418 U.S. 405 (1974)
In May 1970, appellant Spence, a college student, hung his privately owned United States flag upside down from the window of his apartment in Seattle, Washington.1 He had affixed a large peace symbol made of removable black tape to both the front and back surfaces of the flag, which measured approximately three by five feet and was visible to passersby.2 The peace symbol covered roughly half of the flag's surface area.3
Three Seattle police officers observed the display and entered the apartment building.4 Spence met them at the door, cooperated with their investigation, and permitted them to enter his apartment where they seized the flag and arrested him.5 No crowd gathered, and there was no disruption or altercation during the encounter.6
Spence was charged under Washington's improper-use statute, Wash. Rev. Code § 9.86.020, rather than the flag-desecration statute.7 He was initially tried and convicted in a local justice court, receiving a sentence of 90 days' confinement with 60 days suspended.8 He then exercised his right to a de novo jury trial in King County Superior Court.9
At the superior court trial, Spence testified that he had attached the peace symbol to protest the invasion of Cambodia and the killings at Kent State University, which had occurred days earlier.10 The State presented no evidence to contradict this testimony, and the jury convicted him after being instructed that the mere act of display was sufficient.11
The Washington Court of Appeals reversed the conviction, but the Washington Supreme Court reinstated it.12 The United States Supreme Court noted probable jurisdiction over the case.13
Whether the Washington statute forbidding the exhibition of a United States flag to which is attached or superimposed figures, symbols, or other extraneous material, as applied to appellant's display of a privately owned flag bearing a peace symbol, contravenes the First Amendment as incorporated by the Fourteenth Amendment?14
Symbolic expression receives First Amendment protection when the actor intends to convey a particularized message and the surrounding circumstances make it likely that viewers will understand the message.15 Government restrictions on such expression displayed on private property must rest on interests unrelated to suppression of the message itself, such as preventing breach of the peace, and cannot rest merely on offense to sensibilities or a desire to preserve the flag as an unalloyed symbol.16
Yes. Spence displayed his privately owned flag from his apartment window with a peace symbol made of removable tape to protest the recent invasion of Cambodia and the killings at Kent State University.17 He intended to associate the flag with peace rather than war and violence.18 The record shows no risk of breach of the peace.19
No crowd gathered and no imposition on a captive audience occurred.20 The display was on private property and visible only to passersby who could avoid it.21 The state's interest in preserving the flag as a symbol does not justify the restriction here because the flag was not permanently disfigured and the message was a direct expression of anguish over government policies.22
The conviction must be reversed because the statute as applied impermissibly infringed on protected expression.23
Related opinions on this issue
Justice Douglas concurred in the reversal.24 He would have reversed for substantially the same reasons given by the Iowa Supreme Court in State v. Kool.25 In that case the defendant hung a peace symbol in his window behind an upside-down replica of the flag.26
The Iowa court held that the conduct constituted symbolic speech.27 It observed that absolute assurance of tranquility is not required for free speech.28 Requiring such assurance would limit constitutional protection to platitudes that do not need it.29
That view aligned precisely with Justice Douglas's own, leading him to concur in reversing the conviction.30
Chief Justice Burger dissented.31 If the constitutional role of this Court were to strike down unwise laws or restrict unwise application of some laws, he could agree with the result reached by the Court.3233 That is not our function, however, and it should be left to each State and ultimately the common sense of its people to decide how the flag, as a symbol of national unity, should be protected.34
Burger concluded that the decision on how to protect the flag as a symbol of national unity should be left to the states and the people.35
Joined by The Chief Justice And Justice White
Justice Rehnquist dissented, joined by the Chief Justice and Justice White.36 He agreed that appellant's activity was a form of communication but disagreed that the First Amendment prohibits the State from restricting it.37 The State's interest in preserving the flag as a symbol of nationhood and unity is valid and is not diminished when the flag is decorated with removable tape.38
The statute properly withdraws the flag from use as a background for messages without regard to whether the message is commercial or political or whether the use is respectful or contemptuous.39 The Court had previously recognized this interest in Halter v. Nebraska.40 The majority's approach would make the flag available for a limitless succession of messages.41
Whether the Washington statute is void for vagueness?42
A criminal statute is void for vagueness under the Due Process Clause if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden or encourages arbitrary and discriminatory enforcement.43
No. The statute mechanically prohibits any word, figure, or symbol from being attached to the flag.44 The jury was instructed that the mere act of displaying the flag with the peace symbol attached was sufficient to convict.45 This mechanical application provided clear notice of the prohibited conduct to persons of ordinary intelligence.46
The statute is not void for vagueness.47