# Amicus Curiae Brief — United States v. Haggerty > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0730%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 902 ## Text eme Court, us. 9 Sup t E OCTOBER TERM, 1989 UNITED STATES OF AMERICA, APPELLANT V. SHAWN D. EICHMAN, ET AL., APPELLEES UNITED STATES OF AMERICA, APPELLANT *. MARK J. HAGGERTY, Er AL., APPELLEES On Appeals from the United States District Court for the District of Columbia and the United States District Court for the Western District of Washington BRIEF FOR SENATOR JOSEPH R. BIDEN, IR. AS AMICUS CURIAE IN SUPPORT OF REVERSAL KENNETH S. GELLER Counsel of Record ANDREW J. PINCUS Roy T. ENGLERT, JR. Mayer, Brown & Platt 2000 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 463-2000 WILSON - Eres Printing Co., Inc. - 789-0086 - WasnineTron, D.C. 20001 BEST AVAILABLE COP} . Ann nu * — QUESTION PRESENTED Whether the First Amendment prohibits the United States from prosecuting appellees for knowingly burning a flag of the United States, in violation of 18 U.S.C. § 700, as amended by the Flag Protection Act of 1989, Pub. L. No. 101-131, § 2(a), 103 Stat. 777. (i) TABLE OF CONTENTS QUESTION PRESENTED Do INTEREST OF THE AMICUS CURIAE EE e THE FLAG PROTECTION ACT OF 1989 DOES NOT VIOLATE THE FIRST AMENDMENT... I. II. THE ACT IS VALID AS A “MANNER” CC EEE A. The Flag Protection Act Is Content Neutral. 1. Unlike prior flag statutes, the Act covers actions that permanently damage a flag, without regard to the individual’s 1 2. The Act is not content based merely be- cause it protects a ymbo ll 8. The Act cannot be deemed content based because of the motivations of individual B. The Flag Protection Act Is Narrowly Tailored To Serve A Significant Govern- mental Interest 111 C. The Flag Protection Act Allows Ample Alter- native Avenues Of Expression THIS COURT’S DECISION IN TEXAS v. JOHNSON DOES NOT REQUIRE INVALIDA- TION OF THE FLAG PROTECTION ACT. (iii) 11 11 13 16 19 23 iv TABLE OF CONTENTS—Continued Page A. This Court’s Decision In Johnson Rested On The Determination That The Texas Statute Was Not Content Neutral; The Flag Protec- tion Act, By Contrast, Js Content Neutral. 25 B. Congress’s Determinations That The Flag Protection Act Is Content Neutral And Therefore Constitutional Are Entitled To Deference ........... — —„- 28 ... —. 30 TABLE OF AUTHORITIES Cases: Block v. Meese, 793 F.2d 1303 (D.C. Cir. 1986) 14 Boos v. Barry, 485 U.S. 312 (1988) 17, 18, 26 City Council v. Taxpayers for Vincent, 466 U.S. 11 0 24 Clark v. Community for Creative Non- Violence, BP! RF a a passim Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) 8, 28 Community for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C. Cir. 1983), rev’d sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) ................ 2 — — 18, 19 Edwards v. Aguillard, 482 U.S. 578 (1987) 18 Halter v. Nebraska, 205 U.S. 34 (1907) 20 Heffron v. Int'l] Soc. for Krishna Consciousness, XIII setiiiititienteemen 24 Meese v. Keene, 481 U.S. 465 (1987) 0000000. 14 Regan v. Time, Inc., 468 U.S. 641 (1983) 11 Rost ter v. Goldberg, 453 U.S. 57 (1981) ................. 28 San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987).. 10 Schacht v. United States, 398 U.S. 58 (1970)........ 8-9 Smith v. Goguen, 415 U.S. 566 (1977 3, 9, 12, 21 Spence v. Washington, 418 U.S. 405 (19757 passim Street v. New York, 394 U.S. 576 (19699 12, 20-21 Texas v. Johnson, 109 S. Ct. 2533 (198997 passim United States v. O’Brien, 391 U.S. 367 (1968) passim * TABLE OF AUTHORITIES—Continued Page Ward v. Rock Against Racism, 109 S. Ct. 2746 —— iaiidetemerenncesneinmatnienenianil 6, 11, 18, 22 Walters v. National Ass’n of Radiation Survivors, Z inci nsssnairescetrrsetentnatinetemnanneesmenstanenns 28 Constitution and Statutes: United States Constitution: ö nn 29 „ passim Act of January 13, 1794, ch. 1, 1 Stat. a4 3 Act of April 4, 1818, ch. 34, 3 Stat. 41 3 Flag Protection Act of 1989, Pub. L. No. 101-131, D . passim Tex. Penal Code Ann. § 42.09 (b) (198999999 2 TR i, 12 — 3 r = 5-6 18 U.S.C. § 700 (a) () —— — 13 N asc icnrnesersnemeeidigmmesnmnseusersteneen 13 Miscellaneous: 135 Cong. Rec. 87457 (daily ed. June 23, 1989) ...... 16 135 Cong. Rec. H5562 (daily ed. Sept. 12, 19899) 5 135 Cong. Rec. 812620 (daily ed. Oct. 4, 19899 16 135 Cong. Rec. 812655 (daily ed. Oct. 5, 19899 5 135 Cong. Rec. H6697 (daily ed. Oct. 12, 1989) _...... 5 Hearings on Measures to Protect the Physical In- tegrity of the American Flag: Hearings on S. 1338, H.R. 2978, and S.J. Res. 180 Before the Senate Comm. on the Judiciary, 101st Cong., Ist r ae Ea eee «eee eee passim H.R. Rep. No. 350, 90th Cong., Ist Sess. (1967) 3 H.R. Rep. No. 231, 101st Cong., Ist Sess. (1989) ......passim S. Rep. No. 1287, 90th Cong., 2d Sess. (1968) .......... 3 S. Rep. No. 152, 101st Cong., Ist Sess. (1989) .......... passim Stone, Content-Neutral Restrictions, 54 U. Chi. L. KR FE SEE xxx —1Ü1 15 L. Tribe, American Constitutional Law (1978)...... 14 Iu the Supreme Cuurt of the Wuited States OCTOBER TERM, 1989 No. 89-1433 UNITED STATES OF AMERICA, APPELLANT V. SHAWN D. EICHMAN, Er AL., APPELLEES No. 89-1434 UNITED STATES OF AMERICA, APPELLANT V. MARK J. HAGGERTY, Er AL., APPELLEES On Appeals from the United States District Court for the District of Columbia and the United States District Court for the Western District of Washington BRIEF FOR SENATOR JOSEPH R. BIDEN, JR., AS AMICUS CURIAE IN SUPPORT OF REVERSAL INTEREST OF THE AMICUS CURIAE This case concerns the constitutionality of the Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777. As Chairman of the Senate Judiciary Committee, amicus curiae Senator Joseph R. Biden, Jr. played a major role in the drafting and passage of that statute. Based on the proceedings before his Committee, Senator Biden concluded that content-neutral legislation protect- ing the integrity of the American flag would serve an important governmental purpose and would not be in- valid under the First Amendment. Senator Biden thus 2 has a strong interest in presenting his views to the Court in defense of the constitutionality of the Act. STATEMENT 1. On June 21, 1989, this Court, by a vote of 5-4, held unconstitutional a Texas statute that prohibited any per- son from intentionally or knowingly defacing, damag- ing, or otherwise physically mistreating a state or na- tional flag “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” Tex. Penal Code Ann. § 42.09(b) (1989). Texas v. Johnson, 109 S. Ct. 2533 (1989). Writing for the majority, Justice Brennan stated that, [if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Jd. at 2544. The Texas stat- ute violated this principle because it was “not aimed at protecting the physical integrity of the flag in all cir- cumstances, but [was] designed instead to protect it only against impairments that would cause serious offense to others.” Id. at 2543. Thus, [whether Johnson’s treat- ment of the flag violated Texas law * * * depended on the likely communicative impact of his expressive con- duct.” Ibid. In sum, “Johnson’s political expression was restricted because of the content of the message he con- veyed.” Ibid. In striking down the Texas law, the Court emphasized that its decision was “bounded by the particular facts of this case and by the statute under which Johnson was convicted.” Johnson, 109 S. Ct. at 2544 n.8. Specifically, the Court did not dispute that “there is a special place reserved for the flag in this Nation, and thus we do not doubt that the Government has a legitimate interest in making efforts to preservſe] the national flag as an un- alloyed symbol of our country.’” Id. at 2547 (quoting Spence v. Washington, 418 U.S. 405, 412 (1974)). Nor did the Court suggest that a statute would be invalid if it were “aimed at protecting the physical integrity of the flag in all circumstances.” Id. at 2543 & n.6 (citing Smith v. Goguen, 415 U.S. 566, 590-591 (1974) (Black- mun, J., dissenting)). But tlo say that the Govern- ment has an interest in encouraging proper treatment of the flag * * * is not to say that it may criminally punish a person for burning a flag as a means of political pro- test.” Johnson, 109 S. Ct. at 2547. 2. For nearly 200 years, Congress has passed laws re- lating to the design, treatment, and integrity of the American flag. See, e.g., Act of January 13, 1794, ch. 1, 1 Stat. 341; Act of April 4, 1818, ch. 34, 3 Stat. 415. In 1968, concerned that federal law, unlike the laws of most states, did not prohibit the physical destruction of the flag, Congress adopted a flag protection law. The federal statute made it a crime “knowingly [to] cast! ] contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.” 18 U.S.C. §700(a) (1982). The Senate Re- port urged passage of this legislation on the ground that “(p]ublic burning, destruction, and dishonor of the na- tional emblem inflicts an injury on the entire Nation. Its prohibition imposes no substantial burden on any- one.” S. Rep. No. 1287, 90th Cong., 2d Sess. 2 (1968) ; see also H.R. Rep. No. 350, 90th Cong., Ist Sess. 1 (1967). This Court’s decision in Johnson called into question the constitutionality of the federal flag protection stat- ute. Accordingly, within days of the decision, numerous proposals were introduced in the Senate and House of Representatives either to amend the federal statute or to amend the Constitution. See S. Rep. No. 152, 101st Cong., Ist Sess. 6 (1989); H.R. Rep. No. 231, 101st Cong., Ist Sess. 2 (1989). During the next several months, the Senate Judiciary Committee received extensive testimony with respect to the appropriate means of protecting the integrity of the American flag. See Hearings on Measures to Protect the Physical Integrity of the American Flag: Hearings on S. 1338, H.R. 2978, and S.J. Res. 180 Before the Senate 4 Comm. on the Judiciary, 101st Cong., Ist Sess. (1999) {hereinafter Senate Hearings}. The Committee heard “testimony from a broad range of constitutional scholars, constitutional historians, representatives of veterans’ groups and individual veterans, as well as from” Mem- bers of Congress and from the Department of Justice. S. Rep. No. 152, supra, at 6. These witnesses convinced the Committee that, as Dean Geoffrey R. Stone remarked, “(t]he Court did not hold [in Johnson] that there is an inviolable First Amendment right to burn the American flag” (Senate Hearings 192) and that it was possible to draft a flag protection statuie that would satisfy consti- tutional standards. The Senate Report explained that “the existing Fed- eral statute, 18 U.S.C. 700, does not make it a crime to burn or destroy the flag. Rather, the current law makes it a crime for anyone to ‘knowingly cast] contempt’ upon a flag of the United States by ‘publicly mutilating, defacing, defiling, burning or trampling upon’ it.” S. Rep. No. 152, supra, at 9. Therefore, “the fatal flaw in the Texas statute as well as in the existing Federal stat- ute is that the commission of the crime is inextricably linked to the communication of an idea. Under Texas law, the gravamen of the violation was ‘serious offense;’ under current Federal law, the gravamen of the viola- tion is ‘cast{ing] contempt.’ Both laws are content-based, both would be subject to ‘the most exacting scrutiny’ by the Court and both conflict with the first amendment.” Id. at 9-10. S. 1338, the Senate bill, sought to remedy this defect by deleting the requirements in Section 700 that the ac- tor have “cast contempt upon” the flag or have acted “publicly.” As the Senate Report noted: Prosecution under the amended law would not in any way depend on the reaction of observers to the conduct. Put simply, commission of the crime would not be linked to the communication of any idea— indeed, the statute would apply regardless of whether the actor intends to communicate an idea. Operation of S. 1338, therefore, does not depend on whether a flag is being burned or otherwise de- stroyed for communicative or non-communicative purposes, or upon whether any particular person or persons might applaud or oppose the actor’s conduct. S. Rep. No. 152, supra, at 10 (quoting Texas v. Johnson, 109 S. Ct. at 2543). The House bill, H.R. 2978, differed from the Senate bill only in minor respects. Like S. 1338, the House bill was intended to respond] to the Supreme Court deci- sion in Texas v. Johnson by amending the current Fed- eral flag statute to make it content-neutral: that is, the amended statute focuses exclusively on the conduct of the actor, irrespective of any expressive message he or she might be intending to convey.” H.R. Rep. No. 231, supra, at 2. By delet ing] the language ‘casts con- tempt upon’ and the words ‘publicly’ and ‘defiling,’” H.R. 2978 was designed to amend Section 700 “to pro- tect the physical integrity of American flags in all cir- cumstances, regardless of the motive or political message of any flag burner.” Id. at 8. Thus, “any conduct re- sulting in physical harm or damage to the flag, regard- less of the actor’s intent, is prohibited.” Ibid. On September 12, 1989, the House passed H.R. 2978 by a vote of 380 to 38. See 135 Cong. Rec. H5562 (daily ed. Sept. 12, 1989). The Senate thereupon proceeded to consider the House bill, as opposed to S. 1338, and passed it by a vote of 91 to 9, after adding two amendments. See 135 Cong. Rec. 812655 (daily ed. Oct. 5, 1989). The amended bill was then returned to the House, where it again received overwhelming approval, by a vote of 371 to 43. See 135 Cong. Rec. H6697 (daily ed. Oct. 12, 1989). H.R. 2978 became law on October 28, 1989, as the Flag Protection Act of 1989, Pub. L. 101-131, 103 Stat. 777. Section 700(a) of Title 18, United States Code, now provides: (a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title and imprisoned for not more than one year, or both. (2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has be- come worn or soiled. SUMMARY OF ARGUMENT I. Appellees’ conduct in burning flags was expressive, but that fact only begins the analysis. Incidental regu- lation of expressive conduct generally is permissible if the government forbids the conduct without drawing dis- tinctions on the basis of the message conveyed. The Flag Protection Act of 1989 does just that. Even if we as- sume, however, that the Act directly regulates expres- sion, it still should be upheld as long as it is a proper “time, place, or manner” restriction within the meaning of this Court’s cases. Thus, the Act must be content neu- tral, must further a substantial governmental interest, and must leave open alternative channels of communica- tion. Ward v. Rock Against Racism, 109 S. Ct. 2746, 2753 (1989). The Act is content neutral. It differs from statutes whose application this Court has previously struck down, in that it punishes only permanent disfigurements of the flag, and does so without regard to the accompanying words or motives, any attitude of “contempt,” or any inquiry into the offensiveness of the defendant’s actions. The statute proscribes specified conduct, which may be respectful or contemptuous, and it fails to reach other specified conduct, even when that conduct is intended to communicate disrespect. That is content neutrality. The contrary holdings of the district courts are based on the erroneous notion that a law is not content neutral whenever it protects symbolic values. But content neu- trality depends on whether the government restricts com- munication based on its content, not on whether the gov- ernment itself wishes to communicate a message. Like- wise, there is no merit whatever to the assertions below that a law can be deemed content based solely because of 7 the motivations of individual legislators. It is the scope of a statute, not statements in the debates leading to its passage, that demonstrates the intent of the legislature to forbid conduct without regard to the message con- veyed by that conduct. This Court squarely so held in United States v. O’Brien, 391 U.S. 367, 382-384 (1968). The Act also is narrowly tailored to serve a significant governmental interest. One need look no further than this Court’s cases in order to conclude that the govern- ment’s interest in protecting the flag, as a symbol of everything that America stands for, is and always has been deemed legitimate and quite substantial. Indeed, the Court reiterated in Texas v. Johnson that “the Gov- ernment he a legitimate interest in making efforts to preservle e national flag as an unalloyed symbol of our coun 109 S. Ct. 2533, 2547 (1989) (quoting Spence v. . ashington, 418 U.S. 405, 412 (1974)). Finally, the Act unquestionably leaves open ample al- ternative methods for would-be flag burners to convey their messages. It does not prohibit any form of verbal expression, it does not prohibit even the burning of a wide variety of symbols of the United States, and it does not prohibit any conduct, no matter how disrespectful or contemptuous, with respect to worn-out or outmoded flags. II. Nothing in this Court’s decision in Texas v. John- son requires a different result. The statute at issue in that case applied only against actions that gave “offense” to others, and Johnson was punished directly for “the message he conveyed.” 109 S. Ct. at 2543. The Flag Protection Act of 1989, by contrast, is content neutral and is “aimed at protecting ‘he physical integrity of the flag in all circumstances” (ibid.), “regardless of the mo- tive or political message of any flag burner.” H.R. Rep. No. 231, 101st Cong., Ist Sess. 8 (1989). That is no accident. Congress carefully considered—and followed— the advice of eminent constitutional scholars in crafting the Act to comport with Johnson and this Court’s prior cases. Congress’s carefully deliberated conclusion that this statute is constitutional has additional significance. This Court has often recognized that special respect is owed to the considered interpretation of the Constitution by a coordinate branch. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973). The explicit congressional determination that this is—and is intended to be—a content-neutral statute is one that a court should not lightly second-guess. Like- wise, the deference owed to Congress is at its zenith when Congress makes the inherently legislative judgment that a particular governmental interest is strong. Here, Congress—by overwhelming majorities—has determined that the Nation has a powerful interest in protecting the physical integrity of the American flag, and this Court should not substitute a contrary conclusion. ARGUMENT THE FLAG PROTECTION ACT OF 1989 DOES NOT VIOLATE THE FIRST AMENDMENT Appellees burned flags in order to express political messages. It follows that this case raises a First Amend- ment issue. But it is equally obvious, both from first principles and from this Court’s cases, that not all con- duct intended to convey political messages is protected by the First Amendment, or even subjected to exacting scrutiny. Vandalism, terrorism, or public nudity can be very effective ways of expressing political messages, but they nonetheless may be prohibited despite the fact that such criminal statutes may have an incidental effect on freedom of speech. Thus, this Court has upheld a law banning the burning of draft cards, even though the conduct so proscribed in the case that came before this Court was unquestionably expressive. United States v. O’Brien, 391 U.S. 367 (1968). This Court also has sug- gested that a content-neutral ban on the unauthorized wearing of military uniforms would be constitutional, even though such a prohibition would reach expressive conduct. Schacht v. United States, 398 U.S. 58, 61 (1970). Moreover, the Court repeatedly has upheld even direct regulations of expressive conduct when those reg- ulations do not depend on the message conveyed by the conduct but instead govern only its permitted time, place, or manner. See, e. g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (over- night sleeping in connection with a demonstration is ex- pressive but nevertheless can be proscribed). The Flag Protection Act of 1989 can be upheld under either of those two lines of authority. I. THE ACT IS VALID AS A “MANNER” RESTRICTION In Texas v. Johnson, 109 S. Ct. 2533 (1989), this Court invalidated under the First Amendment a state statute regulating flag burning for expressive purposes. At the same time, however, the Court intimated that a statute “aimed at protecting the physical integrity of the flag in all circumstances” would be constitutional. /d. at 2543 (citing Smith v. Goguen, 415 U.S. 566, 590-591 (1974) (Blackmun, J., dissenting)). The key distine- tion between the two statutes is that the latter regulates conduct without regard to the message that it may or may not convey, and any restrictions on expression are merely an incident of that regulation. See generally O’Brien, 391 U.S. at 376-377, 381-382. Like the statute upheld in O’Brien, the Flag Protec- tion Act of 1989 regulates conduct in an evenhanded and content-neutral way. It defines with precision the actions that will not be permitted, and it makes irrelevant the message that may be conveyed or perceived. Further- more, the Act plainly protects governmental interests that are “unrelated to the suppression of free expres- sion.” O’Brien, 391 U.S. at 377. The Act may sweep within its terms some expressive conduct—as well as ve conduct—but that was true in O’Brien as well, and does not call for heightened scrutiny.’ 1 Thus, Judge Rothstein was quite wrong to apply heightened scrutiny just because the Flag Protection Act can be said to be “related to expression.” There is no substantive significance to the Therefore, on the generous assumption that the Flag Protection Act should be viewed as a statute regulating expression, it is appropriate to analyze the constitution- ality of the Act under this Court’s “time, place, or man- ner” restriction cases. Cf. San Francisco Arts & Athle- tics, Inc. v. United States Olympic Committee, 483 U.S. 522, 536 (1987) (“Section 110 [limiting use of the word fact that “[t)he Johnson [opinion] itself uses the phrases ‘related to expression’ and ‘related to the suppression of expression’ inter- changeably” (89-1434 J.S. App. lla). The Court in Johnson plainly used the phrase “related to expression” merely as shorthand for the standard phrase “related to the suppression of expression,” which has been used at least since O’Brien, 391 U.S. at 377, to distinguish 544, 567 (testimony of Prof. Walter Dellinger). 11 restrictions on the permissible color and size of reproduc- tions of currency upheld in Regan v. Time, Inc., 468 U.S. 641 (1984), the Act’s restrictions on damaging the flag do not require “the Government * * * to evaluate the nature of the message being imparted in order to en- force” them. Id. at 656 (plurality opinion). They regu- late not the content but the manner of conveying the message. On many occasions, most recently in Ward v. Rock Against Racism, 109 S. Ct. 2746 (1989), this Court has set forth a three-part test for the validity of time, place, or manner restrictions. The restrictions must be content neutral, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alterna- tive channels for communication of the information. 109 S. Ct. at 2753; see also Regan v. Time, Inc., 468 U.S. at 648 (opinion of the Court). The Flag Protection Act meets each of those three criteria. A. The Flag Protection Act Is Content Neutral. 1. Unlike prior flag statutes, the Act covers actions that permanently damage a flag, without regard to the individual’s message. The Flag Protection Act of 1989 is, on its face, even- handed. The courts below acknowledged as much. 89- 1434 J.S. App. 10a (“the Act on its face is applicable to anyone who engages in certain conduct regardless of the actor’s intent or the impact of the conduct’); 89-1433 J.S. App. 13a (“on the face of the statute the same rules apply to everyone”).* The Act thus differs from any flag 2It simply is not true, as Judge Green went on to assert, that “(t]he application of the Flag Protection Act turns on whether the speaker seeks to show disrespect for the flag” (89-1433 J.S. App. 14a n.8). Nor is it true that, “in protecting the flag for those who wish to waive [sic] it in support of [symbolic] causes, but preventing the defendants from burning it in opposition, the government has created a regulation which cannot be justified without reference to the content of the defendants’ message” (id. at 14a). The Act pro- hibits specified conduct—such as burning the flag—without regard to the intention of the so-called “speaker,” and it fails to reach other 12 protection statute that has ever before been passed by Congress or considered by this Court. Unlike the 1968 federal flag protection statute, 18 U.S.C. § 700 (1982), the Act does not contain any pro- vision punishing the act of casting] contempt” on the flag. Unlike the Texas statute at issue in Johnson, the Act does not limit its prohibitions to acts that “seriously offend one or more persons.” Unlike the state statute at issue in Spence v. Washington, 418 U.S. 405 (1974), the Act does not reach any conduct that does not “per- manently disfigure the flag or destroy it” (id. at 415). Unlike the Massachusetts statute at issue in Smith v. Goguen, 415 U.S. 566 (1974), the Act does not punish anyone merely for treating the flag “contemptuously.” And unlike the state statute at issue in Street v. New York, 394 U.S. 576 (1969), the Act does not in any way reach verbal flag contempt. These are not idle distinctions. The Court in each of its flag cases was careful to emphasize that its analysis would not control a case in which the particular defect noted above was lacking. See Johnson, 109 S. Ct. at 2543; Spence, 418 U.S. at 415; Smith v. Goquen, 415 U.S. at 581-582 (“Certainly nothing prevents a legisla- ture from defining with substantial specificity what con- stitutes forbidden treatment of United States flags.’’) ; Street, 394 U.S. at 594 (“we have no occasion to pass upon the validity of this conviction insofar as it was sus- tained by the state courts on the basis that Street could be punished for his burning of the flag, even though the burning was an act of protest”). Thus, as Professor Laurence H. Tribe testified before the Senate Judiciary Committee after analyzing each of those cases, “/n]ot one {|J]ustice has ever expressed doubt about” the propo- sition “that the goal of protecting the physical integrity of flags * * * is attainable under the Constitution as it specified conduct—such as waving the flag—equally without regard to message. The person who waves his flag while shouting epithets at it cannot be prosecuted, and the person who burns his flag with the utmost respect can be. 13 . now stands.” Senate Hearings 142; see also id. at 537 (statement of Prof. Walter Dellinger). The Flag Protection Act is an attempt to meet this Court’s concerns in attaining the goal of protecting the physical integrity of flags under the Constitution as it now stands. The Act plainly proscribes the respectful as well as the contemptuous burning of any unsoiled flag (18 U.S.C. § 700 (a) (1)), and it plainly fails to reach the contemptuous as well as the respectful disposition of any worn or soiled flag (18 U.S.C. § 700(a)(2)). The Act was intended to prohibit specific conduct that is de- signed permanently to damage an American flag, with- out regard to the actor’s motive, the message he intends to convey, or the effects that his actions have on others. See pages 4-5, supra; Senate Hearings 183-184, 194-195 (statement of Dean Geoffrey R. Stone). That is content neutrality.’ 2. The Act is not content based merely because it protects a symbol. Both courts below determined that, despite its facial evenhandedness, the Flag Protection Act is not content neutral. 89-1433 J.S. App. 12a-14a; 89-1434 J.S. App. 9a-lla. According to the two district courts, any legisla- tion that protects the flag “as a symbol” is not content neutral, whatever its scope. That reasoning reflects a fundamental misunderstanding of this Court’s cases. Whether a law is content neutral depends entirely on whether the expression that it restricts receives differen- Judge Rothstein “quickly dismissed” the argument, that, because it protects the physical integrity of the flag in all circumstances, the Flag Protection Act is content neutral. 89-1434 J.S. App. lla- 12a n.6. She pointed out that flying the flag in inclement weat er and carrying it into battle are not prohibited. If those actions re not prohibited, however, it is simply because one who flies flag in inclement weather or carries it into battle has not “knowingly” acted to harm the flag. In order to protect the physical integrity of the flag in all circumstances, Congress has required that no one knowingly destroy that physical integrity. No First Amendment doctrine requires Congress to go further and insist thet no one even expose the flag to situations that might threaten it. 14 tial treatment on the basis of its content; it does not de- pend in any way on the fact that the government is it- self expressing views. Government-enforced orthodoxy is anathema to our constitutional system, but so is the idea that the government must itself be a philosophical cipher, standing for absolutely nothing. It is the essence of democratic governance, not a suspicious activity, for the people’s elected representatives to decide what is and what is not deserving of legal protection. Thus, as Justice (then Judge) Scalia pointed out four years ago, “the guarantee of freedom of speech ‘does not mean that government must be ideologically neutral,“ or ‘silence government’s affirmation of national values,’ or prevent government from add ing] its own voice to the many that it must tolerate.’” Block v. Meese, 793 F.2d 1303, 1314 (D.C. Cir. 1986) (quoting L. Tribe, American Constitutional Law §12-4, at 588, 590 (1978)).* A law prohibiting anyone from harming a bald eagle could be justified in large part by the govern- ment’s recognition of the value of that bird “as a sym- bol,” but nothing in this Court’s cases suggests the bizarre conclusion that such a law is content based. As Professor Tribe commented in testimony before the Sen- ate Judiciary Committee (Senate Hearings 151-152): We ban the desecration of gravesites * * * pri- marily because most people think of such conduct as deeply offensive in itself, regardless of whether any particular act of grave desecration is meant to con- vey an offensive message, or is so interpreted by a particular observer. And the fact that we enact such a prohibition largely out of concern for what a grave symbolizes or represents does not transform the pro- hibition into one secretly based on the desire to sup- press a message. * * * The principle I have in mind is the same as the one which justifies especially harsh punishment for those who deface places of religious worship as op- 4 This Court agreed with the First Amendment holding of Block in Meese v. Keene, 481 U.S. 465 (1987). 15 posed to places of business. Places of worship * * * are, of course, inherently expressive of religious values, and are cherished in large part because they express those values. But it simply does not follow that the decision to give such places special protec- tion * * * represents a desire to suppress, censor, or penalize whatever anti-religious message someone who defaces a church or synagogue might want to convey. If the government enacts an evenhanded statute protect- ing bald eagles, or gravesites, or places of religious wor- ship, or American flags, that statute is not and cannot be ipso facto content based. For these reasons, there is no merit to the self- referential theory that any law protecting a symbolic ob- ject fails the content-neutrality test because it only limits the expression of those who wish to advance an idea op- posite to the one represented by the protected object. No decision of this Court supports such a radical theory.“ But even if the theory had validity in some circumstances, it would not apply to the flag, which does not represent 5 To say that a law protecting a symbol is content based because it affects only those who oppose the symbol’s underlying message would be to say, in essence, that content neutrality depends not only on the evenhandedness with which a law treats all persons but also on the uniformity of its impact on everyone. But no holding of this Court supports the application of such a disparate impact theory. See Johnson, 109 S. Ct. at 2557 n.* (Stevens, J., dissenting). There was no need for the Court to adopt such a theory in Johnson, because the Texas statute on its face discriminated between those who offended others and those who did not. The adoption of a disparate impact theory of free speech analysis would revolutionize First Amendment doctrine. For example, it would have required a differ- ent result in Clark v. CCNV, supra, where the ban on sleeping in Lafayette Park surely impeded those who wished to communicate about the plight of the homeless more than it impeded any other “speakers,” and in O’Brien, where he impact of the ban on burning draft cards was felt primarily if not exclusively by antiwar pro- testors. These and other severe problems with the application of disparate impact analysis in the First Amendment context are thoroughly addressed in Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 81-86 (1987). 16 any single idea or value. “(T]he flag is worthy of pro- tection not because it represents any one idea, but because it represents many ideas. As the testimony of every wit- ness demonstrated, the flag represents different things to different people.” S. Rep. No. 152, supra, at 3. See also Johnson, 109 S. Ct. at 2552 (Rehnquist, C. J., dissenting) (The flag “does not represent any particular political philosophy * * * [and] is not simply another ‘idea’ or ‘point of view’ competing for recognition in the market- place of ideas.”). The fact that the Flag Protection Act preserves the physica! integrity of that multifaceted sym- bol cannot render it content based. 3. The Act cannot be deemed content based because of the motivations of individual legislators. Nor is a law content based just because some legisla- tors were motivated more by a desire to reach conduct conveying one particular message than conduct convey- ing a different message. What matters is whether the legislature discriminated on the basis of content in deter- mining the conduct that it would proscribe, not whether legislators were more enthusiastic about prohibiting some conduct than about prohibiting other conduct.* Many of the proponents of a constitutional amendment to over- turn this Court’s decision in Johnson argued that distinctions should be drawn between protestors like Gregory Johnson and others whose treatment of the flag indicated respect. Accordingly, appellees will have no trouble in trotting out statements from the legislative history that can be misused to ascribe an impermissible motivation to Congress. As we discuss in text, however, that is not a proper way to determine whether a statute is content neutral. Moreover, those sentiments were expressed in support of an ap- proach that Congress as a whole rejected in favor of an approach that scrupulously avoids content-based distinctions. See generally H.R. Rep. No. 231, supra, at 2; S. Rep. No. 152, supra, at 10; 135 Cong. Rec. 87457 (daily ed. June 23, 1989) (remarks of Sen. Biden); id. at 812620 (daily ed. Oct. 4, 1989) (remarks of Sen. Biden). Thus, although we do not think that the legislative history has a proper role to play in this Court’s determination whether the Act is content neutral, a properly focused inquiry into the legislative history would in any event confirm the content- neutral nature of the statute. 17 In particular, nothing could possibly be more incorrect than Judge Rothstein’s statement (89-1434 J.S. App. 10a), echoed by Judge Green (89-1433 J. S. App. 13a), that “it is the reason for the legislation and not its scope which determines content-neutrality.” The flaw in that statement is not that the “reason” for legislation is irrele- vant, but that the only proper way to determine the rea- son for any legislation is to look at its scope. Here, the scope of the legislation is to reach certain well-defined actions directed against the Jag and to exempt others, and the only reliable evidence of Congress’s—as opposed to any individual legislator’s—“reason” for enacting the statute is the text of the statute, which shows what ac- tions Congress was willing (however enthusiastic or un- enthusiastic particular ‘legislators may have been) to in- terdict. In this case, Congress’s approach is entirely in keeping with Justice Brennan’s statement that “the best protection against governmental attempts to squelch op- position has never lain in our ability to assess the purity of legislative motive but rather in the requirement that the government act through content-neutral means that restrict expression the government favors as well as ex- pression it disfavors.” Boos v. Barry, 485 U.S. 312, 336- 337 (1988) (opinion concurring in part and concurring in the judgment). One need not read tea leaves from this Court’s opinion in Johnson, as the courts below did, in order to determine whether it is a law’s “scope,” or its “reason” as shown by legislative history, that determines content neutrality. For the Court has addressed that question directly, in a passage fully applicable to this case: O’Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the “purpose” of Congress was “to suppress freedom of speech.” We reject this argument because under settled principles the purpose of Congress, as O’Brien uses that term, is not a basis for declaring this legislation unconstitutional. It is a familiar principle of constitutional law that this Court will not strike down an otherwise con- legislator made a “wiser” speech about it. O’Brien, 391 U.S. at 382-384 (footnote omitted); accord Edwards v. Aguillard, 482 U.S. 578, 636-639 (1987) (Sealia, J., dissenting) . It is certainly true that this Court on occasion has spoken in terms of legislative “purpose” or “justifica- tion” in describing the cortent-neutrality test. See, e. g., Ward, 109 S. Ct. at 2754; Boos, 485 U.S. at 319-321 (plurality opinion); see also Community for Creative Non-Violence v. Watt, 703 F.2d 586, 622-623 (D.C. Cir. 1983) (Sealia, J., dissenting), rev'd sub nem. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), quoted in Johnson, 109 S. Ct. at 2540. But the Court has never used that term as an excuse to invoke legislative history in order to strike down facially neutral lexislation. See Senate Hearings 163 (testimony of Prof. Tribe). When the Court has invalidated legislation on the basis of its content-based “purpose,” the suspect “purpose” has been evident either from the statute itself (e. g., Boos, 485 U.S. at 318-319 (plurality opinion) (“[w]hether individ- uals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign gover iment or from the government’s com- plete inability to offer any reason for the prohibition other than banning the expression of particular points of view associated with the forbidden conduct (see generally CCNV v. Watt, 703 F.2d at 624-625 (Scalia, J., dissent- to expression intended as a show of respect. In sum, nothing that was said in the opinions below comes close to refuting the obvious fact that the Act is content neutral. One may perhaps question how much weight should be accorded the government’s interest in absolutely nothing to do with whether Congress has drawn content-based distinc- tions. Likewise, the legislative history is no basis for im- puting expression-prohibiting purpose to a pure conduct- regulating statute that has non-expression-related justifi- cations. This step of the district courts’ analysis is in- supportable. B. The Flag Protection Act Is Narrowly Tailored To Serve A Significant Governmental Interest. Notwithstanding the effort by the courts below to pigeonhole the Flag Protection Act with “content-based” laws that restrict expression directly, the true thrust of the district courts’ opinions is that the government’s in- terest in preserving the flag, as a symbol of all that this Nation stands for, is either illegitimate altogether or so very weak as to be outweighed by the positive social value of the forbidden conduct. That is the only coherent ex- planation for striking down a statute not on the the basis 7 Thus, as Justice (then Judge) Scalia concluded, the relevant distinction is between “conduct-prohibiting” laws and “expression- prohibiting laws.” 703 F.2d at 626. The distinction depends on the laws and not on the motivation of the legislators. = of what it forbids, but on the basis of what the govern- ment is trying to accomplish. But that low estimation of the government’s interest in preserving the symbolic value of the flag is hardly compelled by this Court’s cases; in fact, this Court’s cases squarely contradict that view. Halter v. Nebraska, 205 U.S. 34 1907), may be ex- plainable as a case resting on the “commercial speech” doctrine (see Johnson, 109 8. Ct. at 2545 n.10), but that does not make its pronouncements about the flag any less worthy of respect in a different context. Speaking through the first Justice Harlan, the Court wrote: It is not * * * remarkable that the American people, acting through the legislative branch of the Govern- ment, early in their history, prescribed a flag as symbolical of the existence and sovereignty of the esti people as well as to defeat the object of maintaining it as an emblem of National power and National honor. 205 U.S. at 41-42. The Halter Court, it is true, had no occasion to pass on the status of a general flag protection law under the First Amendment, but there is no doubt what the Members of the Court would ha the argument that the United States had only an illegiti- symbolic power. In Street, the Court, speaking through the second Jus- tice Harlan, wrote that “disrespect for our flag is to be deplored no less in these vexed times than in calmer pe- 4 un. 30-31. And in Spence, the Court “assume(d], mate interest “based on the uniquely universal character of the national flag as a symbol” (id. at 413). In each of these cases, of course, a strong dissent—joined by one or more of Chief Justice Warren, Chief Justice Burger, (now) Chief Justice Rehnquist, Justice Black, Justice White, Justice Fortas, or Justice Blackmun—suggested that the majority did not go far enough in protecting the flag’s unique symbolic value. Most important, the argument that the courts below accepted on the basis of Texas v. Johnson is in fact fore- closed by Johnson. The Court in that case wrote: try.” We reject the suggestion, urged at oral argu- ment by counsel for Johnson, that the Government lacks “any state interest whatsoever” in regulating the manner in which the flag may be displayed. 109 S. Ct. at 2547 (citation omitted). Thus, it is irrefutable that this Court has consistently recognized as legitimate the government’s interest in pro- teet in the flag as a symbol. That being so, there is no possible basis to deem that interest so weak as to be out- weighed by the relatively minor First Amendment inter- est in expressing oneself through the particular manner 11525 : 12221 15 f 411715 11 1174215 a lid i ag) grey ert 2 ö f 1 : 1. 2 H ell E 4 2 +E * 14322 423 “i 10 1 +h He 12155 Hie AH HEHEHE 23 & 11 i} + Hil i 110 f 1 45 % ie 11 i: eet H ff Hh i ik 22 He 11 1 i : 1111 I | LEAR ae a ! le 7 10 l 11101 . 1 l 1 6% 1 115 fie i. 125 10 114111 22 0% fille! 10 1 % it Hah Heli 0 Hie 1 it 15 irt i bla 25 at issue here. Far from being silenced, appellees were free to dramatize their points of view in many ways, or to speak their minds in eloquent or crude terms, as they chose. What they were not free to do, but chose to do anyway, was to defy the statute that tries in an even- handed way to preserve the flag for everyone. The uniquely American values that the flag symbolizes—and the Constitution enshrines—do not just protect the lonely protestor against an intolerant public that will brook no debate; they also protect the lonely flag against an in- tolerant protestor who will accept no method of debate but his own destructive one. II. THIS COURT’S DECISION IN TEXAS v. JOHNSON DOES NOT REQUIRE INVALIDATION OF THE FLAG PROTECTION ACT The district courts invalidated the Flag Protection Act of 1989 in the apparent belief that the constitutionality of the federal statute is governed by this Court’s deci- sion in Texas v. Johnson. But the Court’s analysis in Johnson was limited by its clear terms to content-based flag desecration statutes. Indeed, Congress concluded— based on a careful review of the relevant constitutional principles—that the Flag Protection Act is materially dis- tinguishable from the Texas law before the Court in Johnson, because it is (and is intended to be) content neutral, and that the federal statute would pass muster under the First Amendment. That considered constitu- tional judgment of a coequal branch of the federal gov- ernment also distinguishes this case from Johnson and weighs in favor of upholding the federal statute. A. This Court’s Decision In Johnson Rested On The Determination That The Texas Statute Was Not Content Neutral; The Flag Protection Act, By Contrast, Js Content Neutral. The Texas statute before the Court in Johnson made it a crime to “desecrate[]” the flag; that term was de- fined as “deface, damage, or otherwise physically mis- treat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his ac- tion.” 109 S. Ct. at 2537 n.1. The Court held that, be cause the statute applied “only against impairments [of the flag’s physical integrity] that would cause serious offense to others,” it was content based: Texas law re- stricted Johnson’s speech on the basis of “the message he conveyed.” Id. at 2543. The conclusion that the Texas statute was not content neutral dictated the remainder of the Court’s analysis. The Court subjected the state interests advanced in sup- port of the statute to “ ‘the most exacting scrutiny,’” an extremely strict standard reserved for content-based re- strictions on speech. Johnson, 109 S. Ct. at 2543 (quoting Boos, 485 U.S. at 321). And, as is typically the case when a statute is examined under that stringent stand- ard, the state interests underlying the statute were found insufficiently weighty to justify the content-based restric- tion. 109 S. Ct. at 2544-2548. It is apparent that the Court’s analysis in Johnson does not apply in the present case because the Flag Protection Act is content neutral. Instead of the strict First Amend- ment standard applicable to content-based limitations on speech applied in Johnson, the constitutionality of this evenhanded federal statute turns on a considerably less demanding standard. A content-neutral time, place, or manner restriction will be upheld against First Amend- ment challenge if the restriction is narrowly tailored to serve a significant governmental interest and leaves open adequate alternative means of expression. As we have shown above, the Act plainly satisfies that test. Indeed, the Court in Johnson expressly recognized that its analysis would not apply to a statute like the Flag Protection Act. The Court supported its conclusion that the Texas statute was content based by contrasting that law with a (then) hypothetical statute “aimed at pro- tecting the physical integrity of the flag in all eireum- stances.” 109 S. Ct. at 2543. The clear implication of the Court’s comparison is that a statute applicable “in 27 all circumstances” would be subject to less stringent con- stitutional analysis. Of course, it is not mere happenstance that the Flag Protection Act does not contain the constitutional defect identified by the Court in Johnson. Congress expressly set out to amend the federal statute prohibiting destruc- tion of the flag to eliminate the constitutional flaws iden- tified in Johnson. Distinguished constitutional scholars testified that the principal defect in the Texas statute was that its applicability turned on the content of the expressive message that Johnson sought to convey. As Dean Stone observed in his testimony before the Senate Judiciary Committee, ul nlike the Texas law invalidated in Johnson, the proposed legislation is not content based, it is not directly related to the suppression of free ex- pression, and its constitutionality is thus not controlled by the principles that dictated the outcome in Johnson.” Senate Hearings 184; see also id. at 527 (Prof. Gordon B. Baldwin and Brady C. Williamson) (the “greatest flaw fin the Texas statute] was that it punished the ex- pression not of any point of view but the expression of only one point of view, defined as ‘offensive’ by the be- holder. It was not content-neutral”); id. at 542-543 (Prof. Dellinger) ; id. at 723 (Prof. Henry Monaghan). Moreover, after considering this testimony, Congress itself concluded that “the decision in Johnson was ex- pressly predicated on the determination that Texas law was triggered by the offensiveness of the ac s con- duct.” 8. Rep. No. 152, supra, at 8. [The problem with the Texas statute was that it * * was not content-neutral.’” Ibid. (citation omitted); see also id. at 12. As the House Judiciary Committee put it, [in all of [this Court’s opinions in cases involving flag dese- eration], the Court indicated that it would look differ- ently on a content-neutral statute that would protect the physical integrity of the flag in all circumstances, one that focused solely on conduct and did not turn on the message being conveyed by the flag burner.” H.R. Rep. No. 231, supra, at 7-8. Congress thus adopted the very statute that the Court itself excluded from its holding in Johnson—a law “aimed at protecting the physical integrity of the flag in all circumstances.” For that reason, the decision in Johnson does not dictate the outcome of a constitutional challenge to this congressional enactment. B. Congress’s Determinations That The Flag Protec- tion Act Is Content Neutral And Therefore Con- stitutional Are Entitled To Deference. There is a second critical distinction between Johnson and the present case. Although there was no evidence that the Texas legislature had ever thought about the constitutional problems raised by the state flag desecra- tion statute, Congress gave careful consideration to the constitutionality of the Flag Protection Act and con- cluded that the statute comports with the requirements of the First Amendment. That determination by a coequal branch of the federal government is entitled to consider- able deference. “Whenever called upon to judge the constitutionality of an Act of Congress—‘the gravest and most delicate duty that this Court is called upon to perform, —the Court accords ‘great weight to the decisions of Congress.’” Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (citations omitted); see also Walters v. National Ass’n of Radia- tion Survivors, 473 U.S. 305, 319 (1985). The Court has deferred to Congress’s constitutional judgments in a variety of contexts, including the assessment of a stat- ute’s validity under the First Amendment. See Columbia Broadcasting System, Inc. v. Democratic National Com- mittee, 412 U.S. 94, 102 (1973). “The customary defer- ence accorded the judgments of Congress is certainly ap- propriate when, as here, Congress specifically considered the question of the Act’s constitutionality.” Rostker, 453 US. at 64. Congress labored mightily to ascertain how the rele- vant constitutional principles applied to the Flag Pro- tection Act. The principal focus of the congressional hearings was the constitutionality of the proposed legis- lation. A number of scholars testified that the measure comports with this Court’s First Amendment jurispru- dence. See, e.g., Senate Hearings 541-545 (Prof. Dellin- ger); id. at 526-534 (Prof. Baldwin and Williamson) ; id. at 724 (Prof. Monaghan). The committee reports con- tain lengthy discussion of the statute’s validity and con- clude that the Flag Protection Act is consistent with the First Amendment. S. Rep. No. 152, supra, at 9-15; H.R. Rep. No. 231, supra, at 7-9. By adopting the statute, Congress endorsed that conclusion. See also U.S. Const. Art. VI (“[t]he Senators and Representatives shall be bound by Oath or Affirmation, to support this Constitution”). In these circumstances, where the Senate and House of Representatives have each expressly focused on and de- bated the constitutional issues, Congress’s determination that the statute does not violate the First Amendment is entitled to substantial deference. In particular, the Court should defer to two congressional findings, pecu- liarly legislative in nature and the subject of consider- able attention, that underlie Congress’s assessment of the statute’s constitutionality. First, Congress concluded that the statute is content neutral. The Senate Report stated that, unlike the law struck down in Texas v. Johnson, the Flag Protection Act is independent of the likely communicative impact of the conduct and aimed at protecting the physical integ- rity of the flag in all circumstances. S. Rep. No. 152, supra, at 10; see also H.R. Rep. No. 231, supra, at 2. Surely Congress’s determination regarding the scope of its statute is a subject on which Congress is especially competent to upine. Second, Congress made clear that protection of the physical integrity of the flag is an important govern- mental interest. The Senate Judiciary Committee ob- served that “the American flag has an historic and in- tangible value unlike any other symbol.” S. Rep. No. 152, supra, at 2. It characterized the flag as “the visible i 11111 tty sy This Court should not lightly reject Con- gress’s considered judgment regarding the substantiality | ; CONCLUSION The judgments of the district courts should be re- APRIL 1990 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0730%3A12. Public record. Not legal advice.