Study in Appellate Advocacy: Oral Argument

ORAL ARGUMENT OF WILLIAM M. KUNSTLER
ON BEHALF OF THE RESPONDENT

MR. KUNSTLER:	Mr. Chief Justice, and may it please the Court: Some of the steam has been taken out of me by some of the questions and some of the responses and the concession by the state. But I would like to suggest briefly to state that this particular act that we're concerned with here, this 42.09(a) (3) of the Texas statute, singles out communicative impact for punishment. Now, Ms. Drew has avoided that by now--and virtually the state now apparently concedes that you can write out of a statute what Justice O'Connor referred to, the question of whether the actor knows or means that what he's doing will seriously offend one or more persons likely to observe or destroy or discover his particular act. That's out of the statute, apparently, according to the argument, because in the reply brief and today she has said essentially what is in the reply. Like Gertrude Stein, "A rose is a rose," they now say "A flag burning is a flag burning." And they read out of the statute under which he was convicted and which went to the jury and the charge on the question of seriously offend, that's all out as far as Ms. Drew is concerned. But it's not out as far as this Court is concerned. That's what the conviction was about, that's what the argument to the jury was about, that's what the charge was about. They all mention that. That's what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously offended. So, this depends on communicative impact for punishment. They've conceded it's pure speech. They raise no question arguendo, even, essentially that it is not speech, and concede that.

QUESTION:	Mr. Kunstler, I think you're stretching her argument. I don't think she said that. I think she said that there has to be an offense, but it doesn't have to be the intention to communicate that offense. It doesn't have to be intended offense.

MR. KUNSTLER:	Well, that's--

QUESTION:	If you're doing it to honor the flag--in your crazy, mistaken fashion, but it it would obviously offend anyone else, then you would violate the statute. So, I think she still insists that it is likely to offend somebody, but you don't have to intend to communicate a dishonor or offense to the flag.

MR. KUNSTLER:	I can understand that rationale, but in reading the reply brief, the reply brief said in essence we virtually take that out of the statute. We rewrite the statute now, and we say essentially a flag burning is a flag burning, and that offense goes out of it, offense whether communicated later or not communicated later, whether it occurs or it doesn't occur, I thought that's what the reply brief did. Now, maybe I do misstate her argument slightly, but I don't think I mistake the reply brief, because I got the impression that's--well, the words, "A flag burning is a flag burning," are in the reply brief. Now, I remember, Justice Scalia, in reading your dissent in Community for Creative Nonviolence that you said essentially, "A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires." I subscribe to that wholeheartedly. In fact, you went on and you reviewed all of the cases that you thought were applicable there, Stromberg, Brown, Tinker, and Spence, and you made the following statement: "Every prescription of expressive conduct in those cases was aimed at the communicative effect of the conduct." And that's what they had here. That's what the jury got that's what the testimony was, and that's what the statute says And I agree with--I think--

QUESTION:	I was just on the court of appeals, then, Mr Kunstler.

MR. KUNSTLER:	MR. KUNSTLER: I understand. [General Laughter.]

QUESTION:	I may have been wrong, you know. I hope that the elevation doesn't change the thought. [General Laughter.]

MR. KUNSTLER:	In any event, we subscribe to that, of course in our argument, and I think Justice O'Connor when she wrote Boos she said essentially, this justification, folks, is only on the content of the speech and the direct impact that speech has on it listeners. And in Cohen, I think, Justice White in his concurrence said that the--that statute made the communicative aspect of the proscribed conduct a crucial element of the violation. That' the contemptuous treatment statute, and that's what we have here. Everything depends on the communication that is mad by the actor which may be communicated to the people on the street, but you know in the statute, Justice Scalia, it goes eve further, "likely to observe or discover," which could be in the newspapers the next day, for example, as well as being a onlooker. So, I think that given the concession that the statute is pure speech, given the past decisions of this Court on what should happen to a statute that makes communicative impact, the criterion of the punishment that this statute fails that test, I certainly doesn't come under O'Brien because where--here the government's interest is directly related to expression. It's like footnote 8 in Spence, and I think what you have here is statute that depends solely and exclusively on communicative impact on the audience, whether they're there or they read it in the newspaper or they see it on the screen in the evening. It at goes to that. And when you use the word desecrate, you don't mean really in essence praising the flag. Desecrate has a meaning, and I just looked at it in Webster's Second International about it, and desecrate means to divest of a sacred character or office, to divert from a sacred purpose, to violate the sanctity of, to profane, the opposite of consecrate. Now, with reference to the compelling state interest, I listened to the argument of flower to star against B.J.F. before here, and I don't want to hurt Mr. Rahdert's argument in this argument, knowing nothing about the case except what I heard today, but I thought that the protection of a rape victim was a compelling state interest. I agreed with Justice O'Connor's comments on that. That is a compelling interest, certainly. Here you have no compelling state interest that is worth consideration.

QUESTION:	Mr.--maybe Mr. Rahdert would feel different. [General Laughter.]

MR. KUNSTLER:	That may be true. Is he in the room yet? I hope not.

QUESTION:	He's waving a flag in the back, I think. [General Laughter. ]

MR. KUNSTLER:	Now, we're getting back to my argument. With reference to the nationhood and national unity, which Ms. Drew raised and which is filled in the brief, both the reply brief and the main brief of the state, I think--I thought Barnette set that to rest. I thought that when Justice Jackson said that if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism--

QUESTION:	Well, the facts of West Virginia v. Barnette were quite different from this. There the students were required to salute the flag.

MR. KUNSTLER:	And here, Chief Justice, you're asking--people are required not to do something.

QUESTION:	Yes.

MR. KUNSTLER:	And I think that's a comparable situation. We order you--we can't order you to salute the flag, we can't order you to do all these obeisances with relation to the flag. Can we order you not to do something to show something about the flag?

QUESTION:	Well, to me they're quite different. You could say that if you can't do one, you can't do the other. But it seems to me one could quite easily say, you can't do one but you can do the other.

MR. KUNSTLER:	Well, you know, I understand that, but I think that you get into Street, I thought, which also relied on Barnette. There he did exactly what we're talking about here. He burnt the flag in the street over the question of James Meredith being shot in Mississippi in 1966.

QUESTION:	And what was the holding of the court in Street?

MR. KUNSTLER:	Well, in Street essentially the court indicated that you couldn't tell whether it was speech or whether it was flag burning and, therefore, the court reversed in the Street case. But, in so deciding, in relying on Barnette, the court said essentially, I thought, that it was an illegitimate interest in Street to compel respect by prohibiting criticism of the flag, including flag burning. So, I think it's--I guess we have a little difference of opinion on the facts. I know the facts are somewhat different except a flag was burned in the street by Mr. Street in a political protest over a shooting in Mississippi of a civil rights figure. But I think the analogy is the same. Can you say you can't force them to salute the flag or pledge allegiance to the flag, but can you then say we can force them not to show other means of disrespect for the flag, other means of protest over the flag by saying you can't burn the flag? I think they're the same, in all due deference.

QUESTION:	Well--

MR. KUNSTLER:	I don't know if I've convinced you, but--

QUESTION:	Well, you may have convinced others. [General Laughter.]

QUESTION:	But take, for example, the Live Free or Die case. Do you remember that--

MR. KUNSTLER:	I certainly do.

QUESTION:	--from New Hampshire where we said you can't-- New Hampshire can't require you to carry around on your license plate the expression, live free or die. But certainly New Hampshire could have presumably prohibited--New Hampshire couldn't compel you to make any affirmative statement on your license. They certainly could have prevented you from making some statements on your license plate

MR. KUNSTLER:	No, but I think in Wooley, as I recall it, they painted [it] out. They did an affirmative act and painted out the live free or die motto. The Jehovah's Witnesses didn't believe in that, so they painted it out. They did enact and then the question was, was that act violating some criminal code.

QUESTION:	And the Court said no, you can't pro--you can't prohibit that sort of thing, but the reasoning of the Court was that you can't require someone to make an affirmation. To me that's West Virginia v. Barnette. But, if someone applies for a New Hampshire license plate that has a lot of foul language on it, very likely that limited thing can be proscribed.

MR. KUNSTLER:	I know. That--I would agree with you on that, but I think that to get away from Wooley against Maynard would be a mistake here. That--that's putting something on the license plate that is profane or whatever. But in Wooley, as I understood it, the act that they, Jehovah's Witnesses did, was to paint out. They burnt the flag, in essence. They painted out. I don't think we're going to reach eye to eye on this. [General Laughter. ]

MR. KUNSTLER:	I have that distinct feeling. Getting back, then, to the no compelling state interest, though, I don't think there is any compelling state interest in the state of Texas--and by the way, the national flag does not just mean the American flag. There is a presidential flag--they don't put it in capi tals--there's a presidential flag that is flown. The secretary of state has a flag that's a national flag. There are many national flags. I counted seventeen national flags. Each department here in Washington has a flag. They're national flags, and the state of Texas would also include those as national flags, certainly the President's flag. So, I think that the word "national" flag needs definition in itself.

QUESTION:	Does the Supreme Court have a flag?

MR. KUNSTLER:	What was that?

QUESTION:	Does the Supreme Court have a flag?

MR. KUNSTLER:	I don't know, but the Republican Party has one--[General Laughter.]

MR. KUNSTLER:	--because when they went by the Mercantile Bank Building here--I just learned this from the record--the--one of their witnesses, Jimmy Smith, who is the custodian of the flags at the Mercantile Bank said, "We took down four American flags. We have sixteen normally, because we put up four Republican Party flags because the Republican Party was then meeting in its annual convention--in its national convention." So, I know the Republican Party [has one]. If the Supreme Court doesn't have one or has one, I don't know. I think you'd be in a better position than me to tell that anyway. By the way, talking about flags in front of the Supreme Court, when I came by today, the flags were up in the rain, and under 36 U.S. Code, the leading provision there is flags shall not be displayed in inclement weather.

QUESTION:	Are we going to get back--

QUESTION:	Exemption 1 applies to all-weather flags.

QUESTION:	Are we going to get back to this case?

MR. KUNSTLER:	That's in all-weather flags. [General Laughter.]

MR. KUNSTLER:	That could be physical mistreatment under the Texas statute. You get into vagueness.

QUESTION:	Mr. Kunstler, are you going to get back to the case?

MR. KUNSTLER:	Yes, I'm getting back to the case. [General Laughter.]

MR. KUNSTLER:	Seems to me we had this three weeks ago. In any event, I don't think that the--there is a compelling state interest in this flag or any national flag whatsoever. I think the Court has really held that--

QUESTION:	Mr. Kunstler, let me ask you--and maybe this gets a little bit away from the case--do you think there is any public interest at all in any of these regulatory measures about don't display the flag in the rain or don't fly it upside down or so? Is there any state interest at all to support that kind of legislation?

MR. KUNSTLER:	I don't know, but I don't think it matters because they're not criminal statutes. They are recommendations. It used to be you couldn't fly the flag at night. Now, you can fly it if it's illuminated, and so on.

QUESTION:	Do--

MR. KUNSTLER:	They're recommendations. There are no criminal penalties.

QUESTION:	Do you think the federal government has any power at all to--to regulate how this flag is displayed in public places?

MR. KUNSTLER:	I don't believe so. I don't--I'm thinking in my mind whether they have any injunctive power.

QUESTION:	There's no state interest whatsoever?

MR. KUNSTLER:	I don't see any state interest whatsoever.

QUESTION:	I feel quite differently.

QUESTION:	Can the federal government prohibit use of the flag for commercial purposes? Advertising?

MR. KUNSTLER:	I don't know. Since Halter against Nebraska, where there was a Nebraska statute against using the flag on beer bottles or beer cans, I don't know whether there can be any prohibition of that. It's used all over for commercial purposes. I notice that Barbara Bush wore a flag scarf, for example. There are flag bikinis, there are flag everything. There are little cocktail flags that you put into a hot dog or a meatball and then throw in the garbage pail. They're flags under the Texas statute, something made out of cloth, but I think there are all sorts of flags used commercially. I'm not sure in my heart whether I think there's any control over the use of the flag, not on the criminal side anyway. Whether there is a--in answering Justice Stevens' question whether there is an injunctive process that can be employed or not--I won't go into it. I don't know. But I have an instinctive feeling that's different, apparently, than Justice Stevens' [feeling] that there is no control of the use of the flag commercially, although I don't think it's necessary for this case because here we're only talking about a criminal statute. Now, with reference to--when I read Justice White's concurrence in Goguen, I notice he said that punishment for communicating ideas about the flag unacceptable to [the] controlling majority in the legislature is something that is wrong, to punish people for having a different idea about the flag, different than the Texas legislature has with the flag in its desecration statute. And by the way, that's called the desecration of venerated objects. That's the classification they give to it. And I agree with Justice Scalia that flag burning of a single flag in front of the new city hall in Dallas doesn't lessen the value as a symbol.

QUESTION:	Let me go back to the any state interest at all. Do you think the military would have any legitimate interest in disciplining a member of the military who showed disrespect for the flag on public occasions?

MR. KUNSTLER:	You might have a case there.

QUESTION:	You might have a case

MR. KUNSTLER:	If a person that joins the army--the flag has even a more peculiar significance to people in the army. I would have problems with it. I would represent such a person--[General Laughter.]

MR. KUNSTLER:	--because I would think that there's something First Amendment in there. But if he destroyed a flag that was the property of the army, I think he'd be court-martialed for that. I don't think there's a particular flag statute in the Uniform Code of Military Justice. If you destroy someone's flag, you can be punished. There are many statutes. I think the Texas Court of Criminal Appeals pointed [out that] there are some statutes, this statute and that statute that would cover the situation without getting into the First Amendment area. And I'm sure it would violate the article of war--I used to call it the article of war--which says "conduct unbecoming a member of the military" if you destroyed a flag--refused--even refused to salute a flag under the military code. Now, with reference to the breach of the peace--

QUESTION:	I was only suggesting that maybe there is some identifiable state interest that's involved here.

MR. KUNSTLER:	Yeah. I'm not saying--I don't want you to get the wrong--

QUESTION:	I think you're acknowledging that there is.

MR. KUNSTLER:	--impression that I say it's totally out of reach. I'm not saying that. I'm trying to confine it to this case.

QUESTION:	You did say that

MR. KUNSTLER:	I know I did. [General Laughter.]

MR. KUNSTLER:	I guess I have too much of a First Amendment consciousness, I guess, in my makeup. With reference to breach of the peace, I don't think there's ever--none of the flag cases that you have before you--ever had before you--have involved a breach of the peace. The only one I found where there was any violence was what Judge Tuttle found in the Monroe case, where they burned an American flag in front of the federal building and someone burned an Iranian flag. When the Iranian flag was burned, there was one act of violence, but not when the American flag was burned. And Judge Tuttle pointed out that there was no clear and present danger. He went right into the old Holmesian doctrine of "clear and present danger" just as there wasn't here. If there had been a breach--

QUESTION:	What about Finer against New York, remember, where that fellow was speaking up at Syracuse and said President Truman is a champagne sipping bum, whereupon they told him he had to stop speaking because of fear from the crowd was going to attack him?

MR. KUNSTLER:	Well, I don't think that changes the position yet because it's no different than Terminiello, really. You're saying hard things.

QUESTION:	Well, it came after Terminiello, and it went--it came out the other way.

MR. KUNSTLER:	I know it, and apparently the imminence there was so immanent--[General Laughter.]

MR. KUNSTLER:	--thank you--was so immanent. But you don't have that here at all. In Terminiello, as you know, when I was reading Terminiello's remarks in the transcript, there was--it showed he ducked several times. Apparently someone threw something during his rampage against the Jews, but the held--this Court held that that wasn't enough. It wasn't really raised very much in the argument. But if it gets to imminent danger where you really have something going on, which you didn't have here, and you haven't had in any of the flag burning cases, there's no breach of the peace here and no imminence the breach of the peace here at all.

QUESTION:	Well, then we come close to the Skokie cases.

MR. KUNSTLER:	Well, Skokie presents a situation, of course where the attempt to parade through an all white community of black demonstrators--but even there, of course, you can't stop it. You can't stop it.

QUESTION:	That's my point.

MR. KUNSTLER:	If you're going to stop it, it has to be so imminent as the chief said--it has to be so imminent that it really reaches clear and present danger proportions. That's where Judge Tuttle said in Monroe, and I think that is the rule here. We haven't argued clear and present danger yet, but I think you must at least show some clear and present danger, some imminence. The statute here is not limited to an imminent breach, by the way. It doesn't say imminent breach of the peace at all. It just says "likely" or "might" or "The actor could reasonably believe that someone might be seriously offended by it." The Texas Court of Appeals treated this, I think, in its opinion. It said, "This statute is so broad that it may be used to punish protected conduct which has no propensity to result in breaches of the peace." Serious offense does not always result in a breach of the peace. The protest in this case did not lead to violence. And, I might add, in this protest they had policemen right along with them, undercover police officers. The crowd was no a large crowd. They estimate between 100, 110 and Texas went on to say, as with most other protests of this nature, police we present at the scene. A witness was obviously seriously offended by appellant's conduct because he gathered the burned flag and buried it at his home. Nevertheless so seriously offended, this man was not moved to violence. Serious offense occurred, but there was no breach of the peace, nor does the record reflect that the situation was potentially explosive. One cannot equate serious offense with incitement to breach the peace. And I think that any breach of the peace argument here falls on its face. It is--I think when Chief Justice Burger said in O'Brien v. Skinner, "It is not our function to construe a state statute contrary to the construction given it by the highest court of the state." They have construed this statute with reference certainly to breach of the peace. On vagueness and overbreadth, I think the vagueness is apparent. It's--by definition it's vague. What does "serious offense" mean? What is "unserious offense" as against "serious offense"? Some of the ACLU witnesses here testified here they were offended. They thought it was repulsive, one of them said, but they were not seriously offended. And I don't know what seriously offended means. The state says it's in the dictionary, and therefore it must have a meaning. I agree with that. Every word is in the dictionary, or at least in some dictionaries. But just because they're in the dictionary doesn't mean that you can define legally or on the spot what serious offense is. It wasn't a serious offense, for example, to fly the flag outside the Supreme Court in violation of 36 USC. The artists' amicus brief, which I think is a most unusual brief, contains many, many of the artists' paintings where you might say that they created paintings that would seriously offend by manipulating the American flag or by cutting it up, destroying it, using it in different ways, many of them to protest situations. Some of them go to the war in Vietnam. Some of them go to other aspects. You don't even know what physical mistreatment means in the statute. Does physical mistreatment mean wearing it, twisting it, burning it? It's an undefinable statute. As far as overbreadth is concerned and even taking into consideration Justice White's substantial overbreadth argument, this is substantially overbroad--

QUESTION:	That's the Court's doctrine.

MR. KUNSTLER:	Pardon me. But I read it and I saw the words "substantial overbreadth" in it, and I think this even meets that higher standard of whether it's overbreadth. It sweeps protected conduct under its aegis and is--it's just an overbroad statute, so overbroad that I don't think anyone can really doubt it. And, in fact, there's been no real argument against it, against the overbreadth argument essentially [as to] the state of Texas.
	Now, with reference to as applied, we would rely on the Street case. You can't tell here whether he was convicted with reference to this statute as to the flag burning or as to the words or the acts he did before the flag burning because the Texas prosecutor in his summation said as follows: "If you look at this evidence from start to finish"--and they showed a lot of television shots of what was happening in Dallas--"If you look at this evidence from start to finish, the participating in the beginning, the lit erature, the last notations, RCYB, the shirt, who he is, the chanting, the yelling, the megaphone, the encouragement, the having the megaphone, being there, wanting this to happen, there is no question he encouraged it all. He's as guilty as sin as far as the law of parties is concerned." That's very much the summation--not as hyperbole in Street as was given in the Street case. Was he really tried and convicted for the flag or for the encouragement or for the literature, the megaphone, the loudspeaker?

QUESTION:	But he'd been charged with a number of different offenses here?

MR. KUNSTLER:	No. What happened, he was only charged initially with disorderly conduct.

QUESTION:	What did the case finally--what was he charged with when it was submitted to the jury?

MR. KUNSTLER:	He was charged with--I have the charge here.

QUESTION:	I don't mean the judge's charge, but the indictment or information, what offenses?

MR. KUNSTLER:	It's an information, a misdemeanor. And he was charged eventually only with the flag burning statute or the desecration statute. But initially, Chief Justice, he was charged--they took in a hundred protestors a half hour after all this happened, and he was charged initially with disorderly conduct. All the rest were let go. And then they dropped the disorderly conduct--that's in the record somewhere--the keeper--the sheriff came and testified that they dropped disorderly conduct and substituted in its place the flag desecration charge, and that's what he was charged with. Disorderly conduct was out of the picture. Now, with reference to--so, he may easily here have been convicted for the words, the encouragement as against--by the law of the parties as against the flag desecration itself. I would just like to end my argument--I think this is a fundamental First Amendment case, that the First Amendment to the written Constitution is in jeopardy by statutes like this. And I wanted to essentially close with two remarks. One Justice Jackson said in Barnette. "Those who begin coercive elimination of dissent soon find themselves eliminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. The First Amendment was designed to avoid these ends by avoiding these beginnings. And I think that's an important statement over the years from Justice Jackson. And then he goes--in just a recent article in the New York Times called "In Chicago a Holy War Over the Flag" by J. Anthony Lukas, a very excellent former reporter for the New York Times, he said, "Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground." And I understand that this flag has serious important meanings. The chief has mentioned many times that it is not just pieces of material, blue and white and red. That has real meaning to real people out there. But that does not mean that it may be different meanings to other people out there and that they may not under the First Amendment show their feelings by what Texas calls desecration of a venerated object. I think it's a most important case. I sense that it goes to the heart of the First Amendment, to hear things or to see things that we hate test the First Amendment more than seeing or hearing things that we like. It wasn't designed for things we like. They never needed a First Amendment. This statute or this amendment was designed so that the things we hate, Terminiello's remarks, burnings of flags, or what have you can have a place in the marketplace of ideas and can have an area where protest can find itself. I submit that this Court should on whatever ground it feels right, should affirm the Texas Court Criminal Appeals with reference to this statute and this conviction. Thank you very much.

QUESTION:	Thank you, Mr. Kunstler. Ms. Drew, you have four minutes remaining.

	WILLIAM H. REHNQUIST,	Chief Justice of the United States
	WILLIAM J. BRENNAN, JR.,	Associate Justice
	BYRON R. WHITE,	Associate Justice
	THURGOOD MARSHALL,	Associate Justice
	HARRY A. BLACKMUN,	Associate Justice
	JOHN PAUL STEVENS,	Associate Justice
	SANDRA DAY O'CONNOR,	Associate Justice
	ANTONIN SCALIA,	Associate Justice
	ANTHONY M. KENNEDY,	Associate Justice

	KATHI ALYCE DREW, ESQ.,	Assistant District Attorney for Dallas County, Dallas, Texas; on behalf of the petitioner.
	WILLIAM M. KUNSTLER, ESQ.,	New York, New York; on behalf of the respondent.

MS. DREW:	Thank you, Your Honor. One or two points very, very briefly. There is absolutely nothing in the information that was filed or in the jury charge that was submitted to the court which would have authorized a conviction for any words that had been spoken by Mr. Johnson. It is true that the trial prosecutor did make about half a page in his twenty page summation to the jury, a reference to the law of parties because an individual for criminal offense in Texas can be held liable as a party if certain factors are shown. And I think that was incumbent upon him, but there is absolutely nothing that would have authorized a conviction for any words that were spoken. I also fail to see how, if I understand Mr. Kunstler's concession, if one can protect government flags why one cannot protect a flag which is not necessarily the property of the government because the danger of a breach of the peace is the same and the denigration to the symbol is the same. Unless the Court has questions, that will conclude my remarks.

MR. CHIEF JUSTICE REHNQUIST:	Thank you, Ms. Drew. The case is submitted.