Amicus Curiae Brief — United States v. Haggerty

On Appeals frem the United States District Courts

85 for the District of Columbia and the

4 Western District of Washington .

a: BRIEF OF PEOPLE FOR THE AMERICAN WAY,

5

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a

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CouN & MARKS

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QUESTION PRESENTED

Whether the First Amendment prohibits the govern-

ment from prosecuting the defendants under the Flag

Protection Act of 1989, a statute which provides special

punishment for persons who, through their expressive

acts, knowingly damage the American flag.

\\ >

TABLE OF CONTENTS

. —

INTEREST OF AMICI CURA EEg

SUMMARY OF ARGUMENT.

T

THE FLAG PROTECTION ACT VIOLATES THE

.... 0

A. The Governmental Interest Underlying the Flag

Protection Act Is Necessarily Related to the

Suppression of Free Expression

1. The Interest Underlying the Flag Protection

Act Is the Protection of the Idea That the

Flag Symbolizes Pe

2. The Legislative History Confirms Congress’

Purpose to Suppress Expression and Pro-

vides an Independent Reason to Invalidate

e 6 8

B. Contrary to the Solicitor General's Argument,

This Court Should Not Defer to Congress

C. Sustaining This Statute Would Threaten First

Amendment Protection for All Speech Critical

of the Government 1 1

——T— 5

(iii)

10

16

21

22

25

iv

TABLE OF AUTHORITIES

Cases: Page

Arizona v. Rumsey, 467 U.S. 203 (1984) ........... 21

Arshack v. United States, 321 A.2d 845 (D.C.

EE x

Board of Education District No. 26 v. Pico, 457

e ... 20

Boos v. Barry, 485 U.S. 312 (1989) passim

Broadrick v. Oklahoma, 413 U.S. 601 (1973) 23

City of Houston v. Hill, 482 U.S. 451 (1987)........ 23

City of Renton v. Playtime Theatres, Inc., 475 U.S.

41 (1986) ͤ—— — — ß 9, 10, 13

City of Richmond v. United States, 422 U.S. 358

Fr 19

Columbia Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94 (197333 22

Columbus Board of Education v. Penick, 443 U.S.

4 15

Community for Creative Non-Violence v. Watt,

703 F.2d 586 (D.C. Cir. 1983) reversed sub

nom., Clark v. Community for Creative Non-

Violence, 468 U.S. 288 (198) 9,15

Cornelius v. NAACP Legal Defense & Educational

Fund, 473 U.S. 788 (19880))))))))))))) 20

Edwards v. Aguillard, 482 U.S. 578 (1987) ew 20

F. C. C. v. League of Women Voters, 468 U.S. 364

P 22

Kime v. United States, 459 U.S. 949 (1982757 10

Landmark Communications, Inc. v. Virginia, 435

U.S. 829 (19785 1 22

Marbury v. Madison, 5 U.S. (1 Cranch) 137

e ̃ 222 — 22

Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575 (1983) 20, 21

New York Times v. Sullivan, 376 U.S. 254 (1964) 24

Palmer v. Thompson, 403 U.S. 217 (19717 20

Personnel Administrator v. Feeney, 442 U.S. 256

EI aT TS Tn oC Te 15

Police Department v. Mosley, 408 U.S. 92 (4972) 16

Sable Communications of California, Inc. v. F. C. C.,

RR eee 22

V

TABLE OF AUTHORITIES—Continued

Page

Schacht v. United States, 398 U.S. 58 (1970) 13

Secretary of State v. Joseph H. Munson Co., 467

. Ee eee 23

Spence v. Washington, 418 U.S. 405 (1979 passim

Stone v. Graham, 449 U.S. 39 (1980))ÿ 20

Street v. New York, 394 U.S. 576 (1969)... 11, 21

Texas v. Johnson, 109 S. Ct. 2533 (1989977 passim

United States v. O’Brien, 391 U.S. 367 (1968). 9, 20, 21

United States v. Schwimmer, 279 U.S. 644

C 3

Village of Arlington H eights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252 (1977) 19

Wallace v. Jaffree, 472 U.S. 38 (198) 20

Washington v. Davis, 426 U.S. 229 (1976) 19, 20

West Virginia Board of Education v. Barnette,

, SESS CAO 7,21

Whitney v. California, 274 U.S. 357 1 22

Constitution and Statutes:

, . passim

e 19

Flag Protection Act of 1989, Pub. L. No. 101 131,

103 Stat. 777 (amending Pub. L. No. 90-381, 82

Stat. 791, codified at 18 U.S.C. § 700 (1968)) passim

18 U.S.C. § 700 (2) (a) ( —2—222—— 13

I.. imine 12

e 7

00888 00ñ1ñ„„dtG 7

GD WEAK. © TBS CIGD .11!ñ%„%éðä 8

Voting Rights Act of 1965, Pub. L. No. 89.110,

79 Stat. 445 (codified as amended at 42 U.S.C.

§§ 1971, 1973-1973bb-1 (1982)) _........................ 19

9 D.C. Code Ann. § 112 (198177) 8

22 D.C. Code Ann. § 1121 (1981) a, 7

Alien Enemies Acts, 1 Stat. 570 (expired June 25,

1800), 1 Stat. 577 (expired) , 6, 24

Sedition Act of 1798, 1 Stat. 596 (expired Mar. 3,

vi

TABLE OF AUTHORITIES—Continued

Legislative Materials: Page

S. Rep. No. 152, 101st Cong., Ist Sess. (1989) 16, 17

S. 1338, 101st Cong., Ist Sess. (1989) 16

H.R. Rep. No. 231, 101st Cong., Ist Sess. (1989) 12, 13, 16

H.R. 2978, 101st Cong., Ist Sess. (1989) 16

135 Cong. Rec. $12,577 (daily ed. Oct. 4, 1989) 18

135 Cong. Rec. $12,579 (daily ed. Oct. 4, 1989) 17

135 Cong. Rec. $12,584 (daily ed. Oct. 4, 1989) 17

135 Cong. Rec. $12,600 (daily ed. Oct. 4, 1989) 17, 18

135 Cong. Rec. $12,611 (daily ed. Oct. 4, 1989) 18

135 Cong. Rec. $12,616 (daily ed. Oct. 4, 1989) 18

135 Cong. Rec. $12,621 (daily ed. Oct. 4, 1989) 17

135 Cong. Rec. H5501 (daily ed. Sept. 12, 19899 18

135 Cong. Rec. H5509 (daily ed. Sept. 12, 1989) 17

135 Cong. Rec. H55 12 (daily ed. Sept. 12, 1989) 18

135 Cong. Rec. H6996 (daily ed. Oct. 12, 1989) 18

Rules:

„ 4

Miscellaneous:

Brest, Palmer v. Thompson: An Approach to the

Problem of Unconstitutional Legislative Motive,

.. 19

Ely, Flag Desecration: A Case Study in the Roles

of Categorization and Balancing in First Amend-

ment Analysis, 88 Harv. L. Rev. 1482 (1975) 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1433

UNITED STATES OF AMERICA,

. Appellant

SHAWN D. EICHMAN, ef al.,

Appellees

No. 89-1434

UNITED STATES OF AMERICA,

" Appellant

MARK JOHN HAGGERTY, et al.,

Appellees

On Appeals from the United States District Courts

for the District of Columbia and the

Western District of Washington

—

BRIEF OF PEOPLE FOR THE AMERICAN WAY,

THE AMERICAN SOCIETY OF NEWSPAPER EDITORs,

THE FREEDOM TO READ FOUNDATION,

THE RADIO-TELEVISION NEWS

DIRECTORS ASSOCIATION,

THE SOCIETY OF PROFESSIONAL JOURNALISTS,

AND THE VOLUNTEER LAWYERS FOR THE ARTS

AS AMICI CURIAE IN SUPPORT OF APPELLEES

INTEREST OF THE AMICI CURIAE

This brief is submitted on behalf of People for the

American Way, the American Society of Newspaper Edi-

tors, the Freedom to Read Foundation, the Radio-

2

Television News Directors Association, the Society of Pro-

fessional Journalists, and the Volunteer Lawyers for the

Arts. Amici curine are organizations that are dedicated

to the pretection of freedom of expression and of the

press.

People for the American Way is a nonpartisan, educa-

tion-oriented citizens’ organization established to promote

and protect civil and constitutional rights, including First

Amendment freedoms. Founded in 1980 by a group of

religious, civic, and educational leaders devoted to our

nation’s heritage of tolerance, pluralism, and liberty, the

organization now has over 285,000 members nationwide.

People for the American Way's own education and ad-

vocacy activities depend fundamentally on First Amend-

ment rights, and it has a broad concern for protectins

such freedoms in our country.

The American Society of Newspaper Editors was

founded over 50 years ago. It is a nationwide. profes-

sional organization of more than 1,000 persons who hold

positions as directing editors of daily newspapers through-

out the United States. The purposes of the Society in-

clude assisting journalists in providing an unfettered and

effective press in the service of the American people.

The Freedom to Read Foundation was established in

1969 by the American Library Association to promote and

defend First Amendment rights: to foster libraries as in-

stitutions for fulfilling the promise of the First Amend-

ment for every citizen; to support the richt of libraries

to include in their collections and make available to the

publie any work that they may legally acqnire: and to

set legal precedent for the freedom to read of all citizens.

The Radio-Television News Directors Association. with

a membership of more than 3.000. is the principal pro-

fessional organization of journalists—executives, editors.

reporters and others—who vatber and disseminate news

and other information on radio and television in the

United States. It is committed to the protection of free

dom of expression and of the press.

The Society of Professional Journalists is a voluntary,

nonprofit organization of nearly 20,000 members. The

Society is the largest and oldest organization of journal-

ists in the United States, representing every branch and

rank of print and broadcast journalism. Preservation of

First Amendment freedoms of the press are of deep con-

cern to the Society.

The Volunteer Lawyers for the Arts was founded in

1969 to provide free arts-related legal assistance to artists

and arts organizations. The first organization in the

United States dedicated to offering such services, it now

helps those who cannot afford private counsel in all crea-

tive fields, including music, theater, film, video, litera-

ture, dance, and visual arts. Volunteer Lawyers for the

Arts believes that freedom of expression is of critical

importance to the work of artists, and as their represent-

ative Volunteer Lawyers is committed to the safekeeping

of that freedom.

Amici believe that the defendants’ political protest,

while offensive to the vast majority of the American

people, is expression situated at the First Amendment's

core. Indeed, it is the apparent offensiveness of the ex-

pression that makes First Amendment protection impor-

tant. As a practical matter, protection for speech that

gladdens the hearts of the American people is hardly

necessary. The First Amendment is essential to guaran-

tee freedom for “the thought that we hate.” United

States v. Schwimmer, 279 U.S. 644, 655 (1929) Holmes.

J., dissenting}.

The amici are participating in these cases because they

fear that the emotion and passion provoked by defendants’

means of protest may obscure the important First

Amendment rights and principles at issue here. That, in

turn, could have deep and lasting effects on the First

4

—

Amendment's application in other areas. Our country

and our Constitution, and the flag that symbolizes them,

are not threatened by a few dissidents who burn a flag.

Indeed, for nearly 200 years Congress saw no need for a

statute banning flag desecration; it was not until 1968

that Congress first enacted such a statute. See Pub. L.

No. 90-381, 82 Stat. 791 (codified at 18 U.S.C. § 700

(1968) ).

This brief is filed pursuant to Rule 37.3 of the Rules

of the Supreme Court. The parties have consented to its

submission with letters on file with the Clerk of the

Court.

SUMMARY OF ARGUMENT

The question presented in these cases is whether the

government may constitutionally prosecute defendants for

their overtly political acts of burning flags under the

Flag Protection Act of 1989—a statute that singles out

the American flag for protection against knowingly in-

flicted harm. We submit that the government may not do

80.

A. The Flag Protection Act’s prohibition is directly

related to the suppression of expression. The Act, which

singles out only the American flag for protection, cannot

be justified as an effort merely to protect the flag’s physi-

cal integrity; Congress simply has no interest in protect-

ing the flag’s physical ingredients—the cloth and dye of

which it is made—for their own sake. Rather, as the

Solicitor General acknowledges, the Act’s prohibition can

be justified only by reference to the government’s interest

in protecting the idea of the flag and the ideas—such as

unity and respect for our Nation—that the flag repre-

sents. The government seeks to protect that interest by

prohibiting expression that it believes will be damaging

to those ideas. In short, the Act has as its purpose the

suppression of expression that attacks the flag as a sym-

bol, and is thus content-based.

Senator Biden, as amicus curiae (the “Amicus”), sug-

gests that the Flag Protection Act is content-neutral be-

cause it purportedly regulates evenhandedly. This sug-

gestion is incorrect as a matter of fact; the language of

the Act demonstrates that Congress has forbidden flag

burning only where it is likely to endanger the flag’s

symbolic role. Such “viewpoint” regulation is anathema

to the notion of free expression. In all events, however,

the Amicus’ suggestion confuses “viewpoint” regulation

with “cc ent” regulation. In order to be content-neutral,

as opp to merely viewpoint-neutral, the justification

for re cion must have nothing to do with content. The

Flag k rotect ion Act's justification—protection of the

flag's symbolie integrity or, stated differently. proteet ion

of the flag’s dignity from expression that is seen as dam-

aging—focuses on/y on the content of the speech and the

direct impact that speech has on its listeners. The con-

clusion that such a statute is content-based follows from

the Court’s decision in Spence v. Washington, 418 U.S.

405, 414 & n.8 (1974), where the Court held invalid a

statute banning the attachment of objects to the flag,

even though the statute regulated without regard to

whether the actor intended to communicate a message.

In addition, a law is not “content-neutral” merely be-

cause some non-expressive conduct could come within its

prohibitions. The Flag Protection Act’s impact will al-

most invariably fall on conduct that is expressive in na-

ture. This adverse impact gives rise to a strong infer-

ence that Congress’ purpose was to restrict expression,

an inference which no one has rebutted.

Any possible doubt about Congress’ purpose in enact-

ing the Flag Protection Act is resolved by the legislative

history of the statute. Members of Congress repeatedly

and forthrightly declared that, in protecting the flag’s

symbolic value, they sought to suppress those who would

express themselves by damaging the flag. This Court may

look to this legislative history to confirm that Congress’

purpose was speech-suppression.

B. The Solicitor General properly recognizes that this

statute purposefully suppresses speech, but asks the Court

to repudiate Texas v. Johnson, 109 S. Ct. 2533 (1989),

where the Court held that purposeful speech-suppression

of this type violates the First Amendment. The only ar-

gument that the Solicitor General offers to justify de-

parting from the doctrine of stare decisis in that Con-

gress, in its considered judgment, has determined that

the statute ought to be held constitutional. This asser-

tion is untenable. This Court has repeatedly reaffirmed

that it is for the Court, exercising its own independent

judgment, to decide whether Congress has violated the

Constitution, especially when the First Amendment is

at stake.

C. Laws, of course, are not necessarily invalid merely

because they protect symbols of the existing order. The

government may encourage respect for a symbol, and it

may prevent others from interfering with its own prop-

erty. Thus, for instance, the government may fly its own

flags, and it may punish those who steal and damage

them. The First Amendment, however, does not allow

the government to regulate for the sole purpose of sup-

pressing the speech of others, as it has so manifestly

sought to do here.

Upholding the Flag Protection Act would strike at

the heart of the First Amendment. Validating Con-

gress’ effort to ban expression that might damage the

flag’s symbolic integrity would threaten far more than

the right of protestors to burn the American flag. It

would provide a basis for sustaining any law, even a

modern Alien and Sedition Act, designed to protect the

government from criticism.

7

ARGUMENT

THE FLAG PROTECTION ACT VIOLATES

THE FIRST AMENDMENT

These cases are “made difficult not because the prin-

ciples of . . . [their] decision are obscure but because

the flag involved is our own.” West Virginia Bd. of Educ.

v. Barnette, 319 U.S. 624, 641 (1943). As both courts

below recognized, the flag is a symbol of “beliefs Ameri-

cans share, beliefs in law and peace and that freedom

which sustains the human spirit.” Teras v. Johnson, 109

S. Ct. 2533, 2548 (1989) (Kennedy, J., concurring). But,

as both courts below also recognized, central among these

beliefs, and to the First Amendment, is the principle that

“the Government may not prohibit expression of an idea

simply because society finds the idea itself offensive or

disagreeable.” Id. at 2544.

The facts of these particular cases, however, threaten

to obscure this principle. The defendants in these cases

have by their means of protest chosen to challenge the

government with extreme behavior. The government has

accommodated their desire, and its own desire, for a con-

stitutional test by prosecuting the defendants under the

Flag Protection Act, rather than under other statutes

whose application to defendants’ actions might well be

constitutional. Those statutes include, for instance, stat-

utes that prohibit willful injury to federal property, and

the Haggerty defendants have in fact been charged under

such a statute (since they allegedly burned a flag belong-

ing to the United States Postal Service). See 18 U.S.C.

$§ 1361, 1362 (1982); United States v. Haggerty, 89-

1434, J. S. App. 2a. Likewise, they include statutes that

prohibit disorderly conduct or breaches of the peace, and

the Eichman defendants were in fact arrested under

such a statute. See 22 D.C. Code Ann. § 1121 (1981);

United States v. Eichman, 89-1433, JS. App. 3a.' The

First Amendment does not bar prosecution under these

statutes because the interests underlying those statutes

can be justified without reference to the content of

is

regulated speech.“

i

4

J

:

i

57

Court— that class of cases in which an individual takes

the simple step of engaging in orderly political protest

There are, of course, stringent limits on the government's ability

to prosecute protestors for committing a breach of the peace. See

Teras v. Johnson, 109 S. Ct. at 2542. But a prosecution for setting

a fire on the steps of a government building so as to impede access

to that building might well be constitutional. Cf. Arshack v. United

States, 321 A2d 845, 849 (D.C. 1974): 9 D.C. Code Ann. § 112

(1981); 40 U.S.C. § 193f (1982).

? Thus, through other penal statutes, the government may also,

in appropriate cases, prosecute a flag-burner for theft, arson, or

trespass. See Teras v. Johnson, 109 S. Ct. at 2544 a8.

* The Flas Protection Act of 1989, Pub. I. No. 101-131. 108

Stat. 777 (amending Pub. IL. No. 90-381, 2 Stat. 791, codified at

18 U.S.C. § 700 (1968) provides in pertinent part

(a)(1) Whoever knowingly mutilates, defaces, physically de-

files, burns, maintains on the floor or ground, or tramples upon

any flag of the United States shall be fined under this title

or 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 become worn or soiled.

(b) As used in this section, the term ‘flag of the United States’

means any flag of the United States, or any part thereof, made

of any substance, of any size, in a form that is commonly

displayed.

9

by the mutilation of a flag which he owns. The critical

question presented by these cases, therefore, is whether

the government may constitutionally provide special pun-

ishment for persons who, through their expressive acts,

knowingly damage an American flag—without regard,

for example, to whether they owned the flag that they

damaged, or whether they were on their own property

(even in the privacy of their own homes) when they did

So.

The sole governmental interest in these circumstances

is the protection of the idea of the flag. In other words,

in these circumstances, the government’s purpose is sim-

ply to punish expression that damages the idea of the

flag, and the ideas for which the flag stands. The First

Amendment prohibits the government from seeking that

result.

A. The Governmental Interest Underlying the Flag Pro-

tection Act Is Necessarily Related to the Suppression

of Free Expression

There is no doubt that defendants’ overtly political acts

of burning flags were “ ‘sufficiently imbued with elements

of communication’ . . . to implicate the First Amend-

ment.” Texas v. Johnson, 109 S. Ct. at 2540 (quoting

Spence v. Washington, 418 U.S. 405, 409 (1974)). Under

this Court’s cases, therefore, the first pertinent issue for

resolution concerns whether the Flag Protection Act is

“related to the suppression of free expression.” See Texas

v. Johnson, 109 S. Ct. at 2538; United States v. O'Brien,

391 U.S. 367, 377 (1968). Stated differently, the Court

must determine whether or not the Flag Protection Act

is “content-neutral.” See Texas v. Johnson, 109 S. Ct. at

2543: Clark v. Community for Creative Non-Violence,

468 U.S. 288, 298-99 (1984). Cf. Boos v. Barry, 485 U.S.

312, 318-21 (1988) ; City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41, 46-48 (1986). We think that the Flag

Protection Act is plainly content-based.

10

1. The Interest Underlying the Flag Protection Act Is

the Protection of the Idea That the Flag Symbolizes

This Court has consistently stated that content-

neutral” speech restrictions are those that “are justified

without reference to the content of the regulated speech.”

See Boos v. Barry, 485 U.S. at 320 (quoting City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)

(citations omitted)). The Flag Protection Act has not

been, and cannot be, so justified.

Congress simply has no interest in protecting the flag’s

physical ingredients—the cloth and dye of which it is

made—for their own sake. Accord, Kime: v. United

States, 459 U.S. 949, 953 (1982) (Brennan, J., dissent-

ing from denial of certiorari) (“The Government has no

esthetic or property interest in protecting a mere aggre-

gation of stripes and stars for its own sake”). This is

most pointedly true of a privately owned flag, since the

government can claim no ownership interest at all in such

a flag. Nor does the Flag Protection Act seek to vindicate

any other content-neutral government interest, such as

avoiding bonfires in city streets. It cares not if a pro-

testor publicly burns a bedsheet. Rather, the sole justifi-

cation for this Act’s protection of the flag is that the

flag has substantive meaning as a symbol of the Nation.

Accord, id.; see also Texas v. Johnson, 109 S. Ct. at

2542-2543. In other words, “[i]t is the character, not the

cloth, of the flag which the . . . [Government]. seeks to

protect.” Spence v. Washington, 418 U.S. 405, 421 (1974)

(Rehnquist, J., dissenting) .

As the Solicitor General concedes (Br. U.S. 28-29), the

governmental interest in preserving the flag’s symbolic

integrity is directly related to the content of expression

concerning the flag. This is because the government has

“single[d] out one set of messages, namely the set of

messages conveyed by the American flag, for protection.“

Ely. Flag Desecration: A Case Study in the Roles of Categoriza-

tion and Balancing in First Amendment Analysis, 88 Harv. L. Rev.

1482, 1506 (1975).

11

Stated differently, even if the statute were not concerned

with the reason — be it apathy, negligence, contempt, or

disagreement with government policy—that animates a

person to harm a flag, it nevertheless is singularly con-

cerned with the impact that that expression has on the

principles of unity and nationhood—i.e., the ideas for

which the flag of the United States stands. Under the

Court’s cases, this governmental focus on the impact of

the speaker’s expression, and the desire to suppress that

expression, makes the regulation “content-based” (even

if not “viewpoint-based”). See Texas v. Johnson, 109

S. Ct. at 2543; Boos v. Barry, 485 U.S. at 319.

The nature of the conduct that the Flag Protection Act

prohibits confirms this conclusion. The Flag Protection

Act does not prohibit all conduct involving the flag;

rather, it prohibits only conduct that the government be-

lieves will damage the flag as a symbol, that is, conduct

by which someone “mutilates, defaces, physically defiles,

burns, maintains on the floor or ground, or tramples

upon” a flag. The Act is thus precisely analogous to a

statute that does not prohibit all verbal speech about the

flag, but rather prohibits only verbal speech that damages

the flag. Such a statute is clearly directed at suppressing

expression, whether or not it specifically requires that the

defendant speak with contempt, cf. Street v. New York,

394 U.S. 576, 593 (1969), and is distinguishable from

the Flag Protection Act only in that it proseribes verbal

as opposed to nonverbal expression. That distinction is

“of no moment where the nonverbal conduct is expressive,

as it is here, and where the regulation of that conduct is

related to expression, as it is here.” Texas v. Johnson,

109 S. Ct. at 2545. In short, the Flag Protection Act has

as its purpose the suppression of expression that attacks

the flag as an idea, and is thus content-based.“

5 One amicus brief suggests that the interest underlying the Flag

Protection Act is preservation of the flag as an incident of sover-

eignty. (Brief of the Speaker and Leadership Group of the House

12

While the Solicitor General concedes (Br. U.S. 28-29)

that the statute is content-based, Senator Biden, as amicus

curiae (the “Amicus’”), suggests that the Flag Protection

Act is content-neutral because it regulates evenhandedly,

without regard to the actor’s motive (Br. 9, 13). This

suggestion is incorrect.

The Flag Protection Act’s prohibition is very much

concerned with the speaker’s viewpoint. The language of

the Act indicates that Congress intended by that Act only

to prohibit uses of a flag that are inconsistent with the

flag’s representation of unity and nationhood. The Act’s

prohibition broadly bars any knowingly inflicted harm to

a “flag of the United States.” The Act defines the term

“flag of the United States” to include only flags that are

“in a form that is commonly displayed,” and the legisla-

tive history indicates that Congress shaped this definition

to exclude from the Act’s strictures certain commonly-

accepted uses of the flag—such as cakes decorated as the

flag, pictures of the flag, and products with flags printed

on them; thus, whereas a political protestor may not cut

a flag into pieces at a rally, a patriotic family may cut

into a flag-shaped cake at an Independence Day party.

See 18 U.S.C. 8 700(2)(b); H.R. Rep. No. 231, 101st

Cong., Ist Sess. at 2 (1989). Moreover, the Act expressly

exempts from its prohibition the disposal of a soiled or

of Representatives 19-28.) As both courts below recognized, how-

ever, the use of the flag to indicate sovereignty is itself a symbolic

use. Except where the government is using its own flag to designate

property as belonging to the United States, Congress’ only possible

interest in protecting the flag as an incident of sovereignty is to

prevent or punish expressive acts amounting to rejection of that

sovereignty. In other words, except in the limited instances in

which the government is using government flags to designate its

sovereign interest (and we do not doubt that the government could

constitutionally enact a statute to protect the flag in those instances,

see infra at n.12), preservation of the flag as an incident of sover-

eignty, like preservation of the flag as an emblem of nationhood,

is related to the suppression of free expression.

13

worn flag; thus, whereas a political protestor may not

burn a flag to make a point, members of the armed

forces may ceremoniously burn a worn flag. See 18

U.S.C. § 700(2)(a) (2); H.R. Rep. No. 231, supra, at

9-10. These statutory hypocrisies makes apparent that

Congress has forbidden flag burning only where “it is

likely to endanger the flag’s symbolic role, but has! al-

lowed] it wherever burning a flag premmotes that role

as where, for example, a person ceremoniously burns a

dirty flag. Texas v. Johnson, 109 S. Ct. at 2546.

Such “viewpoint” regulation is anathema to the notion

of free expression. See Schacht v. United States, 398

U.S. 58, 63 (1970).

In any event, as the Court made clear in Boos v.

Barry, 485 U.S. at 319, “viewpoint” regulation and

“content” regulation are separate and distinct concepts,

and content regulation, like viewpoint regulation, is re-

lated to the suppression of free expression. In Boos,

the government contended that a statute that prohib-

ited displaying signs that would bring a foreign gov-

ernment into public disrepute was not content-based. Id.

Since the statute did not express a preference for a par-

ticular idea, the Court agreed that it was not “viewpoint-

based”. Jd. The Court concluded, however, that, since

the government’s justification—“the need to protect the

dignity of foreign diplomatic personnel by shielding them

from speech that is critical of their governments”—

focused on the emotive imy et of the speech, the statute

was nevertheless content-based. Id. at 321. The Court

stated that “a regulation that ‘does not favor either side

of a political controversy’ is nonetheless impermissible

because the ‘First Amendment’s hostility to content-based

regulation extends . . . to prohibition of public discussion

of an entire topic.’” Id. at 319 (quoting Consolidated

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

(1980)). See also City of Renton v. Playtime Theatres,

Inc., 475 U.S. at 48.

14

The purported justification for the Flag Protection Act

is no less content-based than was the government’s jus-

tification in Boos. Here, Congress’ interest is in protect-

ing the flag’s symbolic integrity; indeed, according to the

Amicus (Br. 21), “any flag protection statute will neces-

sarily be designed to protect the flag’s symbolic value|.|”

To protect the flag’s symbolic integrity, however, is to

protect the flag’s dignity by shielding it from expressive

conduct that is damaging to ii As in Boos, this justifi-

cation focuses “only on the content of the speech and the

direct impact that speech has on its listeners.” Boos,

485 U.S. at 321. See Teras v. Johnson, 109 S. Ct. at

2543. It is therefore content-based.

This conclusion follows directly from the Court’s hold-

ing in Spence v. Washington. In Spence, the defendant

affixed a peace symbol to a flag that he owned and dis-

played the flag out of his apartment window. The state

prosecuted him under a statute that provided that “noth-

ing ... could] be affixed to or superimposed on a United

States flag or a representation thereof.” 418 U.S. at 414

n.9 (‘emphasis in original)“ In other words, the opera-

tion of the statute did not depend on whether the view-

point expressed was favorable or unfavorable to the flag.

Indeed, in dissent, then-Justice Rehnquist emphasized

that the statute in issue did “not depend upon whether

the flag is used for communicative or noncommunicative

purposes; upon whether a particular message is deemed

„As quoted in Spence, 418 U.S. at 407 (omissions in original

quote), the statute provided, in pertinent part:

No person shall, in any manner, for exhibition or display :

(1) Place or cause to be placed any word, figure, mark, pic-

ture, design, drawing or advertisement of any nature upon any

flag, standard, color, ensign or shield of the United States or of

this state or

(2) Expose to public view any such flag, standard, color,

ensign or shield upon which shall have been printed, painted or

otherwise produced, or to which shall have been attached, ap-

pended, affixed or annexed any such word, figure, mark, picture,

design, drawing or advertisement

15

commercial or political; upon whether the use of the flag

is respectful or contemptuous; or upon whether any par-

ticular segment of the State’s citizenry might applaud or

oppose the intended message.” Id. at 422-423. The Court

nevertheless overturned the conviction, finding the stat-

ute unconstitutional as applied to the defendant’s activ-

ity. Id. at 414. In doing so, the Court expressly held that

the state’s “interest in preserving the national flag as an

unalloyed symbol of our country” was “directly related

to expression in the context of activity like that under-

taken by appellant.” 418 U.S. at 412, 415 & n.8. This is

because, as Justice (then-Judge) Scalia has explained in

describing Spence, the only reason to prevent misue of a

flag is “related to the communicative content of the flag.”

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

586, 624-625 (D.C. Cir. 1983) (Scalia, J., dissenting),

reversed sub nom., Clerk v. Community for Creative

Non-Violence, 468 U.S. 288 (1984).

The Amicus also errs in suggesting (Br. 11-13) that

the Act is content-neutral merely because some non-

expressive conduct could come within its prohibition.

It cannot seriously be argued that this statute was de-

signed to reach non-expressive conduct. The principle is

well-established that the reasonably foreseeable effect of

a legislative act gives rise to a “strong inference” that

Congress intended the statute’s predominant effect. See

Personnel Adm’r v. Feeney, 422 U.S. 256, 279 n.25

(1979) ; Columbus Bd. of Educ. v. Penick, 443 U.S. 449,

464 (1979). Here, the Flag Protection Act’s impact will

almost invariably fall on conduct expressive in nature:

it is virtually inconceivable that someone would know-

ingly burn an unsoiled flag for any other reason.

While evidence of another purpose may defeat that in-

ference, no one has provided an explanation for this

statute other than a desire to suppress speech. Thus,

the statute must be held to have speech-suppression as

its purpose. Te conclude otherwise would, in effect,

16

permit Congress to insulate its legislation from the First

Amendment by simply extending a statute’s prohibition

to cover some potential, though in practice unlikely and

trivial, non-expressive conduct. This Court should not al-

low Congress to so immunize its speech-suppressing

act ions.

2. The Legislative History Confirms Congress’ Purpose

to Suppress Expression and Provides an Independ-

ent Reason to Invalidate the Act

Any possible doubt about Congress’ purpose in enact-

ing the Flag Protection Act is resolved by the legislative

history of the statute. That history confirms that, in

enacting the Flag Protection Act, Congress sought to

preserve the flag’s symbolic value, and that it sought to

do so through the suppression of expression that would

adversely affect this symbol.

Both the Senate bill and the House bil, in seeking to

protect the flag’s physical integrity, were clearly con-

cerned with protecting the flag’s symbolic value. See 8.

1338, 101st Cong., Ist Sess. (1989); H.R. 2978, 101st

Cong., Ist Sess. (1989); S. Rep. No. 152, 101st Cong.

Ist Sess. 2 (1989): H.R. Rep. No. 231 at 2. Indeed, the

Senate Committee Report candidly acknowledged:

In seeking to protect its physical integrity, Congress

is simply ratifying the unique status conferred upon

the flag by virtue of its historic function as the

embiem of this Nation.

S. Rep. No. 152, supra, at 3; see also id. at 5 (reiterat-

ing that “S. 1338 is intended to protect the flag because

7 Because the Flag Protection Act is content-based, it does not

qualify for the more lenient treatment that content-neutral time,

place, or manner restrictions receive. Accord, Police Dep't vr.

Mosley, 408 U.S. 92, 95-96 (1972); Boos, 485 U.S. at 321. The fact

that alternative channels of communication supposedly exist is thus

irrelevant. Accord, Texas v. Johnson, 109 S. Ct. at 2546 n.11;

Spence, 418 U.S. at 411 1.4.

135 Cong. Rec. $12,579 (daily ed. Oct. 4, 1989) (state-

ment of Sen. Hatch). See also 135 Cong. Ree. 812.621

(daily ed. Oct. 4, 1989) (statement of Sen. Dole)

(“Americans want to protect the flag because they want

to protect it as the symbol of our Nation. Americans

... are not concerned about the cloth, the fabric, the

red, white, and blue dye, the physical components of the

flog.; 135 Cong. Rec. H5509 (daily ed. Sept. 12, 1989)

(statement of Rep. Alexander) (“the flag is more than

cloth and color

The legislative history similarly confirms that, in seek-

ing to protect the flag’s symbolic value, Congress in-

tended to do so through the suppression of expression.

As Senator Roth, a principal sponsor of the bill, ex-

plained:

[Winen America’s detractors violate our flag—

whether in the alleys of Iran or on the streets of

Dallas—they are insulting all who have given so

much—they are insulting all who believe so strongly

in the values symbolized by the flag. And they are

assaulting those very values. And that is why this

bill is so important.

135 Cong. Rec. $12,584 (daily ed. Oct. 4, 1989). Sena-

tor Gramm likewise stated:

I cannot imagine a situtation [sic] in which someone

would desecrete the American flag other than to

make a political statement about hating America

18

and its great institutions. So I intend to vote for

this bill.

135 Cong. Rec. $12,600 (daily ed. Oct. 4, 1989). Senator

Heflin thus added:

Although it is not often that someone destroys an

American flag, the power of this image and the sym-

bol dictate that we must protect its integrity. Allow-

135 Cong. Ree. $12,577 (daily ed. Oct. 4, 1989). In

short, members of Congress repeatedly and forthrightly

declared that, in protecting the flag’s symbolic value,

they sought to enact a statute that would suppress those

who would express themselves by damaging the flag.”

The Amicus responds (Br. 16-19) that the Court may

not properly resort to the legislative history of the Flag

Protection Act to confirm that its purpose is speech-

suppression. This claim is contradicted by the Amicus’

own repeated resorts Br. 27-30) to this history to dem-

onstrate that Congress was attempting to enact a con-

stitutional statute—or at least to insulate its actions

from constitutional challenge. It is, of course, unneces-

sary to resolve the Amicus’ claim, since the statute in

fact has no conceivable purpose other than the suppres-

Although he acknowledges (Br. 16) that “some legislators were

motivated more by a desire to reach conduct conveying one particu-

lar message,” the Amicus incorrectly asserts (Br. 16 n.6) that it

was only the proponents of a constitutional amendment who ere

improperly motivated. The legislative history quoted above demon-

strates that members of Congress who spoke in favor of the statute

desired to suppres: expression. See also 135 Cong. Rec. 15501

(daily ed. Sept. 12, 1989) (remarks of Rep. Brooks); 135 Cong.

Rec. 812.611 (daily ed. Oct. 4, 1989) (remarks of Sen. Kohl); 155

Cong. Rec. H6996 (daily ed. Oct. 12, 1989) (statement of Rep.

Smith); 135 Cong. Rec. H5512 (daily ed. Sept. 12, 1989) (statement

of Rep. Lowey); 135 Cong. Rec. $12,616 (daily ed. Oct. 4, 1989)

(remarks of Sen. Wilson

19

sion of expression. But, in any event, it is clear that

the Court may properly look to the legislative history in

determining whether the Flag Protection Act has a

speech-suppressing purpose.

Inquiry into whether a legislature has acted with an

improper motive is an appropriate tool of constitutional

review, and discovery of an improper motive provides an

independent reason to subject a legislative decision to

exacting scruntiny. If the legislative history discloses an

improper purpose, the Court should subject the legislative

decision to the same scrutiny that it would receive if the

illicit objective were reflected on the statute’s face. While

the Court must be cautious in drawing conclusions based

on inquiries of this type, its duty to enforce the Constitu-

tion requires that it consider all evidence of unconstitu-

tional motive and invalidate any legislative acts—even

acts otherwise within the power of the legislature to en-

act—that are infected by such motive. Cf. City of Rich-

mond v. United States, 422 U.S. 358, 378-879 (1975)

(holding that, under the Voting Rights Act, even if an

annexation would otherwise be valid, it is unconstitu-

tional if motivated by discriminatory intent). See also,

Brest, Palmer v. Thompson: An Approach to the Prob-

lem of Unconstitutional Legislative Motive, 1971 Sup.

Ct. Rev. 95, 116-130."

For this reason, the Court has regularly inquired into

unconstitutional motives, and invalidated legislation solely

on that basis. For instance, in the context of equal pro-

tection challenges under the Fourteenth Amendment, the

Court has reviewed for, and indeed required, intent to

discriminate. See, e.g., Washington v. Davis, 426 US.

229, 239-245 (1976); Village of Arlington Heights ».

Metropolitan Housing Dev. Corp., 429 U.S. 252, 264-268

This, of course, is a far different question than the relevance

of legislative history to an issue of statutory construction. One

need not avree with the utility of legislative history for that pur-

pose in order to recognize its relevance to a constitutional inquiry

that turns upon improper motive.

(1977). Similarly, in the context of establishment clause

challenges under the First Amendment, the Court has

reviewed for, and invalidated where it found, an intent

to advance religion. See, e. g., Edwards v. Aguillard, 482

U.S. 578, 585-594 (1987); Wallace v. Jaffree, 472 U.S.

38, 55-56 (1985); Stone v. Graham, 449 U.S. 39, 40-41

(1980). There is no reason for treating free expression

challenges under the First Amendment differently, and

the Court has not done so. See, e. g., Boos v. Barry, 485

U.S. at 319-321 (suggesting that the legislature’s “de-

sire” is relevant); Board of Educ. Dist. No. 26 v. Pico

457 U.S. 853 (1982) (remanding a free expression chal-

lenge under the First Amendment to the district court

to determine whether the government officials had acted

with improper motive

To be sure, the Court in O’Brien, 391 U.S. at 384-385,

eschewed such an inquiry into legislative motive, and,

later, in Palmer v. Thompson, 403 U.S. 217, 224-226

(1971), the Court heavily relied on O’Brien’s reasoning

in expressing an unwillingness to inquire into illicit mo-

tivation. However, in Washington v. Davis, the Court

expressly repudiated that reasoning, stating that. to

the extent that Palmer suggests a generally applicable

proposition that legislative purpose is irrelevant in con-

stitutional adjudication, our prior cases . are to the

contrary ....” 426 U.S. at 244 n.11. See also Minne-

apolis Star & Tribune Co. v. Minnesota Comm'r of Rev-

See Cornelius „, NAACP Legal Defense 4 Educ. Fund, 473

U.S. 788, 811-813 (1985) (remanding the case for determination

of whether the executive order at issue was motivated by a desire

to suppress a particular point of view, because the “existence of

reasonable grounds for limiting access to a nonpublic forum

will not save a regulation that is in reality a facade for viewpoint-

based discrimination.”); id. at 833 (Stevens, J., dissenting)

(“Everyone on the Court agrees that the exclusion of ‘advocacy’

groups from the Combined Federal Campaign (CFC) is prohibited

by the First Amendment if it is motivated by a bias against the

views of the excluded groups.

21

enue, 460 U.S. 575, 580, 592 1983 (expressing doubt

about O'Brien's statement concerning legislative purpose

and implying that illicit legislative motive is a sufficient,

although not a necessary, reason to find a violation of

the First Amendment).

The Solicitor General candidly recognizes that the stat-

ute is designed to suppress expression and that it runs

afoul of the Court's decision in Texas v. Johnson. Indeed,

the Court has repeatedly held that the government’s in-

terest in protecting the flag as a symbol is not sufficiently

compelling to suppress political protest involving the flag.

See Texas v. Johnson, 109 8. Ct. at 2545: Spence, 418

U.S. at 415; Street, 394 U.S. at 593; Barnette, 319 US.

at 642. The Solicitor General thus urges that this Court

the statute ought to be held constitutional. This sugges-

tion is untenable. Indeed, the Court squarely rejected

such a suggestion just last Term in a case that the gov-

ernment does not cite). See Sable Communications of

California, Inc. v. F. C. C., 109 S. Ct. 2829 (1989).

In Sable, in response te the government's suggestion

that the Court should defer to Congress’ judgment in-

cluding its legislative findings), the Court emphatically

reaffirmed that it is for the Court, exercising its own

independent judgment, to decide whether Congress has

violated the Constitution. Id. at

special force when a statute implicates the the First Amend-

ment. Id. “Were it otherwise, the scope of freedom of

speech and of the press would be subject to legislative

definition and the function of the First Amendment as a

check on legislative power would be nullified.” Landmark

Communications, Inc. v. Virginia, 435 US. 829, 844

(1978). See also id. at 843; Whitney v. California, 274

U.S. 357, 377 1927 Brandeis, J., dissenting’; F.C.C.

(1984): Sable, 109 S. Ct. at 2838. No different conclu-

sion is permissible in the context of this Act."

C. Sustaining This Statute Would Threaten First Amend-

ment Protection for All Speech Critical of the

tional, we do not mean to suggest that the government

cannot promote the American flag as a symbol. Accord,

Texas v. Johnen, 109 S. Ct. at 2547. The government

through its own speech may encourage respect for that

The United States and the Amicus” reliance on Columbie

Broadcasting System v. Democratic Nati Comm. 412 US. 8

(1973). is misplaced. In Columbia Broadcasting, the Court took

pains to reiterate that it will not defer te Congress om a con-

stitutional question. Id at ln. Indeed, any we'ght that the Court

did give to Congress’ judgment in that case was because “the broad-

cast media pese unique and special problems not present in the

traditional free speech case.” Jd. at 101.

23

symbol, and it may even prevent others from physically

interfering with the government’s own speech. By flying

the flag from a post office building, for instance, the gov-

ernment is engaging in such encouragement, and it has

an interest in preventing a protestor from mutilating a

flag i. e., a symbol—that the government has displayed.“

The First Amendment, however, does not allow the gov-

ernment to regulate simply to suppress the speech of

others, as it has so manifestly sought to do through the

Flag Protection Act.

Upholding the Flag Protection Act would thus have

deep and lasting effects on the First Amendment. Vali-

dating Congress’ effort to ban expression that might

damage the flag’s symbolic integrity would threaten far

more than the right of protestors to burn the American

flag. If Congress may enact a statute that protects the

integrity of one symbol—the flag—there is no defensible

principle on which Congress can be stopped from pro-

tecting the integrity of any other symbol. Congress could

thus pass laws protecting copies of the Declaration of

Independence, copies of the Constitution, pictures of the

President, or replicas of important memorials.

12 Congress could thus craft a statute to prohibit mutilation of

a flag that the government owned, and could prosecute defendants,

such as the Haggerty defendants, who burn flags belonging to a

United States Post Office. Such a statute would be similar to a

statute that prohibited spray painting the Washington Monument,

where the government clearly has an interest in maintaining the

aesthetic integrity of its own property. The Flag Protection Act,

however, is not limited to protection of the government’s own

speech, or the preservation of the government's own property, nor

can it be. Because “there is no core of easily identifiable and con-

stitutionally proscribable conduct that the statute prohibits{,!” it

is plainly overbroad. Secretary of State v. Joseph H. Munson Co.,

467 U.S. 947, 965-966 (1984). See also Broadrick v. Oklahoma, 413

U.S. 601, 615 (1973) ; City of Howston v. Hill, 482 U.S. 451, 458-467

(1987).

24

More troubling still, if the Flag Protection Act were

upheld, there would be no defensible principle on which

to stop Congress from banning verbal, as well as non-

verbal, expression. As noted in Texas v. Johnson, the

line between speech and expressive action in this context

is nonexistent. See 109 S. Ct. at 2545. Expression and

conduct are intertwined in virtually all communicative

behavior, and defiant or contemptuous words can strike

as deeply as nonverbal expression. Thus, if the govern-

ment may prohibit nenverbal attacks on the symbolic

value of the flag, it can prohibit verbal attacks on that

symbol. If it can prohibit verbal attacks on the symbol

of the flag, it can prohibit verbal attacks on other, indeed

all, symbols of our national unity. It could also prohibit

criticism of the nation, and the government, for which

those symbols stand. Sustaining such legislation would

erase a shared view of the First Amendment going back

to the very foundation of our Nation.“ Preserving the

right of our citizens to criticize the government and its

symbols is vital to the cherished function of this nation’s

press, its public libraries, its artists, and those who dis-

seni from our government’s policies. It is indispensible

to the Nation itself.

It is now generally accepted that the Alien and Sedition laws,

which barred criticism of the government, are the quintessential ex-

ample of the type of regulation that the First Amendment is de-

signed to forbid. See New York Times v. Sullivan, 376 U.S. 254,

273-275 (1964). Sustaining this statute threatens to validate a

modern version of those discredited laws.

25

CONCLUSION

The judgments of the district courts should be af-

firmed. Respectfully submitted,

TIMOTHY B. Dyk

(Counsel of Record)

GLEN D. NAGER

MARGARET H. MERIWETHER

JONES, DAY, REAVIs & POGUE

1450 G Street, N.W.

Suite 700

Washington, D.C. 20005

Of Counsel: (202) 879-3939

ELLIOT M. MINCBERG

JOHN S. GOMPERTS

PEOPLE FOR THE AMERICAN WAY

2000 M Street, N.W.

Washington, D.C. 20036

(202) 467-4999

RICHARD SCHMIDT

COHN & MARKS

1333 New Hampshire Ave., N.W.

Suite 600

Washington, D.C. 20026

(202) 293-3860

BRUCE SANFORD

DOUGLAS LEE

BAKER & HOSTETLER

1050 Connecticut Ave., N.W.

11th Floor

Washington, D.C. 20036

(202) 861-1500

J. LAURENT SCHARFF

REED SMITH SHAW & McCCLAY

1200 18th Street, N.W.

Washington, D.C. 20036

(202) 457-8660

May 3, 1990