¶ 1. JON P. WILCOX, J.
On June 14, 1777, the Continental Congress resolved "[t]hat the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation." 8 Journal of the Continental Congress 1774-1789 at 464 (W. Ford ed. 1907). For the more than 220 years since that day, our "Stars and Stripes" has endured as one symbol that Americans may look to with quiet reflection upon who we are as a nation, what our ancestors have done for us, and what it is that we wish to accomplish for our future generations.
¶ 2. It should come as no surprise that in a country of such great pride, honor and tradition, disrespect
Texas v. Johnson, 491 U.S. 397, 429 (1989) (Rehnquist, C.J., dissenting). The flag is a world-wide symbol of freedom; it is symbolic of the sacrifices we have made in our lives as Americans, and for most of us, it deserves respect and honor.
¶ 3. Although the flag's significance to most Americans may be readily apparent, one critical and indispensable fact which may exist only in the most distant recesses of our internal thought process may not reveal itself so willingly: we must also honor and respect the United States Constitution by carrying out its commands. As a court, this is not only our primary function in this case, it is our only function.
¶ 4. This is a review of a published decision of the court of appeals, State v. Janssen, 213 Wis.2d 471, 570 N.W.2d 746 (Ct. App. 1997), which affirmed an order of the circuit court for Outagamie County, John A. Des Jardins, Judge. The circuit court dismissed the state of Wisconsin's (State) charge of flag desecration against the defendant Matthew C. Janssen (Janssen). The flag
¶ 5. We are presented with two issues upon review: (1) is Wis. Stat. § 946.05(1), on its face, unconstitutionally overbroad; and (2) if so, can the constitutionality of § 946.05(1) be preserved by a limiting construction of the statute or by severing any of its unconstitutional provisions? We hold first that § 946.05(1) is unconstitutionally overbroad on its face,
¶ 7. On approximately June 9, 1996, Janssen and his friends returned to the golf course and noticed that a new flag had been hung on the flag pole. After lowering and removing the flag, Janssen defecated on the flag and left it on the steps to the golf course clubhouse. Janssen and his friends did not return until approximately June 26, 1996.
¶ 8. At that time, Janssen and his friends returned to the golf course to find that the flag had been cleaned and put back on the flag pole. Once again, Janssen and his friends lowered and stole the flag. This time, however, the group left a handwritten note at the golf course, which was eventually recovered by the Appleton Police Department.
¶ 9. The note read as follows:
¶ 10. Approximately one month later, Janssen was arrested by the Appleton Police Department. Upon his arrest, Janssen confessed to various flag thefts in the city of Appleton, including those at the Reid Municipal Golf Course. Janssen also confessed to defecating on the flag. As a result of his confessions, he was charged with two counts of theft, and one count of "intentionally and publicly defil[ing] the United States flag."
¶ 11. On February 5, 1997, the circuit court held a hearing to address Janssen's motion to dismiss the flag desecration charge on grounds that his act of defecating on the flag was constitutionally protected expression. See U.S. Const. amend. I.
¶ 12. On March 13, 1997, following an additional hearing to address the issues of overbreadth and vagueness, the circuit court entered an order dismissing the count of flag desecration on grounds that Wis. Stat. § 946.05(1) is unconstitutionally vague and overbroad on its face.
¶ 13. Upon the State's appeal, Janssen presented three arguments in his defense: (1) Wis. Stat. § 946.05(1) is unconstitutionally vague on its face; (2) § 946.05(1) is unconstitutionally overbroad on its face; and (3) § 946.05(1) is unconstitutional as applied to Janssen, because his conduct in this case constituted expression which is protected by the First Amendment. See Janssen, 213 Wis. 2d at 476.
¶ 14. The court of appeals first concluded that Janssen lacked standing to assert a vagueness challenge against Wis. Stat. § 946.05(1) because a reasonable person could not have any doubt that defecating on the flag falls within the statutory prohibition against defiling the flag.
¶ 15. Having affirmed the circuit court's order on these grounds, the court of appeals did not address Janssen's argument that his act of defecating on the flag was expression protected by the First Amendment. See id. at 476. We granted the State's petition for review on November 20, 1997, and now affirm.
STANDARD OF REVIEW
¶ 16. Janssen's challenge to the constitutionality of Wis. Stat. § 946.05(1), and the State's corresponding attempt to preserve § 946.05(1), present questions of law which we review de novo, without deference to the conclusions of the circuit court or the court of appeals. See Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis.2d 1, 17-18, 558 N.W.2d 83 (1997).
¶ 17. Ordinarily, a statute is presumed constitutional, and the party seeking to overcome the presumption must prove the statute unconstitutional beyond a reasonable doubt. See id. at 18. The burden
THE OVERBREADTH DOCTRINE
¶ 18. In his overbreadth analysis, Janssen argues that Wis. Stat. § 946.05(1) is unconstitutional not because his act of defecating on the United States flag is protected expression within the meaning of the First Amendment, but because the statute may conceivably be applied unconstitutionally to others in situations not before this court. Courts generally look disfavorably upon such challenges, because "constitutional rights are personal and may not be asserted vicariously." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).
¶ 19. In the First Amendment arena, however, courts have altered their traditional rules of standing to permit "attacks on overly broad statutes without requiring that the person making the attack demonstrate that in fact his specific conduct was protected." Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977).
¶ 20. "The use of overbreadth analysis reflects the conclusion that the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted." Bates, 433 U.S. at 380. Overbroad statutes may undesirably dissuade persons from exercising their rights by "chilling" their protected speech or expression. See New York v. Ferber, 458 U.S. 747, 768 (1982); Bates, 433 U.S. at 380; Broadrick, 413 U.S. at 612.
¶ 21. Thus, we are more likely to review the constitutionality of a sweeping statute on overbreadth
¶ 22. The overbreadth doctrine does not, however, give a court unfettered discretion to invalidate statutes in their entirety. Because application of the doctrine is "strong medicine," it is to be "employed by the Court sparingly and only as a last resort." Broadrick, 413 U.S. at 613. Particularly where, as here, conduct and not merely speech is involved, the overbreadth of a statute must be both "real" and "substantial," "judged in relation to the statute's plainly legitimate sweep." Id. at 615. See also Thiel, 183 Wis. 2d at 521. Stated differently, we will not invalidate the flag desecration statute "because in some conceivable, but limited, circumstances the regulation might be improperly applied." City of Milwaukee v. K.F., 145 Wis.2d 24, 40, 426 N.W.2d 329 (1988).
¶ 23. We now turn our attention to Wis. Stat. § 946.05(1) to determine whether it is substantially overbroad, so as to render it facially invalid.
OVERBREADTH OF WIS. STAT. § 946.05(1)
¶ 24. "A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Bachowski v. Salamone, 139 Wis.2d 397, 411, 407 N.W.2d 533 (1987). We have little doubt that Wis. Stat. § 946.05(1) is unconstitutionally overbroad. To explain why, we proceed to define the boundaries of constitutionally protected flag desecration, knowing that parties making overbreadth challenges may hypothesize situations in which the challenged legislation would intrude upon the First Amendment rights of third parties. See K.F., 145 Wis. 2d at 40.
¶ 25. Because the State asks this court to sever all but the term "defiles" from Wis. Stat. § 946.05(1), we first illustrate briefly the real and substantial overbreadth of the statute's "casts contempt upon" and "mutilates" language. We then consider the constitutionality of a statute that merely prohibits "defile[ment]" of the United States flag.
"CASTS CONTEMPT UPON"
¶ 26. In Street v. New York, 394 U.S. 576 (1969), the defendant, Street, was convicted of a New York law which made it a misdemeanor to "publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any United States flag]." Id. at 577-78. After hearing a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi, the defendant walked outside to a city intersection, stood on the corner and burned the flag. While doing so, he disparaged the flag by shouting "we don't need no damn flag," and "if they let that
¶ 27. Reserving the question of whether Street's conviction for burning the flag was constitutionally permissible, the Court held that the New York law had been unconstitutionally applied to Street because it permitted him to be punished merely for speaking defiant or contemptuous words about the flag. See id. at 580-81. In so holding, the Court stated:
Id. at 593 (citations omitted).
¶ 28. Wisconsin Stat. § 946.05(1) expressly prohibits the very conduct which was held to be protected by the First Amendment in Street. Its "casts contempt upon" language encompasses any speech that is defiant or contemptuous of, or which expresses distaste for the flag. In fact, this portion of the statute casts its jaundiced eye with such reprobation as to reveal that the only interest being served is the proscription of expressive communication.
¶ 29. Some twenty years after Street, the Supreme Court again had occasion to assess the constitutional validity of a flag desecration statute. See Johnson, 491 U.S. 397. In Johnson, the Court was faced with the questions it had explicitly left unaddressed in Street: (1) whether the act of burning the flag is "sufficiently imbued with elements of communication," Spence v. Washington, 418 U.S. 405, 409 (1974), so as to warrant First Amendment protection; and (2) to what extent that act could be regulated by the government.
¶ 30. The defendant, Johnson, participated in a political demonstration and march to protest, among other things, the policies of the Reagan administration. See Johnson, 491 U.S. at 399. When the protesters arrived at the Dallas City Hall, Johnson doused a United States flag with kerosene and set it on fire. See id. Johnson's acts led to his arrest and conviction for desecration of a venerated object pursuant to Texas law, which made it a misdemeanor to "deface, damage, or otherwise physically mistreat" a national flag "in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action." Id. at 400 n.1.
¶ 31. Under the circumstances presented in Johnson's case, the Court concluded that Johnson's burning of the flag constituted expressive communication which implicated the First Amendment. See id. at 406. After rejecting Texas' two asserted interests in regulating this expression—preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity—the Court upheld the reversal of Johnson's conviction. See id. at 420. In doing so, the Court stated, "[w]e do not consecrate the flag by
¶ 32. This decision was reaffirmed a year later when the Court held that the Flag Protection Act of 1989, an act passed in the wake of the Johnson decision, was unconstitutionally applied to defendants charged with burning the flag. See United States v. Eichman, 496 U.S. 310 (1990). Similar to the statute at issue in Johnson, the Flag Protection Act provided for fines and imprisonment of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." Id. at 314.
Id. at 317-18.
¶ 34. Wisconsin Stat. § 946.05(1), as it is written, suffers from the same flaws that were present in Johnson and Eichman. Its language barring persons from "mutilating" the flag would make criminally punishable flag burning, tearing or cutting during a political protest, rally, or any other medium in which that person wishes to convey a message by doing
¶ 35. The State argues that the real and substantial overbreadth of Wis. Stat. § 946.05(1) that is evidenced by the "mutilates" and "casts contempt upon" language may be cured by eliminating these two phrases altogether. According to the State, if the word "defiles" alone is left in place, the flag desecration statute may be preserved. We disagree, and proceed to explain why § 946.05(1) would remain unconstitutionally overbroad on its face if it simply prohibited "defile [ment]" of the United States flag.
¶ 36. Statutes that are challenged as overbroad may be preserved if a limiting and validating construction of the statute's language is readily available. Courts may also sever the unconstitutional provisions of the statute, leaving the remainder of the legislation
¶ 37. "Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability." Regan v. Time, Inc., 468 U.S. 641, 653 (1984). "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Id. (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)).
¶ 38. These general rules of construction have been codified in Wisconsin by Wis. Stat. § 990.001(11), which provides in relevant part:
¶ 39. Therefore, in our attempt to sever or find a limiting construction of Wis. Stat. § 946.05(1), we examine the language of the statute as well as its legislative history to determine whether the legislature intended the statute to be applied in its newly-construed form. See Milwaukee v. Wroten, 160 Wis.2d 207, 227, 466 N.W.2d 861 (1991).
THE LANGUAGE OF WIS. STAT. § 946.05(1)
¶ 40. Consistent with the command of Wis. Stat. § 990.001(11), we presume that the legislature intended Wis. Stat. § 946.05(1) to survive with the term "defiles" on its own. Despite our construction, the statute remains unconstitutionally overbroad. The word "defile" is defined as "to make filthy or dirty; to debase the pureness or excellence of; to profane or sully; to make unclean or unfit for ceremonial use; desecrate; to violate the chastity of." The American Heritage Dictionary of the English Language 489 (3d ed. 1992).
¶ 42. One might also defile the flag when conveying a message by dyeing, painting or writing upon the flag for artistic purposes. Under the appropriate circumstances, we are again confident that Wis. Stat. § 946.05(1) could not be applied constitutionally to such activity. Cf. United States ex rel. Radich v. Criminal Court of New York City, 385 F.Supp. 165 (1974) (holding that New York statute barring one from "casting contempt" on the flag was unconstitutionally applied to defendant who displayed an art exhibit which used the flag in an antiwar theme). In short, any time a person expresses an opinion by defiling a flag—whether by attaching a symbol to the flag which makes it "unfit for ceremonial use" or renders it "filthy or dirty," or by spilling a foreign substance on the flag and thereby "debasing its pureness"—§ 946.05(1) could be used to punish that person unconstitutionally.
¶ 43. In our assessment, the Supreme Court's holdings in Johnson and Eichman command this conclusion. Certainly if one is protected by the First Amendment when he or she conveys a message by
¶ 44. The State argues that a construction of the word "defile" which limits it to purely physical acts which make the flag physically unclean or dirty would preserve the constitutionality of Wis. Stat. § 946.05(1). We disagree. None of the above-recited examples of protected expression would fall outside the scope of § 946.05(1) as the State would have us construe the term "defile." Although such a construction could save a defilement statute from a potential vagueness challenge, see Commonwealth v. Morgan, 331 A.2d 444, 446 (Pa. 1975), it does little to address the statute's effect upon the many conceivable forms of expression which involve intentional defilement of the flag.
¶ 45. Legislative history is of little comfort to the State's argument. Wisconsin Stat. § 946.05 finds its roots in a 1901 statute. See 1901 Wis. Laws, ch. 142; see also Wis. Stat. ch. 185, §§ 4575(h)-(k) (Sanborn & Sanborn's Annot. Stats. 1899-1906).
¶ 46. The revision of the criminal code in 1955, which moved the statute to its present location at Wis. Stat. § 946.05, provides the sole insight into the legislature's intent. In a 1953 Judiciary Committee Report on the Criminal Code prepared by the Wisconsin Legislative Council, a comment is attached to the flag desecration statute. See 5 Judiciary Committee Report on the Criminal Code 168 (February 1953). The comment reads:
Id. (emphasis added).
¶ 47. This comment illustrates that the legislature intended to prohibit "grossly contemptuous" conduct only—a clear attempt to ban speech and conduct based on its expressive content. Such an approach runs contrary to now well-established principles of First Amendment law. See, e.g., Johnson, 491 U.S. at
¶ 48. The legislature's stated intent satisfies us that a prolonged search for a constitutionally-rehabilitated version of Wis. Stat. § 946.05(1)—whether by limiting construction or severance—would be in vain. "Although this court will strive to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute." State v. Hall, 207 Wis.2d 54, 82, 557 N.W.2d 778 (1997). See also Scales v. United States, 367 U.S. 203, 211 (1961). No matter what a limiting construction or severance of § 946.05(1) may produce, the clear intent of the legislature is to proscribe all speech or conduct which is grossly offensive and contemptuous of the United States flag. Therefore, any version of the current statute would violate fundamental principles of First Amendment law both in explicit wording and intent.
¶ 49. The State argues that we need not strike the statute down in its entirety because there are instances in which a person may be prosecuted under Wis. Stat. § 946.05(1) in a manner that is consistent
¶ 50. In our assessment, the real and substantial overbreadth of Wis. Stat. § 946.05(1) provides a response to both arguments. As we have shown, the broad language of the statute casts an inescapable shadow upon protected expression which utilizes the United States flag, even if the extent of its proscription were confined to defilement of the flag. Although there may be constitutionally permissible applications of § 946.05(1), the number of instances in which the law could be applied to unprotected behavior is small in comparison to the number of instances in which it may be applied to expression protected by the First Amendment. "[J]udged in relation to its plainly legitimate
¶ 51. Our approach, however, does not require that we endorse Janssen's "all flag desecration is protected expression" argument.
¶ 52. In sum, we hold that Wis. Stat. § 946.05(1) is overbroad and therefore unconstitutional on its face. Because the State has not satisfied its burden of proving that a limiting construction or severance of the statute's terms can preserve the statute in a constitutional form, § 946.05(1) must be invalidated in its entirety.
¶ 53. Having reached this conclusion, we pause to note the extreme difficulty inherent in writing a decision such as this. Ordinarily, the members of this
Johnson, 491 U.S. at 420-21 (Kennedy, J., concurring).
¶ 54. Our final assessment of Janssen's behavior is no different from our initial, instinctive reaction to the facts of this case: we are deeply offended. Janssen's conduct is repugnant and completely devoid of any social value. To many, particularly those who have fought for our country, it is a slap in the face.
¶ 55. Our own sense of personal anguish does not end with the words of this opinion. Though our disquieted emotions will eventually subside, the facts of this case will remain a glowing ember of frustration in our hearts and minds. That an individual or individuals might conceivably repeat such conduct in the future is a fact which we acknowledge only with deep regret.
¶ 56. But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their disregard. See Barnette,
By the Court.—The decision of the court of appeals is affirmed.
Although these accepted definitions of "defile" would appear to encompass conduct which also forms the basis for liability under Wis. Stat. § 946.06, Wisconsin's "improper use" statute, we express no opinion on the constitutionality of that statute. See Wis. Stat. § 946.06. Cf. Spence, 418 U.S. 405 (holding Washington's similarly worded "improper use" statute unconstitutional as applied to college student who affixed peace symbol to the flag); Koser v. County of Price, 834 F.Supp. 305, 309 (W.D. Wis. 1993) (noting that, in light of Spence and Johnson, it was unconstitutional for officers to arrest individuals under § 946.06(1)(b) who publicly displayed a United States flag on which a picture of a Plains Indian was superimposed).
The first federal flag legislation appeared in 1917: an "improper use" statute which applied only to the District of Columbia. See Michael W. Hoge, Recent Development, 50 Wash. L. Rev. 169, 176 n.43 (1974). See also D.C. Code Ann. § 22-3414 (repealed 1947). The first federal legislation to apply nationwide did not appear until 1968. See 18 U.S.C. § 700 (Supp. IV 1968); Hoge, 50 Wash. L. Rev. at 176 n.43; Note, 4 Val. U.L. Rev. app. at 362. It was amended in 1989 following the Johnson decision and remains on the books to this day. See 18 U.S.C. § 700 (1994).
Johnson, 491 U.S. at 403 n.3.