only unprotected behavior, but embraces within its scope some constitutionally protected activity, even though the language of the statute may be sufficiently precise as not to be deemed “vague”. United States v. Robel, 389 U.S. 258 , 19 L. Ed. 2d 508 , 88 S. Ct. 419 (1967); Freedman v. Maryland, 380 U.S. 51 , 13 L. Ed. 2d 649 , 85 S. Ct. 734 (1965); Aptheker v. Secretary of State, 378 U.S. 500 , 12 L. Ed. 2d 992 , 84 S. Ct. 1659 (1964); Shelton v. Tucker, 364 U.S. 479 , 5 L. Ed. 2d 231 , 81 S. Ct. 247 (1960); Adams v. Hinkle, 51 Wn.2d 763 , 322 P.2d 844 (1958). In some cases the legislation may suffer from both infirmities by containing imprecise language (vagueness) *811 and by prohibiting a constitutionally protected activity (overbreadth). See Cox v. Louisiana, 379 U.S. 536 , 13 L. Ed. 2d 471 , 85 S. Ct. 453 (1964); Winters v. New York, 333 U.S. 507 , 92 L. Ed. 840 , 68 S. Ct. 665 (1948); Seattle v. Drew, supra.

Because of the majority’s confusion of these two doctrines, it repeatedly rejects the defendant’s overbreadth argument by asserting that RCW 9.86.020 is sufficiently precise (and therefore not vague) as applied to the defendant. In ruling upon this basis that the defendant may not raise the overbreadth issue in this case, the majority opinion states:

Defendant is in no position to conjure up hypothetical behavior which, while colorably actionable, would render the statute vague or overbroad when the particular conduct charged is clearly within the statute. One may not urge the unconstitutionality of a statute unless he has been adversely affected by the features of it which he claims are unconstitutional.

In support of this pronouncement the majority cites authority which involved neither the overbreadth doctrine nor the First Amendment, but rather which dealt with problems of “standing” under circumstances which are irrelevant to the immediate issue. In addition, the above statement of the majority, made in the context of a First Amendment case in which overbreadth of a statute is asserted, simply and directly contradicts the settled law of the land. In NAACP v. Button, supra at 432-33 , the United States Supreme Court ruled as follows:

[I]n appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U. S. 88, 97-98 ; Winters v. New York, supra, at 518-520. Cf. Staub v. City of Baxley, 355 U. S. 313 . . . . The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal stat *812 ute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U. S. 717, 733 . These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.

(Footnote omitted.) Accord, Aptheker v. Secretary of State, supra. It is our duty, therefore, to consider that which may be proscribed by the statute, not simply the application of the statute to the facts of the case before us. The majority’s use of non-First Amendment vagueness cases to rebut the defendant’s First Amendment over-breadth challenge is both in error and improper. The “chilling effect” upon the exercise of protected freedoms of expression is the evil which the overbreadth doctrine strives to eradicate. Dombrowski v. Pfister, 380 U.S. 479 , 14 L. Ed. 2d 22 , 85 S. Ct. 1116 (1965). The proper application of the doctrine in the case before us would provide a review of the statute under all possible circumstances, thereby insuring that the exercise of protected rights will not be deterred for either the defendant or the remainder of the public.

In this same area of over breadth, the majority also rejects the defendant’s challenge on the basis that “it is the duty of the courts to give to a statute the construction which sustains its constitutionality.” The error of this conclusion is evident from our own past decisions. In Adams v. Hinkle, supra at 769 , we held that “there is no presumption of constitutionality of statutes abridging those rights [of freedom of speech or press].” Accord, Burstyn, Inc. v. Wilson, 343 U.S. 495 , 96 L. Ed. 1098 , 72 S. Ct. 777 (1952). Thus the majority has again cited inappropriate authority for an erroneous conclusion with the unfortunate result that the challenge of the defendant has indeed fallen upon deaf ears.

Since the rulings of both the United States and Washington Supreme Courts require that we examine the merits of the immediate challenge of this statute’s overbreadth, and *813 that we do so without affording the statute any presumption of constitutionality, it is evident that the majority’s sweeping and mistaken generalities have produced a curious anomaly in the constitutional law of this state. The fact that an “actual flag” was used in the instant case seems quite irrelevant since RCW 9.86.020 does not restrict its prohibition against affixing designs to an “actual flag”. Indeed, the term “flag”, as used in the immediate penal statute, is defined in RCW 9.86.010 as follows:

The words flag, standard, color, ensign or shield, as used in this chapter, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof.

(Italics mine.) With this statutory definition in mind, the issue is whether the state has a compelling and overriding interest in prohibiting the public from affixing a design to a “picture or representation” of the flag, “made of any substance . . . evidently purporting to be . . . a copy, picture or representation” of the flag. Not only does RCW 9.86.020 require punishment for the two newspaper publications referred to earlier, it would equally demand punishment for a grammar school child’s drawing of the flag which contained any patriotic slogan or other extraneous marking thereon. Thus, regardless of any personal feelings concerning the activities of the defendant before this court, it is evident that this statute goes too far. Its “chilling effect” is far-reaching. In proscribing innocent activities, the statute is overbroad, and in this respect is constitutionally inappropriate. Under these circumstances, I can find no solace in inapplicable case authority for the majority’s proposition that this court may excuse one form of statutorily-prohibited conduct in State v. Turner, 78 Wn.2d 276 , 474 P.2d 91 (1970) and cavalierly condemn another as in the instant case. Since RCW 9.86.020 proscribes constitu *814 tionally protected conduct as to which no compelling state interest has been demonstrated, the statute is overbroad on its face and therefore unconstitutional.

For the reasons stated, I would affirm the decision of the Court of Appeals to reverse the conviction of the defendant in this case.

Petition for rehearing denied March 13, 1973.