State v. Spence

506 P.2d 293, 81 Wash. 2d 788, 1973 Wash. LEXIS 851

• Court: Washington Supreme Court
• Decided: January 18, 1973
• Docket: 42256
• Status: Published

Opinions

Hale, C.J.

Defendant was charged in King County Justice Court with unlawfully displaying a flag of the United States upon which he had affixed a design or picture to both surfaces. The justice court, sitting without a jury, found him guilty and sentenced him to 90 days’ confinement with 60 days suspended. Defendant appealed to the King County Superior Court where a jury found him guilty. On an agreed statement of facts, he appealed the judgment and sentence of 10 days’ confinement, suspended, and a fine of $75, and costs entered on the verdict. The Court of Appeals reversed with one judge dissenting (5 Wn. App. 752, 490 P.2d 1321 (1971)); the state obtained review by appeal to this court under Rule on Appeal II-2, and we reverse the Court of Appeals.

That the flag (exhibit No. 3) upon which defendant had taped a picture or diagram was an actual flag of the United States is clear, so acknowledged by both prosecution and defense and so recognized by this court. It measures about 58 inches long and 35 inches wide. On both fáces, defendant had outlined in glossy, black plastic %-inch tape a large circular diagram about 19% inches in diameter, inside of which was laid out in the same plastic tape another symbol resembling a trident. The trident consisted of a 19%-inch line of plastic tape forming a vertical diameter and two 10-inch lines running from the approximate center on either side of it to intersect the circumference at a point approximately 6 inches from either side of the diameter. The whole design was set in about 4 inches from the top of

the flag, 9% inches from the bottom, and about 6% inches from either edge. It thus occupied nearly one-half of the entire surface of the flag. Defendant calls it a symbol of peace. He had placed the symbol on both surfaces of the flag and suspended the flag upside down from his apartment window. According to the agreed statement of facts:

The uncontroverted testimony of the state’s witnesses, three Seattle police officers, was: they observed a flag with a masking tape peace symbol attached thereto, hanging upside down out of a window at 1006 E. Prospect Street, Seattle, Washington; they entered the main door of the apartment building and were met by the defendant who said, “I suppose you are here about the flag. I didn’t know there was anything wrong with it. I will take it down”; the defendant allowed the officers to enter his apartment where the flag was located; the officers arrested the defendant and seized the flag; the defendant co-operated with the police officers.

The state introduced, and the court admitted, the flag with the masking tape peace symbol. (It was identified as Exhibit No. 3). The state rested its case.

The defendant, Mr. Spence, took the stand and testified on his own behalf. The defendant testified that he put a peace symbol on the flag and displayed it to public view as a protest to the invasion of Cambodia, and the killings at Kent State University, both of which had occurred a few days previously. Mr. Spence said his purpose of putting the peace symbol on the flag was to associate the American flag with peace instead of war and violence. He testified that he choose [sic] masking tape so that the peace symbol could be removed without damaging the flag. He said that he did not know that placing masking tape on a flag was against the law.

Defendant was not convicted of violating the flag desecration statute. RCW 9.86.030. See State v. Turner, 78 Wn.2d 276, 474 P.2d 91 (1970). He was convicted of violating RCW 9.86.020(1) and (2), the alteration or improper use statute, which states:

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

(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state, or authorized by any law 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, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement; . . .

Defendant attacks the constitutionality of RCW 9.86.020(1) on two grounds: (1) that it violates the freedom of speech guarantees of the first amendment to the Constitution of the United States, and article 1, section 5, of the Constitution of the State of Washington, and (2) that the statute is unconstitutionally vague and overbroad when read with RCW 9.86.010, which states:

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

Defendant said that the diagram stood for peace. It depicted his protest against the invasion of Cambodia by American troops, and the killing of students at Kent State University when a unit of the Ohio National Guard fired upon them dining a student demonstration. Both the invasion of Cambodia, an American military action undertaken by United States forces as an operation of the Vietnam war, and the shootings at Kent State had occurred shortly prior to the events of this case. Defendant said that he was unaware that taping the symbol upon and displaying the flag was against the law. He did not contend, however, that he was unaware that the cloth upon which he affixed the symbol was an actual flag of the United States of America.

As to his knowledge of the law, that point is readily determined by the long-standing and basic principles upon which our legal system depends, that all sane persons are presumed to know the law and are in law held responsible for their free and voluntary acts and deeds. 21 Am. Jur. 2d Criminal Law § 94 (1965).

Defendant first contends that the prosecution failed to supply evidence and the court refused to instruct that an element of the offense charged was criminal or evil intent, and that, therefore, he should have been acquitted because of the state’s failure to prove an element of the crime charged. He cites, inter alia, State v. Turner, supra, a flag burning and desecration case maintained under RCW 9 .86.030. That holding, in our view, does not support defendant’s position, but contrarily militates against it, for it is based upon the fundamental distinctions between conduct proscribed as malum prohibitum and conduct malum inse.

In Turner, the defendant was charged under RCW 9.86.030 (amended in Laws of 1969, 1st Ex. Sess., ch. 110, p. 823), with flag desecration by burning, and we held that intent to desecrate was an element that must be established by the prosecution. Under RCW 9.86.020, however, under which the complaint here is laid, evil intent or design is not an element. A violation is complete when one knowingly places any word, figure, mark, picture, design, drawing or advertisement upon the flag of the United States, or flies a flag so marked. All that is required to complete the offense is to knowingly perform the prohibited act, and it is immaterial—except for consideration of punishment— whether the act was done with an evil motive or an exalted one. The question of criminal intent or evil purpose, therefore, does not arise in this case for the charge was laid not under the flag desecration statute, which has been held to define an offense malum in se, but rather was brought under the flag alteration or improper use statute (RCW 9.86.020), defining offenses malum prohibitum, and requires no proof of evil or criminal intent or design, but only that the act was voluntarily and knowingly done. Cf. State v. Turner, supra; Desecration of the flag of the United States, penalties, 18 U.S.C. § 700 (Supp. 1972).

The object to which defendant affixed the tape symbol was an actual flag of the United States. 4 U.S.C. § 1 (1927). It conformed to the official design prescribed in 4 U.S.C. § 1 (1927), as augmented by executive orders of the President adding additional stars for additional states admitted into the union (4 U.S.C. § 2 (1927)). It was thus a flag of the United States within the protective provision of 4 U.S.C. § 3 (1927), prohibiting the printing, painting, attaching or affixing any word, figure, mark, picture, design, drawing or advertisement upon, or displaying a flag so adorned within the District of Columbia, a statute quite similar in language to that now before us.

Defendant contends that the statute is unconstitutionally overbroad and vague, made so by RCW 9.86.010, which relates to such things as standards, colors, ensigns or shields. Although defendant might profess doubts as to what these latter devices are, there is no doubt but that the statute adequately informed him with reference to the article he used—an actual American flag. The prohibited conduct whereof defendant was charged, we think, was described in the statute and in the complaint in language sufficiently clear and concise as to be comprehended by a person of ordinary understanding.

[A]lmost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel.

Harlan, Justice, concurring in the result in Cole v. Richardson, 397 U.S. 238, 240, 25 L. Ed. 2d 275, 90 S. Ct. 1099 (1970); Cole v. Richardson, 405 U.S. 676, 683, 31 L. Ed. 2d 593, 92 S. Ct. 1332 (1972). Defendant made no claim whatever that he did not know that the article he suspended from his apartment window was a flag of the United States. Thus, as applied to him, the charge was well laid and the statute constitutionally precise. The conduct whereof he was convicted was clearly prohibited and specifically charged.

That there are ways and means other than those charged by which the statute may be violated does not render it vague and overbroad as to the particular conduct charged if an understanding of the conduct prohibited can be reasonably drawn from the act. In Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 32 L. Ed. 2d 234, 238, 92 S. Ct. 1670, 1674 (1972), defendant argued that the “immunity provided by the New Jersey statute is unconstitutionally vague because it immunizes a witness only against the use and derivative use of ‘responsive’ answers and evidence.”

In holding untenable the contention of vagueness, the court, inter alia, said:

This is not the technical construction of “responsive” in the legal evidentiary sense that appellant fears, but rather is a construction cast in terms of ordinary English usage and the good-faith understanding of the average man. The term “responsive” in ordinary English usage has a well-recognized meaning. It is not, as appellant argues, “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U. S. 385, 391 (1926).

(Footnotes omitted.)

Defendant is in no position to conjure up hypothetical behavior which, while colorably actionable, would render the statute vague or overbroad when the particular conduct charged is clearly within the statute. One may not urge the unconstitutionality of a statute unless he has been adversely affected by the features of it which he claims are unconstitutional. State v. Lundquist, 60 Wn.2d 397, 374 P.2d 246 (1962); State v. Human Relations Research Foundation, 64 Wn.2d 262, 391 P.2d 513 (1964).

The judicial power to declare a legislative act unconstitutional should not be exercised in hypothetical cases. United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960); State v. Dixon, 78 Wn.2d 796, 479 P.2d 931 (1971). This principle, we think, finds new support in Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294, 2298 (1972), which considered an antinoise ordinance from two separate standpoints, (a) vagueness, and (b) overbreadth. That opinion held neither vague nor over-broad an ordinance which said that no person, while on or adjacent to any school grounds or building, “shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof.”

A criminal statute is unconstitutionally vague when it leaves the standard of guilt to the variant views of the different courts and juries which may be called upon to enforce it. Grayned v. Rockford, supra. Thus, a statute making it a criminal offense to exact any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries was held unconstitutionally vague because one charged under it would not be informed of the nature and cause of the accusation (United States v. L. Cohen Grocery Co., 255 U.S. 81, 65 L. Ed. 516, 41 S. Ct. 298, 14 A.L.R. 1045 (1921)); but a statute prohibiting the sale of goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor, including as it did the element of predatory intent, was held good. United States v. National Dairy Prods. Corp., 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963). It is thus the rule that, if the general class of offenses to which a penal statute is directed falls plainly within its terms and can be made constitutionally definite by a reasonable construction, the statute will not be held unconstitutionally vague even though marginal cases could be conjured up where doubts of constitutionality would arise. United States v. Spector, 343 U.S. 169, 96 L. Ed. 863, 72 S. Ct. 591 (1952). Where possible, it is the duty of the courts to give to a statute the construction which sustains its constitutionality, even though it might be susceptible of a different interpretation. United States v. Rumely, 345 U.S. 41, 97 L. Ed. 770, 73 S. Ct. 543 (1953); State v. Dixon, supra, and cases cited therein. Similarly, an oath required of all Massachusetts public employees not only to uphold and defend the constitutions, but to oppose the overthrow by force, violence, or any illegal or unconstitutional method, was held neither unconstitutionally vague, nor otherwise invalid despite the contention that the word oppose could conceivably be construed to demand active combat against those who would overthrow the government by force, violence, or other unconstitutional means. Cole v. Richardson, 405 U.S. 676, 31 L. Ed. 2d 593, 92 S. Ct. 1332 (1972).

Defendant also contends that the flag statute under which he was convicted is unconstitutional for overbreadth because it impairs his freedom of speech as guaranteed under the First Amendment. Placing the device on the flag, he says, was symbolic speech. When a statute impairs the right of freedom of speech prima facie, he urges, there is no presumption of its constitutionality, and the state has a heavy burden of sustaining it.

We are unable to sustain such sweeping condemnations of what appears to be a straightforward and precisely declared prohibition of placing either words, figures, marks, designs, drawings or advertisements upon a flag of the United States, or displaying such flag after this has been done to it.¹

The assertion made here of symbolic speech as a basis for sustaining the claim of unconstitutional vagueness and overbreadth is, we think, as nebulous, vague and overbroad as the statute here applied is narrow and precise. The statute does not purport to inhibit speech of any kind whether actual or symbolic, printed or auditory; it merely says that one cannot use the flag of the United States as the material upon which to print his utterance; he cannot lawfully employ the flag as a billboard, poster, or placard upon which to print his message.

Case authority upon which defendant relies, to sustain his claim of freedom of symbolic speech exercised by attaching signs or symbols upon an actual flag, are inapplicable. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, 147 A.L.R. 674 (1943), went no farther than to hold that neither children nor their parents could be punished for refusing to salute the flag if they had bona fide religious convictions against doing so. Stromberg v. California, 283 U.S. 359, 75 L. Ed. 1117, 51 S. Ct. 532, 73 A.L.R. 1484 (1931), referred to by defendant, merely held that the state could not constitutionally prohibit the display of a red flag as a sign of opposition to the government. It did not involve a flag of the United States, nor any defacement of it. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969), held that students could not be precluded from wearing black arm bands as a symbol of protest against the American participation in the Vietnam war. Street v. New York, 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969), involved a charge of desecration of the flag by words directed against it and the burning of it. It reversed the conviction, as we understand, for the reason that the court could not ascertain from the record whether defendant had been convicted for what he said about the flag, or what he did to it. There was, moreover, no circumstance there in which it could be said that Street was using so-called “fighting words,” or inciting a public disturbance, violence, or riot, or was engaged in conduct which at that time and place would be likely to do so. And finally, Long Island Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344 (2d Cir. 1970), cited by defendant, does not concern an actual flag of the United States, but merely a red, white and blue circular design with the asserted peace symbol superimposed upon it.

The issue in this case, then, is not whether the legislature in enacting RCW 9.86.020 has intended to or actually curtailed or impaired the rights of this defendant to speak freely or to communicate his ideas to others, for there is nothing about the statute which would do this. As applied to him, the statute does not bar the defendant from buying, printing, marking, proclaiming, denouncing, carrying, advocating, or displaying upon any kind of material or object he chooses whatever idea he wishes to communicate to others except upon a flag of the United States. Nor does the state contend that he can be required to pay public obeisance to the flag, or compel him to pledge allegiance to it. See State ex rel. Bolling v. Superior Court, 16 Wn.2d 373, 133 P.2d 803 (1943), holding that children whose parents were members of Jehovah’s Witnesses could not be compelled to pledge allegiance in the public schools. The only interdiction of free speech so far as this case is concerned is that one cannot alter or deface a flag of the United States—and perhaps other official symbols which are not before us—as a medium of communication. The larger issue, therefore, is whether a state—or the United States—can constitutionally bar the public employment and display of a flag of the United States, the official emblem of the nation, as a backing or as background material, or as a billboard, poster or placard for advertising a cause, philosophy, religion or product. We note that the statute does not bar the carrying of the American flag in connection with other banners, flags, signs, symbols or devices, but only the altering or adorning of it, or a symbol representing it, by placing foreign and extraneous materials, marks or symbols upon it. Thus, whatever impairment might be said to arise from this statute trenching upon the defendant’s rights to speak his mind freely and communicate his personal views by sign and symbol is minimal—so miniscule and trifling as to come within the de minimis non curat lex rule. Defendant’s freedom of speech and communication is no more impaired by this statute than would his rights to symbolic speech be abridged by an antinoise ordinance prohibiting the use of sound tracks at certain places and hours or the needless sounding of automobile horns and bells—or unnecessary noise next to a school. Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972).

The nation has a right to adopt a national emblem and the states have a right to protect it. The nation and the state have a constitutional right to declare that the flag of the United States, as a national symbol, is not available to anyone for use as a backing nor may it be altered for purposes of creating a medium for self-advertising, whether that advertising be the dissemination of one’s private views on life and things in general, or of a commercial product or service. We think it beyond argument that the nation and state both have a recognizable interest in preserving the flag as a symbol of the nation and in keeping it free of extraneous adornment and alien markings and designs.

The rule contended for by defendant, that his claimed right to affix a conspicuous symbol upon the flag of the United States is an integral component of his freedom of speech, has grave portent. If this defendant had this right, if the state cannot keep the flag of the United States free of extraneous signs, markings, pictures, designs, drawings and advertisements, then, of course, that right to put them there belongs equally to everyone. Banks and finance companies could, with equal claim of right, proclaim their solvency or the insolvency of business rivals with the dollar sign overprinting the flag; cattlemen with pictures of prize animals; or canneries with facsimiles of canned goods. If defendant’s view of the constitution were sound, then nearly everything offered, sold, hawked or delivered could lawfully in one way or another be advertised upon the flag of the United States, and the several states and the United States would be without power to prevent it.

And that is not the end of it: There is the realm of political, social, religious and philosophical ideas. If defendant cannot be constitutionally barred by law from affixing and displaying what he describes as a peace symbol upon the flag of the United States, neither can he be constitutionally prevented from proclaiming the Ku-Klux Klan upon it, nor the swastika, nor the hammer and sickle, either in advocacy of the Ku-Klux Klan, or Nazism, or Communism, or in opposition to these movements. Nor could he be stopped from utilizing the flag as a medium of display for whatever religious signs or symbols of whatever religion, new or old, he might espouse or detest. In short, if the defendant were right, the state and the United States could not lawfully prevent the flag from being actually employed as a billboard, placard, or backing for advertising proclaiming anything and everything imaginable.

We think the state can constitutionally keep the flag free of extraneous symbols, pictures and signs. There are thousands of other means available to the defendant for the dissemination of his personal views, and depriving him of the flag of the United States as one of them does not in our opinion measurably impair his freedom of speech.

The constitutionality of a similar flag statute, as it applied to the picture of a flag printed on a bottle of beer, was questioned in Halter v. Nebraska, 205 U.S. 34, 51 L. Ed. 696, 27 S. Ct. 419 (1907). There the statute prohibited the placing of or the exhibition or display of any flag of the United States upon which had been placed any word, figure, mark, picture, design, drawing or advertisement and punished violations as a misdemeanor. In sustaining the constitutionality of the Nebraska flag statute, the court said:

And we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.

and, further,

It would be going very far to say that the statute in question had no reasonable connection with the common good and was not promotive of the peace, order and well-being of the people. Before this court can hold the statute void it must say that and, in addition, adjudge that it violates rights secured by the Constitution of the United States. We cannot so say and cannot so adjudge.

Accordingly, the Court of Appeals is reversed and the cause remanded to the King County Superior Court for reinstatement of the judgment and sentence.

Rosellini, Hunter, and Wright, JJ., and Cochran, J. Pro Tern., concur.

1 We think it inappropriate and fruitless to initiate an analysis of those recent cases which relate to freedom of speech, “fighting words,” and public obscenity as inaugurated in Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942); Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894 (1949); Feiner v. New York, 340 U.S. 315, 95 L. Ed. 295, 71 S. Ct. 303 (1951); Cox v. Louisiana, 379 U.S. 536, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965), culminating in Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971), in which a jacket proclaiming an obvious obscenity against enforcement of the draft laws, was conspicuously worn by the accused while walking through the Los Angeles County Courthouse; the wearing was held protected by the First Amendment despite oft-repeated judicial assertions that public obscenity is not so protected, and since the words did not appear to be directed toward any person but to the conscription laws in general, they could not be held to be “fighting words.”