## Facts

- Harold Omand Spence, a Seattle college student, hung his privately owned American flag upside down from his apartment window in May 1970.
- Spence affixed a large peace symbol to both sides of the flag using removable black tape.
- The display occurred shortly after the Kent State shootings and during public controversy about the U.S. invasion of Cambodia.
- Police observed the flag, entered the building, seized the flag, and arrested Spence; the incident involved no disturbance or breach of the peace.
- Spence testified his purpose was to protest recent national events and to associate the flag with peace rather than war.
- Washington prosecuted Spence under a flag “improper use” statute that broadly prohibited displaying a U.S. flag with any word, figure, mark, picture, design, or drawing attached.
- Spence was convicted; an intermediate appellate court reversed on First and Fourteenth Amendment grounds; the state supreme court reinstated the conviction; the U.S. Supreme Court reversed.

## Issues

1. Whether Spence’s alteration and display of the flag constituted expressive conduct protected by the First and Fourteenth Amendments.
2. Whether applying Washington’s flag “improper use” statute to Spence’s display unconstitutionally infringed protected expression.

## Decision

- The Supreme Court reversed the state-court judgment in a per curiam decision.
- The Court held Spence’s conduct was expressive: it was intended to convey a particularized message, and in the surrounding context the message was likely to be understood by viewers.
- The Court concluded the State’s application of the statute impermissibly burdened protected expression where the display was on private property, caused no disruption, and did not permanently damage the flag.
- The Court did not decide the statute’s facial validity, ruling only that its application to Spence was unconstitutional.

## Legal Principles

- Conduct is protected by the First Amendment when it is sufficiently communicative—commonly assessed by whether the actor intended a particularized message and whether observers were likely to understand it in context.
- A state interest in preserving the flag’s symbolic value does not, without more, justify criminal punishment of political expression using a privately owned flag displayed on private premises.
- In the absence of disorder, threatened public harm, or other substantial content-neutral justification, the government may not suppress expressive conduct merely because viewers may find the message or display offensive.
- An overbroad prohibition on displaying any flag bearing added designs cannot be constitutionally applied to peaceful, temporary, political expression on private property.

## Conclusion

The Court held that Spence’s taped peace symbol on an upside-down American flag, displayed from his apartment window as political protest, was protected expressive conduct and that Washington’s “improper use” statute could not constitutionally be applied to punish that display.


Spence v. Washington, 418 U.S. 405 (1974)