Flag desecration and misuse

In 1984, during the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a political demonstration organized by the Revolutionary Communist Youth Brigade to protest the policies of the Reagan administration and Dallas-based corporations. The demonstration began with a march through the city streets where participants chanted slogans and carried signs critical of the administration and corporations. At several points the group staged die-ins to dramatize the consequences of nuclear war, and on some occasions spray-painted buildings and overturned plants, though Johnson took no part in those acts. The march concluded in front of Dallas City Hall. There Johnson was handed an American flag that had been removed from a flagpole at one of the corporate locations visited during the march. Johnson then poured kerosene on the flag and set it on fire. As the flag burned the demonstrators chanted America the red white and blue we spit on you. After the flag was consumed the group dispersed. No one was physically injured or threatened during the event although several witnesses were seriously offended by the flag burning. Of the approximately 100 demonstrators Johnson was the only one arrested. He was charged with desecration of a venerated object under Texas Penal Code Annotated section 42.09(a)(3). Following a trial Johnson was convicted and sentenced to one year in prison and a fine of two thousand dollars. The Court of Appeals for the Fifth District of Texas affirmed the conviction. The Texas Court of Criminal Appeals reversed the judgment. The Supreme Court of the United States granted certiorari.

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. 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. The peace symbol covered roughly half of the flag's surface area. Three Seattle police officers observed the display and entered the apartment building. 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. No crowd gathered, and there was no disruption or altercation during the encounter. Spence was charged under Washington's improper-use statute, Wash. Rev. Code § 9.86.020, rather than the flag-desecration statute. He was initially tried and convicted in a local justice court, receiving a sentence of 90 days' confinement with 60 days suspended. He then exercised his right to a de novo jury trial in King County Superior Court. 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. 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. The Washington Court of Appeals reversed the conviction, but the Washington Supreme Court reinstated it. The United States Supreme Court noted probable jurisdiction over the case.