1 IN THE SUPREME COURT OF THE UNITED STATES
2 - - - - - - - - - - - - - - - - - x
3 TEXAS,
:
4 Petitioner
5 :
v.
:
6 UNITED STATES
7 - - - - - - - - - - - - - - - - - x
No. 88-155
:
8 Washington, D.C.
9 Tuesday, March 21, 1989
10 11 APPEARANCES:
12 KATHI ALYCE DREW, ESQ., Dallas County Assistant
13 14 District Attorney; on behalf of the Petitioner.
WILLIAM M. KUNSTLER, ESQ., New York, NY; on behalf
15 of Gregory Lee Johnson
16 1 1 P R O C E E D I N G S
2 CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll
3 hear argument next in No. 88-155, Texas v. Gregory
4 Lee Johnson.
5 6 Ms. Drew, you may proceed whenever you're
ready.
7 ORAL ARGUMENT OF KATHI ALYCE DREW
8 ON BEHALF OF THE PETITIONER
9 10 KATHI ALYCE DREW: Thank you, Mr. Chief
Justice, and may it please the Court:
11 The issue before this Court is whether the
12 public burning of an American flag which occurred
13 as part of a demonstration with political overtones
14 is entitled to First Amendment protection.
15 The flag burning in this case occurred
16 during the 1984 Republican National Convention in
17 Dallas, Texas.
2 1 The flag was burning in front of Dallas
2 City Hall at the culmination of a demonstration
3 march through downtown Dallas in the midst of a
4 crowd of demonstrators and on lookers.
5 The flag burner, who was identified as Mr.
6 Johnson, was convicted under a Texas statute which
7 prohibits desecration of the national flag.
8 9 His punishment was assessed at one year in
the county jail plus a $2,000 fine.
10 11 The conviction was affirmed on direct
appeal by the Intermediate Court of Appeals.
12 Mr. Johnson then filed petition for
13 discretionary review to the Texas Court of Criminal
14 Appeals.
15 16 That is the highest court in the state of
Texas which hears criminal cases.
17 The court granted his petition, reversed
18 his conviction, and ordered the information
19 dismissed.
3 1 The Court of Criminal Appeals held that
2 the Texas statute was unconstitutional as applied
3 to Mr. Johnson, since he was a political protester.
4 Judge Campbell of that court found that
5 flag burning constituted symbolic speech within the
6 test enunciated by this court in Spence versus
7 Washington.
8 9 That court also found that Texas' asserted
interests in regulating the act of flag burning
10 were insufficient to outweigh a protestor's First
11 Amendment rights to expression.
12 For purposes of this argument today and
13 with the Court's indulgence, the state will assume
14 the symbolic speech standard and proceed directly
15 to the question of Texas' compelling interest in
16 regulating this type of conduct.
17 Throughout the course of the appellate
18 history in this case Texas has advanced two
19 compelling state interests.
4 1 2 One is the preservation of the flag as a
symbol of nationhood and national unity.
3 4 The second is the preservation of a breach
of the peace.
5 6 CHIEF JUSTICE WILLIAM H. REHNQUIST:
Prevention of breach of the peace?
7 KATHI ALYCE DREW: Yes, Your Honor,
8 prevention as opposed to punishment for a breach of
9 the peace.
10 11 I would like to address first the
nationhood interest.
12 We believe that preservation of the flag
13 as a symbol of nationhood and national unity is a
14 compelling and valid state interest.
15 We feel very certain that Congress has the
16 power to both adopt a national symbol and to take
17 steps to prevent the destruction of that symbol, to
18 protect the symbol.
5 1 JUSTICE ANTONIN SCALIA: Now, why does...
2 why does the... why did the defendant's actions
3 here destroy the symbol?
4 His actions would have been useless unless
5 the flag was a very good symbol for what he
6 intended to show contempt for.
7 8 His action does not make it any less a
symbol.
9 KATHI ALYCE DREW: Your Honor, we believe
10 that if a symbol over a period of time is ignored
11 or abused that it can, in fact, lose its symbolic
12 effect.
13 JUSTICE ANTONIN SCALIA: I think not at all.
14 I think... I think when somebody does that
15 to the flag, the flag becomes even more a symbol of
16 the country.
17 I... I mean, it seems to me you're running
18 quite a different argument, not that he's
19 destroying its symbolic character, but that he is
6 1 showing disrespect for it, that you not just want a
2 symbol, but you want a venerated symbol, and you
3 don't make that argument because then you're
4 getting into... into a sort of content preference.
5 6 But I don't see how you can argue that
he's making it any less of a symbol than it was.
7 8 KATHI ALYCE DREW: Your Honor, I'm forced
to disagree with you.
9 UNKNOWN SPEAKER: All right.
10 KATHI ALYCE DREW: Because I believe that
11 every desecration of the flag carried out in the
12 manner that he did here... and certainly I don't
13 think there can be any question that Mr. Johnson is
14 a hard-core violator of this statute... if his
15 actions in this case under the facts of this case
16 do not constitute flag desecration, then I really
17 am not quite certain what would constitute flag
18 desecration.
7 1 JUSTICE ANTONIN SCALIA: They desecrate the
2 flag indeed, but do they make it... do they destroy
3 the symbol?
4 5 Do they make it any less symbolic of the
country.
6 That's the argument I thought you were
7 running, that... that we have a right to have a
8 national symbol.
9 10 And if you let the people desecrate the
flag, you don't have a national symbol.
11 I don't see how that follows.
12 We may not have a respected national
13 symbol, but that's a different argument.
14 Now, if you want to run that argument that
15 we have the right to insist upon respect for the
16 flag, that's a different argument.
17 18 KATHI ALYCE DREW: Texas is not suggesting
that we can insist on respect.
8 1 We are suggesting that we have the right
2 to preserve the physical integrity of the flag so
3 that it may serve as a symbol because its symbolic
4 effect is diluted by certain flagrant public acts
5 of flag desecration.
6 CHIEF JUSTICE WILLIAM H. REHNQUIST: Well,
7 in the sense you're arguing a minimal form of
8 respect for the flag, aren't you?
9 10 Not that you have to take your hat off or
salute when it goes by.
11 12 Now, the state can't require you... but at
least can it consist that you not destroy it?
13 KATHI ALYCE DREW: Yes, Your Honor.
14 We... to the expect... to the extent that
15 we are asking for any respect for the flag, we are
16 asking for respect for its physical integrity.
17 18 Certainly we do not demand that any
individual view it with any discernable emotion
9 1 whatsoever, only that its physical integrity be
2 respected.
3 4 And I think that that is a very minimal
basis to ask from any individual.
5 And that is really all Texas is suggesting
6 with this is that we have got to preserve the
7 symbol by preserving the flag itself because there
8 really is no other way to do it.
9 There is nothing that would accomplish
10 this particular purpose if you cannot protect the
11 physical integrity of the flag.
12 JUSTICE ANTHONY KENNEDY: Well, oh, over...
13 over the years, over the centuries, the cross has
14 been respected.
15 I recognize one's a religious symbol, the
16 other's a national one, but there's no legislation
17 that has appeared necessary to protect, say, the
18 cross.
19 KATHI ALYCE DREW: That's true, Your Honor.
10 1 JUSTICE ANTHONY KENNEDY: So, it may be
2 that you can protect symbols by public respect and
3 by measures other than the imposition of the
4 criminal law.
5 KATHI ALYCE DREW: Your Honor, I don't
6 believe, though, that a cross has quite the same
7 character that the American flag does because there
8 are many people in this nation who would not view a
9 cross as a symbol.
10 11 JUSTICE ANTHONY KENNEDY: Even probably...
probably maybe arguably less than the flag.
12 13 I'm not sure of the numbers, but it's been
preserved.
14 KATHI ALYCE DREW: And this particular
15 statute, Your Honor, would not go to that sort of a
16 symbol.
17 This particular statute, I believe, in
18 this respect recognizes that the flag is a national
19 property, that it belongs to all people, that all
11 1 people are entitled to view it symbolically in
2 whatever way that they wish.
3 Some people may give it great respect.
4 Others may not.
5 That's not what we're regulating here.
6 We are simply trying to preserve the flag
7 as a symbol for all people.
8 The issue--
9 JUSTICE ANTHONY KENNEDY: Well, you begin
10 by saying that it's a symbol and by acknowledging,
11 at least in this part of your argument, that what
12 the defendant did was speech, is that correct?
13 14 KATHI ALYCE DREW: --We are assuming that
standard for purposes today.
15 JUSTICE ANTHONY KENNEDY: All right.
16 At this point.
12 1 What is the juridical category you're
2 asking us to adopt in order to say we can punish
3 this kind of speech?
4 Just an exception for flags?
5 It's just a... there's just a flag
6 exception of the First Amendment?
7 8 KATHI ALYCE DREW: To a certain extent, we
have made that argument in our brief.
9 With respect to the symbolic speech
10 standard, we believe that there are compelling
11 state interests that will in a balancing posture
12 override this individual's symbolic speech rights,
13 and that preserving the flag as a symbol, because
14 it is such a national property, is one of those.
15 16 JUSTICE ANTHONY KENNEDY: What are the
others?
17 KATHI ALYCE DREW: The other state interest
18 advanced Your Honor, is a prevention of a breach of
19 the peace.
13 1 2 JUSTICE ANTHONY KENNEDY: That's the other
state interest.
3 KATHI ALYCE DREW: Yes, Your Honor.
4 JUSTICE ANTHONY KENNEDY: But I assume
5 under this statute, of course, it's not just one
6 flag, it's 51.
7 8 KATHI ALYCE DREW: 51 flags or all 50 state
flags but the national flag?
9 I'm confused by your question.
10 I apologize.
11 JUSTICE ANTHONY KENNEDY: Well, this
12 statute prohibits the desecration of a state flag
13 as well.
14 KATHI ALYCE DREW: Yes, it does.
15 JUSTICE ANTHONY KENNEDY: Of the Texas
16 state flag?
17 KATHI ALYCE DREW: Yes.
14 1 JUSTICE ANTHONY KENNEDY: And I assume if
2 we upheld the statute in every other state it would
3 have the same right?
4 KATHI ALYCE DREW: Yes, Your Honor.
5 JUSTICE ANTHONY KENNEDY: So, your category
6 for one flag is now expanded to 51.
7 8 KATHI ALYCE DREW: The statute does say a
state or national flag.
9 That is correct.
10 11 And we do believe Texas certainly has a
right to protect its own flag.
12 13 And I think that a similar interest would
be for sister states.
14 15 So, the statute says a state or national
flag.
16 JUSTICE SANDRA DAY O’CONNOR: Could Texas
17 prohibit the burning of copies of the Constitution,
18 state or federal?
15 1 2 KATHI ALYCE DREW: Not to my knowledge,
Your Honor.
3 4 JUSTICE SANDRA DAY O’CONNOR: That wouldn't
be the same interest in the symbolism of that?
5 KATHI ALYCE DREW: No, Your Honor, it would
6 not be the same interest I don't believe.
7 JUSTICE ANTONIN SCALIA: Why not?
8 Why is that?
9 I was going to ask about the state flower.
10 [Laughter]
11 You're not going to--
12 --The state flower?
13 KATHI ALYCE DREW: There is legislation,
14 Your Honor, which does establish the blue bonnet as
15 the state flower.
16 JUSTICE ANTONIN SCALIA: I thought so.
16 1 2 KATHI ALYCE DREW: It does not seek to
protect it.
3 4 JUSTICE ANTONIN SCALIA: Well, how do you
pick out what to protect?
5 I mean, you know, if I had to pick between
6 the Constitution and the flag, I might well go with
7 the Constitution.
8 I don't know.
9 KATHI ALYCE DREW: Your Honor, I think
10 Texas in this area has made a judgment that certain
11 items... and the statute itself is not limited to
12 just the flag.
13 14 The portion that is in question here is
limited to the flag.
15 16 But it has made a judgment that certain
items are entitled to more protection.
17 JUSTICE ANTONIN SCALIA: I understand that.
17 1 But we up to now have never allowed such
2 an item to be declared a national symbol and to be
3 usable symbolically only in one direction, which is
4 essentially what you're arguing.
5 You can honor it all you like, but you
6 can't dishonor it as a sign of disrespect for the
7 country.
8 KATHI ALYCE DREW: No, Your Honor.
9 We're not arguing that at all.
10 JUSTICE ANTONIN SCALIA: Oh?
11 KATHI ALYCE DREW: Not at all.
12 We are in no way arguing that one cannot
13 dishonor the flag or that one cannot demonstrate
14 disrespect for the flag.
15 Individuals have that right.
16 What we are arguing is that you may not
17 publicly desecrate a flag regardless of the
18 motivation for your action.
18 1 2 JUSTICE ANTONIN SCALIA: Well, one hardly
desecrates it in order to honor it.
3 I mean, you only desecrate it in order to
4 show your disagreement with what it stands for,
5 isn't that right?
6 So, it is sort of a one-way statute.
7 KATHI ALYCE DREW: I don't think that it is
8 exactly, Your Honor, because I think that there are
9 other forms of conduct which are... equally
10 prohibit... well, let me put it this way.
11 12 The same conduct is prohibited, regardless
of the motive of the actor.
13 If this--
14 JUSTICE ANTONIN SCALIA: But its motive...
15 its motive... his motive will never be to honor the
16 country.
17 It will always be to criticize the country.
18 KATHI ALYCE DREW: --Not necessarily.
19 1 JUSTICE ANTONIN SCALIA: Will you give me
2 an example where one... somebody desecrates the
3 flag in order to show that he agrees with the
4 policies of the United States.
5 I--
6 [Laughter]
7 KATHI ALYCE DREW: I think it is possible--
8 JUSTICE ANTONIN SCALIA: Well--
9 KATHI ALYCE DREW: --that an individual
10 could choose to burn a flag as an honor for all the
11 individuals who died in Vietnam.
12 This is their most prized possession.
13 They're going to take it in front of
14 Dallas City Hall in the midst of a hundred people
15 in the middle of the afternoon, they're going to
16 soak it with lighter fluid, and they're going to
17 ignite it, and they are doing this to honor the
18 Americans who died in Vietnam.
20 1 JUSTICE JOHN PAUL STEVENS: --They'll
2 probably violate a federal statute while they're
3 doing that, too.
4 KATHI ALYCE DREW: Yes, Your Honor, there
5 is a federal statute that does regulate flag
6 desecration.
7 This man was not prosecuted under it.
8 He was prosecuted under the Texas statute.
9 JUSTICE ANTONIN SCALIA: Your statute would
10 cover that example that you just gave?
11 KATHI ALYCE DREW: Yes, it would, Your
12 Honor, because it does not go to the motive of the
13 actor.
14 If a vandal takes a flag... same
15 scenario... in front of Dallas City Hall, a hundred
16 people, middle of the afternoon, soaks it with
17 lighter fluid, sets it on fire, they are still
18 liable under this statute.
21 1 2 They have desecrated the flag, but they
have no intent to dishonor the country.
3 They have no intent to dishonor the flag.
4 They have no intent to do anything except
5 oh, I'm... just an act of a vandal.
6 I think I'll do this today.
7 JUSTICE SANDRA DAY O’CONNOR: Well,
8 actually, Ms. Drew--
9 KATHI ALYCE DREW: Yes.
10 JUSTICE SANDRA DAY O’CONNOR: --I thought
11 this statute only applied if the desecration were
12 done in a way that the actor knows will offend one
13 or more other people likely to discover it.
14 15 KATHI ALYCE DREW: That is correct, Your
Honor.
16 17 JUSTICE SANDRA DAY O’CONNOR: There is that
little added requirement, is there not?
22 1 2 KATHI ALYCE DREW: Yes, Your Honor, that is
correct.
3 JUSTICE SANDRA DAY O’CONNOR: And do you
4 think that that added requirement survives analysis
5 under this court's cases in Street and Grayned
6 versus City of Rockford and so forth?
7 8 KATHI ALYCE DREW: Yes, Your Honor, I
believe it does.
9 JUSTICE SANDRA DAY O’CONNOR: And why?
10 11 KATHI ALYCE DREW: Believe I believe the
import of that statute.
12 Now, the statutory language there is that
13 it goes to the manner in which the act is
14 effectuated.
15 It goes to the way in which the act is
16 performed, that it has to be in a way that the
17 actor knows will seriously offend.
18 19 Serious offense does not have to be caused
under this statute.
23 1 JUSTICE SANDRA DAY O’CONNOR: Well, I
2 thought that the court had held that it's firmly
3 settled under the Constitution, that the public
4 expression of ideas may not be prohibited merely
5 because the ideas are themselves offensive to some
6 of the hearers.
7 8 KATHI ALYCE DREW: That's correct, Your
Honor.
9 10 JUSTICE SANDRA DAY O’CONNOR: And this
statute seems to try to achieve exactly that.
11 KATHI ALYCE DREW: I don't believe that it
12 does, Your Honor, because I believe that the
13 pivotal point is in a way how is the conduct
14 effectuated, how is it done, not what an individual
15 may be trying to say, not how onlookers perceive
16 the action, not how the crowd reacts, but how is it
17 done.
18 If you take your flag into your basement
19 in the dead of night, soak it with lighter fluid
20 and ignite it, you probably have not violated this
24 1 statute, because the Texas statute is restricted to
2 certain limited forms of flag desecration.
3 JUSTICE HARRY A. BLACKMUN: Ms. Drew, it's
4 probably of no consequence, but is there anything
5 in the record as to whether this flag was stolen?
6 7 KATHI ALYCE DREW: Yes, Your Honor, as a
matter of fact there is.
8 9 The... one of the officers who was
observing the march testified that in front of the
10 Mercantile Bank Building he saw several of the
11 protestors bend a flag pole and remove an American
12 flag.
13 14 They then handed this flag to Mr. Johnson,
who wadded it up and stuck it under his T-shirt.
15 The march then proceeded.
16 The officer testified that when they got
17 to City Hall, he saw Mr. Johnson remove the flag
18 from under his shirt.
25 1 2 He tried to light it with a cigarette
lighter.
3 It would not light.
4 Someone from the crowd then handed him the
5 can of lighter fluid.
6 He soaked it, ignited it, the flag burned.
7 JUSTICE HARRY A. BLACKMUN: But you would
8 be making the same argument if he owned the flag?
9 10 KATHI ALYCE DREW: Yes, Your Honor, we
would be.
11 I do not believe that there is a shred of
12 evidence in this record to support the fact that
13 this was his privately owned flag.
14 15 I believe just the opposite is very
clearly reflected.
16 17 JUSTICE JOHN PAUL STEVENS: Was he
prosecuted for stealing the flag?
26 1 2 KATHI ALYCE DREW: No, Your Honor, he was
not.
3 4 JUSTICE JOHN PAUL STEVENS: I wonder why
not.
5 KATHI ALYCE DREW: I believe, Your Honor,
6 that problems were of proof there in that no one
7 saw him actually take it.
8 9 In fact, the testimony was that others
took it and then gave it to him.
10 And I believe that it was felt that there
11 were so many proof problems that a prosecution was
12 very speculative under those facts.
13 There also might have been some problem
14 with placing a monetary value on the flag for
15 purposes of prosecution, which is necessary under
16 the statute.
17 JUSTICE HARRY A. BLACKMUN: Isn't the real
18 way of opposing this kind of action by this man to
19 have a large crowd out waving other flags in
27 1 opposition to his posture rather than putting him
2 in jail?
3 KATHI ALYCE DREW: I'm sorry, Your Honor.
4 I'm not... I'm not afraid I got all of
5 your question.
6 JUSTICE HARRY A. BLACKMUN: Well, if you
7 were out in front of the building today, there are
8 pseudo-demonstrators of one kind or another, and
9 I'm merely saying isn't... wouldn't it be better
10 policy to rather than have a criminal statute like
11 this to have 500 people out waving flags and
12 hooting him down, so to speak?
13 KATHI ALYCE DREW: Your Honor, I believe
14 that legislatures act in category equal manners,
15 and that--
16 17 JUSTICE HARRY A. BLACKMUN: Legislatures
act the way they do, all right, no question.
18 You have to be up here defending them.
28 1 KATHI ALYCE DREW: --It is within their
2 judgment to penalize behavior that they feel is
3 offensive to society.
4 5 JUSTICE ANTHONY KENNEDY: But you gave that
answer before.
6 7 You said the legislature has made the
judgment.
8 9 But you're asking us to define and to
articulate a constitutional category.
10 And from what I can see, the
11 constitutional category is that we simply say the
12 flag is different.
13 14 KATHI ALYCE DREW: That is one possibility
that we have advanced to this court.
15 That's certainly true, Your Honor.
16 We have also suggested, though, that
17 another route is available to assume the symbolic
18 speech standard and to take a look at what the
29 1 state's interests are in protecting and in
2 prescribing this type of behavior.
3 JUSTICE SANDRA DAY O’CONNOR: Do you
4 suppose Patrick Henry and any of the founding
5 fathers over showed disrespect to the Union Jack?
6 7 KATHI ALYCE DREW: Quite possibly, Your
Honor.
8 9 10 JUSTICE ANTONIN SCALIA: You think they had
in mind then in drafting the First Amendment that
it should be a prosecutable offense?
11 KATHI ALYCE DREW: Of course, Your Honor,
12 one has no way of knowing whether it would be or
13 not.
14 JUSTICE ANTONIN SCALIA: I think your
15 response is that they were willing to go to jail,
16 just as they were when they signed the declaration.
17 They were hoping they wouldn't get caught.
18 [Laughter]
30 1 KATHI ALYCE DREW: Yes, Your Honor.
2 I believe the classic line is "We hang
3 together or separately".
4 JUSTICE JOHN PAUL STEVENS: That's right.
5 Do you... you said that this flag may be
6 possibly different from other symbols.
7 8 You don't argue that there's something
unique about this flag?
9 10 KATHI ALYCE DREW: Of course there is, Your
Honor.
11 JUSTICE JOHN PAUL STEVENS: When it's... do
12 you think... when you have an equally strong case
13 for the flag of the State of Texas or the state
14 flower.
15 Do you think they're the same case?
16 JUSTICE ANTONIN SCALIA: Well, Texas may be,
17 we'll say.
18 [Laughter]
31 1 2 KATHI ALYCE DREW: Texas, absolutely, Your
Honor.
3 [Laughter]
4 JUSTICE JOHN PAUL STEVENS: Are you serious
5 in that answer?
6 KATHI ALYCE DREW: Yes, I am.
7 JUSTICE JOHN PAUL STEVENS: That the Tex...
8 that the Texas flower... and you could make the
9 same kind of argument as for this flag?
10 KATHI ALYCE DREW: No, I don't think you
11 could make the same kind of argument for the Texas
12 flower.
13 I truly do not.
14 JUSTICE JOHN PAUL STEVENS: But you haven't
15 really made an argument that there's anything
16 unique about this symbol.
17 18 KATHI ALYCE DREW: Well, Your Honor, I
disagree.
32 1 I think in our brief we have detailed
2 several arguments of what is unique about the
3 symbol.
4 JUSTICE JOHN PAUL STEVENS: Well, I mean,
5 I've just... what I've heard this afternoon is all
6 I'm saying.
7 KATHI ALYCE DREW: I think it's very clear
8 that the flag is the manifestation, the visible
9 manifestation of over 200 years of history in this
10 nation, and that it has remained virtually
11 unchanged in design.
12 The 13 stripes represent the original 13
13 colonies, and every state is represented on the
14 field of blue by a star.
15 It is very unique.
16 It is immediately recognizable to almost
17 anyone who would see it.
33 1 JUSTICE THURGOOD MARSHALL: Well, suppose...
2 suppose somebody burns an American flag with 48
3 stars on it.
4 5 KATHI ALYCE DREW: I believe that is
reachable under this statute, Your Honor.
6 7 JUSTICE THURGOOD MARSHALL: You believe
what?
8 9 KATHI ALYCE DREW: I do believe that that
could be reached under this statute.
10 That is clearly a past flag.
11 Many people probably still own and display
12 48-star flags.
13 14 JUSTICE THURGOOD MARSHALL: It would be
just the same?
15 16 KATHI ALYCE DREW: Yes, Your Honor, I
believe that it would be.
34 1 JUSTICE ANTONIN SCALIA: But 47 wouldn't
2 work because there was never a 47-star flag, is
3 that... then you wouldn't reach it?
4 5 KATHI ALYCE DREW: That would depend, Your
Honor, on--
6 JUSTICE ANTONIN SCALIA: So, all you have
7 to do is take one star out of a... out of the flag,
8 ana it's okay.
9 [Laughter]
10 That can't be right.
11 KATHI ALYCE DREW: --That would depend, I
12 believe, Your Honor, on how flag is defined.
13 14 There are certain definitions that are
given.
15 16 Congress itself has defined what it means
by the flag of the United States.
17 18 And, as part and parcel of that definition,
there is language that says
35 1 "The stars and stripes in any number which
2 to an individual who looks at it without... without
3 deliberation, may be a flag. "
4 5 The flag behind you looks to me to be a
flag, but I cannot count 50 stars on it.
6 7 JUSTICE ANTONIN SCALIA: Now, that... so,
you're saying 47 would be okay.
8 I tend to think that's probably right.
9 KATHI ALYCE DREW: If there were any
10 question, I would think that it would be
11 appropriate for a jury to resolve that question,
12 Your Honor.
13 14 I'd like to turn very briefly, if I may,
to the breach of the peace interest.
15 16 We do feel that preventing a breach of the
peace is a legitimate state interest.
17 And, indeed, the Texas Court of Criminal
18 Appeals recognized that preventing a breach of the
19 peace is a legitimate state interest.
36 1 Again, the Texas legislature has made a
2 judgment in this area that public desecration is
3 likely to lead to violence, that it can lead to
4 violence.
5 And I think the record in this case is
6 abundantly clear that it is merely fortuitous, it
7 is our good luck that a breach of the peace did not
8 occur as a result of this particular flag
9 desecration.
10 11 The appropriate test to be utilized in
this area has not been decided by this court.
12 There are two lines of cases.
13 One is that public desecration of a flag
14 is inherently inflammatory.
15 Another is that immanence must be shown.
16 And I believe that this record is very
17 clear that Texas could regulate under either theory.
37 1 And, again, the goal is a prevention of a
2 breach of the peace, not a punishment for a breach
3 of the peace.
4 And in analyzing this particular statute,
5 the Texas Court of Criminal Appeals utilized a much
6 higher standard than any court has ever used before.
7 They went to an actual breach of the peace
8 and they said well, there was no actual breach of
9 the peace.
10 That's true.
11 Individuals who were seriously offended by
12 this conduct were not moved to violence.
13 If they were, they exercised restraint.
14 But I don't believe that that is
15 dispositive of the state's interest and because its
16 interest is different, the standard is different.
17 And I believe that the Court of Criminal
18 Appeals suggestions in this regard are a bit too
19 narrow; that if you have to show an actual breach
38 1 of the peace, your purpose in a flag desecration
2 statute is obviated.
3 Some other statute would serve that
4 interest, but not a flag desecration standard
5 because its purpose is prevention.
6 JUSTICE ANTONIN SCALIA: I suppose you
7 could have such a... if that theory alone is enough
8 to support the statute, I suppose you could have
9 such statutes for Stars of David and crosses and
10 maybe... I don't know... Salman Rushdle's book or
11 whatever, whatever might incite people you can...
12 you can prevent such desecration.
13 KATHI ALYCE DREW: Your Honor, again, there
14 are other sections of this statute where other
15 items are protected, specifically public monuments,
16 places of burial and worship.
17 I don't believe that anyone could suggest
18 that one may paint swastikas on the Alamo in San
19 Antonio.
39 1 That is desecration of the Alamo.
2 Legislatures made it up--
3 JUSTICE ANTHONY KENNEDY: But that... but
4 that's because it's public property--
5 KATHI ALYCE DREW: --True.
6 JUSTICE ANTHONY KENNEDY: --and unless you
7 want to say that the flag is somehow public
8 property of us all and ignore traditional
9 distinctions of property, then your example just
10 doesn't work.
11 12 KATHI ALYCE DREW: Your Honor, I believe
that it does.
13 I believe it does.
14 The amici brief filed on behalf of Mr.
15 Johnson in this case by the American Civil
16 Liberties Union confesses that there is no First
17 Amendment interest in protecting desecrations of
18 either public monuments or places of worship or
19 burial because they are... and this is a direct
40 1 quote from Footnote 7, page 18 of their brief...
2 "Someone else's cherished property".
3 I think the flag is this nation's
4 cherished property, that every individual has a
5 certain interest.
6 7 The government may maintain a residual
interest, but so do the people.
8 9 And you protect the flag because it is
such an important symbol of national unity.
10 11 JUSTICE ANTONIN SCALIA: If we say so, it
becomes so.
12 13 But it certainly isn't self-evident that...
I never thought that the flag I owned is your flag.
14 I mean--
15 [Laughter]
16 KATHI ALYCE DREW: Many justices of this
17 court have held that the flag is a national
18 property.
41 1 Unless the Court has additional questions,
2 I would like to reserve my remaining time for
3 rebuttal.
4 5 CHIEF JUSTICE WILLIAM H. REHNQUIST: Very
well, Ms. Drew.
6 Mr. Kunstler.
7 ORAL ARGUMENT OF WILLIAM M. KUNSTLER
8 ON BEHALF OF THE RESPONDENT
9 10 WILLIAM M. KUNSTLER: Mr. Chief Justice,
may it please the Court:
11 Some of the steam has been taken out of me
12 by some of the questions and some of the responses
13 and the concession by the state.
14 But I would like to suggest briefly to
15 state that this particular act that we're concerned
16 with here, this 42.09(a)(3) of the Texas statute
17 singles out communicative impact for punishment.
42 1 Now, Ms. Drew has avoided that by now...
2 and virtually the state now apparently concedes
3 that you can write out of a statute what Justice
4 O'Connor referred to, the question of whether the
5 actor knows or means that what he's doing will
6 seriously offend one or more persons likely to
7 observe or destroy or discover his particular act.
8 9 That's out of the statute, apparently,
according to the argument because in the reply
10 brief and today she has said essentially what is in
11 the reply brief.
12 13 Like Gertrude Stein, "A rose is a rose",
they now say
14 "A flag burning is a flag burning. "
15 And they read out of the statute under
16 which he was convicted and which went to the jury
17 and the charge on the question of seriously offend,
18 that's all out as far as Ms. Drew is concerned.
43 1 2 But it's not out as far as this court is
concerned.
3 That's what the conviction was about,
4 that's what the argument to the jury was about,
5 that's what the charge was about.
6 They all mention that.
7 That's what the witnesses, Stover, Tucker,
8 and Walker, testified to, that they were seriously
9 offended.
10 11 So, this depends on communicative impact
for punishment.
12 They've conceded it's pure speech.
13 They raise no question arguendo, even,
14 essentially that it is not speech, and concede that.
15 16 JUSTICE ANTONIN SCALIA: Mr. Kunstler, I...
I... I think you're stretching her argument.
17 I don't think she said that.
44 1 I... I think she said that there has to be
2 a fence, but it doesn't have to be the intention to
3 communicate that offense.
4 It doesn't have to be intended offense.
5 WILLIAM M. KUNSTLER: Well, that's--
6 JUSTICE ANTONIN SCALIA: If... if you're
7 doing it to honor the flag in your... in your crazy,
8 mistaken fashion, but it... but it would obviously
9 offend anyone else, then you would violate the
10 statute.
11 So, I think she... she still insists that
12 it be likely to offend somebody, but you don't have
13 to intend to communicate a dishonor or offense to
14 the flag.
15 WILLIAM M. KUNSTLER: --I can understand
16 that rationale, but in reading the reply brief, the
17 reply brief said in essence we virtually take that
18 out of the statute.
45 1 We rewrite the statute now, and we say
2 essentially a flag burning is a flag burning, and
3 that offense goes out of it, offense whether
4 communicated later or not communicated later,
5 whether it occurs or it doesn't occur, I thought
6 that's what the reply brief did.
7 Now, maybe I do misstate her argument
8 slightly, but I don't think I mistake the reply
9 brief, because I got the impression that's... well,
10 the words,
11 "A flag burning is a flag burning. "
12 is in the reply brief.
13 Now, I remember, Justice Scalia, in
14 reading your dissent in Community for Creative
15 Nonviolence that you said essentially,
16 "A law directed at the communicative
17 nature of conduct must like a law directed at
18 speech itself be justified by the substantial
46 1 showing of need that the First Amendment requires.
2 "
3 I subscribe to that wholeheartedly.
4 In fact, you went on and you reviewed all
5 of the cases that you thought were applicable there,
6 Stromberg, Brown, Tinker and Spence, and you made
7 the following statement:
8 9 10 "Every prescription of expressive conduct
in those cases was aimed at the communicative
effect of the conduct. "
11 And that's what they had here.
12 That's what the jury got, that's what the
13 testimony was, and that's what the statute says.
14 And I agree with... I think--
15 JUSTICE ANTONIN SCALIA: I was just on the
16 Court of Appeals, then, Mr. Kunstler.
17 WILLIAM M. KUNSTLER: --I understand.
18 [Laughter]
47 1 2 JUSTICE ANTONIN SCALIA: I may have been
wrong, you know.
3 4 I hope that the elevation doesn't change
the thought.
5 [Laughter]
6 WILLIAM M. KUNSTLER: In any event, we
7 subscribe to that, of course, in our argument, and
8 I think Justice O'Connor when she wrote Boos she
9 said essentially, this justification, folks, is
10 only on the content of the speech and the direct
11 impact that speech has on its listeners.
12 And in Cohen I think Justice White in his
13 concurrence said that the... that statute made the
14 communicative aspect of the proscribed conduct a
15 crucial element of the violation.
16 17 That's the contemptuous treatment statute,
and that's what we have here.
18 19 Everything depends on the communication
that is made by the actor which may be communicated
48 1 to the people on the street, but you know in the
2 statute, Justice Scalia, it goes even further,
3 "likely to observe or discover", which could be in
4 the newspapers the next day, for example, as well
5 as being an onlooker.
6 So, I think that given the concession that
7 the statute is pure speech, given the past
8 decisions of this Court on what should happen to a
9 statute that makes communicative impact, the
10 criterion of the punishment that this statute fails
11 that test, it certainly doesn't come under O'Brien
12 because where... here the government's interest is
13 directly related to expression.
14 It's like Footnote 8 in Spence, and I
15 think what you have here is a statute that depends
16 solely and exclusively on communicative impact on
17 the audience, whether they're there or they read it
18 in the newspaper or they see it on the screen in
19 the evening.
20 It all goes to that.
49 1 2 And when you use the word desecrate, you
don't mean really in essence praising the flag.
3 Desecrate has a... has a... has a meaning,
4 and I just looked at it in Webster's Second
5 International about it, and desecrate means to
6 divest of a sacred character or office, to divert
7 from a sacred purpose, to violate the sanctity of,
8 to profane, the opposite of consecrate.
9 Now, with reference to the compelling
10 state interest, I listened to the argument of
11 flower to star against B.J.F. before here, and I
12 don't want to hurt Mr. Rahdert's argument in this
13 argument, knowing nothing about the case except
14 what I heard today, but I thought that the
15 protection of a rape victim was a compelling state
16 interest.
17 18 I agreed with Justice O'Connor's comments
on that.
19 That is a compelling interest, certainly.
50 1 2 Here you have no compelling state interest
that is worth consideration.
3 4 CHIEF JUSTICE WILLIAM H. REHNQUIST: Mr....
maybe Mr. Rahdert would feel differently.
5 [Laughter]
6 WILLIAM M. KUNSTLER: That may be true.
7 Is he in the room yet?
8 I hope not.
9 JUSTICE ANTONIN SCALIA: He's waving a flag
10 in the back, I think.
11 [Laughter]
12 WILLIAM M. KUNSTLER: Now, we're getting
13 back to my argument.
14 With reference to the nationhood and
15 national unity, which Ms. Drew raised and which is
16 filled in the brief, both the reply brief and the
17 main brief of the state, I think... I thought
18 Barnette set that to rest.
51 1 I thought that when Justice Jackson said
2 that if there is any fixed star in our
3 Constitutional constellation, it is that no
4 official high or petty can prescribe what shall be
5 orthodox in politics, nationalism--
6 CHIEF JUSTICE WILLIAM H. REHNQUIST: Well,
7 the facts of West... West Virginia versus Barnette
8 were quite different from this.
9 10 There the students were required to salute
the flag.
11 WILLIAM M. KUNSTLER: --And here, Chief
12 Justice, you're asking... people are required not
13 to do something.
14 CHIEF JUSTICE WILLIAM H. REHNQUIST: Yes.
15 WILLIAM M. KUNSTLER: And I think that's a
16 comparable situation.
17 We order you... we can't order you to
18 salute the flag, we can't order you to do all these
19 obeisances with relation to the flag.
52 1 2 Can we order you not to do something to
show something about the flag?
3 4 CHIEF JUSTICE WILLIAM H. REHNQUIST: Well,
to me they're quite different.
5 6 You could say that if you can't do one,
you can't do the other.
7 8 But it seems to me one could quite easily
say you can't do one but you can do the other.
9 WILLIAM M. KUNSTLER: Well, you know, I
10 understand that, but I think that you get into
11 Street, I thought, which also relied on Barnette.
12 13 There he did exactly what we're talking
about here.
14 He burnt the flag in the street over the
15 question of James Meredith being shot in
16 Mississippi in 1966.
17 18 CHIEF JUSTICE WILLIAM H. REHNQUIST: And
what was the holding of the court in Street?
53 1 WILLIAM M. KUNSTLER: Well, in Street
2 essentially the court indicated that you couldn't
3 tell whether it was speech or whether it was flag
4 burning and, therefore, the court reversed in the
5 Street case.
6 But in so deciding in relying on Barnette,
7 the court said, essentially I thought, that it was
8 an illegitimate interest in Street to compel
9 respect by prohibiting criticism of the flag,
10 including flag burning.
11 12 So, I think it's... I guess we have a
little difference of opinion on the facts.
13 I know the facts are somewhat different
14 except a flag was burned in the street by Mr.
15 Street in a political protest over a shooting in
16 Mississippi of a civil rights figure.
17 But I think the analogy is the same.
18 Can you say you can't force them to salute
19 the flag or pledge allegiance to the flag, but can
54 1 you then say we can force them not to show other
2 means of disrespect for the flag, other means of
3 protest over the flag by saying you can't burn the
4 flag?
5 6 I think they're the same, in all due
deference.
7 CHIEF JUSTICE WILLIAM H. REHNQUIST: Well--
8 WILLIAM M. KUNSTLER: I don't know if I've
9 convinced you, but--
10 11 CHIEF JUSTICE WILLIAM H. REHNQUIST: --Well,
you may have convinced others.
12 [Laughter]
13 But take... take, for example, the "Live
14 Free or Die" case.
15 Do you remember that--
16 WILLIAM M. KUNSTLER: --I certainly do.
17 CHIEF JUSTICE WILLIAM H. REHNQUIST: --from
18 New Hampshire where we said you can't... New
55 1 Hampshire can't require you to carry around on your
2 license plate the expression "Live free or die".
3 But certainly New Hampshire could have
4 presumably prohibited... New Hampshire couldn't
5 compel you to make any affirmative statement on
6 your license.
7 8 They certainly could have prevented you
from making some statements on your license plate.
9 10 WILLIAM M. KUNSTLER: No, but I think in
Wooley, as I recall it, they painted out.
11 12 They did an affirmative act and painted
out the "Live free or die" motto.
13 14 The Jehovah's Witnesses didn't believe in
that, so they painted it out.
15 16 They did enact and then the question was
was that act violating some criminal code.
17 CHIEF JUSTICE WILLIAM H. REHNQUIST: And
18 the court said no, you... you... you can't pro...
19 you can't prohibit that sort of thing, but the...
56 1 the reasoning of the Court was that you can't
2 require someone to make an affirmation.
3 To me that's West Virginia versus Barnette.
4 But, if someone applies for a New
5 Hampshire license plate that has a lot of foul
6 language on it, very likely that limited thing can
7 be proscribed.
8 WILLIAM M. KUNSTLER: I know.
9 That... I would agree with you on that,
10 but I think that to get away from Wooley against
11 Maynard would be a mistake here.
12 13 That... that's putting something on the
license plate that is profane or whatever.
14 But in... in Wooley, as I understood it,
15 the act that they, Jehovah's Witnesses did, was to
16 paint out.
17 They burnt the flag.
18 In essence.
57 1 They painted out.
2 I don't think we're going to reach eye to
3 eye on this.
4 [Laughter]
5 I have that distinct feeling.
6 Getting back, then, to the no compelling
7 state interest, though, I don't think there is any
8 compelling state interest in the state of Texas...
9 and by the way, the national flag does not just
10 mean the American flag.
11 There is a presidential flag... they don't
12 put it in capitals... there's a presidential flag
13 that is flown.
14 15 The Secretary of State has a flag that's a
national flag.
16 There are many national flags.
17 I counted 17 national flags.
58 1 2 Each department here in Washington has a
flag.
3 They're national flags, and the State of
4 Texas would also include those as national flags,
5 certainly the President's flag.
6 7 So, I think that the word "national" flag
needs definition in itself.
8 9 JUSTICE HARRY A. BLACKMUN: Does the
Supreme Court have a flag?
10 WILLIAM M. KUNSTLER: What was that?
11 JUSTICE HARRY A. BLACKMUN: Does the
12 Supreme Court have a flag?
13 14 WILLIAM M. KUNSTLER: I don't know, but the
Republican Party has one--
15 [Laughter]
16 --because when they went by the Mercantile
17 Bank Building here... I just learned this from the
18 record... the... one of their witnesses, Jimmy
59 1 Smith, who is the custodian of the flags at the
2 Marcantile Bank said,
3 "We took down four American flags. "
4 "We have 16 normally, because we put up
5 four Republican Party flags because the Republican
6 Party was then meeting in its annual convention...
7 in its national convention. "
8 So, I know the Republican Party.
9 If the Supreme Court doesn't have one or
10 has one, I don't know.
11 12 I think you'd be in a better position than
me to tell that anyway.
13 By the way, talking about flags in front
14 of the Supreme Court, when I came by today, the
15 flags were up in the rain, and under 36 U.S. Code,
16 the leading provision there is flags shall not be
17 displayed in inclement weather.
18 19 JUSTICE THURGOOD MARSHALL: Are we going to
get back- 60 1 2 JUSTICE ANTONIN SCALIA: --Exemption one
applies to all weather flags.
3 4 JUSTICE THURGOOD MARSHALL: Are we going to
get back to this case?
5 6 WILLIAM M. KUNSTLER: That's in all weather
flags.
7 [Laughter]
8 That could be physical mistreatment under
9 the Texas statute.
10 You get into vaguenes.
11 JUSTICE THURGOOD MARSHALL: Mr. Kunstler,
12 are you going to get back to the case?
13 14 WILLIAM M. KUNSTLER: Yes, I'm getting back
to the case.
15 [Laughter]
16 Seems to me we had this three weeks ago.
61 1 In any event, I don't think that the...
2 there is a compelling state interest in this flag
3 or any national flag whatsoever.
4 I think the Court has really held that--
5 JUSTICE JOHN PAUL STEVENS: Mr. Kunstler,
6 let me ask you... and maybe this gets a little bit
7 away from the case... do you think there is any
8 public interest at all in any of these regulatory
9 measures about don't display the flag in the rain
10 or don't fly it upside down or so?
11 12 Is there any state interest at all to
support that kind of legislation?
13 WILLIAM M. KUNSTLER: --I don't know, but I
14 don't think it matters because they're not criminal
15 statutes.
16 They are recommendations.
17 It used to be you couldn't fly the flag at
18 night.
62 1 2 Now, you can fly it if it's illuminated,
and so on.
3 JUSTICE JOHN PAUL STEVENS: Do--
4 WILLIAM M. KUNSTLER: They're
5 recommendations.
6 There are no criminal penalties.
7 JUSTICE JOHN PAUL STEVENS: --Do you think
8 the federal government has any power at all to...
9 to regulate how this flag is displayed in public
10 places?
11 WILLIAM M. KUNSTLER: I don't believe so.
12 I don't... I'm thinking in my mind whether
13 they have any injunctive power.
14 15 JUSTICE JOHN PAUL STEVENS: There's no
state interest whatsoever?
16 17 WILLIAM M. KUNSTLER: I don't see any state
interest whatsoever.
63 1 2 JUSTICE JOHN PAUL STEVENS: I feel quite
differently.
3 JUSTICE ANTHONY KENNEDY: Can the federal
4 government prohibit use of the flag for commercial
5 purposes?
6 Advertising?
7 WILLIAM M. KUNSTLER: I don't know.
8 Since Halter against Nebraska, where there
9 was a Nebraska statute against using the flag on
10 beer bottles or beer cans, I don't know whether
11 there can be any prohibition of that.
12 It's used all over for commercial purposes.
13 I notice that Barbara Bush wore a flag
14 scarf, for example.
15 16 There are flag bikinis, there are flag
everything.
64 1 There are little cocktail flags that you
2 put into a hot dog or a meatball and then throw in
3 the garbage pall.
4 They're flags under the Texas statute,
5 something made out of cloth, but I think they're
6 are all sorts of flags used commercially.
7 I'm not sure in my heart whether I think
8 there's any control over the use of the flag, not
9 on the criminal side anyway.
10 Whether there is a... in answering Justice
11 Stevens' question whether there is an injunctive
12 process that can be employed or not... I... I... I
13 won't go into it.
14 I don't know.
15 But I have an instinctive feeling that's
16 different, apparently, then Justice Stevens' that
17 there is no control of the use of the flag
18 commercially, although I don't think it's necessary
65 1 for this case because here we're only talking about
2 a criminal statute.
3 Now, with reference to... when I read
4 Justice White's concurrence in Goguen, I notice he
5 said that punishment for communicating ideas about
6 the flag unacceptable to controlling majority in
7 the legislature is something that is wrong, to
8 punish people for having a different idea about the
9 flag, different than the Texas legislature has with
10 the flag in its desecration statute.
11 12 And by the way, that's called the
desecration of venerated objects.
13 That's the classification they give to it.
14 And I agree with Justice Scalia that flag
15 burning of a single flag in front of the new City
16 Hall in Dallas doesn't lessen the value as a symbol.
17 18 JUSTICE JOHN PAUL STEVENS: Let me go back
to the any state interest at all.
66 1 Do you think the military would have any
2 legitimate interest in disciplining a member of the
3 military who showed disrespect for the flag on
4 public occasions?
5 6 WILLIAM M. KUNSTLER: You might have a case
there.
7 8 JUSTICE JOHN PAUL STEVENS: You might have
a case.
9 WILLIAM M. KUNSTLER: If a person that
10 joins the army, the flag has even a more peculiar
11 significance to people in the army.
12 I would have problems with it.
13 I would represent such a person--
14 [Laughter]
15 --because I would think that there's
16 something First Amendment in there.
67 1 But if he destroyed a flag that was the
2 property of the army, I think he'd be court
3 martialed for that.
4 5 I don't think there's a particular flag
statute in the Uniform Code of Military Justice.
6 7 If you destroy someone's flag, you can be
punished.
8 There are many statutes.
9 I think the Texas Court of Criminal
10 Appeals pointed there are some statutes, this
11 statute and that statute that would cover the
12 situation without getting into the First Amendment
13 area.
14 And I'm sure it would violate the article
15 of war... I used to call it the article of war...
16 which says
17 18 "conduct unbecoming a member of the
military. "
68 1 2 if you destroyed a flag... refused... even
refused to salute a flag under the military code.
3 4 Now, with reference to the breach of the
peace--
5 JUSTICE JOHN PAUL STEVENS: I was only
6 suggesting that maybe there is some... some
7 identifiable state interest that's involved here.
8 WILLIAM M. KUNSTLER: --Yeah.
9 I'm not saying... I don't want you to get
10 the wrong--
11 12 JUSTICE JOHN PAUL STEVENS: I think you're
acknowledging that there is.
13 14 WILLIAM M. KUNSTLER: --impression that I
say it's totally out of reach.
15 I'm not saying that.
16 I'm trying to confine it to this case.
17 JUSTICE JOHN PAUL STEVENS: You did say
18 that.
69 1 WILLIAM M. KUNSTLER: I know I did.
2 [Laughter]
3 I guess I have too much of a First
4 Amendment consciousness, I guess, in my makeup.
5 With reference to breach of the peace, I
6 don't think there's ever... none of the flag cases
7 that you have before you... ever had before you...
8 have involved a breach of the peace.
9 The only one I found where there was any
10 violence was what Judge Tuttle found in the Monroe
11 case, where they burned an American flag in front
12 of the federal building and someone burned an
13 Iranian flag.
14 When the Iranian flag was burned, there
15 was one act of violence, but not when the American
16 flag was burned.
17 18 And Judge Tuttle pointed out that there
was no clear and present danger.
70 1 He went right into the old Holmesian
2 doctrine of "clear and present danger" just as
3 there wasn't here.
4 If there had been a breach--
5 CHIEF JUSTICE WILLIAM H. REHNQUIST: What
6 about... what about Feiner against New York,
7 remember, where that fellow was speaking up at
8 Syracuse and said President Truman is a champagne
9 sipping bum, whereupon they told him he had to stop
10 speaking because of fear from the crowd was going
11 to attack him?
12 WILLIAM M. KUNSTLER: --Well, I don't think
13 that changes the position yet because it's no
14 different than Terminiello, really.
15 You're saying hard things.
16 CHIEF JUSTICE WILLIAM H. REHNQUIST: Well,
17 it came after Terminiello, and it went... it came
18 out the other way.
71 1 2 WILLIAM M. KUNSTLER: I know it, and
apparently the imminence there was so immanent--
3 [Laughter]
4 --thank you... was so immanent.
5 But you don't have that here at all.
6 In Terminiello, as you know, when I was
7 reading Terminiello's remarks in the transcript,
8 there was... it showed he ducked several times.
9 Apparently someone threw something during
10 his rampage against the Jews, but they held... this
11 Court held that that wasn't enough.
12 13 It wasn't really raised very much in the
argument.
14 But if it gets to imminent danger where
15 you really have something going on, which you
16 didn't have here, and you haven't had in any of the
17 flag burning cases, there's no breach of the peace
18 here and no imminence of the breach of the peace
19 here at all.
72 1 2 JUSTICE HARRY A. BLACKMUN: Well, then we
come close to the Skokie cases.
3 WILLIAM M. KUNSTLER: Well, Skokie presents
4 a situation, of course, where the attempt to parade
5 through an all white community of black
6 demonstrators... but even there, of course, you
7 can't stop it.
8 You can't stop it.
9 JUSTICE HARRY A. BLACKMUN: That's my point.
10 WILLIAM M. KUNSTLER: It you're going to
11 stop it, it has to be so imminent as the Chief
12 said... it has to be so imminent that it really
13 reaches clear and present danger proportions.
14 15 That's where Judge Tuttle said in Monroe,
and I think that is the rule here.
16 We haven't argued clear and present danger
17 yet, but I think you must at least show some clear
18 and present danger, some imminence.
73 1 2 The... the statute here is not limited to
an imminent breach, by the way.
3 4 It doesn't say imminent breach of the
peace at all.
5 It just says "likely" or "might" or,
6 "The actor could reasonably believe that
7 someone might be seriously offended by it. "
8 9 The Texas Court of Appeals treated this, I
think, in its opinion.
10 It said,
11 "This statute is so broad that it may be
12 used to punish protected conduct which has no
13 propensity to result in breaches of the peace. "
14 15 Serious offense does not always result in
a breach of the peace.
16 17 The protest in this case did not lead to
violence.
74 1 And, I might add, in this protest they had
2 policemen right along with them, undercover police
3 officers.
4 The crowd was not a large crowd.
5 They estimate between 100, 110, and Texas
6 went on to say, as with most other protests of this
7 nature, police were present at the scene.
8 9 10 A witness was obviously seriously offended
by appellant's conduct because he gathered the
burned flag and buried it at his home.
11 12 Nevertheless so seriously offended, this
man was not moved to violence.
13 Serious offense occurred, but there was no
14 breach of the peace, nor does the record reflect
15 that the situation was potentially explosive.
16 17 One cannot equate serious offense with
incitement to breach the peace.
18 19 And I think that any breach of the peace
argument here falls on its face.
75 1 2 It is... I think when Chief Justice Burger
said in O'Brien versus Skinner,
3 "It is not our function to construe... to
4 construe a state statute contrary to the
5 construction given it by the highest court of the
6 state. "
7 8 They have construed this statue with
reference certainly to breach of the peace.
9 10 On vagueness and overbreadth, I think the
vagueness is... is apparent.
11 It's... by definition it's vague.
12 What does "serious offense" mean?
13 What is "unserious offense" as against
14 "serious offense"?
15 16 Some of the ACLU witnesses here testified
here they were offended.
17 18 They thought it was repulsive, one of them
said, but they were not seriously offended.
76 1 2 And I don't know what seriously offended
means.
3 4 The state says it's in the dictionary, and
therefore it must have a meaning.
5 I agree with that.
6 Every word is in the dictionary, or at
7 least in some dictionaries.
8 9 10 But just because they're in the dictionary
doesn't mean that you can define legally or on the
spot what serious offense is.
11 It wasn't a serious offense, for example,
12 to fly the flag outside the Supreme Court in
13 violation of 36 USC.
14 The artists' amicus brief, which I think
15 is a most unusual brief, contains many, many of the
16 artists' paintings where you might say that they
17 created paintings that would seriously offend by
18 manipulating the American flag or by cutting it up,
77 1 destroying it, using it in different ways, many of
2 them to protest situations.
3 Some of them go to the war in Vietnam.
4 Some of them go to other aspects.
5 You don't even know what physical
6 mistreatment means in the statute.
7 8 Does physical mistreatment mean wearing it,
twisting it, burning it?
9 It's just an undefinable statute.
10 As far as overbreadth is concerned and
11 even taking into consideration Justice White's
12 substantial overbreadth argument, this is
13 substantially overbroad--
14 15 JUSTICE BYRON R. WHITE: That's the Court's
doctrine.
16 WILLIAM M. KUNSTLER: --Pardon me.
17 But I read it and I saw the words
18 "substantial overbreadth" in it, and I think this
78 1 even meets that higher standard of whether It's
2 overbreadth.
3 It sweeps protected conduct under its
4 aegis and is... it's just an overbroad statute, so
5 overbroad that I don't think anyone can really
6 doubt it.
7 And, in fact, there's been no real
8 argument against it, against the overbreadth
9 argument essentially the State of Texas.
10 11 Now, with reference to as applied, we
would rely on the Street case.
12 You can't tell here whether he was
13 convicted with reference to this statute as to the
14 flag burning or as to the words or the acts he did
15 before the flag burning because the Texas
16 prosecutor in his summation said as follows:
17 18 "If you look at this evidence from start
to finish. "
79 1 2 --and they showed a lot of television
shots of what was happening in Dallas
3 "If you look at this evidence from start
4 to finish, the participating in the beginning, the
5 literature, the last notations, RCYB, the shirt,
6 who he is, the chanting, the yelling, the megaphone,
7 the encouragement, the having the megaphone, being
8 there, wanting this to happen, there is no question
9 he encouraged it all. "
10 11 "He's as guilty as sin as far as the law
of parties is concerned. "
12 13 That's very much the summation... not as
hyperbole in Street as was given in the Street case.
14 Was he really tried and convicted for the
15 flag or for the encouragement or for the literature,
16 the megaphone, the loudspeaker.
17 CHIEF JUSTICE WILLIAM H. REHNQUIST: But
18 he'd been charged with a number of different
19 offenses here?
80 1 WILLIAM M. KUNSTLER: No.
2 What happened, he was only charged
3 initially with disorderly conduct.
4 CHIEF JUSTICE WILLIAM H. REHNQUIST: What
5 did the case finally... what was he charged with
6 when it was submitted to the jury?
7 8 WILLIAM M. KUNSTLER: He was charged with...
I have the charge here.
9 CHIEF JUSTICE WILLIAM H. REHNQUIST: I
10 don't mean the judge's charge, but the indictment
11 or information, what offenses?
12 13 WILLIAM M. KUNSTLER: It's an information,
a misdemeanor.
14 And he was charged eventually only with
15 the flag burning statute or the desecration statute.
16 But initially, Chief Justice, he was
17 charged... they took in a hundred protestors a half
18 hour after all this happened, and he was charged
19 initially with disorderly conduct.
81 1 All the rest were let go.
2 And then they dropped the disorderly
3 conduct... that's in the record somewhere... the
4 keeper... the sheriff came and testified that they
5 dropped disorderly conduct and substituted in its
6 place the flag desecration charge, and that's what
7 he was charged with.
8 Disorderly conduct was out of the picture.
9 Now, with reference to... so, he may
10 easily here have been convicted for the words, the
11 encouragement as against... by the law of the
12 parties as against the flag desecration itself.
13 I would just like to end my argument... I
14 think this is a fundamental First Amendment case,
15 that the First Amendment to the written
16 Constitution is in jeopardy by statutes like this.
17 18 And I wanted to essentially close with two
remarks.
19 One Justice Jackson said in Barnette.
82 1 "Those who begin coercive elimination of
2 dissent soon find themselves eliminating dissenters.
3 "
4 5 "Compulsory unification of opinion
achieves only the unanimity of the graveyard. "
6 7 "The First Amendment was designed to avoid
these ends by avoiding these beginnings. "
8 9 And I think that's an important statement
over the years from Justice Jackson.
10 11 And then he goes... in just a recent
article in the New York Times called
12 "In Chicago a Holy War Over the Flag. "
13 by J. Anthony Lukas, a very excellent
14 former reporter for the New York Times, he said,
15 "Whatever pain freedom of expression may
16 inflict, it is a principle on which we can give no
17 ground. "
83 1 2 And I understand that this flag has
serious important meanings.
3 The Chief has mentioned many times that it
4 is not just pieces of material, blue and white and
5 red.
6 7 That has real meaning to real people out
there.
8 But that does not mean that it may have
9 different meanings to other people out there and
10 that they may not under the First Amendment show
11 their feelings by what Texas calls desecration of a
12 venerated object.
13 I think it's a most important case.
14 I sense that it goes to the heart of the
15 First Amendment, to hear things or to see things
16 that we hate test the First Amendment more than
17 seeing or hearing things that we like.
18 It wasn't designed for things we like.
19 They never needed a First Amendment.
84 1 This statute or this amendment was
2 designed so that the things we hate, Terminiello's
3 remarks, burnings of flags, or what have you can
4 have a place in the marketplace of ideas and can
5 have an area where protest can find itself, I
6 submit that this Court should on whatever ground it
7 feels right, should affirm the Texas Court of
8 Criminal Appeals with reference to this statute and
9 this conviction.
10 Thank you very much.
11 CHIEF JUSTICE WILLIAM H. REHNQUIST: Thank
12 you, Mr. Kunstler.
13 Ms. Drew, you have four minutes remaining.
14 Rebuttal of KATHI ALYCE DREW
15 KATHI ALYCE DREW: Thank you, Your Honor.
16 One or two points very, very briefly.
17 There is absolutely nothing in the
18 information that was filed or in the jury charge
19 that was submitted to the court which would have
85 1 authorized a conviction for any words that had been
2 spoken by Mr. Johnson.
3 It is true that the trial prosecutor did
4 make about half a page in his 20 page summation to
5 the jury, a reference to the law of parties because
6 an individual for a criminal offense in Texas can
7 be held liable as a party if certain factors are
8 shown.
9 And I think that was incumbent upon him,
10 but there is absolutely nothing that would have
11 authorized a conviction for any words that were
12 spoken.
13 I also fall to see how, if I understand Mr.
14 Kunstler's concession, If one can protect
15 government flags why one cannot protect a flag
16 which is not necessarily the property of the
17 government because the danger of a breach of the
18 peace is the same and the denigration to the symbol
19 is the same.
86 1 2 Unless the Court has questions, that will
conclude my remarks.
3 4 CHIEF JUSTICE WILLIAM H. REHNQUIST: Thank
you, Ms. Drew.
5 The case is submitted.
6 87