United States v. Sharon K. Crosson

462 F.2d 96 UNITED STATES of America, Plaintiff-Appellee, v. Sharon K. CROSSON, Defendant-Appellant. No. 71-2049. United States Court of Appeals, Ninth Circuit. May 26, 1972. Rehearing In Banc Denied July 28, 1972. W. Edward Morgan (argued), Tom R. Clark (argued), of Mesch, Marquez & Rothschild, Tucson, Ariz., for defendant-appellant. Ann Bowen, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., for plaintiff-appellee. Erik M. O'Dowd, of O'Dowd, Fahringer & Diamos, Tucson, Ariz., amicus curiae for American Civil Liberties Union. Before BROWNING, KILKENNY and TRASK, Circuit Judges. KILKENNY, Circuit Judge: 1 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. Sec. 700 . She was sentenced to imprisonment for a period of four months and fined. FACTS 2 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. 3 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,…

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…

(dissenting).

Most of the First Amendment issues that once might have been raised on the facts of this case have been settled by the Supreme Court adversely to the government. On the basis of principles announced in the most relevant Supreme Court decisions, it is reasonably clear that appellant’s act of protest, ineffectual and offensive as it may have been, 1 cannot be punished by government consistent with the First Amendment.

I

A. The Court has held that under the First Amendment, the government has no legitimate interest in compelling an individual to express respect for the flag and what it symbolizes. West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L. Ed. 1628 (1943). This conclusion was held to follow from the central notion that in this country it is not the business of government to prescribe the “right” opinion in political matters.

When first confronted with this question in Minersville School District v. Gobitis, 310 U.S. 586 , 60 S.Ct. 1010 , 84 L.Ed. 1375 (1940), the Supreme Court had held to the contrary. In Gobitis , the Court sustained the power of the state to require school children to salute the flag as an…