Texas v. Johnson - Oral Argument

Argument of Kathi Alyce Drew

Chief Justice Rehnquist: We'll hear argument next in No. 88-155, Texas v. Gregory Lee Johnson.

Ms. Drew, you may proceed whenever you're ready.

Mr. Drew: Thank you, Mr. Chief Justice, and may it please the Court:

The issue before this Court is whether the public burning of an American flag which occurred as part of a demonstration with political overtones is entitled to First Amendment protection.

The flag burning in this case occurred during the 1984 Republican National Convention in Dallas, Texas.

The flag was burning in front of Dallas City Hall at the culmination of a demonstration march through downtown Dallas in the midst of a crowd of demonstrators and on lookers.

The flag burner, who was identified as Mr. Johnson, was convicted under a Texas statute which prohibits desecration of the national flag.

His punishment was assessed at one year in the county jail plus a $2,000 fine.

The conviction was affirmed on direct appeal by the Intermediate Court of Appeals.

Mr. Johnson then filed petition for discretionary review to the Texas Court of Criminal Appeals.

That is the highest court in the state of Texas which hears criminal cases.

The court granted his petition, reversed his conviction, and ordered the information dismissed.

The Court of Criminal Appeals held that the Texas statute was unconstitutional as applied to Mr. Johnson, since he was a political protester.

Judge Campbell of that court found that flag burning constituted symbolic speech within the test enunciated by this court in Spence versus Washington.

That court also found that Texas' asserted interests in regulating the act of flag burning were insufficient to outweigh a protestor's First Amendment rights to expression.

For purposes of this argument today and with the Court's indulgence, the state will assume the symbolic speech standard and proceed directly to the question of Texas' compelling interest in regulating this type of conduct.

Throughout the course of the appellate history in this case Texas has advanced two compelling state interests.

One is the preservation of the flag as a symbol of nationhood and national unity.

The second is the preservation of a breach of the peace.

Chief Justice Rehnquist: Prevention of breach of the peace?

Mr. Drew: Yes, Your Honor, prevention as opposed to punishment for a breach of the peace.

I would like to address first the nationhood interest.

We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest.

We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol.

Justice Scalia: Now, why does... why does the... why did the defendant's actions here destroy the symbol?

His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for.

His action does not make it any less a symbol.

Mr. Drew: Your Honor, we believe that if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect.

Justice Scalia: I think not at all.

I think... I think when somebody does that to the flag, the flag becomes even more a symbol of the country.

I... I mean, it seems to me you're running quite a different argument, not that he's destroying its symbolic character, but that he is showing disrespect for it, that you not just want a symbol, but you want a venerated symbol, and you don't make that argument because then you're getting into... into a sort of content preference.

But I don't see how you can argue that he's making it any less of a symbol than it was.

Mr. Drew: Your Honor, I'm forced to disagree with you.

Unknown Speaker: All right.

Mr. Drew: Because I believe that every desecration of the flag carried out in the manner that he did here... and certainly I don't think there can be any question that Mr. Johnson is a hard-core violator of this statute... if his actions in this case under the facts of this case do not constitute flag desecration, then I really am not quite certain what would constitute flag desecration.

Justice Scalia: They desecrate the flag indeed, but do they make it... do they destroy the symbol?

Do they make it any less symbolic of the country.

That's the argument I thought you were running, that... that we have a right to have a national symbol.

And if you let the people desecrate the flag, you don't have a national symbol.

I don't see how that follows.

We may not have a respected national symbol, but that's a different argument.

Now, if you want to run that argument that we have the right to insist upon respect for the flag, that's a different argument.

Mr. Drew: Texas is not suggesting that we can insist on respect.

We are suggesting that we have the right to preserve the physical integrity of the flag so that it may serve as a symbol because its symbolic effect is diluted by certain flagrant public acts of flag desecration.

Chief Justice Rehnquist: Well, in the sense you're arguing a minimal form of respect for the flag, aren't you?

Not that you have to take your hat off or salute when it goes by.

Now, the state can't require you... but at least can it consist that you not destroy it?

Mr. Drew: Yes, Your Honor.

We... to the expect... to the extent that we are asking for any respect for the flag, we are asking for respect for its physical integrity.

Certainly we do not demand that any individual view it with any discernable emotion whatsoever, only that its physical integrity be respected.

And I think that that is a very minimal basis to ask from any individual.

And that is really all Texas is suggesting with this is that we have got to preserve the symbol by preserving the flag itself because there really is no other way to do it.

There is nothing that would accomplish this particular purpose if you cannot protect the physical integrity of the flag.

Justice Kennedy: Well, oh, over... over the years, over the centuries, the cross has been respected.

I recognize one's a religious symbol, the other's a national one, but there's no legislation that has appeared necessary to protect, say, the cross.

Mr. Drew: That's true, Your Honor.

Justice Kennedy: So, it may be that you can protect symbols by public respect and by measures other than the imposition of the criminal law.

Mr. Drew: Your Honor, I don't believe, though, that a cross has quite the same character that the American flag does because there are many people in this nation who would not view a cross as a symbol.

Justice Kennedy: Even probably... probably maybe arguably less than the flag.

I'm not sure of the numbers, but it's been preserved.

Mr. Drew: And this particular statute, Your Honor, would not go to that sort of a symbol.

This particular statute, I believe, in this respect recognizes that the flag is a national property, that it belongs to all people, that all people are entitled to view it symbolically in whatever way that they wish.

Some people may give it great respect.

Others may not.

That's not what we're regulating here.

We are simply trying to preserve the flag as a symbol for all people.

The issue--

Justice Kennedy: Well, you begin by saying that it's a symbol and by acknowledging, at least in this part of your argument, that what the defendant did was speech, is that correct?

Mr. Drew: --We are assuming that standard for purposes today.

Justice Kennedy: All right.

At this point.

What is the juridical category you're asking us to adopt in order to say we can punish this kind of speech?

Just an exception for flags?

It's just a... there's just a flag exception of the First Amendment?

Mr. Drew: To a certain extent, we have made that argument in our brief.

With respect to the symbolic speech standard, we believe that there are compelling state interests that will in a balancing posture override this individual's symbolic speech rights, and that preserving the flag as a symbol, because it is such a national property, is one of those.

Justice Kennedy: What are the others?

Mr. Drew: The other state interest advanced Your Honor, is a prevention of a breach of the peace.

Justice Kennedy: That's the other state interest.

Mr. Drew: Yes, Your Honor.

Justice Kennedy: But I assume under this statute, of course, it's not just one flag, it's 51.

Mr. Drew: 51 flags or all 50 state flags but the national flag?

I'm confused by your question.

I apologize.

Justice Kennedy: Well, this statute prohibits the desecration of a state flag as well.

Mr. Drew: Yes, it does.

Justice Kennedy: Of the Texas state flag?

Mr. Drew: Yes.

Justice Kennedy: And I assume if we upheld the statute in every other state it would have the same right?

Mr. Drew: Yes, Your Honor.

Justice Kennedy: So, your category for one flag is now expanded to 51.

Mr. Drew: The statute does say a state or national flag.

That is correct.

And we do believe Texas certainly has a right to protect its own flag.

And I think that a similar interest would be for sister states.

So, the statute says a state or national flag.

Justice O'Connor: Could Texas prohibit the burning of copies of the Constitution, state or federal?

Mr. Drew: Not to my knowledge, Your Honor.

Justice O'Connor: That wouldn't be the same interest in the symbolism of that?

Mr. Drew: No, Your Honor, it would not be the same interest I don't believe.

Justice Scalia: Why not?

Why is that?

I was going to ask about the state flower.

[Laughter]

You're not going to--

--The state flower?

Mr. Drew: There is legislation, Your Honor, which does establish the blue bonnet as the state flower.

Justice Scalia: I thought so.

Mr. Drew: It does not seek to protect it.

Justice Scalia: Well, how do you pick out what to protect?

I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.

I don't know.

Mr. Drew: Your Honor, I think Texas in this area has made a judgment that certain items... and the statute itself is not limited to just the flag.

The portion that is in question here is limited to the flag.

But it has made a judgment that certain items are entitled to more protection.

Justice Scalia: I understand that.

But we up to now have never allowed such an item to be declared a national symbol and to be usable symbolically only in one direction, which is essentially what you're arguing.

You can honor it all you like, but you can't dishonor it as a sign of disrespect for the country.

Mr. Drew: No, Your Honor.

We're not arguing that at all.

Justice Scalia: Oh?

Mr. Drew: Not at all.

We are in no way arguing that one cannot dishonor the flag or that one cannot demonstrate disrespect for the flag.

Individuals have that right.

What we are arguing is that you may not publicly desecrate a flag regardless of the motivation for your action.

Justice Scalia: Well, one hardly desecrates it in order to honor it.

I mean, you only desecrate it in order to show your disagreement with what it stands for, isn't that right?

So, it is sort of a one-way statute.

Mr. Drew: I don't think that it is exactly, Your Honor, because I think that there are other forms of conduct which are... equally prohibit... well, let me put it this way.

The same conduct is prohibited, regardless of the motive of the actor.

If this--

Justice Scalia: But its motive... its motive... his motive will never be to honor the country.

It will always be to criticize the country.

Mr. Drew: --Not necessarily.

Justice Scalia: Will you give me an example where one... somebody desecrates the flag in order to show that he agrees with the policies of the United States.

I--

[Laughter]

Mr. Drew: I think it is possible--

Justice Scalia: Well--

Mr. Drew: --that an individual could choose to burn a flag as an honor for all the individuals who died in Vietnam.

This is their most prized possession.

They're going to take it in front of Dallas City Hall in the midst of a hundred people in the middle of the afternoon, they're going to soak it with lighter fluid, and they're going to ignite it, and they are doing this to honor the Americans who died in Vietnam.

Justice Stevens: --They'll probably violate a federal statute while they're doing that, too.

Mr. Drew: Yes, Your Honor, there is a federal statute that does regulate flag desecration.

This man was not prosecuted under it.

He was prosecuted under the Texas statute.

Justice Scalia: Your statute would cover that example that you just gave?

Mr. Drew: Yes, it would, Your Honor, because it does not go to the motive of the actor.

If a vandal takes a flag... same scenario... in front of Dallas City Hall, a hundred people, middle of the afternoon, soaks it with lighter fluid, sets it on fire, they are still liable under this statute.

They have desecrated the flag, but they have no intent to dishonor the country.

They have no intent to dishonor the flag.

They have no intent to do anything except oh, I'm... just an act of a vandal.

I think I'll do this today.

Justice O'Connor: Well, actually, Ms. Drew--

Mr. Drew: Yes.

Justice O'Connor: --I thought this statute only applied if the desecration were done in a way that the actor knows will offend one or more other people likely to discover it.

Mr. Drew: That is correct, Your Honor.

Justice O'Connor: There is that little added requirement, is there not?

Mr. Drew: Yes, Your Honor, that is correct.

Justice O'Connor: And do you think that that added requirement survives analysis under this court's cases in Street and Grayned versus City of Rockford and so forth?

Mr. Drew: Yes, Your Honor, I believe it does.

Justice O'Connor: And why?

Mr. Drew: Believe I believe the import of that statute.

Now, the statutory language there is that it goes to the manner in which the act is effectuated.

It goes to the way in which the act is performed, that it has to be in a way that the actor knows will seriously offend.

Serious offense does not have to be caused under this statute.

Justice O'Connor: Well, I thought that the court had held that it's firmly settled under the Constitution, that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.

Mr. Drew: That's correct, Your Honor.

Justice O'Connor: And this statute seems to try to achieve exactly that.

Mr. Drew: I don't believe that it does, Your Honor, because I believe that the pivotal point is in a way how is the conduct effectuated, how is it done, not what an individual may be trying to say, not how onlookers perceive the action, not how the crowd reacts, but how is it done.

If you take your flag into your basement in the dead of night, soak it with lighter fluid and ignite it, you probably have not violated this statute, because the Texas statute is restricted to certain limited forms of flag desecration.

Justice Blackmun: Ms. Drew, it's probably of no consequence, but is there anything in the record as to whether this flag was stolen?

Mr. Drew: Yes, Your Honor, as a matter of fact there is.

The... one of the officers who was observing the march testified that in front of the Mercantile Bank Building he saw several of the protestors bend a flag pole and remove an American flag.

They then handed this flag to Mr. Johnson, who wadded it up and stuck it under his T-shirt.

The march then proceeded.

The officer testified that when they got to City Hall, he saw Mr. Johnson remove the flag from under his shirt.

He tried to light it with a cigarette lighter.

It would not light.

Someone from the crowd then handed him the can of lighter fluid.

He soaked it, ignited it, the flag burned.

Justice Blackmun: But you would be making the same argument if he owned the flag?

Mr. Drew: Yes, Your Honor, we would be.

I do not believe that there is a shred of evidence in this record to support the fact that this was his privately owned flag.

I believe just the opposite is very clearly reflected.

Justice Stevens: Was he prosecuted for stealing the flag?

Mr. Drew: No, Your Honor, he was not.

Justice Stevens: I wonder why not.

Mr. Drew: I believe, Your Honor, that problems were of proof there in that no one saw him actually take it.

In fact, the testimony was that others took it and then gave it to him.

And I believe that it was felt that there were so many proof problems that a prosecution was very speculative under those facts.

There also might have been some problem with placing a monetary value on the flag for purposes of prosecution, which is necessary under the statute.

Justice Blackmun: Isn't the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail?

Mr. Drew: I'm sorry, Your Honor.

I'm not... I'm not afraid I got all of your question.

Justice Blackmun: Well, if you were out in front of the building today, there are pseudo-demonstrators of one kind or another, and I'm merely saying isn't... wouldn't it be better policy to rather than have a criminal statute like this to have 500 people out waving flags and hooting him down, so to speak?

Mr. Drew: Your Honor, I believe that legislatures act in category equal manners, and that--

Justice Blackmun: Legislatures act the way they do, all right, no question.

You have to be up here defending them.

Mr. Drew: --It is within their judgment to penalize behavior that they feel is offensive to society.

Justice Kennedy: But you gave that answer before.

You said the legislature has made the judgment.

But you're asking us to define and to articulate a constitutional category.

And from what I can see, the constitutional category is that we simply say the flag is different.

Mr. Drew: That is one possibility that we have advanced to this court.

That's certainly true, Your Honor.

We have also suggested, though, that another route is available to assume the symbolic speech standard and to take a look at what the state's interests are in protecting and in prescribing this type of behavior.

Justice O'Connor: Do you suppose Patrick Henry and any of the founding fathers over showed disrespect to the Union Jack?

Mr. Drew: Quite possibly, Your Honor.

Justice Scalia: You think they had in mind then in drafting the First Amendment that it should be a prosecutable offense?

Mr. Drew: Of course, Your Honor, one has no way of knowing whether it would be or not.

Justice Scalia: I think your response is that they were willing to go to jail, just as they were when they signed the declaration.

They were hoping they wouldn't get caught.

[Laughter]

Mr. Drew: Yes, Your Honor.

I believe the classic line is "We hang together or separately".

Justice Stevens: That's right.

Do you... you said that this flag may be possibly different from other symbols.

You don't argue that there's something unique about this flag?

Mr. Drew: Of course there is, Your Honor.

Justice Scalia: When it's... do you think... when you have an equally strong case for the flag of the State of Texas or the state flower.

Do you think they're the same case?

Well, Texas may be, we'll say.

[Laughter]

Mr. Drew: Texas, absolutely, Your Honor.

[Laughter]

Justice Stevens: Are you serious in that answer?

Mr. Drew: Yes, I am.

Justice Stevens: That the Tex... that the Texas flower... and you could make the same kind of argument as for this flag?

Mr. Drew: No, I don't think you could make the same kind of argument for the Texas flower.

I truly do not.

Justice Stevens: But you haven't really made an argument that there's anything unique about this symbol.

Mr. Drew: Well, Your Honor, I disagree.

I think in our brief we have detailed several arguments of what is unique about the symbol.

Justice Stevens: Well, I mean, I've just... what I've heard this afternoon is all I'm saying.

Mr. Drew: I think it's very clear that the flag is the manifestation, the visible manifestation of over 200 years of history in this nation, and that it has remained virtually unchanged in design.

The 13 stripes represent the original 13 colonies, and every state is represented on the field of blue by a star.

It is very unique.

It is immediately recognizable to almost anyone who would see it.

Justice Marshall: Well, suppose... suppose somebody burns an American flag with 48 stars on it.

Mr. Drew: I believe that is reachable under this statute, Your Honor.

Justice Marshall: You believe what?

Mr. Drew: I do believe that that could be reached under this statute.

That is clearly a past flag.

Many people probably still own and display 48-star flags.

Justice Marshall: It would be just the same?

Mr. Drew: Yes, Your Honor, I believe that it would be.

Justice Scalia: But 47 wouldn't work because there was never a 47-star flag, is that... then you wouldn't reach it?

Mr. Drew: That would depend, Your Honor, on--

Justice Scalia: So, all you have to do is take one star out of a... out of the flag, ana it's okay.

[Laughter]

That can't be right.

Mr. Drew: --That would depend, I believe, Your Honor, on how flag is defined.

There are certain definitions that are given.

Congress itself has defined what it means by the flag of the United States.

And, as part and parcel of that definition, there is language that says

"The stars and stripes in any number which to an individual who looks at it without... without deliberation, may be a flag. "

The flag behind you looks to me to be a flag, but I cannot count 50 stars on it.

Justice Scalia: Now, that... so, you're saying 47 would be okay.

I tend to think that's probably right.

Mr. Drew: If there were any question, I would think that it would be appropriate for a jury to resolve that question, Your Honor.

I'd like to turn very briefly, if I may, to the breach of the peace interest.

We do feel that preventing a breach of the peace is a legitimate state interest.

And, indeed, the Texas Court of Criminal Appeals recognized that preventing a breach of the peace is a legitimate state interest.

Again, the Texas legislature has made a judgment in this area that public desecration is likely to lead to violence, that it can lead to violence.

And I think the record in this case is abundantly clear that it is merely fortuitous, it is our good luck that a breach of the peace did not occur as a result of this particular flag desecration.

The appropriate test to be utilized in this area has not been decided by this court.

There are two lines of cases.

One is that public desecration of a flag is inherently inflammatory.

Another is that immanence must be shown.

And I believe that this record is very clear that Texas could regulate under either theory.

And, again, the goal is a prevention of a breach of the peace, not a punishment for a breach of the peace.

And in analyzing this particular statute, the Texas Court of Criminal Appeals utilized a much higher standard than any court has ever used before.

They went to an actual breach of the peace and they said well, there was no actual breach of the peace.

That's true.

Individuals who were seriously offended by this conduct were not moved to violence.

If they were, they exercised restraint.

But I don't believe that that is dispositive of the state's interest and because its interest is different, the standard is different.

And I believe that the Court of Criminal Appeals suggestions in this regard are a bit too narrow; that if you have to show an actual breach of the peace, your purpose in a flag desecration statute is obviated.

Some other statute would serve that interest, but not a flag desecration standard because its purpose is prevention.

Justice Scalia: I suppose you could have such a... if that theory alone is enough to support the statute, I suppose you could have such statutes for Stars of David and crosses and maybe... I don't know... Salman Rushdle's book or whatever, whatever might incite people you can... you can prevent such desecration.

Mr. Drew: Your Honor, again, there are other sections of this statute where other items are protected, specifically public monuments, places of burial and worship.

I don't believe that anyone could suggest that one may paint swastikas on the Alamo in San Antonio.

That is desecration of the Alamo.

Legislatures made it up--

Justice Kennedy: But that... but that's because it's public property--

Mr. Drew: --True.

Justice Kennedy: --and unless you want to say that the flag is somehow public property of us all and ignore traditional distinctions of property, then your example just doesn't work.

Mr. Drew: Your Honor, I believe that it does.

I believe it does.

The amici brief filed on behalf of Mr. Johnson in this case by the American Civil Liberties Union confesses that there is no First Amendment interest in protecting desecrations of either public monuments or places of worship or burial because they are... and this is a direct quote from Footnote 7, page 18 of their brief... "Someone else's cherished property".

I think the flag is this nation's cherished property, that every individual has a certain interest.

The government may maintain a residual interest, but so do the people.

And you protect the flag because it is such an important symbol of national unity.

Justice Scalia: If we say so, it becomes so.

But it certainly isn't self-evident that... I never thought that the flag I owned is your flag.

I mean--

[Laughter]

Mr. Drew: Many justices of this court have held that the flag is a national property.

Unless the Court has additional questions, I would like to reserve my remaining time for rebuttal.

Argument of William M. Kunstler

Chief Justice Rehnquist: Very well, Ms. Drew.

Mr. Kunstler.

Mr. Kunstler: Mr. Chief Justice, may it please the Court:

Some of the steam has been taken out of me by some of the questions and some of the responses and the concession by the state.

But I would like to suggest briefly to state that this particular act that we're concerned with here, this 42.09(a)(3) of the Texas statute singles out communicative impact for punishment.

Now, Ms. Drew has avoided that by now... and virtually the state now apparently concedes that you can write out of a statute what Justice O'Connor referred to, the question of whether the actor knows or means that what he's doing will seriously offend one or more persons likely to observe or destroy or discover his particular act.

That's out of the statute, apparently, according to the argument because in the reply brief and today she has said essentially what is in the reply brief.

Like Gertrude Stein, "A rose is a rose", they now say

"A flag burning is a flag burning. "

And they read out of the statute under which he was convicted and which went to the jury and the charge on the question of seriously offend, that's all out as far as Ms. Drew is concerned.

But it's not out as far as this court is concerned.

That's what the conviction was about, that's what the argument to the jury was about, that's what the charge was about.

They all mention that.

That's what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously offended.

So, this depends on communicative impact for punishment.

They've conceded it's pure speech.

They raise no question arguendo, even, essentially that it is not speech, and concede that.

Justice Scalia: Mr. Kunstler, I... I... I think you're stretching her argument.

I don't think she said that.

I... I think she said that there has to be a fence, but it doesn't have to be the intention to communicate that offense.

It doesn't have to be intended offense.

Mr. Kunstler: Well, that's--

Justice Scalia: If... if you're doing it to honor the flag in your... in your crazy, mistaken fashion, but it... but it would obviously offend anyone else, then you would violate the statute.

So, I think she... she still insists that it be likely to offend somebody, but you don't have to intend to communicate a dishonor or offense to the flag.

Mr. Kunstler: --I can understand that rationale, but in reading the reply brief, the reply brief said in essence we virtually take that out of the statute.

We rewrite the statute now, and we say essentially a flag burning is a flag burning, and that offense goes out of it, offense whether communicated later or not communicated later, whether it occurs or it doesn't occur, I thought that's what the reply brief did.

Now, maybe I do misstate her argument slightly, but I don't think I mistake the reply brief, because I got the impression that's... well, the words,

"A flag burning is a flag burning. "

is in the reply brief.

Now, I remember, Justice Scalia, in reading your dissent in Community for Creative Nonviolence that you said essentially,

"A law directed at the communicative nature of conduct must like a law directed at speech itself be justified by the substantial showing of need that the First Amendment requires. "

I subscribe to that wholeheartedly.

In fact, you went on and you reviewed all of the cases that you thought were applicable there, Stromberg, Brown, Tinker and Spence, and you made the following statement:

"Every prescription of expressive conduct in those cases was aimed at the communicative effect of the conduct. "

And that's what they had here.

That's what the jury got, that's what the testimony was, and that's what the statute says.

And I agree with... I think--

Justice Scalia: I was just on the Court of Appeals, then, Mr. Kunstler.

Mr. Kunstler: --I understand.

[Laughter]

Justice Scalia: I may have been wrong, you know.

I hope that the elevation doesn't change the thought.

[Laughter]

Mr. Kunstler: In any event, we subscribe to that, of course, in our argument, and I think Justice O'Connor when she wrote Boos she said essentially, this justification, folks, is only on the content of the speech and the direct impact that speech has on its listeners.

And in Cohen I think Justice White in his concurrence said that the... that statute made the communicative aspect of the proscribed conduct a crucial element of the violation.

That's the contemptuous treatment statute, and that's what we have here.

Everything depends on the communication that is made by the actor which may be communicated to the people on the street, but you know in the statute, Justice Scalia, it goes even further, "likely to observe or discover", which could be in the newspapers the next day, for example, as well as being an onlooker.

So, I think that given the concession that the statute is pure speech, given the past decisions of this Court on what should happen to a statute that makes communicative impact, the criterion of the punishment that this statute fails that test, it certainly doesn't come under O'Brien because where... here the government's interest is directly related to expression.

It's like Footnote 8 in Spence, and I think what you have here is a statute that depends solely and exclusively on communicative impact on the audience, whether they're there or they read it in the newspaper or they see it on the screen in the evening.

It all goes to that.

And when you use the word desecrate, you don't mean really in essence praising the flag.

Desecrate has a... has a... has a meaning, and I just looked at it in Webster's Second International about it, and desecrate means to divest of a sacred character or office, to divert from a sacred purpose, to violate the sanctity of, to profane, the opposite of consecrate.

Now, with reference to the compelling state interest, I listened to the argument of flower to star against B.J.F. before here, and I don't want to hurt Mr. Rahdert's argument in this argument, knowing nothing about the case except what I heard today, but I thought that the protection of a rape victim was a compelling state interest.

I agreed with Justice O'Connor's comments on that.

That is a compelling interest, certainly.

Here you have no compelling state interest that is worth consideration.

Chief Justice Rehnquist: Mr.... maybe Mr. Rahdert would feel differently.

[Laughter]

Mr. Kunstler: That may be true.

Is he in the room yet?

I hope not.

Justice Scalia: He's waving a flag in the back, I think.

[Laughter]

Mr. Kunstler: Now, we're getting back to my argument.

With reference to the nationhood and national unity, which Ms. Drew raised and which is filled in the brief, both the reply brief and the main brief of the state, I think... I thought Barnette set that to rest.

I thought that when Justice Jackson said that if there is any fixed star in our Constitutional constellation, it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism--

Chief Justice Rehnquist: Well, the facts of West... West Virginia versus Barnette were quite different from this.

There the students were required to salute the flag.

Mr. Kunstler: --And here, Chief Justice, you're asking... people are required not to do something.

Chief Justice Rehnquist: Yes.

Mr. Kunstler: And I think that's a comparable situation.

We order you... we can't order you to salute the flag, we can't order you to do all these obeisances with relation to the flag.

Can we order you not to do something to show something about the flag?

Chief Justice Rehnquist: Well, to me they're quite different.

You could say that if you can't do one, you can't do the other.

But it seems to me one could quite easily say you can't do one but you can do the other.

Mr. Kunstler: Well, you know, I understand that, but I think that you get into Street, I thought, which also relied on Barnette.

There he did exactly what we're talking about here.

He burnt the flag in the street over the question of James Meredith being shot in Mississippi in 1966.

Chief Justice Rehnquist: And what was the holding of the court in Street?

Mr. Kunstler: Well, in Street essentially the court indicated that you couldn't tell whether it was speech or whether it was flag burning and, therefore, the court reversed in the Street case.

But in so deciding in relying on Barnette, the court said, essentially I thought, that it was an illegitimate interest in Street to compel respect by prohibiting criticism of the flag, including flag burning.

So, I think it's... I guess we have a little difference of opinion on the facts.

I know the facts are somewhat different except a flag was burned in the street by Mr. Street in a political protest over a shooting in Mississippi of a civil rights figure.

But I think the analogy is the same.

Can you say you can't force them to salute the flag or pledge allegiance to the flag, but can you then say we can force them not to show other means of disrespect for the flag, other means of protest over the flag by saying you can't burn the flag?

I think they're the same, in all due deference.

Chief Justice Rehnquist: Well--

Mr. Kunstler: I don't know if I've convinced you, but--

Chief Justice Rehnquist: --Well, you may have convinced others.

[Laughter]

But take... take, for example, the "Live Free or Die" case.

Do you remember that--

Mr. Kunstler: --I certainly do.

Chief Justice Rehnquist: --from New Hampshire where we said you can't... New Hampshire can't require you to carry around on your license plate the expression "Live free or die".

But certainly New Hampshire could have presumably prohibited... New Hampshire couldn't compel you to make any affirmative statement on your license.

They certainly could have prevented you from making some statements on your license plate.

Mr. Kunstler: No, but I think in Wooley, as I recall it, they painted out.

They did an affirmative act and painted out the "Live free or die" motto.

The Jehovah's Witnesses didn't believe in that, so they painted it out.

They did enact and then the question was was that act violating some criminal code.

Chief Justice Rehnquist: And the court said no, you... you... you can't pro... you can't prohibit that sort of thing, but the... the reasoning of the Court was that you can't require someone to make an affirmation.

To me that's West Virginia versus Barnette.

But, if someone applies for a New Hampshire license plate that has a lot of foul language on it, very likely that limited thing can be proscribed.

Mr. Kunstler: I know.

That... I would agree with you on that, but I think that to get away from Wooley against Maynard would be a mistake here.

That... that's putting something on the license plate that is profane or whatever.

But in... in Wooley, as I understood it, the act that they, Jehovah's Witnesses did, was to paint out.

They burnt the flag.

In essence.

They painted out.

I don't think we're going to reach eye to eye on this.

[Laughter]

I have that distinct feeling.

Getting back, then, to the no compelling state interest, though, I don't think there is any compelling state interest in the state of Texas... and by the way, the national flag does not just mean the American flag.

There is a presidential flag... they don't put it in capitals... there's a presidential flag that is flown.

The Secretary of State has a flag that's a national flag.

There are many national flags.

I counted 17 national flags.

Each department here in Washington has a flag.

They're national flags, and the State of Texas would also include those as national flags, certainly the President's flag.

So, I think that the word "national" flag needs definition in itself.

Justice Blackmun: Does the Supreme Court have a flag?

Mr. Kunstler: What was that?

Justice Blackmun: Does the Supreme Court have a flag?

Mr. Kunstler: I don't know, but the Republican Party has one--

[Laughter]

--because when they went by the Mercantile Bank Building here... I just learned this from the record... the... one of their witnesses, Jimmy Smith, who is the custodian of the flags at the Marcantile Bank said,

"We took down four American flags. "

"We have 16 normally, because we put up four Republican Party flags because the Republican Party was then meeting in its annual convention... in its national convention. "

So, I know the Republican Party.

If the Supreme Court doesn't have one or has one, I don't know.

I think you'd be in a better position than me to tell that anyway.

By the way, talking about flags in front of the Supreme Court, when I came by today, the flags were up in the rain, and under 36 U.S. Code, the leading provision there is flags shall not be displayed in inclement weather.

Justice Marshall: Are we going to get back--

Justice Scalia: --Exemption one applies to all weather flags.

Justice Marshall: Are we going to get back to this case?

Mr. Kunstler: That's in all weather flags.

[Laughter]

That could be physical mistreatment under the Texas statute.

You get into vaguenes.

Justice Marshall: Mr. Kunstler, are you going to get back to the case?

Mr. Kunstler: Yes, I'm getting back to the case.

[Laughter]

Seems to me we had this three weeks ago.

In any event, I don't think that the... there is a compelling state interest in this flag or any national flag whatsoever.

I think the Court has really held that--

Justice Stevens: Mr. Kunstler, let me ask you... and maybe this gets a little bit away from the case... do you think there is any public interest at all in any of these regulatory measures about don't display the flag in the rain or don't fly it upside down or so?

Is there any state interest at all to support that kind of legislation?

Mr. Kunstler: --I don't know, but I don't think it matters because they're not criminal statutes.

They are recommendations.

It used to be you couldn't fly the flag at night.

Now, you can fly it if it's illuminated, and so on.

Justice Stevens: Do--

Mr. Kunstler: They're recommendations.

There are no criminal penalties.

Justice Stevens: --Do you think the federal government has any power at all to... to regulate how this flag is displayed in public places?

Mr. Kunstler: I don't believe so.

I don't... I'm thinking in my mind whether they have any injunctive power.

Justice Stevens: There's no state interest whatsoever?

Mr. Kunstler: I don't see any state interest whatsoever.

Justice Stevens: I feel quite differently.

Justice Kennedy: Can the federal government prohibit use of the flag for commercial purposes?

Advertising?

Mr. Kunstler: I don't know.

Since Halter against Nebraska, where there was a Nebraska statute against using the flag on beer bottles or beer cans, I don't know whether there can be any prohibition of that.

It's used all over for commercial purposes.

I notice that Barbara Bush wore a flag scarf, for example.

There are flag bikinis, there are flag everything.

There are little cocktail flags that you put into a hot dog or a meatball and then throw in the garbage pall.

They're flags under the Texas statute, something made out of cloth, but I think they're are all sorts of flags used commercially.

I'm not sure in my heart whether I think there's any control over the use of the flag, not on the criminal side anyway.

Whether there is a... in answering Justice Stevens' question whether there is an injunctive process that can be employed or not... I... I... I won't go into it.

I don't know.

But I have an instinctive feeling that's different, apparently, then Justice Stevens' that there is no control of the use of the flag commercially, although I don't think it's necessary for this case because here we're only talking about a criminal statute.

Now, with reference to... when I read Justice White's concurrence in Goguen, I notice he said that punishment for communicating ideas about the flag unacceptable to controlling majority in the legislature is something that is wrong, to punish people for having a different idea about the flag, different than the Texas legislature has with the flag in its desecration statute.

And by the way, that's called the desecration of venerated objects.

That's the classification they give to it.

And I agree with Justice Scalia that flag burning of a single flag in front of the new City Hall in Dallas doesn't lessen the value as a symbol.

Justice Stevens: Let me go back to the any state interest at all.

Do you think the military would have any legitimate interest in disciplining a member of the military who showed disrespect for the flag on public occasions?

Mr. Kunstler: You might have a case there.

Justice Stevens: You might have a case.

Mr. Kunstler: If a person that joins the army, the flag has even a more peculiar significance to people in the army.

I would have problems with it.

I would represent such a person--

[Laughter]

--because I would think that there's something First Amendment in there.

But if he destroyed a flag that was the property of the army, I think he'd be court martialed for that.

I don't think there's a particular flag statute in the Uniform Code of Military Justice.

If you destroy someone's flag, you can be punished.

There are many statutes.

I think the Texas Court of Criminal Appeals pointed there are some statutes, this statute and that statute that would cover the situation without getting into the First Amendment area.

And I'm sure it would violate the article of war... I used to call it the article of war... which says

"conduct unbecoming a member of the military. "

if you destroyed a flag... refused... even refused to salute a flag under the military code.

Now, with reference to the breach of the peace--

Justice Stevens: I was only suggesting that maybe there is some... some identifiable state interest that's involved here.

Mr. Kunstler: --Yeah.

I'm not saying... I don't want you to get the wrong--

Justice Stevens: I think you're acknowledging that there is.

Mr. Kunstler: --impression that I say it's totally out of reach.

I'm not saying that.

I'm trying to confine it to this case.

Justice Stevens: You did say that.

Mr. Kunstler: I know I did.

[Laughter]

I guess I have too much of a First Amendment consciousness, I guess, in my makeup.

With reference to breach of the peace, I don't think there's ever... none of the flag cases that you have before you... ever had before you... have involved a breach of the peace.

The only one I found where there was any violence was what Judge Tuttle found in the Monroe case, where they burned an American flag in front of the federal building and someone burned an Iranian flag.

When the Iranian flag was burned, there was one act of violence, but not when the American flag was burned.

And Judge Tuttle pointed out that there was no clear and present danger.

He went right into the old Holmesian doctrine of "clear and present danger" just as there wasn't here.

If there had been a breach--

Chief Justice Rehnquist: What about... what about Finer against New York, remember, where that fellow was speaking up at Syracuse and said President Truman is a champagne sipping bum, whereupon they told him he had to stop speaking because of fear from the crowd was going to attack him?

Mr. Kunstler: --Well, I don't think that changes the position yet because it's no different than Terminiello, really.

You're saying hard things.

Chief Justice Rehnquist: Well, it came after Terminiello, and it went... it came out the other way.

Mr. Kunstler: I know it, and apparently the imminence there was so immanent--

[Laughter]

--thank you... was so immanent.

But you don't have that here at all.

In Terminiello, as you know, when I was reading Terminiello's remarks in the transcript, there was... it showed he ducked several times.

Apparently someone threw something during his rampage against the Jews, but they held... this Court held that that wasn't enough.

It wasn't really raised very much in the argument.

But if it gets to imminent danger where you really have something going on, which you didn't have here, and you haven't had in any of the flag burning cases, there's no breach of the peace here and no imminence of the breach of the peace here at all.

Justice Blackmun: Well, then we come close to the Skokie cases.

Mr. Kunstler: Well, Skokie presents a situation, of course, where the attempt to parade through an all white community of black demonstrators... but even there, of course, you can't stop it.

You can't stop it.

Justice Blackmun: That's my point.

Mr. Kunstler: It you're going to stop it, it has to be so imminent as the Chief said... it has to be so imminent that it really reaches clear and present danger proportions.

That's where Judge Tuttle said in Monroe, and I think that is the rule here.

We haven't argued clear and present danger yet, but I think you must at least show some clear and present danger, some imminence.

The... the statute here is not limited to an imminent breach, by the way.

It doesn't say imminent breach of the peace at all.

It just says "likely" or "might" or,

"The actor could reasonably believe that someone might be seriously offended by it. "

The Texas Court of Appeals treated this, I think, in its opinion.

It said,

"This statute is so broad that it may be used to punish protected conduct which has no propensity to result in breaches of the peace. "

Serious offense does not always result in a breach of the peace.

The protest in this case did not lead to violence.

And, I might add, in this protest they had policemen right along with them, undercover police officers.

The crowd was not a large crowd.

They estimate between 100, 110, and Texas went on to say, as with most other protests of this nature, police were present at the scene.

A witness was obviously seriously offended by appellant's conduct because he gathered the burned flag and buried it at his home.

Nevertheless so seriously offended, this man was not moved to violence.

Serious offense occurred, but there was no breach of the peace, nor does the record reflect that the situation was potentially explosive.

One cannot equate serious offense with incitement to breach the peace.

And I think that any breach of the peace argument here falls on its face.

It is... I think when Chief Justice Burger said in O'Brien versus Skinner,

"It is not our function to construe... to construe a state statute contrary to the construction given it by the highest court of the state. "

They have construed this statue with reference certainly to breach of the peace.

On vagueness and overbreadth, I think the vagueness is... is apparent.

It's... by definition it's vague.

What does "serious offense" mean?

What is "unserious offense" as against "serious offense"?

Some of the ACLU witnesses here testified here they were offended.

They thought it was repulsive, one of them said, but they were not seriously offended.

And I don't know what seriously offended means.

The state says it's in the dictionary, and therefore it must have a meaning.

I agree with that.

Every word is in the dictionary, or at least in some dictionaries.

But just because they're in the dictionary doesn't mean that you can define legally or on the spot what serious offense is.

It wasn't a serious offense, for example, to fly the flag outside the Supreme Court in violation of 36 USC.

The artists' amicus brief, which I think is a most unusual brief, contains many, many of the artists' paintings where you might say that they created paintings that would seriously offend by manipulating the American flag or by cutting it up, destroying it, using it in different ways, many of them to protest situations.

Some of them go to the war in Vietnam.

Some of them go to other aspects.

You don't even know what physical mistreatment means in the statute.

Does physical mistreatment mean wearing it, twisting it, burning it?

It's just an undefinable statute.

As far as overbreadth is concerned and even taking into consideration Justice White's substantial overbreadth argument, this is substantially overbroad--

Justice White: That's the Court's doctrine.

Mr. Kunstler: --Pardon me.

But I read it and I saw the words "substantial overbreadth" in it, and I think this even meets that higher standard of whether It's overbreadth.

It sweeps protected conduct under its aegis and is... it's just an overbroad statute, so overbroad that I don't think anyone can really doubt it.

And, in fact, there's been no real argument against it, against the overbreadth argument essentially the State of Texas.

Now, with reference to as applied, we would rely on the Street case.

You can't tell here whether he was convicted with reference to this statute as to the flag burning or as to the words or the acts he did before the flag burning because the Texas prosecutor in his summation said as follows:

"If you look at this evidence from start to finish. "

--and they showed a lot of television shots of what was happening in Dallas

"If you look at this evidence from start to finish, the participating in the beginning, the literature, the last notations, RCYB, the shirt, who he is, the chanting, the yelling, the megaphone, the encouragement, the having the megaphone, being there, wanting this to happen, there is no question he encouraged it all. "

"He's as guilty as sin as far as the law of parties is concerned. "

That's very much the summation... not as hyperbole in Street as was given in the Street case.

Was he really tried and convicted for the flag or for the encouragement or for the literature, the megaphone, the loudspeaker.

Chief Justice Rehnquist: But he'd been charged with a number of different offenses here?

Mr. Kunstler: No.

What happened, he was only charged initially with disorderly conduct.

Chief Justice Rehnquist: What did the case finally... what was he charged with when it was submitted to the jury?

Mr. Kunstler: He was charged with... I have the charge here.

Chief Justice Rehnquist: I don't mean the judge's charge, but the indictment or information, what offenses?

Mr. Kunstler: It's an information, a misdemeanor.

And he was charged eventually only with the flag burning statute or the desecration statute.

But initially, Chief Justice, he was charged... they took in a hundred protestors a half hour after all this happened, and he was charged initially with disorderly conduct.

All the rest were let go.

And then they dropped the disorderly conduct... that's in the record somewhere... the keeper... the sheriff came and testified that they dropped disorderly conduct and substituted in its place the flag desecration charge, and that's what he was charged with.

Disorderly conduct was out of the picture.

Now, with reference to... so, he may easily here have been convicted for the words, the encouragement as against... by the law of the parties as against the flag desecration itself.

I would just like to end my argument... I think this is a fundamental First Amendment case, that the First Amendment to the written Constitution is in jeopardy by statutes like this.

And I wanted to essentially close with two remarks.

One Justice Jackson said in Barnette.

"Those who begin coercive elimination of dissent soon find themselves eliminating dissenters. "

"Compulsory unification of opinion achieves only the unanimity of the graveyard. "

"The First Amendment was designed to avoid these ends by avoiding these beginnings. "

And I think that's an important statement over the years from Justice Jackson.

And then he goes... in just a recent article in the New York Times called

"In Chicago a Holy War Over the Flag. "

by J. Anthony Lukas, a very excellent former reporter for the New York Times, he said,

"Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground. "

And I understand that this flag has serious important meanings.

The Chief has mentioned many times that it is not just pieces of material, blue and white and red.

That has real meaning to real people out there.

But that does not mean that it may have different meanings to other people out there and that they may not under the First Amendment show their feelings by what Texas calls desecration of a venerated object.

I think it's a most important case.

I sense that it goes to the heart of the First Amendment, to hear things or to see things that we hate test the First Amendment more than seeing or hearing things that we like.

It wasn't designed for things we like.

They never needed a First Amendment.

This statute or this amendment was designed so that the things we hate, Terminiello's remarks, burnings of flags, or what have you can have a place in the marketplace of ideas and can have an area where protest can find itself, I submit that this Court should on whatever ground it feels right, should affirm the Texas Court of Criminal Appeals with reference to this statute and this conviction.

Thank you very much.

Rebuttal of Kathi Alyce Drew

Chief Justice Rehnquist: Thank you, Mr. Kunstler.

Ms. Drew, you have four minutes remaining.

Mr. Drew: Thank you, Your Honor.

One or two points very, very briefly.

There is absolutely nothing in the information that was filed or in the jury charge that was submitted to the court which would have authorized a conviction for any words that had been spoken by Mr. Johnson.

It is true that the trial prosecutor did make about half a page in his 20 page summation to the jury, a reference to the law of parties because an individual for a criminal offense in Texas can be held liable as a party if certain factors are shown.

And I think that was incumbent upon him, but there is absolutely nothing that would have authorized a conviction for any words that were spoken.

I also fall to see how, if I understand Mr. Kunstler's concession, If one can protect government flags why one cannot protect a flag which is not necessarily the property of the government because the danger of a breach of the peace is the same and the denigration to the symbol is the same.

Unless the Court has questions, that will conclude my remarks.

Chief Justice Rehnquist: Thank you, Ms. Drew.

The case is submitted.