Think twice before publicly mutilating, defacing, defiling, burning, or trampling upon the Washington State flag.
It is a crime in Washington. Yes that is right, the Revised Code of Washington prohibits pretty much doing anything bad to the state flag.1 This law is pretty surprising to me because of how the use and sometimes abuse of governmental flags are viewed to be protected expressive conduct.
This state law directly conflicts with a couple of cases that uphold the right to use government flags to convey speech.
Language Wash. Rev. Code § 9.86.030
“No person shall knowingly cast contempt upon any flag…by publicly mutilating, defacing, defiling, burning, or trampling upon the flag.”
Washington State pretty much does not allow anything that would besmirch the state flag. Additionally, the law is located in chapter of the Washington Revised Code entitled Crimes Relating to Flags. So this law is not an anomaly — it has siblings, which I may talk about in a future article.
Constitutionality of the Law
The law is likely unconstitutional and infringes upon well-established free speech rights.
And here is why:
Time and time again the United States Supreme Court upheld expressive conduct with our nation’s flag to be protected. A state cannot criminalize the burning of the American flag, Texas v. Johnson, 491 US 397 (1989); Congress cannot criminalize the burning of the American flag, United States v. Eichman, 496 US 310 (1990); a superimposed peace sign on an American flag, privately own, and flown on private property is protected speech, Spence v. Washington, 418 US 405 (1974); and sewing the flag to the seat of one’s trouser’s is protected speech, Smith v. Goguen, 415 US 566, 588 (1974) (White, J., concurring).
Here are two specific constitutional attacks that could be made on the statute.
Vagueness and Overbreadth
“Flag contempt statutes have been characterized as void for lack of notice on the theory that what is contemptuous to one man may be a work of art to another.” Smith v. Goguen, 415 US 566, 573 (1974). In other words, the “flag contempt statutes” are so vague or overbroad that the average person does not know what the statute applies to in order to avoid those actions.
Here, I believe it is fair to categorize the Washington Flag Desecration statute as a “flag contempt statute.” Looking at the language of the statute (see above) all of the bad actions (mutilating, burning, defacing, etc.) are all examples of how to “cast contempt” upon the flag.
Moreover, if a comparison of the current Washington State statute to the statute in question in Smith v. Gougen, further indicates the Washington State statute falls into the category of a “flag contempt statute.” The United States Supreme Court quotes the statute in Smith v Gougen as follows: “Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the
United States . . . . whether such flag is public or private property . . . , shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . .”2 Both statutes categorize the prohibited activities as treating the flag contemptuously. The only main difference is the Washington State statute protects any flag and the Smith v. Gougen statute only protects the American flag. Otherwise, the statutes are effectively the same.
But even if the Washington State statute can be categorized as a “flag contempt statute” that does not automatically make it vague and unconstitutional.
For laws to avoid vagueness issues “it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement.'”3
Then a court would look to the Washington State statute to see how clear the guidelines are and if they are arbitrary or not.
The Smith v. Gougen court argued that since the wording of the statute was so broad it could apply to any conceivable act to a flag, even verbal desecration. Here it looks like under a fair and plain reading of the statute there is nothing to stop the statute from applying to putting a flag on the bottom of an individual’s pants or even verbally desecrating a flag.
The Washington Statute essentially makes a determination of flag desecration up to one’s own personal opinion or taste. Turning the flag upside down and taping a peace sign to it may to some be considered flag desecration, while to others this may be a valid protest of governmental policies.4 Or as in the Court’s words “what is contemptuous to one man may be a work of art to another,” makes this statute vague.5
The Washington Statute likely would criminalize protected expressive conduct. “A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.”6 There is no attempt by the Washington Statute to try to separate the constitutionally protected speech.
While courts will not go so far as to conclude that “any action taken with respect to our flag is expressive conduct,” just an act with the flag by itself is “pregnant with expressive conduct.”7 This sets the tone that there is little for an individual to prove for conduct with a flag to be expressive.
If an idea is expressed through an act with the flag, then a court will be presented with the same situation as the Spence v. Washington court: “a case of prosecution for the expression of an idea through activity.”8 Unless the government could prove the expressive conduct fell under some sort of unprotected speech such as fighting words, then the could would view the law as presumptively invalid under a heightened scrutiny (either intermediate or strict scrutiny). Under some type of heightened scrutiny the government would have the burden to prove they had a really really good reason for their actions, and that they at least tried at least to exclude the protected speech. This is something I do not think can be done under this law.
Needless to say, I think that I think the Washington State Flag Desecration statute is facially unconstitutional and violates well-established United States Supreme Court precedent. It is most likely unconstitutionally vague and overbroad. Furthermore, the statute does nothing to exclude protected speech from the reach of the statute.
Also, I found it curious that two of the major United States Supreme Court cases involving flags as symbolic speech originated in Seattle, Washington. See Spence v. Washington, 418 US 405, 411 (1974); and United States v. Eichman, 496 US 310 (1990). I would have thought Washington State would have more statutory protections for flags as symbolic speech after losing two cases in the United States Supreme Court on the subject.
Latest posts by Joseph Thomas (see all)
- Free Speech Protection and Speaker’s Intent - July 31, 2016
- Professional Speech Doctrine - February 21, 2016
- Neutral Pharmacy Rules Upheld Over Religious Objections - February 3, 2016
- Desecration of Flag, Wash. Rev. Code § 9.86.030.
- Smith v Gougen, Smith v. Goguen, 415 US 566, 568-69 (1974).
- Smith v Gougen, Smith v. Goguen, 415 US 566, 572-73 (1974).
- See Spence v. Washington, 418 US 405 (1974). Mr. Spence turned a privately owned American flag upside down and taped a peace sign to it and hung it outside his window in Seattle, Washington. Prosecutors did not charge Mr. Spence under the Washington State Flag Desecration statute, but under a fair reading of the law, prosecutors could just have easily charged him with flag desecration instead.
- Smith v. Goguen, 415 US 566, 573 (1974).
- Stromberg v. California, 283 US 359, 369 (1931).
- Texas v. Johnson, 491 US 397, 405 (1989).
- Spence v. Washington, 418 US 405, 411 (1974).