Bowles v. Jones

PER CURIAM: Seven appellants appeal from the district court’s denial of their petition for a writ of habeas corpus. The appellants had been found guilty by a jury in the state court of Fulton County of burning the official flag of the United States in violation of Ga.Code Ann. § 26-2803. This statute, entitled “Misuse of the National Flag” states: A person who deliberately mutilates, defaces or defiles the flag of the United States or the State of Georgia or uses such flag or flags for commercial advertising purposes is guilty of a misdemean- or. The convictions arose from the participation by the appellants in a celebration on May 1, 1981, of International Workers’ Day, sponsored by the Revolutionary Communist Party (“RCP”). About 15 RCP members were at Techwood Homes throughout the day handing out leaflets and red flags and talking to people. About 9:00 p.m., people were asked to come forward and burn the American flag as a protest against U.S. imperialism. A box of small paper flags was produced and the [1480] appellants participated in burning them. They were immediately arrested by officers who had been assigned to observe the demonstration. Appellants received maximum sentences of 12 months imprisonment plus a $1,000 fine each. The Georgia Court of Appeals affirmed the convictions and both the Georgia and United States Supreme Courts denied petitions for writs of certiorari. This petition for writ of habeas corpus was then filed. The case was submitted to a magistrate who then recommended denial of the writ. The trial court adopted and affirmed the order of the magistrate. I. ISSUES The only issue which we consider here is the question of whether the Georgia Flag Misuse Statute is unconstitutional as applied and/or on its face. II. DISCUSSION A. Constitutionality of the Statute as Applied This Court has recently decided that this Georgia statute was unconstitutional as applied in the case of Monroe v. State Court of Fulton County, 739 F.2d 568 (11th Cir. 1984). In Monroe, the facts were almost identical with those here present, with the exception that in Monroe there was evidence of an incipient threat of violence. In oral arguments of this case, the State undertook to distinguish the cases by claiming that there were only two or three people present during the evening of the flag burning other than the persons who were charged and convicted. This is refuted by the magistrate’s findings, which were adopted by the trial court. In his findings, the magistrate stated: “The police officers testified the flag burning appeared deliberate because petitioners were ‘calling to the neighborhood to come on and join in burning the flags.’ ” The magistrate then found that “in the instant case, petitioners burned the flag at a public demonstration.” Finding no distinction between this case and Monroe, we must reverse the trial court’s denial of the writ on the ground that the Georgia statute is unconstitutional as applied to these appellants. B. Unconstitutionality of the Statute on its Face In addition to claiming that the statute was unconstitutional as to them, appellants also challenge the statute as being over-broad on its face. We conclude that we should not reach this issue in light of the Supreme Court’s decision in Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) that the overbreadth analysis should be used only as a “last resort.” We have no reason for assuming that the State of Georgia will continue prosecuting persons who stand in the position as did the petitioners in Monroe and in this case now that they have been decided. The judgment of the trial court is REVERSED and the case is REMANDED to the trial court for the issuance of the writ.