WILLIAM C. CARY, JR., PETITIONER V. UNITED STATES OF AMERICA No. 90-5183 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A8) is reported at 897 F.2d 916. JURISDICTION The judgment of the court of appeals was entered on February 26, 1990. A petition for rehearing was denied on April 26, 1990. Pet. App. B1. The petition for a writ of certiorari was filed on July 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the First Amendment bars petitioner's conviction for knowingly casting contempt upon a flag of the United States by publicly burning it, in violation of 18 U.S.C. 700(a) (1988), amended by the Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777. STATEMENT After a jury trial in the United States District Court for the District of Minnesota, petitioner was convicted on one count of knowingly casting contempt upon a flag of the United States by publicly burning it, in violation of 18 U.S.C. 700(a) (1988), amended by the Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777. /1/ He was sentenced to a term of three months' imprisonment. A divided court of appeals affirmed. 1. The evidence at trial showed that on the afternoon of March 18, 1988, a crowd of political demonstrators gathered at the intersection of Lake Street and Hennepin Avenue in Minneapolis. The Minneapolis Police Department closed portions of the streets one block in either direction in order to protect the demonstrators from passing motorists. During the demonstration, the protesters marched ten blocks down Lake Street to the Armed Forces Recruitment Center. Petitioner joined the demonstration at the Recruitment Center. Soon after petitioner arrived, an unidentified person charged the Recruitment Center and broke its front plate glass windows; another person began shooting Roman candles into the Recruitment Center. When petitioner heard the windows breaking, he walked towards the building from across the street. About two minutes later, an unidentified woman came up to him, handed him an American flag, and told him to light it. Petitioner did so, and then he, the woman, and two others held the flag as it burned. Petitioner then walked toward the Recruitment Center and deposited the burning flag on the floor of an alcove that opened onto the street. /2/ An unidentified individual quickly pushed the flag into the street with a stick; the flag disintegrated. At that point, the police cleared the scene. Pet. App. A2-A3. /3/ 2. The court of appeals affirmed. Pet. App. A1-A8. In the court of appeals, petitioner principally contended that former Section 700(a), as applied to his conduct, could not withstand the stringent standard of review mandated by Texas v. Johnson, 109 S. Ct. 2533 (1989), /4/ and therefore violated the First Amendment. Pet. App. A2. The court of appeals, however, distinguished this case, concluding that "unlike Texas v. Johnson, the government's interest in preventing breaches of the peace is implicated by the facts of this case." Id. at A4. The court stated that "(b)ecause of the ongoing violence, there was an immediate threat that (petitioner's flag) burning would encourage the violence to continue." Ibid. /5/ The court next determined that "the federal government's interest in protecting against breaches of the peace, on these facts, is unrelated to the suppression of expression." Ibid. Accordingly, the court applied the "relatively lenient standard (set forth in United States v. O'Brien, 391 U.S. 367, 377 (1968)) to evaluate the government's punishment of (petitioner's) conduct." Pet. App. A3; see id. at A4-A5. Under that standard, the court of appeals concluded that "it is within the constitutional power of government to punish conduct which poses an imminent threat of continuing an ongoing breach of peace." Pet. App. A5. The court next determined that "suppression of (petitioner's) conduct furthers an important and substantial interest in protecting against further breaches of the peace." Id. at A6. Finally, the court concluded that "punishing (petitioner's) flag burning is no greater a restriction than necessary to further the interest in preventing breaches of the peace." Ibid. The court therefore held that the "government's punishment of (petitioner) passes O'Brien's more lenient scrutiny." Ibid. Judge McMillian dissented. Pet. App. A6-A8. In his view, Texas v. Johnson controlled this case, since that decision made plain that "(t)he first amendment prohibits the government from criminally punishing (petitioner) for burning the flag of the United States as a means of political protest." Id. at A6. Moreover, Judge McMillian concluded that former Section 700(a) was facially unconstitutional, since the statute "prohibits certain conduct because of its negative, critical message" and is "not neutral with respect to viewpoint." Pet. App. A6. Judge McMillian also explained that the statute was unconstitutional under either the standard set forth in United States v. O'Brien or that set forth in Spence v. Washington, 418 U.S. 405 (1974). Pet. App. A7. Finally, Judge McMillian disputed the majority's review of the record. In his view, the record did not show "either that (petitioner) burned the flag in order to incite imminent lawless action or that a breach of the peace was a likely reaction to (his) conduct." Ibid. As Judge McMillian pointed out, petitioner's "burning of the flag apparently signalled the end of the demonstration. No imminent lawless action occurred as a result of or in reaction to (petitioner's) expressive conduct." Id. at A7-A8. /6/ DISCUSSION 1. Petitioner contends (Pet. 6-21) that the First Amendment -- particularly in light of this Court's recent decisions in United States v. Eichman, 110 S. Ct. 2404 (1990), and Texas v. Johnson, 109 S. Ct. 2533 (1989) -- bars his conviction for knowingly casting contempt upon a flag of the United States by publicly burning it, in violation of former Section 700(a). Although the Court has addressed the constitutionality of flag burning statutes in each of the last two Terms, it has not considered the validity of a flag burning statute as applied to conduct of the sort described in the court of appeals' opinion. Petitioner himself acknowledges that the case falls in a "gap" left unresolved in the wake of Johnson and Eichman. Pet. 6. Indeed, this Court's opinion in Johnson -- as the court below recognized in applying that opinion to the facts before it -- distinctly left open the possibility that a flag burning statute may be constitutionally applied in a case such as this. a. As noted, the court below distinguished Texas v. Johnson on the ground that "unlike Texas v. Johnson, the government's interest in preventing breaches of the peace is implicated by the facts of this case." Pet. App. A4. In Johnson, this Court rejected the State's argument that its interest in preventing breaches of the peace justified its flag burning law because "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," 109 S. Ct. at 2541, and because the First Amendment prohibited a presumption that flag burning would incite a breach of the peace, id. at 2542. The Court thus concluded that "the State's interest in maintaining order is not implicated on these facts." Ibid. (emphasis added). The Court emphasized in its conclusion that "(t)he State's interest in preventing breaches of the peace does not support (Johnson's) conviction because Johnson's conduct did not threaten to disturb the peace." Id. at 2548. The Court's analysis, on its terms, suggests that a different issue might be presented in the event the flag burner's conduct did threaten to breach the peace, and the Court noted that its "inquiry is, of course, bounded by the particular facts of this case and by the statute under which Johnson was convicted." Id. at 2544 n.8. The Court suggested how different facts evincing a breach of the peace might lead to a different analytic approach, noting that a "desire to prevent a violent audience reaction" may not be "'related to expression' in the same way that a desire to prevent an audience from being offended is 'related to expression.'" Id. at 2541 n.4. The Court stated that "(b)ecause we find that the State's interest in preventing breaches of the peace is not implicated on these facts, however, we need not venture further into this area." Ibid. The court below concluded that the government's interest in preventing breaches of the peace was implicated on the facts before it, and therefore it did need to "venture further" into considering whether such an interest was sufficiently "related to expression" to call for the exacting First Amendment scrutiny of Johnson rather than the more lenient standard of United States v. O'Brien, 391 U.S. 367 (1986). Pet. App. A4-A6. Although petitioner disagrees with the court's conclusions that the interest in preventing breaches of the peace was not related to expression and that O'Brien therefore applied, the foregoing parsing of this Court's opinion in Johnson establishes that the Eighth Circuit's analysis was in no sense foreclosed by that decision. /7/ b. Nor is the analysis below precluded by United States v. Eichman, 110 S. Ct. 2404 (1990). That decision held that the second part of this Court's analysis in Johnson -- holding that the State's interest in preserving the flag as a symbol of national unity did not justify Texas' flag burning statute under the First Amendment -- applied to the new federal Flag Protection Act of 1989. The Court in Eichman had no occasion to explore further its breach of peace analysis in Johnson, and did not do so. The Court concluded that the Government's interest in preserving the flag as a symbol was related to expression and that therefore "the most exacting scrutiny" was called for under Boos v. Barry, 485 U.S. 312, 321 (1988). 110 S. Ct. at 2409. The Court did not conclude that the Government's interest in preserving the peace required similar treatment under Boos; indeed, the Court in Johnson suggested that Boos might not apply when the Government's interest in preventing breaches of the peace was implicated. See 109 S. Ct. at 2541 n.4. Eichman, therefore, sheds no light on the analysis below. 2. This case does not merit further review in this Court. As explained above, the decision below does not conflict with this Court's recent decisions in either Johnson or Eichman. The statute under which petitioner was prosecuted is no longer on the books, having been substantially amended by the Flag Protection Act of 1989, 103 Stat. 777, 18 U.S.C. 700, and we are aware of no other pending cases under the old law. /8/ There is no conflict among the circuits on application of Johnson when the Government's interest in preserving the peace is found to be implicated; indeed, we are aware of no other pending cases presenting the question. The court below -- like this Court in Johnson, see 109 S.Ct. at 2544 n.8 -- emphasized the fact-specific nature of its holding: Our holding rests squarely on the facts of this case. This is not a case involving a conviction for engaging in speech. This is not a case involving a violent protest during which a protester burns a flag at a point remote in time and place from the violence. This is not a case where the violence threatened is from a heated disagreement with the content of Cary's communication. Finally, this is not a case where the violence threatened is from supporters who respond to the content of his communication protesting United States involvement in Honduras. The facts are critical to our holding. Pet. App. A6. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General SEPTEMBER 1990 /1/ Former 18 U.S.C. 700(a) made criminally liable: Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it * * *. As amended by the Flag Protection Act of 1989, Pub. L. No. 101-131, Section 2(a), 103 Stat. 777, 18 U.S.C. 700 currently provides: (a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both. /2/ Petitioner disputes the court of appeals' statement that he "threw" the flag. Pet. App. A3 (citing Gov't Exh. 4 (videotape of demonstration)); see Pet. 17 n.5. We tend to agree that petitioner's conduct is more aptly described as placing or dropping the burning flag on the floor -- a description consistent with the pertinent testimony, see Tr. 67, 80, 132, 148, and the prosecutor's own description of the case, see Tr. 40. /3/ Before trial, petitioner moved to dismiss the indictment, contending that the First Amendment barred the flag-burning prosecution. The district court denied that motion. Pet. App. A2 n.7, A3, C1. During trial, the district court also denied petitioner's motion for a judgment of acquittal on that ground. Pet. App. A3. /4/ In Texas v. Johnson, 109 S. Ct. 2533 (1989), this Court held that a state statute outlawing desecration of venerated objects, as applied to Johnson's burning of an American flag, violated the First Amendment. /5/ The court acknowledged that there was "no evidence in the record that violence actually followed the flag burning." Pet. App. A4 n.16. Nonetheless, the court determined that that fact was immaterial, because petitioner "interjected himself into an atmosphere of violence creating an immediate threat that the burning would encourage the violence to continue." Ibid. /6/ In April 1990, the court of appeals denied a petition for rehearing, together with a suggestion of rehearing en banc. Pet. App. B1. Chief Judge Lay, joined by Judges McMillian and Arnold, dissented from the denial of rehearing en banc. Ibid. Petitioner's sentence was not stayed pending appeal. He has served that sentence. The court of appeals' action occurred some six weeks before this Court issued its decision in United States v. Eichman, 110 S. Ct. 2404 (1990), holding 18 U.S.C. 700(a) (as amended) unconstitutional as applied to political demonstrators' flag burnings in separate incidents in Seattle and Washington, D.C. /7/ Petitioner disputes the court of appeals' conclusion that the facts surrounding his flag burning implicated the Government's interest in preserving the peace. See Pet. 18-20. This fact-specific question does not warrant this Court's review. Petitioner further maintains that the United States -- as opposed to one of them -- can have no legitimate interest in preventing breaches of the peace, citing two dissenting opinions. See Pet. 14-15. Although the States certainly possess the power to preserve the peace, we are aware of no authority supporting the proposition that the Federal Government has no similar interest, particularly where, as here, the breach derives from the burning of the national as opposed to any state symbol, and threatens federal property that may well have been occupied by federal officers engaged in the performance of their duties. Finally, petitioner in a footnote contends that the breach of peace analysis is beside the point, because petitioner was not charged with breach of peace. See Pet. 16 n.4. The court of appeals' analysis focused on the Government's interest in preserving the peace in sustaining the statute under an O'Brien analysis, not because breach of the peace was an element of the offense. In the Texas case, Johnson was not charged with breach of the peace, yet this Court nonetheless discussed Texas' putative interest in preserving the peace in considering the validity of the statute. It dismissed that interest on the ground that it was not implicated on the facts, not on the ground that it was irrelevant because breach of the peace was not an element of the offense under the statute. /8/ The apparent oddity of a conviction obtained under a statute which Congress amended in Johnson's wake dissipates upon closer scrutiny. Importantly, the Eighth Circuit had the benefit of Johnson's teaching in reviewing petitioner's conviction; that court determined -- for reasons supported in the record -- that the conviction fell within the breach-of-the-peace exception adumbrated in Johnson. Eichman reaffirmed Johnson's holding as to the core First Amendment issue in the context of the amended federal law, but did nothing to disturb Johnson's discussion of a possible exception to its rationale for flag burnings in violent circumstances. See 109 S. Ct. at 2541 n.4. The possibility of a constitutional application of a flag burning law in such a case was thus contemplated in Johnson and not precluded by Eichman.