Flag Desecration

Koser v. County of Price

The first case for us to consider involves the arrest of two men for displaying a so-called “Plains Indian Flag” during a demonstration in support of Native American spear fishing rights.1 By treaty with the Wisconsin state government, Wisconsin Indians are allowed certain hunting and fishing rights. In 1989 the state conducted negotiations with Indians seeking to reduce treaty-guaranteed off-reservation hunting and fishing, and a highly publicized debate concerning these rights. By October 7, 1989, negotiators had reached a tentative agreement that needed the approval of the state legislature and the governing bodies of the Indians.

Arthur Koser and Roger Stone: We are American Indians and members of the Wa Swa Gon Treaty Association. This association is one of the most prominent organizations opposing the proposed treaty reductions. The Lac du Flambeau Reservation Council and State of Wisconsin have asked us to stop spearfishing and demonstrating at spearfishing sites until the treaty is approved because many non-Indians are getting mad. But we oppose the treaty’s reductions, so we will continue to exercise our legal rights to spearfish and demonstrate in support of spearfishing.

On the evening of October 7, 1989, Koser and Stone were at a public boat landing on Round Lake in Price County, Wisconsin, to support the rights of Indians to spear fish in Round Lake. Also present were people protesting Indian spearfishing rights, and several dozen police officers since disturbances and even violence had broken out at boat landings while the Chippewa were spearfishing on earlier occasions.

During the confrontation, Roger Stone tied an American flag with a picture of a Plains Indian superimposed on it to a stick and planted it in the lake bottom a few feet from shore. This so-called “Plains Indian Flag,” was in wide use at the time as a general symbol for those supporting Native American treaty rights and had been adopted by the Wa Swa Gon Treaty Association as its emblem. He used this flag to express his pride in being a Native American and his support for spearfishing rights.

At approximately 6:50 p.m., police officer Robert Plizka, acting on orders from Wayne Wirsing, the police officer in charge at the scene, asked Stone several times to put the flag away or face arrest and jail, fearing that display of the flag might lead to a disturbance of the peace or even violence. Stone, who had engaged in no disorderly or abusive behavior, refused, and was subsequently arrested and transported to jail. Koser then took out and displayed a second Plains Indian Flag, and was arrested and taken to jail when he too refused to put away the flag. Both were released after several hours on $200 bail and returned to the boat landing that evening.

Attorney Steven Porter argued on behalf of Koser and Stone:2 The state government of Wisconsin has violated the First Amendment rights of Koser and Stone by interfering with their display of their flag expressing their political opinions. Display of a flag to express political opinions is considered speech under the guarantee of free speech as understood by the law. For example, in Texas v. Johnson 491 U.S. 397 (1989) the U.S. Supreme Court noted that, the “protections of the First Amendment “do not end at the spoken or written word,”3 and in Spence v. Washington 418 U.S. 405 (1974) that, “the First Amendment is implicated when there is “intent to convey a particularized message” and when the “likelihood [is] great that the message [will] be understood by those who view it.”4

Attorney Charles H. Bohl argued on behalf of the county:5 First, by putting the Plains Indian Flag on public display Koser and Stone violated § 946.06(1)(b) of the Wisconsin state code which provides: “(1) Whoever intentionally does any of the following is guilty of a Class A misdemeanor:6 (b) Exposes to public view a flag upon which has been placed or attached a word, mark, design, or advertisement not properly part of such flag…” The officers were entitled to act in reliance on a state law that had not been held unconstitutional,7 and it is unreasonable to suppose they knew that the U.S. Supreme Court ruling in Texas v. Johnson would protect this flag display.

Bohl continues: Second, this case is unlike Texas v. Johnson because, consistent with the U.S. Supreme Court’s ruling in Brandenburg v. Ohio, 395 U.S. 444, at 447, the arresting officers acted from a belief that Koser and Stone’s flag display was directed to inciting imminent lawless action and was likely to produce such a result.

Bohl concludes: Third, this case is unlike Texas v. Johnson because Koser and Stone’s display of the flag was not used to communicate a message about nationhood and their display appeared (falsely) to give their views the approval of our federal government, and thereby jeopardized the integrity of the flag as our national symbol.

District Judge Barbara B. Crabb decided the case: First, I find that reasonable law enforcement officers in the circumstances would have known it was not constitutional to arrest Koser and Stone for display of their Plains Indian Flags. In Spence v. Washington, 418 U.S. 405 (1974), the U.S. Supreme Court overturned the conviction of a man who had displayed a flag with a peace symbol taped over it to protests U.S. involvement in Vietnam. In Texas v. Johnson, 491 U.S. 397 (1989), the court overturned the conviction of a man who had burned a U.S. flag to protest the Republican Party’s re-nomination of Ronald Reagan. In light of these two rulings, it is fair to say that on October 7, 1989 it was clearly established as a matter of constitutional law that persons using the American flag to express political opinions could not be prosecuted for their actions unless it was an incitement to immediate lawlessness. If in fact the arresting officers did not know this, they should have known it and are therefore liable for that ignorance of the law. This case is not like DeFillippo since in that case the arrest at the time of the arrest was constitutional, whereas in this case the arrest at the time of the arrest was unconstitutional.

Crabb continues: Second, I find that the County of Price, et.al., have not proven that in the actual circumstances Koser and Stone intended to incite immediate lawlessness or that the circumstances were such that they were likely to produce immediate lawlessness. It is not enough that an audience would take offense at the expression (see Texas at 408) or that the situation had a potential for breach of the peace (see Texas at 409).

Crabb concludes: The defendants have entirely misread Texas in arguing that protected flag use is contingent upon a message of national unity or endorsement by the federal government. The idea that Americans do not enjoy unity as a nation or that the concepts symbolized by the flag do not in fact exist are exactly what the court found to be protected in Texas at 410. When current law makes it plain that certain actions are unconstitutional, the offending officer cannot escape liability except in extraordinary circumstances, which has not been established in this case.

Note well that Judge Crabb did not rule the flag protection law itself unconstitutional; rather, she ruled that the arrests of Koser and Stone in their particular circumstances was unconstitutional. However, she does indicate that the Wisconsin law is on shaky ground when she notes its similarity to the Texas law that was found unconstitutional on its face due to its overbreadth. In response, the Wisconsin law was modified by the 1995-96 state legislature by dropping (b) (thereby attempting to eliminate the overbroad wording) and increasing the classification from a Class A misdemeanor to a Class E felony.

Notes

1 Arthur A. Koser and Roger A. Stone v. County of Price, City of Ashland, Wayne Wirsing and Robert Plizka, 834 F.Supp. 305 1993, U.S. Dist LEXIS 14225 (1993).

2 Porter was attorney of record for plaintiffs Koser and Stone.

3 Texas v. Johnson at 404.

4 Spence v. Washington at 410-11.

5 Bohl was attorney of record for defendants County of Price, et.al..

6 Which is punishable by up to one year in jail and a $500 fine.

7 In support, Bohl cites Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed 2d 343 (1979).