Amicus Curiae Brief — Texas v. Johnson

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No. 88-155 | Supreme Court, U.S.

IN THE JAN @5 1989

Supreme Court of the United F. SPANIOL, JR.

OCTOBER TERM, 1988 = |

THE STATE OF TEXAS, he

Petitioner,

—_V—

GREGORY LEE JOHNSON,

Respondent.

ON WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

BRIEF OF THE CHRISTIC INSTITUTE, CLERGY AND LAITY CON.-

CERNED, THE COMMITTEE OF INTERNS AND RESIDENTS, THE

COMMUNITY FOR CREATIVE NON-VIOLENCE, THE FELLOWSHIP

OF RECONCILIATION, LA RAZA LAWYERS’ ASSOCIATION OF SAN

FRANCISCO, LAMBDA LEGAL DEFENSE AND EDUCATION FUND,

INC., THE LAWYERS’ COMMITTEE ON NUCLEAR POLICY, THE

MASSACHUSETTS CHAPTER OF THE NATIONAL LAWYERS

GUILD, THE NATION INSTITUTE OF NEW YORK CITY, THE NA-

TIONAL CONFERENCE OF BLACK LAWYERS, THE NATIONAL

EMERGENCY CIVIL LIBERTIES COMMITTEE, THE NATIONAL

LAWYERS GUILD, THE NATIONAL ORGANIZATION FOR WOMEN,

INC., THE NEW YORK STATE ASSOCIATION OF CRIMINAL DE-

FENSE LAWYERS, PEOPLE FOR THE AMERICAN WAY, TOWARD A

MORE PERFECT UNION, THE UNITED ELECTRICAL, RADIO AND

MACHINE WORKERS OF AMERICA, WABUN-ININI, ANISHINABE

(A/K/A VERNON BELLECOURT), AS A REPRESENTATIVE OF THE

AMERICAN INDIAN MOVEMENT, THE WAR RESISTERS LEAGUE,

AND THE WRITERS GUILD OF AMERICA, EAST, INC.

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

JAMES C. GOODALE

(Counsel of Record)

JONATHAN H. HINES

JAMES B. HENLY

MARK P. GOODMAN

Debevoise & Plimpton

875 Third Avenue

New York, New York 10022

(212) 909-6000

January 25, 1989 Attorneys for Amici Curiae

—_— ee... Se eee

TABLE OF CONTENTS

SUUNIET dd bbhdddddbecdbeseedebéddcotedesceéa

ll.

JOHNSON’S POLITICALLY INSPIRED

BURNING OF AN AMERICAN FLAG AT A

PUBLIC DEMONSTRATION CONSTI-

TUTES SYMBOLIC SPEECH ENTITLED TO

FIRST AMENDMENT PROTECTION.......

A. Johnson's Activity Readily Conveyed a Par-

ticularized Message That Was Likely to Be

Understood by Onlookers................

B. Flag Destruction Is a Form of Expression of

Political Dissent Falling Squarely Within the

First Amendment Guarantee of Freedom of

Pe aoe Cunedbédéseuddecéedscedscess

THE TEXAS FLAG-DESECRATION STAT-

UTE IS DIRECTED AT SUPPRESSING

SEs bnecdctcdiveccccesedss

A. Flag-Desecration Statutes Necessarily Are

Aimed at the Suppression of the Message

Communicated by the Act of Desecration. .

1. The State’s Assertion That the Statute

Protects the Flag As a Symbol of

National Unity Underscores the Speech-

Suppressive Nature of the Statute .....

a. Street and Spence Hold That a

State’s Interest in Protecting the

Flag’s Symbolic Value is Speech-

DEGGONNNG. ov sccccvidesnsea

b. This Court’s Recent Decisions

Require That a State Interest in Pro-

tecting the Flag as Symbol Be

Regarded as Speech-Suppressive

Even if That Symbol Is Deemed

ideologically Neutral .............

c. Flag-Desecration Statutes, Because

They Limit Expressive Uses of the

Flag to Only Those That Communi-

cate Messages Approved of by the

State, Are Not Ideologically Neutral

2. The State’s Interest in Preventing

Breaches of the Peace Also Confirms the

Speech-Suppressive Nature of the Stat-

GRD cccccccccvessésecessausennl

B. On Its Face, the Texas Statute Is Aimed at

the Suppression of Speech Because It Singles

Out for Punishment Only Those Acts of

Flag Destruction the Communicative Con-

tent of Which Is Likely to Offend Others. .

Ill. BECAUSE ITS AIM IS SPEECH-SUP-

PRESSIVE, THE TEXAS STATUTE CAN-

NOT WITHSTAND FIRST AMENDMENT

PUTING ...ccccccccceceeeenaeeee

A. Laws Directed at the Communicative Impact

of Expression Must Be Subjected to the

Most Searching Scrutiny and Can Be Sus-

tained Only Under the Most Exigent of Cir-

CURBSERIIGES.. . oc ccccceesevcessénanennull

PAGE

iii

B. Texas Has Failed to Demonstrate the Sort of

Exigent Circumstances That Would Warrant

the

CONCLUSION

APPENDIX A

APPENDIX B

Curtailment of Expression............

Texas’ Interest in Protecting the Flag as

a Symbol of Nationhood Cannot J ustify

Section 42.09’s Abridgment of Expres-

Texas’ Interest in Preventing Breaches

of the Peace Does Not Justify Section

42.09’s Wholesale Prohibition of

““Offensive’’ Flag Destruction.........

Oe NT RRS 2 eS ee ee

i Ne ST ee RES. © Eo ee

PAGE

TABLE OF AUTHORITIES

Cases: PAGE

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

es ee a Gas eee Ge No keeubesdausseueneeese 21

Board of Airport Commissioners v. Jews for Jesus, 482

Uke | 23-3.) (Orr re 22

Board of Education v. Barnette, 319 U.S. 624

SOD ons aunkas 40sec ct-cenndeehanenl 2, 6, 7, 8, 9, 16, 24

Boos v. Barry, 485 U.S. ____, 108 S. Ct. 1157

SN 6 onédnescearesecetveeuseel 6, 12, 14, 15, 19, 21, 22

Brandenberg v. Ohio, 395 U.S. 444 (1969). ......... 6, 21, 27

Brown v. Louisiana, 383 U.S. 131 (1966)........... 4, 12, 22

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ...... 21

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ...21, 28

City Council v. Taxpayers For Vincent, 466 U.S. 789

CORD x <0 ccuédéusvcnsescesvaddeteeverebeensuaues 18

Cohen v. California, 403 U.S. 15 (1971).........5055. 6, 22

Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied,

GID US, GOS CIP co bike vac cciccnecsvcecceccescscs 29

Community for Creative Non-Violence v. Watt, 703 F.2d

586 (D.C. Cir. 1983) (en banc) (per curiam), rev’d sub

nom. Clark v. Community for Creative Non-Violence,

ftkh 7). Rerrerre TTT 10, 12

Consolidated Edison Co. v. Public Serv. Comm’n, 447

a8 f errr rrr 14, 21, 26

PAGE

Edwards v. South Carolina, 372 U.S. 229 (1963) ...... 29

Garner v. Louisiana, 368 U.S. 157 (1961)............. 29

Gooding v. Wilson, 405 U.S. 518 (1972).........00065 28

Halter v. Nebraska, 205 U.S. 34 (1907).............4.. 16

Riess v. indiana, 414 U.S. 105 CISTS). onc ccccccccceces 28

Houston v. Hill, 482 U.S. 451 (1987). ...... 6. cee eee 28

Hustler Magazine, Inc. v. Falwell, 485 U.S. ___., 108 S.

GR, Ge a eek cdeeesdevevecscecsccsescevecees 6

Johnson v. State, 706 S.W.2d 120 (Tex. App. 1988) ... 5

Kime v. United States, 459 U.S. 949 (1982), denying cert.

tote & Bi fT) A ererererrr re rere 11

Kovacs v. Cooper, 336 U.S. 77 (1949)...... 0. 0c cee ees 13

Linmark Assoc., Inc. v. Township of Willingboro, 431

CP, BE re os cen edecasswesstdvsseseciececens 12, 25

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972). 8

Renton v. Playtime Theatres, Inc., 475 U.S. 41

Ss 506 cdeeekeroncddudede busts biecsdsacass 14, 15, 19

Riley v. Nat’l Federation of the Blind, Inc., U.S.

~ BBB &. Ce. BEST (IRS o ccc cccccscccecseceses 24, 25

Smith v. Goguen, 415 U.S. 566 (1974)... 6... e eee eee 20, 21

Spence v. Washington, 418 U.S. 405 (1974) (per

GE oo cccckccuvedacueccsncencetetrecsseuetes passim

Street v. New York, 394 U.S. 576 (1969)... .....65565 passim

PAGE

Stromberg v. California, 283 U.S. 359 (1931) ..2, 4, 7, 12, 22

Taylor v. Louisiana, 370 U.S. 154 (1962) (per curiam) . 29

Terminiello v. Chicago, 337 U.S. 1 (1949) ............ 6, 29

Thomas v. Collins, 323 U.S. 516 (1945) .............. 24

Tinker v. Des Moines School District, 393 U.S. 503

DE edie Bee aS wife) foro, Hes ss 4, 6, 12, 22, 28

United States v. O’Brien, 391 U.S. 367 (1968) ..... 2,8, 9, 11

13, 16, 19, 20

Village of Schaumburg v. Citizens for a Better Environ-

ment, 444 U.S. 620 (1980) ...........-.-0---- 22, 25

Whitney v. California, 274 U.S. 357 (1927) ........... 5, 26

Wooley v. Maynard, 430 U.S. 705 (1977)............. 25

Young v. American Mini Theatres, 427 U.S. 50 (1976) . 7, 18

Statutes:

Code de Justice Militaire Art. 40 ...............0000e 27

Criminal Code of Japan Art. 92.............00cceuee 27

Penal Code of the Federal Republic of Germany Art. 90a = 27

Tex. Penal Code Ann. § 42.09 (Vernon 1974)......... passim

Legislative Materials:

Desecration of the Flag: Hearings on H.R. 271 Before

Subcomm. No. 4 of the House Comm. on the Judici-

ary, 90th Cong., Ist Sess. (1967)..............000.. 16, 17

House Committee on the Judiciary, Penalties for Dese-

cration of the Flag, H. Rep. No. 350, 90th Cong., Ist

RS had ob Ge ANd whe he ERE eee eae c 16

Vii

PAGE

Other Authorities:

Barron, Access to the Press—A New First Amendment

Right, 80 Harv. L. Rev. 1641] (1967) ............... 7

H. Berman & J. Spindler, Soviet Criminal Law and Pro-

es IN ieee bce iutartceaetectecs 27

Z. Chaffee, Free Speech in the United States (1948).... 29

Ely, Flag Desecration: A Case Study in the Roles of Cate-

gorization and Balancing in First Amendment Analy-

ois, GS Faeev. L. Bev. 8402 (ISTE)... cccccccccessces 12, 18

T. Emerson, The System of Free Expression (1970) .... 29

B. Mastai & M.L. Mastai, The Stars and Stripes: The

American Flag as Art and History from the Birth of

the Republic to the Present (1973) ........000000 en. 17

M. McLuhan, Understanding Media (1961) ........... 7

Nimmer, The Meaning of Symbolic Speech Under the

First Amendment, 21 U.C.L.A. L. Rev. 29 (1973)... 19

Note, First Amendment Protection of Ambiguous Con-

duct, 84 Colum. L. Rev. 467 (1988)................ 7

Note, Symbolic Conduct, 68 Colum. L. Rev. 1091 (1968) 7

G.H. Preble, Origin and History of the American Flag

SUN auksacknsdoensccessudésksdenneycceuuercdes 17

W. Smith, Flags Across the World (1980)............. 7

The Stars and Stripes Forever, American Heritage, June

SUE akcoséunncuéhoscusspusdesddcdenvauneencacens 17

L. Tribe, American Constitutional Law (2d ed. 1988) ..12, 13

STATEMENT OF INTEREST

This brief is submitted on behalf of twenty-one amici curiae

which include religious and anti-war organizations, labor

unions and guilds, women’s and minority advocacy organiza-

tions, progressive political and civil rights groups, political edu-

cation and public policy associations, lawyers’ committees and

public interest law groups, a community-based activist center

and an individual representative of the American Indian Move-

ment. They have a combined membership of over half a million

Americans.

Amici have a special interest in the subject matter and out-

come of this case. Each is dedicated to achieving progressive

social ends through organized political, legal and/or educa-

tional activity. In pursuing such ends, each relies upon the con-

stitutional guarantee of free expression to ensure that its voice

be heard and each is committed to the principle that dissenting

political views must be permitted expression.

Many of the amici regularly engage in political expression

that is symbolic in form, or in which conduct and speech are

intertwined. All believe that symbolic speech is an important

and proper medium for expressing messages of political and

social significance. The American flag, as the leading symbol of

our government, is a particularly potent medium for communi-

cating opposition to government policies.

This case raises significant issues of law concerning the scope

of constitutional protection of all symbolic protest. Were the

decision below to be reversed, amici believe their efforts to

effect progressive social changes through the exercise of free

speech would be seriously impaired.

This brief is filed pursuant to Rule 36.2 of the Rules of the

Court. The parties have consented to its submission in letters on

file with the Clerk of the Court. Descriptions of the individual

amici are set forth in Appendix A of this brief.

SUMMARY OF ARGUMENT

This case requires the Court to decide whether the State of

lexas may punish Gregory Lee Johnson for expressing his

political views by publicly burning an American flag. The Texas

Court of Criminal Appeals held that the State could not do so

consistent with the First Amendment. This Court should

affirm.

Desecration of our nation’s cherished symbol has profound

emotional resonance. Most Americans recoil at the message

communicated by an act of flag desecration. That understand-

able reaction must not obscure a clear constitutional analysis of

this case. The Texas statute simply ignores this Court’s historic

protection of the flag's use as an important symbol of political

protest, see Spence v. Washington, 418 U.S. 405 (1974) (per

curiam); Srreet v. New York, 394 U.S. 576 (1969); Board of

Educ. v. Barnette, 319 U.S. 624 (1943); Stromberg v. Califor-

nia, 283 U.S. 389 (1931), and deprives dissenters of a highly

effective means of communication.

The burning of an American flag during a political demon-

stration plainly is symbolic speech entitled to First Amendment

protection. Furthermore, the regulation at issue here focuses,

both implicitly and by its very terms, on the communicative

content and effect of a flag desecration on observers. By pro-

hibiting abuse of a symbol that carries strong patriotic connota-

tions, Texas protects “‘acceptable’’ uses of the flag's symbolism

while restricting it's contrary use to express disaffection with our

covernment. Moreover, this statute forbids only those desecra-

tons that would “seriously offend” third parties. The regula-

ton is thus directly rather than incidentally speech-suppressive,

and so cannot satisfy the test enunciated in United Srates v.

O'Brien, 391 U.S. 367 (1968).

Because i is speech-suppressive. the Texas statute must be

subjected to this Court's most exacting scrutiny. Such a law is

invalidated unless the government makes the exceptional! show-

ing that it is the most narrowly tailored means of furthering a

compelling state interest, or that it proscribes a category of

speech that is unprotected Pw the First Amendment.

Texas has made no such showing. Neither of the justifica-

tions advanced by the State—protecting the flag as a symbol of

“‘national unity’’ and preventing breaches of the peace that

might occur as a result of a flag desecration—warrants with-

drawal of the First Amendment's protection of political expres-

sion. These interests are merely a subterfuge to effect the sort of

state-enforced obeisance to the flag that this Court has, on a

number of occasions during the past fifty years, held to violate

the First Amendment.

To reinstate Gregory Johnson's conviction and sentence of

imprisonment would signal a dangerous reorientation in the

relationship of state and citizen. If Johnson’s communicative

conduct may be suppressed in the name of privileged symbolism

and public order, what principle would limit even wider sup-

pression justified by similar governmental interests? May Texas

punish the next dissenter who shreds a paper flag or profanes

our national anthem to express dismay at U.S. inaction against

apartheid? Or prosecute another who, in opposition to a new

U.S.-Soviet missile treaty, hangs our President in effigy? Such

attempts to enforce a love of country by outlawing symbolic

expressions of protest are as unproductive as they are unconsti-

tutional. Under settled First Amendment principles, amici sub-

mit that the decision below should be upheld.

ARGUMENT

1. JOHNSON’S POLITICALLY INSPIRED BURNING OF

AN AMERICAN FLAG AT A PUBLIC DEMONSTRA-

TION CONSTITUTES SYMBOLIC SPEECH ENTITLED

TO FIRST AMENDMENT PROTECTION.

Gregory Johnson was prosecuted and convicted for burning

an American flag at a public assembly convened to protest poli-

cies of the United States Government.’ This activity was sym-

1 Amici note that there remains some question as to whether Johnson

himself set fire to the flag during the Dallas protest, or was simply present

when the desecration occurred. References to Johnson's burning of the flag .

are made with this ambiguity in mind.

bolic speech within the ambit of the First Amendment. Analysis

of the case must proceed on this basis.

A. Johnson's Activity Readily Conveyed a Particularized

Message That Was Likely to Be Understood by

Onlookers.

Johnson and others attending the Dallas rally spoke through

words as well as actions. Even taking Johnson’s actions alone,

however, it is settled law that the freedom of speech is ‘‘not

confined to verbal expression.’’ Brown v. Louisiana, 383 U.S.

131, 141-42 (1966) (plurality) (silent sit-in). This Court has long

recognized that First Amendment protection must be accorded

to non-verbal activity when it is ‘‘sufficiently imbued with ele-

ments of communication."’ Spence v. Washington, 418 U.S.

405, 409 (1974) (per curiam) (display cf peace symbol affixed to

American flag). See also Stromberg v. California, 283 U.S. 359,

368-69 (1931) (display of red flag); Tinker v. Des Moines School

"~~ District, 393 U.S. 503, 505-06 (1969) (wearing of black arm-

band in protest is ‘‘closely akin’’ to ‘‘pure speech”’ and so “‘is

entitled to comprehensive protection under the First Amend-

ment’’).

Johnson’s conduct easily satisfies this constitutional stan-

dard. Johnson burned the flag at a public assembly held in

front of the Dallas City Hall (R.III-355, 11-162), a standard

forum for communications of a political nature. The demon-

Stration, entitled the ‘‘Republican War Chest Tour’’, was con-

vened while the Republican National Convention was taking

place in and was preceded by a march in which the par-

ticipants, including Johnson, distributed political leaflets and

chanted political slogans critical of the United States and its

conduct of foreign policy. (R.1]-71-72, V-833-34). At the culmi-

nation of the rally, Johnson participated in burning the flag

while the assembled continued to chant messages of political

protest. (R.II1-355; 11-162). Observers of the demonstration

and the flagburning testified at trial that they understood that

Johnson was conveying a political message by his action.

(R.111-380-90, 11-160).’

Here, no less than in Spence, ‘‘it would have been difficult

for the great majority of citizens to miss the drift of [Johnson’s]

point at the time that he ...ade it.’’ 418 U.S. at 410. As both the

majority and the dissent in the Texas Court of Criminal

Appeals found below, Johnson’s action met the Court’s sym-

bolic speech test: in burning the flag, he ‘‘intended to convey a

particularized message .. . and. . . this message was very

likely to be understood by those who viewed it.’’ Pet. App. 8-10

(majority opinion) (quoting Johnson v. State, 706 S.W.2d 120,

123 (Tex. App. 1988) (Vance, J.)); see also Pet. App. 25 (dis-

senting opinion). These events permit no other conclusion than

that Johnson was, in burning the flag, engaged in an act of pro-

tected symbolic speech and was prosecuted by the State of

Texas because of his ‘‘expression of an idea through activity.’’

Spence v. Washington, 418 U.S. at 411.

B. Flag Destruction Is a Form of Fxpression of Political

Dissent Falling Squarely Within the First Amendment

Guarantee of +reedom of Speech.

No doubt, the message conveyed by Johnson's act of

flagburning was both powerful and unpopular. Most Ameri-

cans, believing in the greatness of this nation and the demo-

cratic foundations which sustain it, find Johnson’s message as

well as his medium deplorable. But the theory of our democracy

requires that we tolerate dissent. Those who founded this

nation ‘‘believed that freedom to think as you will and to speak

as you think are means indispensable to the discovery and

spread of political truth."’ Whitney v. California, 274 U.S. 357,

375 (1927) (Brandeis, J., concurring).

For that reason, the guarantee of freedom of expression pro-

tects messages no matter how controversial in content or radical

in point of view. The First Amendment's sweep is not “‘limited

2 At his trial, Johnson explained that “‘[t}he American Flag was

burned as Ronald Reagan was being renominated as Presidem .. . . [A]

more powerful statement of symbolic speech, whether you agree with it or

not, couldn't have been made at that time.’’ (R. V-656).

to things that do not matter much. . . . The test of its sub-

Stance is the right to differ as to things that touch the heart of

the existing order.’’ Board of Educ. v. Barnette, 319 U.S. 624,

642 (1943).

Nor does the First Amendment shrink from protecting com-

munications of a political nature on grounds that they are cast

in form offensive to many. See Cohen v. California, 403 U.S.

1S, 22-23 (1971); Terminiello v. Chicago, 337 U.S. 1, 4 (1949)

(treedom of speech embraces communication that ‘‘stirs the

public to anger,’* because a “‘function of free speech under our

system of government is to invite dispute’’). As the Court most

recently stated in Boos v. Barry, 485 U.S. , 108 S. Ct. 1157

(1988) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S.

. 108 S. Ct. 876, 882 (1988)), ‘in public debate our own

citizens must tolerate insulting, and even outrageous, speech in

order to provide ‘adequate ‘‘breathing space’’ to the freedoms

protected by the First Amendment.’ ** /d., at 1164.

Applying these basic principles, the Court has accorded First

Amendment protection to unpopular and highly emotive

expressions of political dissent, whether conveyed by symbol or

spoken word. See, e.g., Terminiello v. Chicago, 337 U.S. |

(reversing convictions of speaker who aroused anger by race

baiting); Jinder v. Des Moines School District, 393 U.S. 503

(protecting symbolic opposition to the war in Vietnam

expressed by the wearing of a black armband); Brandenberg v.

Ono, 398 U.S. 444 (1969) (striking down on its face, and as

applied to virulent racist verbal and symbolic speech, statute

prohibiting advocacy of use of force and violations of law);

Cohen v. California, 403 U.S. 18 (shielding vulgar anti-draft

epithet emblazoned on back of jacket).

First Amendment protection is no less applicable to expres-

sions of dissent conveved by, or about, a flag. even in the

charged setting when ‘“‘the flag involved is our own.’ Board of

Educ. v. Barnetie, 319 U.S. at 641. This Court ‘‘tor decades has

recognized the communicative connotations of the use of

flags.’ Spence, 418 U.S. at 410, and at least one Justice has

observed the place of the American flag as ‘‘an integral part of

public protests."" Srreer vy. New Yord, 394.U.S. £76, 604 (1969)

Warren. C.]., dissenting). The fact that a flag. when observed.

immediately connotes ‘“‘some system, idea, institution, or

personality’’ makes it a highly effective vehicle of

communication—the flag functions as a powerful “‘shortcut

from mind to mind.”’ Barnette, 319 U.S. at 632.’ Indeed, it is

precisely the power of our flag as a symbol of pride in America

that inspires the sort of reactive expression Johnson engaged in

here.

In view of the formidable communicative powers of flags, the

Court has not hesitated to extend First Amendment protection

to the flying of a red flag as a gesture in support of commu-

nism, Stromberg v. California, 283 U.S. 359, the speaking of

defiant words about our fiag in protest of the racially motivated

murder of a civil rights leader, Street v. New York, 394 U.S.

576, and to the display of a defaced American flag in opposi-

tion to the invasion of Cambodia, Spence v. Washington, 418

U.S. 405.

3. ~—s This feature of flags (and other forms of symbolic expression) is par-

ticularly important to those seeking to convey unpopular messages. It is now

well appreciated that the form in which a conmmmunication is couched may

have as great an impact upon its efficacy as does the communication’s con-

tem. M. McLuhan, Understanding Media 7-21 (1964). Unpopular messages

which might otherwise be wholly disregarded by the public if confined by law

to expression by speech or written word may, if conveyed by symbol, draw

greater audience interest and attention. See Note, First Amendment Protec-

tion of Ambiguous Conduct, 84 Colum. L. Rev. 467, 471 (1988). This was a

matter of no small importance to Johnson, given that mass media seldom

pay much attention to poliucally unorthodox ideas. See Barron, Access to

the Press—A New First Amendment Right, 80 Harv. L. Rev. 1641, 1647

(1967).

As Johnson's conduct also demonstrates, symbols like flags not only may

attract attention to unpopular messages but also can contribute emotional

content to them ‘‘beyond the capabilities of language.'’ Note, Symbolic Con-

duct, 68 Colum. L. Rev. 1091, 1108-09 (1968); see also W. Smith, Flags

Across the World § (1980) (‘‘National flags in particular stumulate the viewer

to feel and act in a calculated way . . . They are employed to honor and dis-

honor, warn and encourage, threaten and promise, exalt and condemn, com-

memorate and deny. . . . Flags authenticate claims [and] dramatize political

demands."’). For these reasons, Johnson's choice of communicative form

must be protected for it is an instance “‘in which the content or effectiveness

of the message depends in some measure upon how it is conveyed.” Young v

American Mini Theatres, 427 U.S. $0, 78 (1976) (Powell, J., concurring).

This consistent line of authority must control here. Johnson’s

act of flagburning was a “‘ ‘primitive but effective way of com-

municating ideas.'"’ Spence, 418 U.S. at 410 (quoting

Barnette, 319 U.S. at 632). The First Amendment embraces

Johnson's clear expression of political dissent.

il. THE TEXAS FLAG-DESECRATION STATUTE IS

DIRECTED AT SUPPRESSING COMMUNICATION.

Indifferent to this Court’s command that “‘government has

ho power to restrict expression because of its message, its ideas,

its subject matter, or its content. . . ,”’ Police Dep’t of Chi-

cago v. Mosley, 408 U.S. 92, 95-96 (1972), Texas prohibits the

destruction of an American flag “‘in a way that the actor knows

will seriously offend one or more persons likely to observe or

discover" the desecration. Tex. Penal Code Ann. § 42.0%a)\(3)

(Vernon 1974). The Texas law's isolation of offensive commun-

ications all too clearly reveals its suppressive focus, which is in

tact a ieature of all flag-desecration statutes.

Where, as in this case, the government seeks to regulate

expressive conduct, constitutional analysis of the regulation

begins with application of the four-part test announced in

( nited States v. O'Brien, 391 U.S. 367 (1968):

[A] government regulation [of expressive conduct] is suffi-

ciently justified if it is within the constitutional power of

the Government; if i furthers an important or substantial

governmental interest; if the governmental interest is unre-

lated to the suppression of free expression; and if the inci-

dental restnction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that

interest.

id. at 3° (emphasis added). When a law satisfies each aspect of

the O'Brien calculus, i is not analyzed as a primary abridge-

ment Of expression and thus need not meet the otherwise strin-

gen! requirements imposed bw the First Amendment as a

precondition to such abridgements. However, as amici demon-

strate im this section of the brief, flag statutes like Texas" are

intimately “‘related to the suppression of free expression.”

Therefore, O’Brien’s leniency is inapposite and the traditional

First Amendment scrutiny applied to speech-suppressive mea-

sures governs.

Texas not surprisingly disclaims any speech-suppressive aim.

The State maintains that its law forbidding destruction of flags

serves two state interests unrelated to the suppression of expres-

sion: (1) protecting the flag as a symbol of national unity and

(2) preventing breaches of the peace. Amici here demonstrate

why these claimed state interests must, under this Court's deci-

sions, be viewed as directly speech-suppressive. In Section III,

infra, amici demonstrate why, in light of section 42.09’s imper-

missible focus, the statute must be invalidated.

A. Flag-Desecration Statutes Necessarily Are Aimed at the

Suppression of the Message Communicated by the Act

of Desecration.

1. The State’s Assertion That the Statute Protects the

Mag As a Symbol of National Unity Underscores

the Speech-Suppressive Nature of the Statute.

The first of Texas’ two justifications for the proscription of

flag desecration is the preservation of the flag as a ‘‘symbol of

national unity.’’ Texas claims that this interest is unrelated to

the suppression of speech in that it applies without regard to the

specific viewpoint conveyed by an act of desecration. Such an

assertion misunderstands this Court’s test for ‘‘content-

relatedness’’ and ignores the most pertinent line of this Court’s

prior holdings.

a. Street and Spence Hold That a State’s Interest in

Protecting the Flag’s Symbolic Value Is Speech-

Suppressive.

In Street v. New York, 394 U.S. 576, the Court assessed a

state’s interest in preserving the symbolic values embodied by

the flag and held that this interest could not outweigh the coun-

tervailing First Amendment interests of those who would depre-

cate the flag as a form of political expression. Drawing upon

this Court’s landmark decision in Board of Educ. v. Barnette,

319 U.S. 624, in which a statute requiring schoolchildren to

salute the flag was struck down as violative of their right of free

expression, the Street Court reasoned that a government prohi-

bition on criticism of the flag in the name of protecting its sym-

bolic value was tantamount to requiring adherence to a

homogenous set of political and intellectual values. Street, 394

U.S. at 593.

While Texas strives to distinguish Street from the instant case

on the ground that Street involved verbal rather than symbolic

contempt for the flag, the State provides no principled justifica-

tion for why this verbal/nonverbal distinction would have any

relevance to the speech-suppressive nature of an anti-

desecration law. The reasoning of Street applies with equal

force to any form of expressing contempt, so long as the expres-

sion falls within the protective ambit of the First Amendment.

Whether one uses opprobrious words towards the flag or dese-

crates the flag in protest, the nature of a state’s interest in the

flag as a symbol of the nation remains static. In either case, that

interest is tied to the suppression of expression. Texas has failed

to make any showing to the contrary.

Indeed, in Community for Creative Non-Violence v. Watt,

703 F.2d 586 (1983) (en banc), rev’d sub nom. Clark v. Com-

munity for Creative Non-Violence, 468 U.S. 288 (1984), Justice

Scalia (then a Circuit Judge), made short shrift of the speech/

conduct distinction now being advanced by the State of Texas

to distinguish the present case from Street. As explained in his

dissenting opinion, the speech/conduct dichotomy is simply

irrelevant once the government’s proscription of expressive

conduct has been shown to be aimed at communicative effect:

‘*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.’’ Jd. at 622

(Scalia, J., dissenting) (emphasis in Original). If, therefore, the

state’s interest in the flag as a symbol is, as the Court held in

Street, aimed at the suppression of speech when it is used to jus-

tify prohibiting verbal assaults on the flag, there can be no sepa-

rate rule regarding the identical state interest when it is used to

justify prohibitions on nonverbal symbolic speech. The show-

ing that must be made by the state to justify the prohibition is

the same.

Five years after its decision in Street, the Court, in Spence v.

Washington, 418 U.S. 405, once again squarely faced the ques-

tion of a state’s interest in the flag’s symbolic value. Spence

involved symbolic and not verbal expression. Yet again the

Court struck down application of the challenged statute after

unambiguously characterizing this state interest as being

‘‘directly related to expression.”’ Jd. at 414 & n.8.°

If the State of Washington's interest in preserving the

national flag as an ‘‘unalloyed symbol of our country’’ was

construed by this Court over a decade ago as being aimed at the

suppression of expression, Spence, 418 U.S. at 412-14, so too

must Texas’ interest in preserving the flag ‘‘as a symbol of

nationhood and national unity.’’ There is no principled way to

distinguish the two cases. Although Texas seeks to exploit the

superficial differences between the respective ways in which

Spence and Johnson chose to express themselves (the former by

defacing the flag, the latter by burning it), the State’s interest in

the flag’s symbolic value and the recognized relationship of this

value to the suppression of expression are unaffected by the

communicator’s method of flag desecration.

4 The Spence Court's analysis continued:

For that reason and because no other governmental interest unrelated

to expression has been advanced or can be supported on this record,

the four-step analysis of United States v. O’Brien, 391 U.S. 367, 377

(1968), is inapplicable.

418 U.S. at 414 n.8.

As Justice Brennan has pointed out, the holdings of Street and Spence

should not be surprising:

[Tjhe Government has no esthetic or property interest in protect:ng a

mere aggregation of stripes and stars for its own sake; the only basis

for a governmental interest (if any) in protecting the flag is precisely

the fact that the flag has substantive meaning as a political symbol.

Thus, assuming that there is a legitimate interest at stake, it can hardly

be said to be one divorced from political expression.

Kime v. United States, 489 U.S. 949, 953 (1982) denying cert. to 673 F.2d

1318 (1982) (Brennan, J., dissenting).

b. This Court’s Recent Decisions Require That a

State Interest in Protecting the Flag as Symbol

Be Regarded as Speech-Suppressive Even if That

Symbol Is Deemed Ideologically Neutral.

Street and Spence thus compel the conclusion that Texas’

interest in the flag as a symbol of nationhood is one that aims at

expression. However, even had those cases never arisen, the

same conclusion follows from application of this Court's set-

tled approach to determining whether a law is directed at sup-

pression of expression, or only incidentally impairs it.

A state’s interest must be regarded as content-based if the

harm to that interest which the law in question seeks to avert

arises as a consequence of the communicative content or impact

of expression. See Boos v. Barry, 485 U.S. , 108 S. Ct.

1157, 1163-64 (1988); Linmark Associates, Inc. v. Township of

Willingboro, 431 U.S. 85, 93-94 (1977); L. Tribe, American

Constitutional Law § 12-3 at 794-804 (2d ed. 1988).° Only when

S As Justice Scalia has pointed out, specifically with reference to sym-

bolic speech:

Every proscription of expressive conduct struck down by the Supreme

Court was aimed precisely at the communicative effect of the conduct.

The only reason to ban the flying of a red flag (Stromberg) was the

revolutionary sentiment that symbol expressed. The only reason for

applying the ‘breach of the peace’’ statute to the silent presence of

black protestors in the library in Brown was the effect which the com-

municative content of that presence had upon onlookers. The only rea-

son for singling out black armbands for a dress proscription (Tinker)

was precisely their expressive content, allegedly causing classroom dis-

ruption. The only reason to prevent the attachment of symbols to the

United States flag (Spence) was related to the communicative content

of the flag.

Community for Creative Non-Violence, 703 F.2d at 624-25 (Scalia, J., dis-

senting) (footnotes omitted).

Professor Ely has similarly cast the critical inquiry as:

whether the harm that the state is seeking to avert is one that grows out

of the fact that the defendant is communicating, and more particularly

out of the way people can be expected to react to his message, or rather

would arise even if the defendant's conduct had no communicative sig-

nificance whatsoever.

Ely, Flag Desecration: A Case Study in the Roles of Categorization and Bal-

ancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1497 (1975).

the justification in question is divorced from the communica-

tive impact of the expressive conduct does an interest qualify as

‘‘content-neutral”’ or ‘‘unrelated’’ to suppression of speech.°

Texas’ interest in preserving the flag as a symbol of nation-

hood must be held to be related to suppression of expression

under the Court’s settled approach. The harm to that interest

which section 42.09 and similar flag-desecration statutes seek to

avert—the weakening of the flag as a symbol of nationhood

caused by acts of flag destruction—arises (if at all) only because

such acts of flag destruction are understood to commusacate.

This communicative focus of typical flag-desecration statutes

is evident from their differential treatment of private and public

desecrations. A state’s interest in the flag as a symbol of

‘‘national unity’’ is only implicated when the flag is burned

publicly. Professor Tribe underscores this point by asking

‘‘whether the national symbol, which the government seeks to

preserve unsullied, would be corrupted or interfered with in any

way by ‘closet’ flag burnings—people drawing their own flags

on flammable fabric and igniting them. . . in the privacy of

their homes.”’ L. Tribe, supra p. 12, § 12-3, at 801-02. The

answer to the question is obviously no; degradation of the sym-

bol occurs, if at all, only to the degree that the message is com-

municated to third parties. The state’s interest, therefore,

plainly is related to suppressing speech.

Texas’ counter-argument—that the flag-as-symbol interest is

unrelated to speech suppression because it is advanced in an

6 An example might be a statute that proscribes the use of sound

trucks after 9 o’clock p.m. as a public nuisance. Such a regulation is not

aimed at the suppression of speech because the harm sought to be avoided—

late-night noise—is not a function of a message's communicative impact but,

rather, the noise pollution that is an incidental, non-communicative by-

product of any message (or of plain static from the microphone). Cf, Kovacs

v. Cooper, 336 U.S. 77 (1949). Similarly, the interest of the government in

the smooth administration of the draft, advanced to justify a rule prohibiting

the burning of draft cards, was held by this Court to be unrelated to the sup-

pression of expression because the harm sought to be avoided—an inefficient

draft—arose from noncommunicalive consequences of destroying draft cards

and not from the anti-draft message thereby conveyed. United States v.

O’Brien, 391 U.S. at 381-82.

ideologically neutral manner—is unavailing. For even if section

42.09 or any other flag statute could be considered ‘‘viewpoint

neutral’’ in the sense that it forbids offensive destruction of

flags regardless of the discrete message sought to be conveyed

by a particular flag desecrator, it is nevertheless ‘‘content-

based’’ in that the State’s justification for suppression relies

precisely upon the fact that acts of flag destruction, because

they communicate, impair the flag’s status as a symbol of

national unity.’ |

In challenging this principle, Texas seeks to reargue the very

issue resolved last term in Boos v. Barry, 108 S. Ct. 1157. There

the Court struck down a District of Columbia statute making it

unlawful to ‘‘display. . . any sign within 500 feet of a foreign

embassy if that sign tends to bring that foreign government into

‘public odium’ or ‘public disrepute.’ ’’ Jd. at 1160. The govern-

ment argued that the provision was intended to protect the dig-

nity of foreign diplomatic personnel, and did so in a

content-neutral manner because the law forbade all signs con-

taining critical messages regardless of ideological bent. Jd. at

1162-63. The Boos Court held that, notwithstanding its ideolog-

ical neutrality, that statute ‘‘must be considered content-based”’

because the justification for the law ‘‘focuse[d] on/y on the con-

tent of the speech and the direct impact that speech ha[d] on its

listeners.’’ Jd. at 1164 (emphasis in original). See also Consoli-

dated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 537

(1980) (invalidating speech-suppressive regulation though it did

not ‘‘favor either side of a political controversy’’).*

7 Put otherwise, if acts of flag destruction did not themselves commu-

nicate, it would be difficult to fathom how such acts could impair the flag's

capacity Lo communicate a message of nationhood. It is true that a particular

exemplar of a flag, once destroyed, is no longer available to communicate

any message. In that limited sense, an act of flag destruction, even if unwit-

nessed, might be said to impair the ability of that particular flag to contunue

communicating a message of national unity. But Texas surely cannot be

asserting a State interest in assuring that the number of flags available for fly-

ing within the State is not diminished by acts of flag destruction.

8 Amicus Legal Affairs Council argues that Boos and Renton v. Play-

time Theatres, Inc., 475 U.S. 41 (1986), support Texas here in that § 42.09

Under the teachings of both Boos and Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), the Texas flag-desecration

statute and others like it ‘‘target the direct impact of a particu-

lar category of speech,’’ and thus ‘‘must be subjected to the

most exacting scrutiny.’’ Jd. at 1163-64.

c. Flag-Desecration Statutes, Because They Limit

Expressive Uses of the Flag to Only Those That

Communicate Messages Approved of by the

State, Are Not Ideologically Neuiral.

Amici have demonstrated that a statute like section

42.09(a)(3) is content-based, even if regarded as neutral in terms

of viewpoint or ideology. But in fact the statute is ideologically

biased at the most elementary level.

Our flag, like most potent symbols, may be employed to

communicate myriad messages. Al] such messages, however,

relate back in some way to the flag’s central significance as ‘‘an

has only a secondary effect on speech. This argument ignores the Court's

pronouncement in Boos that ‘‘[!}isteners’ reactions to speech are not the type

of ‘secondary effects’ we referred to in Rerton."’ 108 S. Ct. at 1163.

Renton involved a law that regulated speech by reference to the type of

movie theatres in which it was spoken, placing stringent restrictions solely on

theatres specializing in adult films. 475 U.S. at 47. While this regulation

affected the communication conveyed in such theatres, it was not targeted at

such communications but rather at the ‘‘secondary effects of such theatres in

the surrounding community."’ Jd. (The effects in question—crime and loss in

property values—were ‘‘secondary"’ because, although associated with adult

film theatres, they did not result from the communicative impact of an airing

of an X-rated film.) Boos was a very different case because it involved a reg-

ulation aimed at the primary impact of speech on listeners, and not at sec-

ondary effecis unrelated to the content of speech. To use the Boos Court's

own illustration,

if the ordinance [in Renton] was justified by the city’s desire to prevent

the psychological damage it felt was associated with viewing adult

movies, then analysis of the measure as a content-based statute would

have been appropriate. This hypothetical regulation targets the direct

impact of a particular category of speech, not a secondary feature that

happens to be associated with that type of speech

Boos, 108 S. Ct. at 1163.

emblem of National Power and National Honor.’ Halter v.

Nebraska, 205 U.S. 34, 42 (1907). Desecration statutes like

Texas’ quite plainly seek to protect *‘National Honor’ by pre-

venting use of the flag to communicate discordant ‘‘unpatri-

otic’’ messages. This ideological bias alone, when used to

justify limiting expressive conduct, necessarily violates the cru-

cial third prong of the O’Brien test.

Texas resists acknowledging the flag's primary status as

patriotic symbol. But the examples the State gives of the kinds

of messages conveyed by the flag illustrate this point quite well.

At half-mast, it reminds us of the death of a president; on

the coffins of our soldiers and dignitaries, it reminds us of

the sacrifices made to establish and keep this nation; in the

hands of a victosious Olympian, it evokes pride in the

accomplishments of our citizens; its abuse at the hands of

a middle-eastern terrorist kindles our anger and frustra-

tion; on the surface of the moon, it drives our hope for the

future.

Petitioner's Brief at 27.

The flag's position as our nation's central patriotic symbol is

well recognized in the opinions of this Court,’ in Congressional

statements concerning the flag, and in lay expressions reflect-

9 In Halter v. Nebraska, 205 US. at 41, the Court described the flag

as “the emblem of the American Republic. . . [flor [which]. . . every true

American has not simply an appreciation but a deep affection.’’ Subsequent

opinions of the Court refer to the flag as a “‘symbo! of adherence to govern-

ment as presently organized,’ Barnette, 319 U.S. at 633, and *‘{fjor the great

majority of us. . . the. . . symbol of patriotism, of pride in the history of

our country, and of the service, sacrifice and valor of the millions of Ameri-

cans who in peace and war have joined together to build and to defend a

Nation in which self-governm mt and personal liberty endure."’ Spence v.

Washington, 418 U.S. at 413.

10 «© See, ¢.g., House Comm. of the Judiciary, Penalties for Desecration

of the Flag, H. Rep. No. 350, 90th Cong., Ist Sess. at 4 (1967) (to “every

irue American the flag is the symbol of the Nation's power —the ernblem of

freedom in its truest, best sense"") (quoting Halter, 205 U.S. at 43); Desecra-

tion of the Flag: Hearings on H.R. 27! Before Subcomm. No. 4 of the

ing on the flag’s significance.’ There can be no question that

the flag, standing as it does for honor and allegiance to our

national government, is a political symbol of ideological force.

The nature of Texas’ interest in the flag is equally ideological. It

is precisely because the flag is a symbol affirming faith in our

government that Texas asserts any interest in the flag’s sym-

bolic value.”

As Texas surely recognizes, just as there are few more power-

ful ways to convey feelings of pride in our country than to raise

the flag high, there are few more powerful ways to express

opposition to the government than to publicly destroy a flag for

all to see.'’ When the flag is draped over the coffin of a fallen

House Comm. on the Judiciary, 91h Cong., Ist Sess. (1967) 28 (statement of

Hon. James H. Quillen, Rep. of Tenn.) (‘‘For all of us. . . whose hearts are

filled with patriotism and love and respect for all that our flag symbolizes, it

is deplorable to think that anyone could be so. . . thankless. . . as to scar

. . . the tradidonal symbol of our free land.’’); 132-33 (statement of Hon.

E.Y. Berry, Rep. of S. Dakota) (the flag is a “‘source of pride and honor to

all Americans"’); 146 (statement of Hon. Paul G. Rogers, Rep. of Fla.) (flag

symbolizes “‘patriotic reverence’’ for our government); 203 (statement of

Hon. James Kee, Rep. of W. Va.) (fag is sacred emblem of nation inspiring

feelings of patriousm).

11 See, e.g, G.H. Preble, Origin and History of the American Flag 4

(1917) ( ‘Fidelity to the Union blazes from its stars, allegiance to the govern-

ment beneath which we live is wrapped in its folds."’); B. Mastai & ML.

Mastai, The Stars and Stripes 175 (1973) (flag is “‘our one sole emblem of

fidelity’); The Stars ard Stripes Forever, American Heritage, June 1976 at 9

(flag is used ‘‘to signify loyalty, sacrifice, heroism, and other sentiments con-

nected with patriotism’’).

12 Indeed, Texas describes its prosecution of Johnson as an effort ‘‘to

punish [him] for trying to destroy the effectiveness of the flag as a symbol

revered by the vast majority of Americans.’’ Petition for Certiorari at 49.

13. The then-chairman of the Americanism Committee of the Veterans

of Foreign War candidly acknowledged this fact in testifying in favor of the

enactment of the federal Mag desecration statute: “‘How could demonsira-

lions against American policy be more vividly and dramatically manifested

than by burning the very flag of the United States?"’ Desecration of the Flag:

Hearings on H.R. 271 Before Subcomm. No. 4 of the House Comm. on the

Judiciary, 9h Cong., Ist Sess. 70, 71 (1967) (statement of Hon. Michael A.

Musmanno, Justice, Supreme Court of Pennsylvama).

soldier, it bespeaks honor in service for America; while unfor-

tunate, it should not be surprising that another American who

objects to the war in which that soldier fell might burn a flag to

symbolize his dissent. So might an American Indian, to show

anger at his peoples’ dispossession from their lands carried out

in the name of this flag. The same flag that is waved proudly by

the thousands at a Republican (or Democratic) National Con-

vention could naturally be desecrated in an anti-establishment

protest against that Party's governing platform; indeed, that is

precisely what happened in this case. One need not applaud this

form of expression to understand that flag-desecration statutes

like section 42.09 seek nothing less than to reserve the flag's

special communicative powers to express patriotic messages

preferred by the state.

Such legislative sorting among preferred and cisapproved

messages is the very essence of content-oriented regulation. See

City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)

(First Amendment forbids regulating expression ‘‘in ways that

favor some viewpoints or ideas at expense of others."’); Young

v. American Mini Theatres, Inc., 427 U.S. 50, 68 (1976) (noting

need for ‘‘absolute neutrality’’ by the government when regu-

lating communication). As Professor Ely has observed:

Orthodoxy of thought can be fostered not simply by plac-

ing unusual restrictions on ‘deviant’ expression but also by

granting unusual protection to expression that is officially

acceptable. An ‘improper use’ statute, neutral respecting

the messages it would inhibit though it may be. . . is, at

best, analogous to a law prohibiting the interruption of

patriotic speeches, and that is a law that is hardly ‘unre-

lated to the suppression of free expression.’

Ely, Flag Desecration, supra note §, at 1507-08 (footnotes omit-

ted). In forbidding flagburnings the State not only grants ‘‘unu-

sual protections’’ to acceptable patriotic points of view but, as

well, ‘unusually restricts’’ expressions of disaffection with the

government. This kind of regulation is bluntly speech-

suppressive in focus.

2. The State's Interest in Preventing Breaches of the

Peace Also Confirms the Speech-Suppressive

Nature of the Statute.

The State also seeks to justify its flag-desecration statute on

the basis of its interest in preventing breaches of the peace. Here

again, however, the State acknowledges its preoccupation with

the speech itself; the danger of a violent reaction is only created

by what the flagburner communicates in destrc ‘ng a flag.

For that reason, the Texas statute plainly fails under the

Renton/Boos content-neutrality test discussed abave in Section

11.A.1.b. By emphasizing the possibility that bystanders might

breach the peace in reaction to the message conveyed by a flag

burning, the State justifies the law solely by ‘‘reference to the

content of the regulated speech"’ and ‘‘focuses on/y. . . on the

impact the speech has on its listeners.’’ Boos, 108 S. Ct. at 1164

(emphasis in original).'* Indeed, as footnote 4 of the Respon-

dent's Brief points out, the record in this case demonstrates that

both police officers were offended by the burning of the flag

because the action communicated a lack of respect for our

national symbol.

It follows that this case is readily distinguishable from United

States v. O’Brien, 391 U.S. 367, in which the defendant claimed

that the burning of his draft card was symbolic speech entitled

to First Amendment pro ection. There, the Court sustained the

defendant's conviction because it recognized ‘‘a sufficiently

important governmental interest in regulating the non-speech

element,”’ id. at 376 (i.e., the smooth administration of the

Selective Service Act) that was ‘‘unrelated to the suppression of

free expression."’ Jd. at 377. The Court was careful to exempt

from its holding those cases in which ‘‘the alleged governmental!

14 Professor Nimmer has similarly noved

In the context of Mag desecration, it 1s precisely ihe particular idea con-

veyed by the act or desecration that is feared will lead to a violent or

unlawful reaction. Thus, insofar as the governmental objective is the

suppression of the communication of an idea in order to avoid result-

ing violence, it 1S an anti-speech interest, 1.e., an interest in the suppres.

sion of speech

Nimmer. The Meaning of Symbolic Speech Under the First Amendment, 2|

UCLA. L. Rev. 29, £3-£4(1973)

interest in regulating conduct arises in some measure because

the communication allegedly integral to the conduct is itself

thought to be harmful.’ Jd. at 382. Texas’ preoccupation with

avoiding any violent reaction to a flagburning demonstrates

well that such a statute, in the words of the O’Brien Court, reg-

ulates activity solely because the message that is ‘‘integral to the

conduct"’ is ‘‘thought to be harmful.”’

B. On Its Face, the Texas Statute Is Aimed at the Suppres-

sion of Speech Because It Singles Out for Punishment

Only Those Acts of Flag Destruction the Communica-

tive Content of Which Is Likely to Offend Others.

Amici have argued above that flag-desecration statutes, by

their very nature, aim at the suppression of speech. Neverthe-

less, as amici recognize, two members of this Court have indi-

cated that a flag-desecration statute that even-handedly

proscribed a// public acts impairing the physical integrity of the

flag would not violate the First Amendment because the opera-

tion of such a law would not “‘depend upon whether the flag is

used for communicative or noncommunicative purposes.”

Spence v. Washington, 418 U.S. at 422 (Rehnquist, J., dissent-

ing); Smith v. Goguen, 415 U.S. $66, $88 & n.3 (White, J., con-

curring). The Texas statute, as drafted, falls far short of even

that standard.

Section 42.0%(a)(3) conditions criminal liability for destroy-

ing a flag on whether the actor knows he “‘will seriously offend

one or more persons likely to observe or discover his action.”’

Texas thereby expressly requires communication—and

offense—to third parties to trigger the law's proscriptions, and

so makes ‘‘the communicative aspect of the proscribed conduct

_a crucial element of the violation." Smith v. Goguen, 415

U.S. at $88 n.3 (White, J., concurring).

The Texas statute thus does much more than just remove the

flag ‘‘from the roster of materials that may be used as a back-

ground for communications."’ Spence, 418 U.S. at 423

(Rehnquist, J., dissenting). This is a particularly objectionable

law whose operation depends precisely “‘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."’ Jd. at 422-23 (Rehnquist, J.,

dissenting) (fUotnote omitted). Put otherwise, by criminalizing

only those acts of flag destruction that offend, the State singles

out for punishment ‘“‘those who impair the flag's physical integ-

rity for the purpose of disparaging it as a symbol."’ Smith v.

Goguen, 415 U.S. at 597-98 (Rehnquist, J., dissenting). As the

Chief Justice has suggested, ‘‘such a law . . . abridge[s] the

right of free expression."’ Jd.

Ill. BECAUSE ITS AIM IS SPEECH-SUPPRESSIVE, THE

TEXAS STATUTE CANNOT WITHSTAND FIRST

AMENDMENT SCRUTINY.

A. Laws Directed at the Communicative Impact of

Expression Must Be Subjected to the Most Searching

Scrutiny and Can Be Sustained Only Under the Most

Exigent of Circumstances.

This Court has held repeatedly that laws aimed at the sup-

pression of political expression or its communicative impact are

subject to the “‘most exacting scrutiny."’ See, e.g., Boos, 108 S.

Ct. at 1163-64 (1988); Buckley v. Valeo, 424 U.S. 1, 16-17

(1975) (per curiam). Under this strict standard, such laws must

be invalidated unless they either can be shown to serve a demon-

strably compelling governmental! interest, see Arkansas Writ-

ers’ Project, Inc. v. Ragland, 481 U.S. 221, , 107 S. Ct.

1722, 1728 (1987); Consolidated Edison Co. v. Public Serv.

Comm'n, 447 U.S. at 540, or can be shown to suppress only

expression falling into one of this Court's narrowly circum-

scribed categories of unprotected speech. See Brandenberg v.

Ohio, 395 U.S. 444; Chaplinsky v. New Hampshire, 315 U.S.

$68 (1942)."°

1S Brandenberg and Chaplinsky define the only two such categores in

which speech may go unprotected because of its inflammatory umpact on hs-

veners. As discussed below in Section I11.B.2, the speech proscribed by the

Texas Mag-desecration statute fits neither the “fighting words" category rep-

resented by Chaplinsky, 318 U.S. at $72-73, nor the category of speech

“hkely to incite lawless action” recognized in Brandenberg, 395 US. at

448-49

When the government defends speech-suppressive legislation

as mecessary to further a compelling objective, the Court

ensures free speech the greatest possible protection by insisting

upon a further showing that such legislation is both a “‘neces-

sary’’ and a “‘narrowly drawn"’ means of achieving that objec-

tive. Boos, 108 S. Ct. at 1164. Absent a sufficiently close nexus

between a state-imposed abridgment of speech and the state

interest justifying such abridgment, the Court will invalidate

the regulation as unconstitutional in scope. See, e.g., Village of

Schaumburg v. Citizens for a Better Environment, 444 U.S.

620, 636-39 (1980); Street, 394 U.S. at $92.*

Applying these stringent requirements, the Court has invali-

dated laws regulating symbolic conduct when those laws have

no true justification apart from suppressing expression or its

communicative impact. See, e.g., Stromberg v. California, 283

U.S. 359 (1931); Brown v. Lowisiana, 383 U.S. 131, 142 (1966);

Tinker v. Des Moines School District, 393 U.S. 503, 508 (1969).

For the reasons set forth below, section 42.09 also must be

invalidated as a measure directly aimed at suppression of

speech, because Texas cannot meet its ““*heavy burden"’ of dem-

onstrating that its flag-desecration statute presents “‘an excep-

tional case." Cohen v. California, 403 U.S. at 24.

B. Texas Has Failed to Demonstrate the Sort of Exigent

Circumstances That Would Warrant the Curtailment

of Expression.

Texas’ first proffered interest in protecting the flag as a sym-

bol of nationhood is not compelling as that requirement has

come to be understood by the Court. For that reason it has

16 ~—s The First Amendment imposes an analogous requirement upon siat-

ules that seek to proscribe unprotected speech. If such statutes sweep beyond

ihe narrowly corcumscribed categones of unprotected speech, they are unvali-

dated as “overbroad."’ Boerd of Airport Commissioners » Jews for Jesus.

482 U.S. $69, 107 S. Ci. 2568, 2571 (1987). Of course, the Constitution also

requires that cruminal statutes be precisely drafted so as to clearly define thew

proscrupuens Amnc: comend that § 42.0%ax})'s proscripnon of acts that

“the actor knows will serously offend one or more persons hkely to observe

or discover ms actions’ is both an overbroad and unconstuunonally vague

standard These argumenis are fully brefed by the Respondent See Respon-

dent's Brvef at Section 11.C

twice before been rejected a‘ justifying prohibitions on expres-

sion. Street, 394 U.S. at 5€3; Spence, 418 U.S. at 412-414. In

addition, this interest is no: shown to be threatened by acts of

flag destruction. Were the interest so threatened, there exist

means of serving it that surely are less restrictive of free expres-

sion than section 42.09.

The State’s other claimed interest in preventing breaches of

peace is no more availing. To the extent section 42.09’s pro-

scription of ‘‘offensive’’ flag destructions relates to any interest

in preserving public order, this Court’s decisions leave no doubt

that flag desecrations do not fall into the few categories of

speech that remain unprotected by the Constitution because of

their potentially excitive impact upon others.

1. Texas’ Interest in Protecting the Flag as a Symbol of

Nationhood Cannot Justify Section 42.09's Abridg-

ment of Expression.

Texas defends its flag-desecration statute principally on the

ground that it serves a state interest in preserving the flag as a

symbol of national unity. One dimension of that interest is a

concern on the part of Texas to promote an attitude of venera-

tion for the flag and for our country. See Section I].A.1.c.,

supra. Its second dimension is, as depicted by the State, a non-

ideological one: that the flag as symbol, venerable or otherwise,

remain undiluted in meaning lest it lose its capacity to signify

nationhood. Petitioner’s Brief at 29. Neither aspect of Texas’

interest in preserving the flag as a symbol is so compelling as to

justify the statute’s bald abridgment of expression.

Street plainly addresses, and dispenses with, just such a

claimed state interest in promoting ‘‘respect for our national

symbol”’:

We have no doubt that the constitutionally guaranteed

‘freedom to be intellectually . . . diverse or even con-

trary,’ and the ‘right to differ as to things that touch the

heart of the existing order,’ encompass the freedom to

express publicly one’s opinions about our flag, including

those opinions which are defiant or contemptuous.

394 U.S. at 593 (quoting Barnette, 319 U.S. at 641-42). See also

Spence, 418 U.S. at 412-14. The government, of course, is as

free as its citizens to foster, through its good actions and powers

of expression, sentiments of national pride and unity. But the

Constitution forbids the government from pursuing those legiti-

mate ends by punishing its citizens for expressing disrespect for

national symbols, just as it prohibits the state from forcing citi-

zens ‘‘to confess by word or act their faith therein.’’ Barnette,

319 U.S. at 642.

To hold otherwise would truly invite a reorientation in the

government’s relationship to the citizenry. The ‘‘very purpose

of the First Amendment is to foreclose public authority from

assuming a guardianship of the public mind through regulating

. speech.’ Thomas v. Collins, 323 U.S. 516, 545 (1945)

(Jackson, J., concurring) (quoted in Riley v. Nat’l Federation

of the Blind, U.S. , 108 S. Ct. 2667, 2674 (1988)).

Through section 42.09, the government of Texas assumes that

role as guardian of the public mind, seeking to insulate the flag

as a venerated sign of national unity. However virtuous that

aim, the Constitution forbids its invocation as a ground for

suppressing expression.

Section 42.09 can no more be justified, however, by the sec-

ond dimension of Texas’ interest in the flag as national symbol.

Here, Texas seeks to prevent the dilution of the flag’s capacity

to communicate the concept of nationhood, quite apart from

whatever subsidiary attitudes citizens may have toward flag and

nation.”

Texas has, however, failed to make any showing that the

flag’s status as a symbol communicating nationhood is

impaired by acts of flag desecration. The State’s almost “‘talis-

17 One may doubt whether a state interest in preserving the clarity of

symbols is one compelling enough ever to justify the direct infringement of

expression. It may be that the interest Texas asserts is not simply in ensuring

that the flag continues to function as a clear symbol of nationhood but, as

well, that it function as nothing other or more than a symbol of the greatness

of our country. If this be Texas’ true interest, it is one that collides with the

Constitution. If the guarantee of free expression means anything at all,

surely it does not abide government control of the very meaning of the sym-

bols that compose our vocabulary of communication. State action of just

that sort is a feature of totalitarian government.

manic reliance on the mere assertion of’’ this, Riley, 108 S. Ct.

at 2674, cannot substitute for a demonstration of the actual

nexus between asserted harm and regulated act which this Court

Gemands. See, e.g., Village of Schaumburg, 444 U.S. at 633-

34.

It seems more plausible that flag desecrations have the oppo-

site effect, by reinforcing in the public mind the connection

between the flag as a physical object and its symbolic status as a

sign of our nation. On the assumption, however, that acts of

flag desecration somehow do impair the capacity of the flag to

symbolize nationhood, Texas has available to it means of rein-

forcing that symbolic function that do not impair rights

afforded to its citizens by the First Amendment.

The State may counteract such public desecrations by speech

and conduct of its own. Texas is free to promote the flag’s sym-

bolic function by flying it on public grounds, by encouraging its

citizens to fly the flag at home, by schooling children in its his-

tory, and by setting apart a regular day for observance of its

function. Cf. Wooley v. Maynard, 430 U.S. 705, 717 (1977)

(noting that New Hampshire may disseminate ideology of state

pride ‘tin any number of’’ non-abridging ways); Linmark, 431

U.S. at 97 (suggesting less speech-restrictive alternatives of

18 The failure of Texas to establish that nexus is a product of the

State’s confusion of the concept of the United States flag (/.e., a design com-

posed of fifty stars and thirteen stripes upon a red, white and blue back-

ground) with discrete physical renderings of that concept. When we say the

flag symbolizes nationhood, we recognize a long-standing association in the

public mind between the design described above and our nation. But the sym-

bolic equation of flag and country is not destroyed (or even threatened) by

the destruction of an individual reproduction of that design.

The same fallacy is embedded in analogies too easily made between dese-

crations of national monuments, such as the Lincoln Memorial, and desecra-

tions of ‘‘the flag’’. There are countless United States flags but only one

Lincoln Memorial (serving as both ‘‘concept’’ and government-owned corpo-

real manifestation). A true analogy therefore is not to a law that proscribes

defacement of the Lincoln Memorial itself but to one thai proscribes the

destruction of a Lincoln Memorial replica purchased on a Washington, D.C

sidewalk. Of course, destruction of such a replica no more impairs the mean-

ing of the Lincoln Memorial than does the desecration of a particular cloth

or paper rendering of the flag impair the link between our flag and our

nationhood.

government-sponsored publicity and education). As Justice

Brandeis wisely counseled in Whitney v. California, 274 U.S.

357, 377 (1920): ‘‘If there be time to. . . avert the evil by the

processes of education, the remedy to be applied is more

speech, not enforced silence. Only an emergency can justify

repression.’’””

Texas has made no such emergency showing. Indeed, the

State has adduced no evidence at all that the flag's capacity to

symbolize nationhood to its citizens is endangered in the least or

that acts of flag destruction pose such threat.” A statute that

abridges expression cannot be upheld on such slender grounds.

2. Texas’ Interest in Preventing Breaches of the Peace

Does Not Justify Section 42.09’s Wholesale Prohi-

bition of ‘Offensive’? Flag Destruction.

Texas’ second stated concern is to staunch possible violent

reactions of observers offended by acts of flag desecration. The

State’s chosen method of doing so is to prohibit not those vio-

19 Texas’ argument that Johnson could have conveyed his message by

alternative means thus stands the required analysis on its head. This Court's

decisions clearly teach that Texas, not Johnson, is obliged to pursue alterna-

tive, less restrictive means of pursuing its ends. See, e.g., Consolidated Edi-

son Co. v. Public Serv. Comm'n, 447 U.S. at $41 0.10 (‘‘we have

consistently rejected the suggestion that a government may justify a content-

based prohibition by showing that speakers have alternative means of expres-

sion."’); Spence v. Washington, 418 U.S. at 411 n.4 (‘‘summarily’’ rejecting

argument that prohibition of symbolic flag alterations was permissible as

“trifling’’ speech abridgment because ‘“‘other means’ could be used to

express the same views).

20 = interestingly, the Reporter who in 1968 prepared the preliminary

draft of the Texas law at issue recognized that the burning of a flag as a form

of protest posed ao emergency. As then proposed, the statute would have

criminalized Mag desecration only when performed on a ‘“‘national flag

owned by another."’ A.W. Alschuler, “Article 280—Offenses Against Public

Order: A Preliminary Draft for the State Bar Committee on the Revision of

the Texas Penal Code’’ (Draft 1) (July 9, 1968) (attached hereto as Appendix

B) (emphasis added). As the Reporter explained in his Comment to the provi-

sion:

lent reactions but the offending expressive acts that allegedly

give rise to them. There is no question that the prevention of

breaches of peace is a legitimate state interest that may be pro-

moted by a law properly drawn and applied. But, equally clear

is that section 42.09(a)(3), as applied to accomplish that end,

fails to satisfy long-settled constitutional! standards.

Brandenberg v. Ohio, 395 U.S. 444, holds that unless an

expressive act is ‘‘directed to inciting or producing imminent

lawless action”’ and is “likely to incite or produce such action,”’

id. at 447, a state’s interest in preventing a breach of peace can-

not support punishment of expression. Under this standard,

Johnson’s prosecution for flagburning was unconstitutional.

The draft is. . . less stringent than the [Mode! Penal Code] in that

it does not punish the desecration of an object owned by the actor him.

self, even if the desecration occurs in public. The practice of mutilating

American flags as a form of protest has recently attracted public and

legislative attention . . . . [T]he reporter considers criminal punish-

ment an inappropriate sanction for this obnoxious but essentially

harmless behavior.

Flag-burning may be offensive to a large segment of the population.

So is shouting ‘To Hell with America!’ and ‘Hooray for Mao Tse

Tung!"—both of which are plainly protected activities. In the

reporter's opinion, America has broad enough shoulders to endure this

sort of insult. Ignoring insulting behavior may, in fact, be a more

effective remedy than punishment, for an indignant response is proba-

bly what most flag-burners expect and desire. Restraint may be a sign

of self-confidence, not of weakness. It may be the better part of patri-

otism.

The treatment of flag desecration in other nations is also worthy of note.

Great Britain, Canada and Australia, countries with democratic traditions

closest to our own, have no such statute Neither does France (with the

exception of Article 440 of the Code de Justice Militaire, applicable to mem-

bers of the armed forces), Switzerland, Sweden or Holland. Japan (Article

92, Criminal Code) only penalizes desecration of another nation’s emblem.

Yet the flags of the above countries—including the Union Jack, the Tricolore

and the Hinomaru (Rising Sun)—have histories as rich as does our own. On

the other hand, West Germany (Article 90a, Penal Code) has carried forward

that country’s long tradition of prohibiting displays of disrespect for state

symbols. The Soviet Union has such a prohibition as well. See H. Berman

and J. Spindler, Soviet Criminal Law and Procedure 181 (2d ed. 1972)

(Article 190-2 of RSFSR Criminal Code).

The State of Texas admits that no actual breach of the peace

occurred at the time of Johnson's act or in response thereto.

The Texas Court of Criminal Appeals held that the situation in

which Johnson burned the flag was not even ‘‘potentially explo-

sive.”’ (Pet. App. at 13.) The only citizen response to the

flagburning appears to have been that of Daniel Walker, who

gathered the remains of the flag and buried them in his back-

yard. (R.11] 273-274).

Texas seeks, however, to justify its conviction of Johnson

based upon the possible tendency of his expressive act to pro-

voke violent reaction. This Court's opinion in Street v. New

York, 394 U.S. 576, disposes of that attempt. In Street, after

recognizing the possibility that those witnessing disrespectful

treatment of the flag ‘‘might [be] moved to retaliate,’’ the

Court rejected the contention that desecrations of flags are so

‘inherently inflammatory”’ as to be “* ‘likely to provoke the

average person to retaliation, and thereby cause a breach of the

peace.” "’ 394 U.S. at 592 (quoting Chaplinsky v. New Hamp-

shire, 315 U.S. at 574). See also Tinker v. Des Moines Indep.

School Dist., 393 U.S. at 508 (‘‘Undifferentiated fear or appre-

hension of disturbance is not enough to overcome the right to

freedom of expression.**). For the same reason, this Court must

reject Texas’ breach-of-peace justification as applied to John-

son. Texas quite simply has failed to demonstrate that John-

son’s conduct amounted to ‘‘fighting words"’ likely to provoke

retaliation.”

21 Johnson's action did not constitute “fighting words’’ for another

basic reason: his message was not directed ‘‘to any person or group in partic-

ular.’ Hess v. Indiana, 414 U.S. 105, 107 (1973). But even had Jounson’s

specific acts been targeted at a particular individual and been likely to inspire

that person to retaliate, § 42.09 is on its face unconstitutional. For that stat-

ute in no way limits its proscription to only those acts of flag desecration

having ‘’a direct tendency to cause acts of violence,”’ as did the statute before

the Court in Chaplinsky. See Gooding v. Wilson, 40S U.S. 518, $23 (1972).

Houston v. Hill, 482 U.S. 4$1, 107 S.Ct. 2502, 2510 (1987). Rather, the

Texas statute criminalizes any act of flag desecration likely to cause one who

observes (or even later discovers) the act to take “‘serious offense."’ As writ-

ten by the Texas legislature and as construed by Texas’ highest criminal

court, § 42.09"s sweep is therefore far too broad to be adjudged constitu-

tional. See Respondent's Brief at Part 1.C.2.

Indeed, the courts have regularly extended protection to far

more provocative symbolic expression than that at issue here.

Our Constitution demands this. In Collin v. Smith, 5378 F.2d

1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978), the Court of

Appeals for the Seventh Circuit invalidated, on First Amend-

ment grounds,.an ordinance passed in Skokie, Illinois, which

would have prohibited the American Nazi Party from marching

in a predominantly Jewish neighborhood inhabited by a sub-

stantial population of Holocaust survivors. Acknowledging

that the Nazis’ march might disturb many residents to the point

of violence; the court nevertheless struck down the ordinance.

Similarly, several of this Court's early civil rights cases over-

turned convictions in which symbolic speech had been silenced

on a breach-of-peace rationale. Though these cases involved

protests of segregation in the bitterly divided, and often violent,

South of that era, this Court was not persuaded that symbolic

speech should fall prey to the mere possibility of violence, even

where that possibility had been amply demonstrated by exam-

ple. See, e.g., Taylor v. Louisiana, 370 U.S. 154 (1962) (per

curiam) (sit-in in segregated bus depot); Garner v. Louisiana,

368 U.S. 157 (1961) (sit-in at segregated lunch counter). See also

Terminiello v. Chicago, 337 U.S. | (race-baiting speech likely to

attract an “‘angry and turbulent’’ crown enjoys First Amend-

ment protection).

Given the Court's shielding of these types of highly inflam-

matory expression in the face of possibly violent, and histori-

cally proven, retaliation, there should be little doubt that

Johnson’s burning of the flag to express opposition to our gov-

ernment, while offensive to many, was nonetheless protected

speech.”

22 if Texas is truly concerned with preventing a breach of the peace

during a political rally, our constitutional order requires greater protection

against threatened disrupuon, and not simply the proscription of controver-

sial expression. See 7. Chafee, Free Speech in the United States 245 (1948),

T. Emerson, The System of Free Expression 341 (1970). Johnson's sxpressive

conduct occurred during the course of a planned, controversial demonstra-

tion held pursuant to police permit. As in Edwards v. South Carolina, 372

U_S. 229, 232-33 (1963), the city had ample opportunity to arrange for police

protection for the demonstrators and no facts suggest that the police pres-

ence was insufficient ‘‘to meet any foreseeable possibility of disorder."

CONCLUSION

For the reasons set forth above. the judgment of the lexas

7 | rr : | } , | > ; 7.

Court of Criminal Appeals should be affirme

IAMIES ( C( XODAIL I

(Counsel of Record)

JONATHAN H. HINES

JAMES B. HENLY

MARK P. GOODMAN

Debevoise & Plimpton

875 Third Avenue

New York, New York 10022

(912) YON ty)

site

‘

irre, for ile ( wrige

APPENDIX A

Description of Individual Amici

The Christic Institute is a public interest law firm and reli-

gious public policy center with a national network of 75,000

people. The Institute is dedicated to the objective of protecting

the free and unrestricted expression by citizens of their rel

gious, social and political views.

Clergy and Laity Concerned (CALC) is a national peace and

justice organization of 24,000 members that was founded by

Dr. Martin Luther King, Rabbi Abraham Joshua Heschel, Dr

William Sloan Coffin, Dr. John Bennet and Father Danie! Ber-

rigan. CALC was formed as a vehicle to organize against the

war in Vietnam.

The Committee of Interns and Residents (‘"CIR’’) is a labor

organization representing $,000 house staff officers (interns,

residents and fellows) in hospitals and health care facilities. The

members of CIR make demonstrative as well as verbal expres-

sions of their views on a variety of professional, political and

union-management matters

The Community For Creative Non-Violence ('CCNV"’) is an

unincorporated association based in the District of Columbia

that supplies food, shelter, and other assistance to homeless

persons. Formed in 1970 in response to the war in Vietnam,

CCNV has focused predominantly on poverty issues since 1976

There are $0 members of the community, many of whom were

formerly homeless. On numerous occasions CCNY has con-

ducted demonstrations to focus attention on the poor and often

uses symbolic speech, in a wide variety of forms

The Fellowship of Reconciliation (‘‘FOR'’) is an interna.

tional religious pacifist organization founded 74 years ago

FOR has 36,000 members. Throughout its history FOR has

been concerned with the issues of freedom of speech and polit)

cal persecution of citizens by their governments for the expres-

sion of political dissent

La Raza Lawyers’ Association of San Francisco is an unin-

corporated professional organization made up of Latino law

vers practicing in the City and County of San Francisco

California. The Association believes that symbolic speech is a

proper exercise of freedom under the First Amendment of the

United States Constitution

Lambda Legal Defense and Education Fund, Inc

(**Lambda"’), founded in 1973, is the nation’s oldest and largest

legal advocacy organization working in support of the rights of

lesbians and gay men. It has 10,000 active supporters. The pro-

tection of the rights to free speech and association is of utmost

importance to Lambda's work and to the community i repre-

sents. The escalation of incidents of violence against lesmans

and gay men and the AIDS epidemic have forced the gay and

lesbian community to become more vocal in its attempts to

achieve equal protection under the law. Lambda beleves «

must strive to protect its freedom of speech and association as a

means of making its members’ voices heard

The Lawyers’ Committee On Nuclear Policy ("LCNP”’),

founded in 1981, is a national, non-profit educational associa-

tion of 600 lawyers and legal scholars in 42 states and || foreign

countries concerned with legal aspects of the nuclear weapons

debate. LCNP supports the abolition of nuclear weapons

through the promotion and strengthening of law and pon-

violent mechanisms for resolving imternational disputes, and

believes that citizens have a fundamental! right and obligation to

protest against government activity that the Committee per-

ceives to be illegal.

The Nation Institute of New York City is a private, non-

profit foundation which undertakes research, educational pro-

grams and other projects concerned with civil rights and civil

liberties, particularly those protected by the First Amendment.

The National Conference of Black Lawyers (“NCBL"’) is an

activist organization of lawyers, law professors, judges, law

students and legal workers dedicated to serving as the legal arm

of the Black community. Since its founding in 1968, NCBL has

been actively involved in the continuing struggle against racial

discrimination and political repression. NCBL resolutely sup-

ports the nght of individuals and groups to freely express them-

selves in speech—whether direct or symbolic.

The National Emergency Civil Liberties Committee, having

10,000 members, is an organization which since 1951 has been

concerned with the protection of the constitutional rights of

American citizens and persons residing in the United States. Its

particular interest has been with the First Amendment. In that

connection, it has represented numerous individuals and orga-

nizations before this Court.

The National Lawyers Guild is an association of over 7,000

attorneys, law students, legal workers and jailhouse lawyers.

The Massachusetts Chapter of the National Lawyers Guild rep-

resents The National Organization and its interests in the State

of Massachusetts. The Lawyers Guild has been at the forefront

of the effort to defend and expand the constitutional protection

of First Amendment freedoms since its founding in 193°.

The National Organization For Women, Inc. (““NOW"’) is

the largest feminist organization in the United States, with a

membership in excess of 155,000 in more than 750 chapters

throughout the country working on a wide variety of women's

rights, civil rights and human rights issues. NOW’'s tactics

include not only traditional education and lobbying, but also

extensive public mobilization and visibility campaigns involving

marches, rallies, pickets and other public demonstrations of

support for NOW's issues. NOW has a great interest and expe-

rience in defending the First Amendment's protection of free

speech and political dissent.

The New York State Association of Criminal Defense Law-

vers is a statewide organization of lawyers whose principal con-

cern is the protection of the constitutional safeguards embodied

in the Bill of Rights, including the First Amendment rights of

criminal defendants and all ‘her citizens.

People For The American Way is a nonpartisan, education-

oriented citizen's organization established to promote and pro-

tect civil and constitutional rights. Founded in 1980 by a group

of religious, civic, and educational leaders devoted to the

nation’s heritage of tolerance and pluralism, People For The

American Way now has 275,000 members nationwide. The

organization's primary mission is to educate the public on the

vital importance of the democratic tradition and to defend i

against attacks from those who would seek to limit our funda-

mental freedoms, particularly our First Amendment nghts.

Toward A More Perfect Union is a national coalition of pro-

gressive organizations and individuals, including legal groups,

academics and labor unions. The coalition was formed as a uni-

fied forum to express concerns over the present constitutional

crisis and develop a broad educational campaign for a progres-

sive celebration of our country’s constitutional legacy during

‘he Bicentennial period, 1987 through 1991. The coalition is

-ommiutted to organizing widespread citizen involvement in Tec-

ognizing and acting upon the dangers facing crnvil liberties today

in the hope that such acknowledgment and action will

strengthen and enhance the Constitution and the Bill of Rights,

including the expression of symbolic speech

The United Electrical, Radio and Machine Workers or

America (““UE’*) is a national labor organization committed to

organizing workers regardless of craft, race, nationality, sex,

age, religion, political Dehet Or ummugration status and to rep-

resenting and defending ts membership m their efforts to

improve their wages, working and lving conditions. The UE

has a proud history of fightung for the rights of all of t's mem-

hers. not only in the work place Dut m the courts and legislative

arena as well

Wabun-Inini, Anishinabe (a ka Vernon Beliecourt), is a

representative of the American Indian Movement (*AIM"™),

which was formed to carry on the SQ0-vear struggle for survival

of the original and natural peoples of thus land. He supports, on

hehalf of AIM, symbolic expression that is crucial for protest to

be heara.

The War Resisters League ("WRL"*) was tounded im 1923 as

an organization committed to non-s iolence and to funding alter-

natives to war. kt has 13,Q00 mempers WRL. rejects all use of

organized violence in civil war, revolution, or in defense of the

state. and has generally supported the ideas of Mahatma Gan-

ahi and Dr. Martin Luther King, Jr

The Writers Guild of America, East, Inc. is a union of writers

in screen and television, having over 3,000 members. The Guild

helieves in the protection of free expression —even that expres-

son which challenges or threatens honored symbols

ARTICLE 250—OFFENSES AGAINST PUBLIC ORDER

(excluding vagrancy and drunkenness offenses)

A PRELIMINARY DRAFT FOR THE STATE BAR

COMMITTEE ON THE REVISION OF THE TEXAS

PENAL CODE

DRAFT 1—JULY 9, 1968

ALBERT W. ALSCHULER

Sec. 250.10. DESECRATION OF VENERATED OBJECTS.

A person commits a gross misdemeanor if he intentionally

desecrates

(a) a public monument or structure,

(b) a place of worship or burial;

(d) any other object of veneration owned by another.

Desecrate 1 eans deface, damage, pollute, or otherwise physi-

cally mistreat in a way that the actor knows may seriously

offend one or more persons likely to observe or discover his

action.

COMMENT

This section is derived from the Model Penal Code, but it is

broader in some respects and narrower in others. Unlike the

M.P.C., this draft does not require that the actor's conduct be

offensive to more than one person; it does not require that the

actor’s conduct occur in a public place; and it does not require

that an object be venerated by “‘the public or a substantial seg-

ment thereof’’ before its desecration can be punished. Thus,

although the defilement of a personal religious symbol in a pri-

vate room is not specifically condemned by the M.P.C., this

conduct would be punishable under the proposed draft.

The draft is, however, less stringent than the M.P.C. in that

it does not punish the desecration of an object owned by the

actor himself, even if the desecration occurs in public. The

practice of mutilating American flags as a form of protest has

recently attracted public and legislative attention. A case cur-

rently pending in the United States Supreme Court raises the

question whether this activity is constitutionally protected.

Regardless of the outcome of this case, the reporter considers

criminal punishment an inappropriate sanction for this obnox-

ious but essentially harmless behavior.

Flag-burning may be offensive to a large segment of the pop-

ulation. So is shouting ‘To Hell with America!"’ and **Hooray

for Mao Tse Tung!’’—both of which are plainly protected

activities. In the reporter's opinion, America has broad enough

shoulders to endure this sort of insult. Ignoring insulting behav-

ior may, in fact, be a more effective remedy than punishment

for an indignant response is probably what most flag-burners

expect and desire. Restraint may be a sign of self-confidence

not of weakness. It may be the better part of patriotism.

Although the proposed draft is narrower than the M.P.C.

the M.P.C. is narrower than current Texas law. Article 152 of

the Texas Penal Code declares that a person who ‘‘casts con-

tempt upon any flag, standard, color, or ensign of the United

States,”" whether ‘‘by word or act,’’ is punishable by ‘‘confine-

ment in the penitentiary for not less than two nor more than

twenty-five years.’’ le an apparently never-enforced provision

the Code also prohibits use of the flag for commercial per-

poses. Tex. Pen. Code Ann. art. 148 (1952), et seqg.; Tex. Civ.

Stat. Ann. art. 6139 (1962), et seq. The Civil Statutes permit

private individuals to enforce what are essentially criminal pen-

alties, and these provisions should be repealed when the revised

criminal code is enacted.

Texas’ current statutory provisions on the desecration of

graves seem unnecessarily elaborate. They specifically forbid,

for example, removing a fence that encloses a cemetery without

the owner's consent. See Tex. Pen. Code Ann. arts. 528, 528(a)

(1952). Every act punished by existing law will, however,

remain subject to sanction under the revised code—either under

this section or under the section on criminal mischief.

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.