| Spence v. Washington | |
|---|---|
 | |
| Argued January 9, 1974 Decided June 25, 1974 | |
| Full case name | Harold Omond Spence v. Washington |
| Citations | 418U.S.405 (more) |
| Case history | |
| Prior | Appellant convicted sub nom.State v. Spence; conviction reversed, 5 Wash. App. 752, 490 P.2d 1321 (1971); reversed, 81 Wash. 2d 788, 506 P.2d 293 (1973); probable jurisdiction noted, 414 U.S. 815 (1973) |
| Holding | |
| A Washington state statute forbidding displaying the American flag affixed with decorations, as applied to appellant's activity, impermissibly infringed a form of protected expression. | |
| Court membership | |
| |
| Case opinions | |
| Per curiam | |
| Concurrence | Blackmun |
| Concurrence | Douglas |
| Dissent | Burger |
| Dissent | Rehnquist, joined by Burger, White |
Spence v. Washington, 418 U.S. 405 (1974), was aUnited States Supreme Court case dealing with non-verbal free speech and its protections under theFirst Amendment. The Court, in aper curiam decision, ruled that a Washington state law that banned the display of the American flag adorned with additional decorations was unconstitutional as it violated protected speech. The case established theSpence test that has been used by the judicial system to determine when non-verbal speech may be sufficiently expressive for First Amendment protections.
In May 1970, Harold Spence, a college student inSeattle, Washington, had hung an American flag on his apartment window, displayed upside-down and adorned withpeace symbols as a means to protest the United States' recent actions inthe invasion of Cambodia and theKent State shootings. Police officers saw the flag and after speaking to Spence, arrested him. Rather than being charged under Washington'sflag desecration statute, Spence was charged with violating the state's "improper use" statute, which disallowed the public display of the American flag with any additional adornments.
Spence requested a jury trial at theKing County Superior Court. There, he argued his motives for displaying the adorned flag in protest of recent actions by the U.S. government. The jury found him guilty, amounting to 10 days suspended sentence and a small fine. Spence appealed to theWashington Court of Appeals, which overturned the conviction on the basis that the ruling did not consider Spence's intent, and the statute enforced in this way violated the First and Fourteenth Amendments. The state appealed to theWashington Supreme Court which reversed the Court of Appeals ruling and reinstated the conviction.
The student petitioned to the Supreme Court based on the lower court rulings. Oral arguments were heard on January 9, 1974, and the Court published itsper curiam decision on June 25, 1974. The unsigned opinion stated that with non-verbal communications, it was "necessary to determine whether [this] activity was sufficiently imbued with elements of communication to fall within the scope of the First [...] Amendment". A two-part test was used:
While Washington state had defended the law as a need to preserve the flag as a national symbol, the Court pointed out that the student had not done any act that desecrated the flag nor harmed public or government property, nor meant to incite violence with the display, and thus the state had no compelling interest to deny the student his First Amendment rights.
While the opinion wasper curiam and unsigned, JusticesHarry Blackmun andWilliam O. Douglas concurred separately. Justice Blackmun concurred in result without opinion. Justice Douglas concurred in a separate opinion, relying on symbolic speech grounds. Chief JusticeWarren Burger and JusticeWilliam Rehnquist wrote separate dissents, with Chief Justice Burger and JusticeByron White joining Rehnquist. Both dissents expressed concern that the Court's decision overreached the state's authority to enforce its own laws.
It is unclear why the opinion was not signed.
The Court's decision established theSpence test as a means to determine when non-verbal activities can be considered expressive to qualify for First Amendment protections: "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."[1] TheSpence test was used in the Supreme Court's ruling inTexas v. Johnson (491 U.S. 397 (1989)) which ruled that states' flag desecration laws were unconstitutional since they infringed on actions deemed expressive speech under a Spence evaluation.[2][3][4]Johnson notably altered the formation of theSpence test by removing the "surrounding circumstances" phrase, creating the Spence-Johnson test which focuses on the particularized message and the likelihood that message would be understood.[5]
Robert Post, a professor of law atYale University, questioned the nature of the Spence test, as "is transparently and manifestly false. The test cannot plausibly be said to express a sufficient condition for bringing 'the First Amendment into play.'".[2] Post argued that the Spence test would allow forgraffiti that defaces property to be protected under the First Amendment, while abstract works of art such asAndy Warhol'sSleep orMarcel Duchamp'sFountain, where the intended message would be difficult to understand, would fail the Spence test, despite clear recognition as works of art normally protected by the First Amendment.[2] The Supreme Court caseHurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (515 U.S. 557 (1995)) subsequently altered the Spence test. InHurley, parade organizers denied participation by an LGBT group, arguing that the group's message did not fit the theme of the parade, meant to celebrateSt. Patrick's Day andEvacuation Day. The unanimous Supreme Court ruled in favor of the parade organizers in that the parade was a form of expression and protected by the First Amendment, even if the parade did not have a single, clear message. In the opinion, the Court ruled counter toSpence that a "narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a 'particularized message,' would never reach the unquestionably shielded painting ofJackson Pollock, music ofArnold Schoenberg, or Jabberwocky verse ofLewis Carroll."[6]
Hurley's take onSpence created acircuit split in the following years on the particulars of whether actions qualify as expressive, protected speech, which, as of 2015, had yet to be revolved by the Supreme Court. Some circuits have favoredSpence, othersHurley, and yet others even have taken a hybrid approach of both, called the Spence-Hurley test.[6][5][1]