United States v. Sharon K. Crosson , 462 F.2d 96 ( 1972 )

KILKENNY, Circuit Judge:

Appellant was indicted, tried by a jury and convicted of publicly burning the flag of the United States in violation of 18 U.S.C. § 700. She was sentenced to imprisonment for a period of four months and fined.

FACTS

While there is some dispute as to the facts, the jury, in order to convict, must have accepted the government’s version briefly outlined in the following narrative.

Two undercover agents of the Arizona Department of Public Safety joined a group of war protestors consisting mainly of University of Arizona students. This occurred on May 6, 1970. The agents, upon return of the protestors to the campus from downtown Tucson, proceeded to the second floor of the R. O. T. C. Building, known as “Old Main”, where fifty to seventy-five persons had gathered. Shortly thereafter, one of the agents observed appellant entering the building with another girl. The girls were carrying an American flag. Upon reaching the group, the appellant uttered a very unladylike expression, threw the flag on the floor, and sprayed it with a fluid from a yellow can. Several of those gathered then held up the flag, appellant again sprayed it, borrowed and lit a match and threw it on the flag causing the latter to burn. Later, several other bystanders also tossed lighted matches on the flag. One of the participants picked up the remnants of the flag with a stick and carried it from the building. The flag measured approximately four feet in width by six feet in length, had seven red and six white stripes, a field of blue with fifty, five-pointed stars.¹ Appellant presented several witnesses who testified that she remained outside the building during the entire affair. Obviously, the jury resolved this issue against her.

CONSTITUTIONAL CHALLENGES

A threshold question presented for decision is the constitutionality of 18 U.S. C. § 700(a) (b), quoted in pertinent part in the footnote.² The only item of the legislation with which we are here concerned is a flag.

POWER OF CONGRESS

The main thrust of appellant’s argument is that authorization for this type of legislation cannot be found in any of the enumerated or implied powers of the Constitution, Article I, Section 8.

We start with the premise that it is our duty to uphold, if possible, the constitutionality of the legislation. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

Early in the history of our nation, the Supreme Court spoke on the powers necessarily implied and those expressly granted. We are told that in construing the Constitution, we must accept as a tenet the proposition that the implications of the express language are as much a part of the instrument as that which is expressed. Beyond that, we are taught that this principle, in its application to the Constitution, more than almost any other writing, is a necessity, by reason of the inherent inability to put into words all derivative powers — a difficulty clearly recognized by the Constitution itself when it conferred on Congress the authority to pass all laws necessary and proper to carry into execution the powers expressly granted and all other powers vested in the government or any branch of it by the Constitution. Ex parte Yarbrough, 110 U.S. 651, 658, 4 S.Ct. 152, 28 L.Ed. 274 (1884); South Carolina v. United States, 199 U.S. 437, 451, 26 S.Ct. 110, 50 L.Ed. 261 (1905).

Even at an earlier date, the Supreme Court recognized that it would be a most unreasonable construction of the Constitution which would deny to the government created by it, the right to freely employ every means, not prohibited, necessary for its preservation. Legal Tender Cases, 12 Wall 457, 79 U.S. 457, 534, 20 L.Ed. 287 (1871).

We need only look to Article I, Section 8, to find grants of express power which we hold necessarily include implied power to legislate on the subject before us. Manifestly, the power to: (1) regulate commerce with foreign nations; (2) raise and support armies; (3) provide and maintain a navy; (4) provide for calling forth the militia; (5) establish a uniform rule of naturalization; (6) declare war; (7) provide for organizing, arming and disciplining the militia; (8) make rules for the regulation of the land -and naval forces,-' when read in the light of the~T5owers granted in the concluding paragraph of Section 8, to-wit: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”, includes the power to legislate upon the subject of and adopt a national flag.

That the existence of a national flag was considered of great significance to the members of the Continental Congress ³ is demonstrated by the adoption on June 4, 1777, of a national flag.⁴

The Supreme Court has said that the flag is the symbol of the nation’s power, the emblem of freedom in its truest and its best sense, and that to all lovers of the country the flag signifies government resting on the consent of the governed; liberty regulated by laws; protection of the weak against the strong; security against the exercise of arbitrary power and absolute safety for free institutions against foreign aggression. Halter v. Nebraska, 205 U.S. 34, 43, 27 S.Ct. 419, 51 L.Ed. 696 (1907). The first legislation defining the flag, following the adoption of the Constitution, was the Act of January 13, 1794, 1 Stat. 341 (c)l. For our purposes, the language of this legislation was identical with the language of the resolution of the Continental Congress, except that the Act provided for 15 stars, rather than the 13, mentioned in the resolution. The concern of the Congress with the flag’s place in the national picture is again demonstrated by the legislation with reference to Flag Day, 36 U.S.C. § 157, National Flag Week, 36 U.S.C. § 157a and numerous holidays on which the flag must be displayed, 36 U.S.C. § 9. Beyond that, the national concern is evinced by the legislation, 36 U.S.C. § 176, requiring respect for the flag.

We take judicial notice of the use of a --'flag as a representative national emblem of organized government for many centuries prior to the adoption of our Constitution and hold that in the light of our history and the express and implied power granted under Article I, Section 8, that the Congress had the power to enact the challenged legislation.

Our conclusions on this challenge find full support in Hoffman v. United States, 144 U.S.App.D.C. 156, 445 F.2d 226 (1971); Joyce v. United States, 454 F.2d 971 (D.C.Cir., 1971).

VAGUENESS AND OVERBREADTH

These issues were raised in appellant’s motion to dismiss and quash the indictment and are now argued together. Entwined with the argument is a discourse on First Amendment rights.

It is argued that 18 U.S.C. § 700(a) makes it a crime for burning a flag, while 36 U.S.C. § 176(j) authorized burning of the same flag. The distinction lies in the purpose and intent of the actor. The flag may be destroyed under § 176(j) only when it is in “such condition that it is no longer a fitting emblem for display”, while § 700(a) requires the actor to cast “contempt” upon the flag by publicly burning it. True enough, as argued by the appellant, the impression of the picture of a president or the Seal of the United States on a flag might “deface” it, but such an impression or superimposition could not be viewed as casting “contempt” upon a flag. The suggestion of Amicus that writing the language, “I love this country” across the flag would “deface” it just as effectively as writing “I hate this country” upon the flag. The argument is specious. Of course, no “contempt” for the flag could be drawn from the use of the'former.

We must presume that the Congress used the word “contempt” in its usual and settled sense. United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40 (1940), rehearing denied 311 U.S. 729, 61 S.Ct. 390, 85 L.Ed. 475 (1940); Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 40 (1968); rehearing denied 391 U.S. 929, 88 S.Ct. 1800, 20 L.Ed.2d 671 (1968); Malat v. Riddel, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966). Turning to Webster’s New International Dictionary, 3d Edition, we find the common definition of the word “contempt” to mean: “despise”, “to hold in low esteem”, “disrespect”, “disgrace”, “scorn” and “shame”. As so interpreted and used in the context of the language of the statute, the public can have no doubt as to what acts are illegal. Certainly, there is no doubt as to what is meant by “contempt”. Although recognizing, as we do, that statutes having a potentially chilling effect upon freedom of speech, must withstand stricter than average standards of permissible vagueness. Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Winters v. New York, 333 U.S. 507, 517, 68 S.Ct. 665, 92 L.Ed. 840 (1948). We have no difficulty in holding that a person of commonplace mental capacity from a mere reading of the statute could readily comprehend that conduct which involved deliberately burning a flag was beyond the pale. It is only necessary that the statute have such precision as to give fair notice to the average man that specific acts are prohibited. Other arguments presented by appellant and Amicus have received our attention, but do not merit discussion. The contumacious act of burning prohibited by the statute is clear, rather than vague. One conclusion is limited to the burning of a flag under § 700(a) and the definition in § 700(b), rather than additional items attempted to be covered by “. . . standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, . . .” Such items are not here under scrutiny.

We next approach appellant’s claim that the statute is overbroad and infringes upon her constitutionally protected First Amendment rights. She claims that the flag burning was part of a protest against this country’s involvement in the Viet Nam War. Conceding that non-verbal expression, such as here involved, may be a form of free speech within the meaning of the First and Fourteenth Amendments, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), we also must recognize that freedom of speech, although to be specially guarded, is not absolute and the power to regulate First Amendment rights is within the constitutional power of Congress. See United States v. O’Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), where Chief Justice Warren, in passing on First Amendment rights in connection with burning of a draft card, said:

“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling ; substantial; subordinating; paramount; cogent; strong. [Footnotes omitted]. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

Now, with reference to the O’Brien tests, we have already crossed the first bridge and held that the Congress had power to enact the legislation.

Already mentioned is the fact that even before the adoption of the Constitution, we had already selected and legislatively described in detail a National Flag. Throughout our history, the flag has been the centerpiece, one might say the altar, of our national holidays and celebrations, and those living at the time will never forget the national pride and jubilation in the closing days of World War II, upon viewing the picture of those gallant servicemen raising the flag on Mt. Suribachi while under the steady fire of enemy snipers in the then hell hole of Iwo Jima. What adult doesn’t recall the patriotic lines he recited during his childhood: “Shoot if you will this old gray head, but save your country’s flag, she said”, or remember standing stiffly at attention on hundreds of occasions to the gripping strains of the National Anthem, The Star Spangled Banner. The government has power to select a flag and legislate as to its display. Inherent in that power would be a legitimate government interest in prohibiting the contumacious destruction of that flag.

We now approach the third test. Is the governmental interest unrelated to the suppression of free expression? We believe the congressional history of the enactment and, in particular, Senate Report No. 1287,⁵ makes it abundantly clear that the Congress was in no way attempting to interfere with free speech. Indeed, it is obvious that § 700 was enacted to put an end to a number of “recent public flag-burning incidents in various parts of the United States and foreign countries by American citizens.” The Congress specifically disclaimed any intent to “prohibit speech, the communication of ideas or political dissent or protest.” The report further emphasized that “The Bill does not prescribe orthodox conduct or require affirmative action.” Moreover, “utterances are not proscribed.” Manifestly, the legislation was enacted to prohibit the physical act of contemptuously burning a flag, rather than to in any way suppress free speech.

We have no difficulty with the final O’Brien test. Clearly, the restriction on appellant’s First Amendment freedoms is no greater than is essential to the furtherance of the national interest. She has not been deprived of a forum for expressing her dissent, but rather denied the use of the flag for contemptuous physical destruction.

This brings us to the issue of whether the statute was unconstitutionally applied to appellant. We have previously discussed most of appellant’s arguments on this particular issue. The fact that the burning occurred in a university building, presumed to be an open forum for the exchange of ideas, does not remove appellant from the effect of the statute. The burning occurred in a public area and the jury found it constituted a deliberate and contemptuous act on the part of appellant. The fact that appellant may have intended an expression of protest over the Viet Nam War is of no significance.

We find that § 700(a) (b) meets all of the requirements outlined in the O’Brien decision and that appellant was constitutionally convicted of violating its provisions.

Street v. New York, 394 U.S. 576, 89 5. Ct. 1354, 22 L.Ed.2d 572 (1969), is readily distinguishable. There, the state statute made it a crime: “publicly [to] defy ... or cast contempt upon [an American flag] by words . . .” [Emphasis supplied.] The court specifically declined to reach the constitutional issues other than presented by the quoted language. On page 581, 89 S.Ct. page 1360, it is said “. . .we resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.”

The Arizona statute before the three-judge court in Crosson v. Silver, 319 F.Supp. 1084 (D.Ariz.1970), used language similar to that before the Supreme Court in Street, and, for that reason is subject to the same distinction. What was said by that court on destruction by act amounting to “symbolic speech” was unnecessary to the decision and, in any event, is not binding upon us.

Other authorities cited by appellant, such as Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); and Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), have received our attention, as have the other arguments presented by appellant. The former are instructive, but not controlling. We are not persuaded by the latter. If there are legitimate reasons for not having a national flag or for not protecting it against contumacious burning, they have not been advanced, nor are we aware of them.

OTHER CONTENTIONS SUFFICIENCY OF THE EVIDENCE

The trial judge instructed the jury that the government was bound to prove each of the essential elements of the crime created by § 700 and outlined the essentials as shown in the footnote.⁶ Prior to giving the instruction, the judge correctly defined the phrases “easting contempt” and “publicly burn”, as used in the instructions. Additionally, he gave the jury the definition of the flag of the United States as outlined in 4 U. S.C. §§ 1, 2. Our examination of the record convinces us that there is substantial evidence in support of each of the essential elements of the crime. The judge submitted to the jury the issue on whether appellant was, in fact, the criminal actor.⁷ The jury resolved that issue against her. Needless to say, we are bound by the rule that an appellate court is required to consider the evidence in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970); and United States v. Wilson, 447 F.2d 1, 3 (9th Cir. 1971).

DOUBLE JEOPARDY

Although appellant raises this issue, she does not discuss it with particularity. She was first indicted in the state court in connection with the same incident for violation of an Arizona statute, which was declared unconstitutional by the three-judge panel in Crosson v. Silver, supra. The state court prosecution did not proceed beyond the information stage. Id. p. 1086 n. 2. Before any action, other than a motion to quash the information, was taken in the state court, the appellant commenced an action in the United States District Court for the District of Arizona asking that the Arizona statute be declared unconstitutional. The three-judge court agreed with appellant and we assume that the state of Arizona dismissed the information, as suggested by the court. In these circumstances, appellant was not placed in jeopardy by the mere filing and dismissal of the Arizona information. Aside from the fact that the Arizona prosecution never reached a stage beyond the filing of the information and the dismissal thereof by reason of a federal court suggestion, appellant finds herself faced with the rule that the double jeopardy provisions of the Fifth Amendment do not prevent successive prosecutions by the state and federal government for the same offense. Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L.Ed.2d 684 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922), specifically reaffirmed by Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The rule has recently been restated in United States v. Smith, 446 F. 2d 200, 202 (4th Cir. 1971) and United States v. Synnes, 438 F.2d 764, 773 (8th Cir. 1971). Cases such as Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), concerned with the successive municipal and state prosecutions within the same Sovereignty are readily distinguishable.

VOIR DIRE EXAMINATIONS

During the course of the voir dire one of the jurors, in response to one of the court’s questions, said, among other things, “When they burn the flag, they hurt me because they hurt my country.” When asked if this would affect his duties as a fair and an impartial juror, the juror responded that it would and was immediately excused. Thereupon, counsel for appellant moved for a mistrial on “the basis of the statements of the proposed juror [was “a rather inflammatory statement in the presence of the other jurors.”].” Two other jurors, on examination, made somewhat similar statements. Our examination of the voir dire makes it perfectly clear that each of the jurors who served on the trial qualified as being fair and impartial, under rather strict and precise questions by the judge. The burden was on appellant to show some discrimination or bias in the selection process. Long v. United States, 422 F. 2d 1024, 1027 (9th Cir. 1970). Appellant has failed to bring herself within this rule. For that matter, the transcript of the voir dire clearly establishes that the trial court made every reasonable effort to discover any possible prejudice in the minds of the jurors. This contention is groundless, as is the contention that the sentence imposed is cruel and unusual punishment. Certainly, the punishment imposed does not rise to constitutional dimensions.

The record as a whole demonstrates that the appellant had a fair trial. We find no error and, therefore, affirm.

1 . 4 U.S.C. §§ 1, 2.

2 . 18 U.S.C. § 700. Desecration of the flag of the United States; penalties

“(a) Whoever knowingly casts contempt upon any flag of the United States by publicly . . . burning, . shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

“(b) The term ‘flag of the United States’ as used in this section, shall include any flag, ... of any size evidently purporting to be . . said flag, ... of the United States of America, . . . . ”

3 . A large number of whom were framers of the Constitution.

4 . 8 Journal of the Continental Congress 464.

5 . “The committee believes that H.R. 10480 will successfully withstand all constitutional challenges to which it may be subjected in the courts. The bill does not prohibit speech, the communication of ideas, or political dissent or protest. The bill does not prescribe orthodox conduct or require affirmative action. The bill does prohibit public acts of physical dishonor or destruction of the flag of the United States. The language of the bill prohibits intentional, willful, not aeci-dental or inadvertent public physical acts of desecration of the flag. Utterances are not proscribed. Specific examples of prohibited conduct under the bill would include casting contempt upon the flag by burning or tearing it and by spitting upon or otherwise dirtying it. There is nothing-vague or uncertain about the terms used in the bill.” U.S.Code Congressional and Administrative News, Vol. 2, 90th Cong., 2d Sess., pp. 2507, 2509 (1968); S.Rep. No. 1287.

6 . “Now the essential elements of the crime of casting contempt upon the flag of the United States of America by burning it, which the Government has the burden of proving beyond a reasonable doubt, are as follows: One, if any crime at all occurred, it must have taken place within the District of Arizona, that is the State of Arizona; secondly, a flag of tlie United States of America must have been burned in a public place by the defendant; thirdly, any burning of the flag of the United States of America by defendant must have been performed as a means of casting contempt upon sucli flag; and fourthly, you must find that the defendant knowingly did the act which is forbidden by the law, and intended to burn the flag of the United States of America as a means of casting contempt upon it.” [R.T. 247].

7 . “Now the evidence in this case raises the question of whether the defendant was in fact the criminal actor, and it necessitates your resolving of any conflict or uncertainty in the testimony on that issue or relating to that issue. Now the burden of proof is, as I told you, on the prosecution with reference to every element of the crime charged, and this burden includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime charged.” [R.T. 247].