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Spence v. Washington
Spence v. Washington,, was a decision by the Supreme Court of the United States that ruled a Washington State statute infringed upon the freedom of expression protected under the First Amendment to the United States Constitution. The court decided in a Per Curiam Opinion that Harold Omand Spence was protected under the First Amendment to the United States Constitution. These protections include his freedom of expression and freedom of speech.

Background of the case
On May 10, 1970 Harold Oman Spence, a college student in Seattle, Washington displayed an American Flag from the window of his apartment upsides down, and with peace symbols made from tape attached to both sides. The privately owned flag was visible to any and all passerby from his private apartment window. Spence believed this to be a form of protests to the United States Government and a form of expression for his discontent with their violent acts at the time. Notable incidents include the United States invasion/involvement of Cambodia, and the shootings at Kent State University protests in response. Spence stated "I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace. (Blanchard 364)"

Three Seattle Police Officers noticed the flag and entered the apartment with the permission of Spence. The officers seized the flag and arrested the appellant without altercation or resistance. Spence was charged under the Washington "Improper Use" Statute, Washington. Rev. Code § 9.86.020, which states;

"No person shall, in any manner, for exhibition or display:

"(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state ... or

"(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement...."

At an initial town court, Spence was found guilty and received a sentenced to 90 days of jail time, and 60 days of further suspension. Spence used his right to a trial by jury where the major arguments were the testimonies of the three police offers, and the words as put by the defendant (Spence). It is at this trial court Spence noted his reasoning behind the flag and his protest (see the quote above). "The trial court instructed the jury in essence that the mere act of displaying the flag with the peace symbol attached, if proved beyond a reasonable doubt, was sufficient to convict. There was no requirement of specific intent to do anything more than display the flag in that manner. (law2.umkc.edu)" The jury concluded a guilty verdict, and the defendant was awarded 10 days in jail and a $75 fine. The case was brought before the Washington State Court of Appeals where the lower courts' decision was reversed, and thus ruled in favor of the defendant. However, the Washington State Supreme Court later rejected Spence's constitutional argument and reinstated the conviction and reversed the appellate court's ruling. From here, Spence and his attorneys proceed their case to the Supreme Court of the United States.

The Supreme Court's decision
Majority:

In a per curiam opinion, the Supreme Court held that that statute, as applied, violated the First Amendment right to free speech. Justice William O. Douglas concurred, writing that Spence's display was symbolic speech entitled to constitutional protection. Justice Harry A. Blackmun concurred in the result. The per curiam opinion states:

"The Supreme Court of Washington affirmed appellant's [p406] conviction. 81 Wash.2d 788, 506 P.2d 293 (1973). It rejected appellant's contentions that the statute under which he was charged, on its face and as applied, contravened the First Amendment, as incorporated by the Fourteenth Amendment, and was void for vagueness. We noted probable Jurisdiction. 414 U.S. 815 (1973). We reverse on the ground that, as applied to appellant's activity, the Washington statute impermissibly infringed protected expression."

There were four major provisions of the opinion that highlights the courts reasoning; With the review of the facts and the nature of the situation; the court had no choice but to rule in favor of Spence.
 * It was a privately owned flag.
 * The flag was displayed on personal/private property.
 * There is no proof to substantiate the breach of peace.
 * The state of Washington concede that Spence was partaking in a form of communication

Dissent:

Chief Justice Warren Burger – The main focus of chief Justice Burger's dissenting opinion is that each state should be able to decide how the American Flag should be protected; it is not the responsibility of the federal government nor to intervene. He was joined in concurrence by Justice Byron White. In his written opinion, Chief Justice Burger states:

"If the constitutional role of this Court were to strike down unwise laws or restrict unwise application of some laws, I could agree with the result reached by the Court. 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."

Justice William H. Rehnquist – Justice Rehnquist, joined by Chief Justice Burger and Justice Byron White also dissented on the decision, however for alternative reasoning. It was to his reasoning that states have an interest in protecting the American Flag and its importance to national unity. In his written opinion, Chief Justice Rehnquist states:

"The Court holds that a Washington statute prohibiting persons from attaching material to the American flag was unconstitutionally applied to appellant. Although I agree with the Court that appellant's activity was a form of communication, I do not agree that the First [p417] Amendment prohibits the State from restricting this activity in furtherance of other important interests. And I believe the rationale by which the Court reaches its conclusion is unsound."

Significance
This was a foundational decision by the Supreme Court for freedom of speech and expression under the First Amendment of the United States Constitution. This was one decision leading up to the likes of the notable Supreme Court Case Texas v. Johnson. Free speech involving the use of the American flag has always drawn a great deal of controversy on conflicting sides. In the case of Spence v. Washington we began to see leniency and expansion of protected expression, at least in terms of temporary defacement and display of a privately owned flag.

Roots of the flag desecration laws and cases stem from the original federal Flag Protection Act that was passed by Congress in 1968 in response to protest burning of the flag at demonstrations against the Vietnam War. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. The most recent attempt to adopt a flag desecration amendment failed in the United States Senate by one vote on June 27, 2006.

Relevant cases

 * United States v. O'Brien, 391 U.S. 367, 376 (1968)
 * Street v. New York, 394 U.S. 576, 590–594 (1969)
 * Cohen v. California, 403 U.S. 15 (1971)
 * Texas v. Johnson, 491 U.S. 397 (1989)