KRAVITCH, Circuit Judge,
concurring:
I agree with the majority’s conclusion that we are bound by Monroe v. State Court of Fulton County, 739 F.2d 568 (11th Cir.1984). I write separately only to add my personal view that, were this a case of first impression in this circuit, I would reject the appellants’ First Amendment challenge to the Georgia Flag Misuse Statute and affirm the decision of the court below.
In Monroe, the court found the State of Georgia’s interest in protecting the American flag as the symbol of our nation insufficient to justify infringing on First Amendment rights. See id. at 574-75. I am unpersuaded, however, by the Monroe court’s analysis. First, I cannot agree with the Monroe court’s view that “there is no significant difference between [West Virginia State Board of Education v. J Barnette, [319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed.2d 1628 (1943),] in which the government sought to compel the expression of respect toward the flag and this case, in which the government seeks to prevent the expression of disrespect.” Monroe, 739 F.2d at 574. In my opinion, there is a significant difference. The fact that the state may not force schoolchildren to salute the American flag does not compel the conclusion that the state may not prohibit mutilation or destruction of the flag. The flag-salute law at issue in Barnette raised the spectre of totalitarianism, and the Supreme Court’s opinion emphasized the law’s affirmatively coercive effect:
Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.
It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.
Barnette, 319 U.S. at 633, 63 S.Ct. at 1183, 87 L.Ed.2d 1628 (emphasis added; footnote omitted). The Georgia Flag Misuse Statute, on the other hand, requires no affirmation of any kind with respect to the flag or the values it represents. In my view, therefore, Barnette simply does not apply.
I also do not agree with the Monroe court’s conclusion that Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), dictated the outcome in Monroe. The Supreme Court in Street reversed the defendant’s conviction because it could have been based solely on the defendant’s wordsj rather than on the defendant’s act of burning the American flag. The Court expressly reserved the question whether a defendant constitutionally could be convicted for burning the flag. See id. at 581, 89 S.Ct. at 1360. Chief Justice Warren, in dissent, stated, “I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace____ [I]t is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise.” Id. at 605, 89 S.Ct. at 1372 (Warren, C.J., dissenting).
As stated by the Ninth Circuit in United States v. Crosson, 462 F.2d 96 (9th Cir. 1972), a decision affirming a conviction for violating the federal flag desecration statute, 18 U.S.C. § 700:
That the existence of a national flag was considered of great significance to the members of the Continental Congress is demonstrated by the adoption on June 4, 1777, of a national flag.
The Supreme Court has said that the flag is the symbol of the nation’s power, the emblem of freedom in its truest and its best sense, and that to all lovers of the country the flag signifies government resting on the consent of the governed; liberty regulated by laws; protection of the weak against the strong; security against the exercise of arbitrary power and absolute safety for free institutions against foreign aggression____
... The government has power to select a flag and legislate as to its display. Inherent in that power would be a legitimate government interest in prohibiting the contumacious destruction of that flag.
Id. at 99, 101 (citations and footnotes omitted); see also Smith v. Goguen, 415 U.S. 566, 587, 94 S.Ct. 1242, 1254, 39 L.Ed.2d 605 (1974) (White, J., concurring) (“The flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it. I would not question those statutes which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical integrity, without regard to whether such conduct might provoke violence____ There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial____ The flag is itself a monument, subject to similar protection.”).
As the Monroe court pointed out, “the Supreme Court has not ruled on the constitutionality of convictions for politically inspired destruction of the American flag.”-739 F.2d at 572. If this circuit had not already spoken in Monroe, I would hold the Georgia Flag Misuse Statute constitutional, as applied in this case, on the ground that the state has a valid and substantial interest in protecting the flag as our national symbol.
. In Street, the defendant, upon hearing of the shooting of James Meredith, a civil rights leader, carried an American flag into the street and burned it, shouting, “We don’t need no damn flag," and, “If they let that happen to Meredith we dont need an American flag.” The defendant was convicted under a New York statute that made it a misdemeanor “publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States].” N.Y.Penal Law § 1425, subd. 16, par. d (1909). The Supreme Court ruled that the defendant could not constitutionally be convicted solely on the basis of his words. The Court then applied the rule of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and reversed the conviction because the Court could not determine from the verdict whether the defendant was convicted for his words or for the act of burning the flag.
. Justices Black, White, and Fortas also dissented. All three Justices argued that the Court should have reached the flag-burning issue. In addition, Justices Black and Fortas expressed their personal views that flag-burning statutes do not violate the Constitution. See id. at 610, 89 S.Ct. at 1374 (Black, J., dissenting) (“It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense.”); id. at 615-17, 89 S.Ct. at 1377-78 (Fortas, J., dissenting) (”[T]he States and the Federal Government have the power to protect the flag from acts of desecration committed in public____ [T]he flag is a special kind of personalty. Its use is traditionally and universally subject to special rules and regulation____ A person may “own” a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions. Certainly ... these special conditions are not per se arbitrary or beyond governmental power under our Constitution.’’).
. In Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), the Supreme Court reversed the conviction of a defendant who displayed the flag with a peace symbol affixed to it by means of removable black tape. The Court noted, however, that the defendant "was not charged under the desecration statute, ... nor did he permanently disfigure the flag or destroy it.” Id. at 415, 94 S.Ct. at 2732.
At least four current members of the Court have supported, at one time or another, the view that flag-burning statutes do not violate the Constitution. See id. at 422-23, 94 S.Ct. at 2736 (Rehnquist, J., dissenting, joined by Burger, C J., and White, J.); Smith v. Goguen, 415 U.S. 566, 591, 94 S.Ct. 1242, 1256, 39 L.Ed.2d 605 (Black-mun, J., dissenting, joined by Burger, C J.). But see Kime v. United States, 459 U.S. 949, 103 S.Ct. 266, 269, 74 L.Ed.2d 207 (1982) (Brennan, J., dissenting from denial of certiorari).
