No, the state cannot punish him. His action was a form of communication, like giving a speech, which is protected by the First Amendment. It was obvious he was trying to send a political message, and because of what was happening in the country at the time (war protests), people would have understood his point. Since he was on his own property, wasn't bothering anyone, and didn't even damage the flag, the state's goal of protecting the flag's image isn't a good enough reason to violate his right to free speech.

No, he can't be punished. What he did was 'symbolic speech.' If we only protect speech that everyone agrees with, then we don't really have free speech. The Constitution protects speech even if it might upset some people.

Yes, the state can punish him. It's not the Supreme Court's job to overturn laws just because they seem unwise. States should be allowed to pass laws to protect the American flag as a symbol of the country.

Yes, the state can punish him. The flag is a special national symbol, and the government has a right to protect it. Washington's law prevents anyone from using the flag as a personal billboard for any message. The fact that the tape was removable doesn't matter; the state is trying to protect the flag's unique character, not just its physical condition. The law is fair because it applies to everyone, no matter what message they are trying to send.

Yes, the law was wrong to punish the student for putting the peace sign on the flag. I believe this because he was expressing his views in a way that wasn't permanently hurting the flag. He meant to send a message by putting the peace sign on it, and people could understand what he was trying to say. His right to express himself was more important than the government's interest in protecting the flag.

I disagree because it's not the Court's job to get rid of laws that might not be the smartest. Each state and its people should get to decide how to protect the flag as a symbol of the country.

I disagree because even though the student was expressing himself, the First Amendment doesn't always stop the government from limiting that kind of expression when it has a good reason. The government has a good reason to protect the flag as a special symbol of the country.

I agree with overturning the student's conviction for the same reasons another court gave in a similar case. That court said if we demand complete peace and quiet, we can forget about free speech.

The inquiry is whether "[a] n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."

Thus, "conduct may be `sufficiently imbued with elements of communication to fall within the scope of the First Amendment....'"Id

The Court explained that the "context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol."

—the display of a United States flag with a peace symbol attached to it is a form of protected expression

—hanging an American flag upside-down with a peace symbol affixed to it in the window of a private residence

To determine whether conduct is expressive—and thus entitled to First Amendment protection—this Court must ask two questions.

Yes. The Washington statute, as applied to Spence's activity, impermissibly infringed on his protected expression. Spence's conduct was a form of symbolic speech protected by the First Amendment because an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it, given the contemporary political context. Because the expression occurred on private property and did not incite violence or a breach of the peace, the state's asserted interest in preserving the flag as an unalloyed symbol of the nation is insufficient to justify the conviction. There was no risk that viewers would mistake Spence's message for government endorsement, and he did not permanently damage or destroy the flag.

Yes. The conviction must be reversed because Spence's conduct was symbolic speech. Citing the Iowa Supreme Court in a similar case, he argued that if absolute tranquility is required, free speech would be reduced to platitudes. The potential for some people to be offended by an expression is not a sufficient reason to suppress it under the First Amendment.

No. The Court's role is not to strike down unwise laws. It should be left to each state to decide how the flag, as a symbol of national unity, should be protected.

No. The First Amendment does not prohibit the state from restricting this activity in furtherance of its important interest in preserving the flag's character as a unique national symbol. The majority errs by focusing on the lack of physical damage to the flag (i.e., the removable tape), as the state's interest is not in protecting the flag's cloth but its symbolic integrity. The state statute is a permissible, content-neutral regulation that withdraws the flag from use as a common background for any message, political or otherwise, and does not compel allegiance or punish criticism.

Yes, the Washington statute, as applied to appellant's activity, impermissibly infringed protected expression. I hold this because appellant's conduct was imbued with elements of communication, as he displayed the flag with a peace symbol as a protest against recent events, intending to convey a particularized message that was likely to be understood by those who viewed it. The State's interest in preserving the flag as a symbol did not outweigh appellant's First Amendment rights, especially since the flag was privately owned, displayed on private property, and was not permanently disfigured or destroyed. There was no risk of a breach of the peace, and appellant's message was direct, likely to be understood, and within the contours of the First Amendment.

I dissent because while the Court's constitutional role is not to strike down unwise laws, it should be left to each State and the common sense of its people to decide how the flag, as a symbol of national unity, should be protected. The Court's function is not to restrict unwise application of laws.

I dissent because although appellant's activity was a form of communication, the First Amendment does not prohibit the State from restricting this activity in furtherance of important interests. The State has a valid interest in preserving the flag as a symbol of nationhood and unity, which is not limited to protecting its physical integrity. The statute simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications, and does not depend on the nature of the message. The Constitution does not prohibit Washington from making that decision.

I concur in reversing the judgment for substantially the same reasons given by the Iowa Supreme Court in State v. Kool. In that similar case, the court held that the defendant's conduct of displaying the flag with a peace symbol constituted symbolic speech, and if absolute assurance of tranquility is required, we may as well forget about free speech. That view is precisely my own.

Spence v. Washington

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