Spence v. Washington

Background

A college student hung his privately owned United States flag upside down from his apartment window in Seattle and attached a large peace symbol made of removable tape. Police observed the flag, seized it, and he was prosecuted under a Washington statute that forbade attaching figures or symbols to the flag. After trials and appeals in Washington courts, the state’s highest court reinstated the conviction and the case reached the United States Supreme Court.

Reasoning

The central question was whether applying Washington’s statute to this display violated the First Amendment. The Court accepted that the student’s act was communication and noted he acted on private property, caused no breach of the peace, and did not permanently damage the flag. The Court found his message was direct and likely to be understood. On these facts the statute, as applied, impermissibly infringed protected expression. The Court assumed, only for argument, that Washington had a legitimate interest in preserving the flag’s character but held that interest did not justify convicting the student here.

Real world impact

The ruling protects similar private, symbolic displays from conviction when no significant harm, damage, or risk of disorder appears. The Court did not decide how the statute applies to commercial uses or other different facts, so those questions remain open. This decision invalidated the conviction but did not declare the law entirely unenforceable in every circumstance.

Dissents or concurrances

Justice Douglas concurred, agreeing with an Iowa case that treated the act as symbolic speech. Chief Justice Burger and Justice Rehnquist dissented, arguing states may protect the flag and that speech can be limited for important state interests.