Spence v. Washington
The Court threw out a college student's conviction for taping a peace symbol to his privately owned American flag and displaying it from his window, ruling that his conduct was a protected form of political expression under the First Amendment.
The decision assumed, without deciding, that a state can have a legitimate interest in protecting the flag as a national symbol, but found that interest wasn't seriously threatened by a temporary, removable protest display on private property.
“no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts”
The Court's core reason for finding the state's interest insufficient to justify the conviction.
How it got here: A jury convicted him under the state's improper-use statute; the Washington Court of Appeals reversed, but the Washington Supreme Court reinstated the conviction, prompting his appeal.
The Case in Depth
What happened
During a period of national unrest over the U.S. invasion of Cambodia and the killings at Kent State University, a Seattle college student hung his own American flag upside down from his apartment window with a peace symbol made of removable tape attached to it. Police saw the display, entered his apartment, seized the flag, and arrested him under a Washington law barring attachments to flags.
The question before the Court
Could Washington State punish a college student for taping a peace symbol onto his own American flag and hanging it from his apartment window?
Why it matters
The ruling limits how far states can go in punishing people who display or alter a privately owned flag to make a political point, so long as the flag isn't damaged and the display happens on private property. It gives lower courts a framework for deciding when conduct counts as protected 'symbolic speech.'
What changes now
This is a final merits decision reversing the conviction outright; there is no remand for further factual proceedings. The Court expressly did not decide whether a state's general interest in flag symbolism is always valid, nor did it address the statute's application to commercial use of the flag, leaving those questions open for future cases.
What this does not decide
The Court assumed, without deciding, that a state may have a valid interest in preserving the flag as a symbol; it did not resolve that broader question. It also declined to reach the student's separate argument that the statute was unconstitutionally overbroad, and did not address the law's application to commercial use of flag imagery.
Concurrences and dissents
Concurrence — Justice Douglas
Justice Douglas would have reversed on the same reasoning as an Iowa Supreme Court case involving a similar upside-down flag and peace symbol display, which held the conduct was symbolic speech that could not be punished just because it might provoke someone else to disturb the peace. He argued that requiring absolute assurance of tranquility before allowing speech would reduce free expression to harmless platitudes.
Concurrence — Justice Blackmun
Justice Blackmun agreed with reversing the conviction but did not join the Court's reasoning, concurring only in the result without writing a separate explanation.
Dissent — Justice Burger
Chief Justice Burger argued that striking down the law was not the Court's proper role, saying the Constitution left it to each state and its people, using ordinary political processes, to decide how to protect the flag as a symbol of national unity.
Dissent — Justice Rehnquist
“The right of free speech, though precious, remains subject to reasonable accommodation to other valued interests.”Rehnquist's central objection that free speech can be limited to protect other important interests.
Justice Rehnquist argued the First Amendment does not stop a state from protecting the flag's symbolic character even if that incidentally limits some expression, comparing it to laws against painting on public buildings. He contended the majority undervalued the state's real interest in preserving the flag as a unifying symbol, not just its physical condition, and would have upheld the conviction.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether taping a peace symbol to a flag was 'sufficiently imbued with elements of communication' to count as speech at all, since not every act someone calls expressive automatically falls under the First Amendment.
- Applying that standard to the facts, the Court found the student intended to convey a specific message about peace in response to Cambodia and Kent State, and that the message was likely to be understood given the surrounding events — so the conduct qualified as protected expression.
- Having found protected speech, the Court then weighed the state interests offered to justify punishing it: preventing breach of the peace, protecting passersby's sensibilities, ensuring respect for the flag, and preserving the flag as a national symbol.
- The Court rejected the breach-of-peace and sensibilities justifications as unsupported by the record or foreclosed by prior rulings that offensive speech alone cannot be banned, and it assumed without deciding that protecting the flag's symbolic integrity could be a valid state interest.
- Even granting that assumption, the Court found the interest wasn't meaningfully harmed here, since the tape was removable, the flag was undamaged, and the display used the flag in a traditional communicative way rather than defacing it.
- Because the protected expression outweighed an interest that was not significantly impaired on these facts, applying the statute to punish the student violated the First Amendment.
Doctrinal impact
Cases affected by this decision
Distinguishes Halter v. Nebraska (205 U.S. 34)
The Court said this older ruling upholding flag-use restrictions doesn't control because it predated First Amendment protection against states and involved commercial use.