Appellees Brief — Radich v. New York

THE PEOPLE OF THE STATE OF NEW YORK,

Appellee.

On Appeal from the Court of Appeals of the

State of New York

———

BRIEF FOR APPELLEE

——— OO eelllllllNNSSSSaSaEWP@D@W@W@D@q"N™™™™EQEUNIYES

Faawx 8. Hocan

District Attorney

New York County

Attorney for Appellee

155 Leonard Street

New York, New York 10013

(212) BE 2-7300

TABLE OF CONTENTS

The People’s Case

The Defendant’s Case

Point I—Conduct that publicly casts contempt upon

the American flag by physical use of the flag is

not protected by the First Amendment

Point II—The flag statute is not void for vagueness or

overbreadth

Point I1I—The statutory exception that permits cer-

tain non-contemptuous uses of the flag if discon-

nected from advertisements does not deny appel-

lant equal protection

TABLE OF AUTHORITIES

Cases:

Adderly v. Florida, 385 U.S. 39 (1966)

27, 30, 40, 41

Alexander v. United States, 271 F.2d 140 (8th Cir.

Bachellar v. Maryland, 397 U.S. 564 (1970)

Bantam Books v. Sullivan, 372 U.S. 58 (1963)

Beauharnais v. Illinois, 343 U.S. 250 (1950)

Breard v. Alexandria, 341 U.S. 622 (1951)

Brown v. Louisiana, 383 U.S. 131 (1966)

Bryson v. United States, 396 U.S. 64 (1969)

California v. Williamson, 207 Cal. App.2d 839, 24 Cal.

Rptr. 734 (Dist. Ct. of App. 1962)

Cameron v. Johnson, 390 U.S. 611 (1968) 40,

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

15, 35, 36,41, 47,5

Close v. Lederle, 424 F.2d 988 (1st Cir. 1970), cert,

denied, No. 332, Oct. Term 1970 13,

Connally v. General Construction Co., 269 U.S. 385

(1926)

Cowgill v. California, 396 U.S. 371 (1970)

Cox v. Louisiana, 379 U.S. 536 (1965)

Cox v. Louisiana, 379 U.S. 559 (1965)

Crosson v. Silver, —— F.Supp. ——, No.

70-79 Tucson (D. Ariz. Nov. 13, 1970)

Dennis v. United States, 341 U.S. 494 (1951)

Dombrowski v. Pfister, 380 U.S. 479 (1965) ...............

Fenster v. Leary, 20 N.Y.2d 309 (1967)

Fox v. Washington, 236 U.S. 273 (1915)

Garner v. Louisiana, 368 U.S. 157 (1961)

Ginzburg v. United States, 383 U.S. 463 (1966)

Golden v. Zwickler, 394 U.S. 103 (1969)

Halter v. Nebraska, 205 U.S. 34 (1907) 12, 13, 17, 1,

20n, 24, 25, 26, 34, 82

Hoffman v. United States, 256 A2d 567 (D.C. App.

Jordan v. De George, 341 U.S. 223 (1951)

Joseph Burstyn Inc. v. Wilson, 343 U.S. 495 (1952) ...41,4

Joyce v. United States, 259 A2d 363 (D.C. App. 1969).. th

shm v. United States, 300 F.2d 78 (5th Cir. 1962),

cert. denied 369 U.S. 859 (1962) .....ccccscsssssssseussse 48

ovacs v. Cooper, 336 U.S. 77 (1949) .......... 13, 20, 21, 29, 43

ong Island Vietnam Moratorium Comm. v. aa

— F.2d —— (2d Cir., Slip Opn. 328, Dec. 1970)..

‘ash v. United States, 229 U.S. 373 (1913) ....... .......... 39

ew York ex rel. Hatch v. Reardon, 204 U.S. 152

RIND 271s ha)siiscoclicunepuiencenmombieciapaeabavngeineaeiten 43

eople v. Cowgill, 274 Cal. App. 174, 78 Cal. Rptr.

853 (Cal. Super. 1969), appeal dismissed, 396 U.S.

ER CI 6h sncdoloecterhiebnohtedindhneckesentapatiaell 13, 14, 20n, 22, 34

eople v. Finkelstein, 11 N.Y.2d 300 (1962), cert. de-

ot hl SR: Ree acre 48

eople v. Hubner, N.Y.L.J., March 18, 1970 (Dist. Ct.

ee eGR EAT AS SIE EI td be Me 42n

eople v. Pregaskis, (Town Justice Ct., N.Y.) ............ 42n

eople v. Radich, 26 N.Y.2d 114 (1970), aff’g. 57 Misc.

2d 1082 (1968), aff’g. 53 Mise.2d 717 (1967) ....2, 33, 34

eople v. Stover, 12 N.Y.2d 462 (1963), appeal dis-

missed, 375 U.S. 42 (1963) 2o........cccecececscseseseseseees 13, 28, 29

eople v. Street, 20 N.Y.2d 231 (1967), rev’d, 394 U.S.

EAR RNG LR ae iba s ate Sian 13, 20n, 33

eople v. Verch, 63 Mise.2d 477 (Ct. Spec. Sess. 1970) 32

ublic Utilities Commission v. Pollak, 343 U.S. 451... 28n

edrup v. New York, 386 U.S. 767 (1967) .................... 13, 28

osen v. United States, 161 U.S. 29 (1896) .................. 49

oth v. United States, 354 U.S. 476 (1957)........ 15, 38, 40, 41

amuels v. Mackell, 288 F.Supp. 348 (S.D.N.Y. 1968)

(Farenoty, J., for three-judge court), prob. juris.

noted, 393 U.S. 975 (1968), restored to cal. for

rearg., 395 U.S. 957 (1969), 399 U.S. 922 (1970)... 45

cales v. United States, 367 U.S. 203 (1961) ................ 43, 50

Bi

Schacht v. United States, 398 U.S. 58 (1970) 15, 32, 33

Schindler v. United States, 208 F.2d 289 (9th Cir,

1953)

Shuttlesworth v. Birmingham, 382 U.S. 87 (1965)

Smith v. California, 361 U.S. 147 (1959)

State v. Schlueter, 127 N.J.C. 496, 23 A.2d 249 (N.J.

1941)

Street v. New York, 394 U.S. 576 (1969)......12, 14, 19, ne

24, 26, 30, 34, 45,4

Stromberg v. California, 283 U.S. 359 (1931)

Time, Inc. v. Hill, 385 U.S. 374 (1967)

Tnker v. Des Moines School District, 393 U.S. 508

United States v. Dennis, 183 F.2d 201 (2d Cir. 1950)

(L. Hann, J.) aff’d. 341 U.S. 494 (1951) 20...

United States v. Ferguson, 302 F. Supp. 1111 (N.D.

Cal. 1969)

United States v. Harriss, 347 U.S. 612 (1954)

United States v. Hockman, 277 F.2d 631 (7th Cir.

1960), cert. denied 364 U.S. 837 (1960)

United States v. Knox, 396 U.S. 77 (1969)

United States v. National Dairy Corp., 372 U.S. 29

(1963)

United States v. Oakley, 290 F.2d 517 (6th Cir. 1961),

cert. denied, 368 U.S. 888 (1961)

United States v. O’Brien, 391 U.S. 367 (1968) ....12, 14, 20,21

23, 31, 32, 47, w

United States v. Petrillo, 332 U.S. 1 (1947)

United States v. Ragen, 314 U.S. 513 (1942) ...

United States v. Wurzbach, 280 U.S. 396 (1930) .. 39,8

Valentine v. Chrestenson, 316 U.S. 52 (1942)

PAGE

‘West Virginia Board of Education v. Barnette, 319

Bg”) UGCA asi Bei itil BSR Re HC 15, 26, 29

Williams v. United States, 341 U.S. 97 (1951) ........ 16, 41, 43

Winters v. New York, 333 U.S. 507 (1948)................ 15, 38, 41

wickler v. Koota, 389 U.S. 241 (1967) ..0......:cccccccceseees 46

Statutes:

PED GON oo isc ick sssnsalieievsaadthicantebatha, voscanitlaioe 46

N.Y. General Business Law §136 000.0.00.0.0..cccce cee 2,17

N.Y. Penal Law of 1909 §1425 (16) 0.000000... 2-5, 6, 8, 17, 52

Ch. 54 [1917] Laws of N.Y. 106 (caption) ...................... 19n

(5 TEESRT ASAE Soe Tay Spee mel eat ey Tae AOE ERENT TG 2 ea 24

See MMIROIOD © 5 525i L5 SiFiuadgascdansesshandiscdecnoesscee tase oe 25

RIE Y: GOMER MUU 35sec cnsiqosnchacnsonjapharvansvpamichepsaoreubiiele 26

18 U.S.C. §700 (Supp. TV 1968) 00.0... 19

IER SI OIMOD ook cnaccensasctsctccetoasadd ish nbiean bianca 19

I GEO isn hai hihi cgelensinisbisotanicebeoasssea dase 24n

56 Stat. 377, c. 435, 36 U.S.C. §§172-177 0.0.00 24

Other Authorities:

Amsterdam, The Void-for-Vagueness Doctrine in the

Supreme Court, 109 U. Pa. L. Rev. 67 (1960) ...... 44

Brief of N.Y. Att’y Gen. Street v. New York, 394 U.S.

IID csi tansee caus eg chs ab Sead eAihignala ce Paae aN 19n

Joyce Cary, The Horse’s Mouth ...000.0.00.000..00.0cccceeeceeeee 37n

Desecration of the Flag, Hearings on HR. 271 Before

Subcomm. No. 4 of the House Comm. on the Judi-

ciary, 90th Cong., 1st Sess., ser. 4 (1967) ............ 19n

Emerson, Toward a General Theory of the First

Amendment, 72 Yale L.J. 877 (1963) ..............0.000-.- 28

Flag and the Law, 4 Vatranaiso U.L. Rev. 345 (1970)

19n, 36

Holmes, C.J., remarks, 178 Mass. 627 (1901) .............. 24n

lincotn, Contectep Works (Basler ed. 1953) ............ 24n

N.Y. Daily News, May 9, 1970

Weis MO, MAO TR BT ois sisss asassnesisosncesnssrivsvidcdinncneetae

N.Y. Times, Oct. 1, 23, 26, 1966

Nov. 24, 27, 1966

Dec. 14, 1966

Weta I TD I voc och ccsisccvkcpcecensdenbasecenicauene

Bh Bc My ON TA, NTO ooo sionsscscsstecisccsnosssooncendnouisdanal

Note, The First Amendment Overbreadth Doctrine,

83 Harv. L. Rev. 844 (1970)

Our Frac (Schauffler ed. 1926) oo....000.0.0cccccccceceeeseeseenees

Presie, Onicin anp History or THE AMERICAN Fag

fs) EN ORR LRU CCRT gk BAIR eB RERUN MREE RD!

Quarre, THe Fac or tHE Untirep States (1942) .......

Tue American Herirace Dictionary of THE ENGLISH

BMA CIID ais csnsisasdscaciscntiicsnaccchagtscdteeniele

Tue Ranpom House Dictionary or THE Encuise Lax-

auace, College Edition (1968) .0.0..0.0.0.0ccccceccsen

Wesster’s Tump New Internationa Dictionary,

i eee a eer eee Bete fe o0

51 N.Y.S. Dept. Rep. 240 (1934) ooo... ccscceceecseen

1941 Rep. of N.Y. Att’y Gen. 465

1943 Rep. of Att’y Gen. 90-91

ARERR EEE EEE EO EEE HEHE OEE eE ee eteneny

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er eee ee eee ee eee eee eee ee eee eer rr

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PPP Peer eee eee ee ee eee ee ee ee ee

IN THE

Supreme Court of the United States

October Term, 1970

No. 169

$$

StrepHEN Rapicw,

Appellant,

agamst

Tue PEOPLE oF THE STATE oF NEw York,

Appellee.

On Appeal from the Court of Appeals of the

State of New York

a

BRIEF FOR APPELLEE

Opinions and Proceedings Below

Appellant Stephen Radich appeals from an order of the

Court of Appeals of New York entered February 18, 1970,

affirming, with an opinion, two judges dissenting, an order

of the Appellate Term, First Judicial Department, of the

Supreme Court of the State of New York, entered June 13,

1968, unanimously affirming, without an opinion, a judgment

of the Criminal Court of the City of New York, New York

County, rendered May 5, 1967, convicting Radich, after a

———_

trial before three judges, one judge dissenting, of malicions

injury to and destruction of property (former N. Y. Peng

Law $1425 (16)(d), presently N. Y. General Business Ley

§136), and sentencing him to a fine of $500 or 6 day’

imprisonment.

The Court of Appeals opinions are reported at % WY.

2d 114, 308 N.Y.8.2d 846 and are reproduced in the Apps.

dix at pager 6a-22a.

The Appellate Term affirmance, without opinion, is m

ported at 57 Misc.2d 1082, 204 N.Y.8.2d 680.

The trial court opinions are reported at 53 Mise.24 711,

279 N.Y.8.2d 680, and are reproduced in the Appendix

pages 25a-36a.

Statute Involved

Radich was convicted of a violation of section 1425, sib

division 16(d), of the New York Penal Law of 1909, whi

was repealed, effective September 1, 1967, with the enad

ment of a completely revised Penal Law. Upon the repeal

of the former Penal Law, section 1425 was transferred &

the New York General Business Law, section 136, with on

change : the provision that permitted the recovery of a dvil

penalty for each offense in addition to the conviction fors

misdemeanor was repealed.

Section 1425(16) of the former Penal Law is reprodusd

in full below, with the subdivision here in question printed

ip italics, and with the exception that the civil penalty pro-

vision is omitted.

“16. Any person, who

‘a. In any manner, for exhibition or display, shall

“ce. Shall print, engrave, or otherwise place or

cause to be printed, engraved or otherwise placed on

any blank check, bill head, letter head, envelope or other

business stationery, a representation of any such flag,

standard, color, shield or ensign, or shall use any such

blank check, bill head, letter head, envelope or other

stationery for business purposes or correspondence, or

4

“*d. Shall publicly mutilate, deface, defile, or defy,

trample upon, or cast contempt upon either by words

or act, or

“‘e. Shall raffle or place in pawn any such flag

standard, color, shield or ensign, or

sub

any

flag,

E

Hit

F

3

3

number of either thereof, or by which the

the same, without deliberation may believe

4

i}

i

of the United States of America, or

New York,

‘This

pressly permitted by the statutes of the Uni

of America, or by the United States army

certificate, diploma, warrant, or commission of

pointment to office, ornamental picture, article

jewelry, stationery for use in private correspondence,

or newspaper or periodical on any of which shall k

5

painted or placed, said flag, standard, color,

Statement of the Case

The Complaint*

CRIMINAL COURT OF THE CITY OF NEW YorRK

Part 7, County of New York

State of New York )

County of New York ) ss.:

Patrolman John P. Burns, of No. 19 Precine,

County of New York, City of New York, being duly

sworn, deposes and says that on December 27, 1966 at

about 8:30 a.m. and December 28, 1966 at about 5%

p.m. at on second floor at 818 Madison Avenue in te

County of New York, State of New York, the deja

dant, Steruzw Ravicu did commit the crime of : did vie

late section 1425 of the New York State Penal Lay,

subdivision 16-Paragraph d & f, in that any person whe

shall publicly mutilate, deface, defile or defy, trample

upon, or cast contempt upon the flag, standard, shidd

or ensign, of the United States of America, either y

words or act or shall publicly carry or display any &

blem, placard or flag which casts contempt, either y

word or act, upon the flag of the United States d

America:

under the following circumstances :

your deponent states that at the above location, the

Radich Gallery, on December 27, 1966 at 8:30 am, hk

observed that the defendant did have on display, ins

large window, facing the public sidewalk, the flag of the

United States of America, in the form of a body ham

ing from a yellow noose. Deponent further states thi

on December 28, 1966 at about 5:30 p.m., at the abow

* Reproduced in the Appendix . 2Za-Sa. italics ide

tify the standard en at te ont

me:

dis;

Sta

for

of 1

and

RIPFRESES

ef 8%

e

B

7

tioned location, the defendant did have on public

lay and for public viewing the flag of the United

es of America, in the following manner; 1—in the

n of a male sexual organ, protruding from the body

orm, in the anterior portion of the body of the form

American flag attached to a gas meter. 6—The

erican flag wrapped around a bundle attached to a

wheeled vehicle. 7—The American flag in the form

1 body, hanging from a yellow noose. Your de-

ent further states that the defendant is the owner

operator of the premises mentioned above.

Wherefore deponent prays that the defendant be

it with according to law.

wn to before me

uary 4, 1967

(signed) Ptl. John P. Burns

(signed) Walter J. Bayer

Judge, Criminal Court

of the City of New York

ee ee

The Evidence at the Trial

The People’s Case

Patrolman John P. Burns of the New York City Police

Department testified that on December 27, 1966, at 8%

a.m., while on duty, he was outside the premises 818 Mad.

son Avenue (39a-40a).° He observed in the second story

window of the building what apeared to be the flag of the

United States, formed in the shape of a human body, sm

pended by a yellow noose (40a, 45a; People’s Exhibit 1),

The following day, December 28, 1966, at 5:00 pm, bv

returned to 818 Madison Avenue, accompanied by Patri

man Myrich of the Police Department’s Photo Unit (4s),

They entered an art gallery located on the second floor,

The gallery was open to the public, free of charge (4s).

Within the gallery, he saw twelve or thirteen exhibits o

display (45a). Some of the exhibits employed the flag of

the United States (47a). Nearby, he saw the defendant

engaged in conversation with an unknown female. Whe

asked by the officer, the defendant identified himself »

Stephen Radich, proprietor of the gallery. Thereupm,

Patrolman Burns served the defendant with a summom

for a violation of Section 1425 of the Penal Law (40a).

When questioned, the defendant said that he was no

the person who created the works exhibited in the gallery;

however, he received a commission for their sale (40a4is,

54a-55a).

Each of the objects in which the American flag appeared

was photographed and the photographs were received i

evidence as People’s Exhibits 1 through 9 (41a-44a).

* References are to the pages of the printed Appendix.

The Defendant's Case

Stephen Radich, the defendant, testified that he is the

sole proprietor of an art gallery located at 818 Madison

Avenue; he owned the gallery for seven years (76a, 88a).

On December 27th and 28th, 1966, he exhibited, in his gal-

lery, thirteen works by Mare Morrel (78a). The gallery

was open to the public, there was no admission charge,

and brochures were sent out to publicize the exhibit (78a,

88a; Defendant’s Exh. B).

All of Morrel’s works were for sale. There was a set

price list and Morrel’s works ranged in price from $250

to $1200. By an arrangement with Morrel, Radich’s com-

mission for a sale was thirty-three and one-third per cent

(80a, 82a-83a, 88a). He sold one work for $900 and ac-

cordingly received a commission of $300 (89a).

Radich considered Morrel’s work to be protest art (81a).

In his opinion, the works protested war; destruction; cer-

tain societies ; injustices in this country; and infringement

upon the freedom of speech (82a). During the exhibit

“war protest songs’’ were played on a tape recorder (80a).

In exhibiting Morrel’s works, he did not intend to be

contemptuous of the flag of the United States (82a). He

“displayed them because they were works of art, and be-

cause [like] all other works of art in the gallery they were

for sale’ (94a-95a).

One of Morrel’s works [depicted in People’s Exhibits 3

and 4] was a cross from which protruded the American

flag, formed in the likeness of a human penis; tassels at

the base of the cross were ‘‘probably a decorative or pubic

hair” (89a-91a). Church flags and the Panama flag were

draped over the cross’s horizontal and vertical pieces,

In appellant’s opinion, the message imparted by this

sculpture was that there is no separation of church and

state; that this government is involved in aggressive acts

of war. The church flags indicated that the organized

church either supports, leads or is being led by acts of

aggression (91a). The work was priced at $1200, but was

not sold (91la-92a). In his view, the artist was not being

disrespectful toward the flag; he thought Morrel questioned

the behavior of the government and organized religion in

aggressive acts of war (92a).

Another of Morrel’s works, which hung in his gallery's

window, was made up of an American flag in the form of

a body, suspended by a hangman’s noose [depicted in Peo

ple’s Exhibits 1, 2, Defendant’s Exh. A (49a)]. In the

defendant’s opinion, this sculpture illustrated Morrel’s

doubt whether the people of the United States are enjoy-

ing their constitutional rights (94a).

Hilton Kramer, art news editor of the New York Times,

qualified as an expert witness after recounting his back-

ground in the field of art (98a-10la). In his opinion, ‘‘there

is virtually no material which contemporary artists are

not applying in some form or other * * * in a work of art”

(10la). He ‘‘would define a work of visual art as any

physical object specifically whose visual properties [are]

specifically designed to communicate an aesthetic emotion”

(101a); and ‘‘anything specifically designed to be a work

of art, whether it’s poor or high quality, is a work of

art’’ (108a).

Pa> oe he OUcrelC<ir hh lCKDlCUlCU lC ee, lhlUeCOe

11

In the course of his newspaper responsibilities, Kramer

eceived an announcement [Defendant’s Exh. B] of the

forrel exhibit at the Radich Gallery, and in December

966 he saw the exhibit at the gallery (101la-102a). In ac-

ord with his definition of art he considered Morrel’s works

rt, and a ‘‘rather feeble’’ form of protest art (104a-105a,

(08a); he also described Morrel’s works as ‘‘ornamental

culpture’’ (107a). Though he was aware that Morrel in-

ended to render some anti-war message, no political mes-

age was conveyed to him (108a-110a).

Summary of Argument

Appellant Stephen Radich was convicted of committing

in “‘act’’ by which he cast contempt upon the American

lag; he was not convicted for any verbal expression against

he government or the flag, or for any expression of op-

position to the government or its policies which his act

nay be deemed to have conveyed. For Radich chose to

xhibit publicly in his art gallery certain ‘‘constructions’’

yhich employed the American flag in a contemptuous man-

ver: One sculpture used the American flag to depict a

enis and attached the penis to a cross draped with church

lags; another sculpture, in the show window of the gallery

isible from the street, used the flag to depict a human body

anging by the neck from a noose.

While Radich considered these items to be protest art,

tadich himself had not constructed the items and was not

imself seeking to communicate social protest by these

rorks; his interest appeared primarily commercial: to

xhibit what he considered art for the purpose of sale, for

commission. And, while the art news editor of the New

York Times, a defense witness, considered the items protest

art, they conveyed no political message to him.

In any event, the First Amendment does not accord g

nonverbal act which seeks to express an idea the same pro.

tection afforded a verbal expression of an idea. Coz y,

Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida,

385 U.S. 39 (1966) ; United States v. O’Brien, 391 US, 367

(1968). The First Amendment protects ‘‘speech’’ and ‘the

press’’; an actual flag in the form of a male sexual organ,

or a hanging effigy, is neither ‘‘speech’’ nor ‘‘the press,”

Consequently, since, as we shall demonstrate, there is

a ‘sufficiently important governmental interest’’ in pro.

hibiting conduct contemptuous of the flag, and since ‘‘the

governmental interest is unrelated to the suppression of

free expression,’’ then—even if the conduct included ex

pressive elements—‘‘incidental limitations’’ on the latter

were justified. United States v. O’Brien, supra, at 3767.

That there exists a ‘‘sufficiently important governmen-

tal interest’’ in prohibiting conduct that treats the United

States flag contemptuously in public was made evident by

this Court in Halter v. Nebraska, 205 U.S. 34, 41-43 (1907),

which recognized the public interest in preserving the in

tegrity of the flag as a national symbol of unity and Amer.

ican ideals. This interest is reflected in the laws of Con

gress and 43 states prohibiting acts that cast contempt

upon the flag, and in the remaining seven states forbid

ding various physical acts against the flag. The flag “‘is

a special kind of personalty.’’ Street v. New York, 304

U.S. 576, 616-617 (Forras, J. dissenting). The public may

13

prohibit its use as a medium of commercial advertising,

or as @ subject of open physical disgrace or shame; be-

longing to all the public, it has been dedicated to other

purposes, just as the grounds near a courthouse or jail

may be designated off limits for certain conduct, even con-

duct designed as a protest. See Adderly v. Florida, 385

US. 39, 47-48 (1966) ; Cox v. Louisiana, 379 U.S. 559 (1965).

The public interest in preventing public acts that dese-

erate the flag is especially clear where, as in this case, the

dishonored flag is forced upon a captive audience. Appel-

lant displayed the flag as a corpse hanging by the neck in

the show window of his gallery facing an important city

thoroughfare, for more than three weeks, in a manner cal-

culated to catch the eyes of passers-by indiscriminately.

This display collided with the rights of other citizens to

use the street undistracted by unavoidable disturbing

images of the honored national symbol. Such conduct is

an “assault upon individual privacy,’’ subject to reason-

able regulation and prohibition. See Redrup v. New York,

386 U.S. 767, 769 (1967); Close v. Lederle, 424 F.2d 988

(Ist Cir. 1970), cert. denied No. 332, Oct. Term, 1970; Peo-

ple v. Stover, 12 N.Y.2d 462 (1963), appeal dismissed 375

US. 42 (1962) ; Kovacs v. Cooper, 336 U.S. 77 (1949).

In addition, as the New York Court of Appeals held,

the flag desecration statute promotes the important gov-

ernmental interest of preventing ‘‘the outbreak of * * *

violence by discouraging contemptuous and insulting treat-

ment of the flag in public.’’ See also Halter v. Nebraska,

25 U.S. 41-43 (1907) ; People v. Street, 20 N.Y.2d 231, 236

(1967), rev’d on other gds. 394 U.S. 576 (1969); People v.

Cowgill, 274 Cal. App. 174, 78 Cal. Rptr. 853 (Cal. Super.

1969), appeal dismissed, 396 U.S. 371 (1970). That no ge.

tual violence may occur in a particular case, such ag the

present one, is a fortuitous circumstance that hardly np

gates the proposition that contemptuous use of the flag in

public can be the occasion for violence and that the stat.

may proscribe conduct that potentially breeds disorder

without waiting until the violence erupts.

The governmental purposes envisioned by the statnte

are ‘‘unrelated to the suppression of free expression,”

Acts contemptuous of the flag are punishable regardleg

whether they are designed to express views, just as destruc.

tion of draft cards is punishable regardless whether the

destruction was ‘‘engaged in for the purpose of expressing

views.’’ United States v. O’Brien, supra, at 375. The in

stant statute is neutral as to political expression—a disap

pointed ‘‘hawk’’ expressing by similar uses of the flag his

contempt for American appeasement of ‘‘international com-

munism’’ would also be covered by the statute. The lawis

aimed not at ideas, but at conduct; when it is applied to

expressive conduct, it is applied not to ideas, but to the

method of expressing them. Thus, the criminal complaint

in this case, and the People’s evidence, made no mention of

expression or political views; only conduct was referred to,

The ‘‘expressive’’ qualities alleged were brought out by ap-

pellant as a matter of defense. Compare Street v. New York,

394 U.S. 576 (1969). And, while acts contemptuous of the

flag are justifiably prohibited, the citizen remains free ver-

bally ‘‘to express publicly [his] opinions about our flag [or

the draft], including those opinions which are defiant or

contemptuous.’’ Street v. New York, supra, at 593. Accord.

ingly, the statute is distinguishable from those statutes or

15

administrative regulations whose object was either to sup-

press communication [Stromberg v. California, 283 U.S.

359 (1931) (prohibiting people from expressing their oppo-

sition to government by the display of a red flag) ; Tinker v.

Des Moines, 393 U.S. 503 (1969) (prohibiting students from

expressing their opposition to the Vietnam war by the

wearing of black arm bands) ; Schacht v. United States, 398

US. 58 (1970) (prohibiting people from ‘‘speaking out

against the role of our Army and our country in Viet-

nam’’)] or to ‘‘compel’’ an individual ‘‘to utter what is not

in his mind.’”’ West Virginia v. Barnette, 319 U.S. 624, 634

(1943) (compulsory flag salute).

Further, that the statute prohibiting casting contempt

upon the flag is not unconstitutionally vague, and that the

exhibited works fall within the statutory proscriptions, can-

not be doubted. A criminal statute is not void for vague- .

ness if ‘‘men of common intelligence’’ are not ‘‘required

to guess at the meaning of the enactment.’’ Winters v.

New York, 333 U.S. 507, 515 (1948). Fair, reasonable

notice of the acts proscribed in terms readily understand-

able by men of average intelligence is required, not mathe-

matical precision. Thus, men of ordinary intelligence

would be able to understand what conduct ‘‘casts contempt’’

upon the American flag. This Court has often upheld lan-

guage no more precise. See, e.g., Beauharnais v. Illinois,

843 U.S. 250 (1950) (group libel by exposure to ‘‘contempt,

derision, or obloquy’’) ; Roth v. United States, 354 U.S. 476,

191-492 (1957) (‘‘obscene’’); Chaplinsky v. New Hamp-

shire, 315 U.S. 568 (1942) (concept of fighting words).

Another dispositive answer to appellant’s allegation of

ragueness is that it ‘‘is as clear as a pikestaff’’ that hang-

ing the American flag as a body and using it to fors

male sexual organ emerged from pubic hair (91a) a

contempt on the flag; therefore, appellagt may not

heard to complain that he was deprived of fair notice as

the meaning of the statute. Williams v. United States, 4

US. 97, 101, 104 (1951). Similarly, he may not comple

for the first time in this Court, that the statute might

applied to persons other than himself, whose conduct, ex

as unorthodox gestures toward the flag, may be consti

tionally protected. The validity of the application of |

statute to Radich does not depend upon validity of ‘apy

cation in every hypothetical situation that the mind ¢

- gonesive of, particularly since the New York appell

courts have not been called upon to determine whether |

statute applies in tho: > situations.

The knowing display of such objects nee. not be exeus

because the exhibitor's specific intent is other than o

temptuous. The statute is properly malum prohbibitam; |

defendant is held to the natural consequences of his delib

ate, knowing act of exhibiting items whose subject he +

aware of and which were found contemptuous of the &

In Smith v. California, 361 U.S. 147 (1959), upon which:

pellant relies, the state was prohibited from punishing

proprietor of s bookstore for exhibiting items whose «

ject matter be was unaware of. If the bookseller had &

aware of the contents of the items, bis subjective opiz

that they were not obscene would have been immaterial

Radich aleo alleges that the statute denies him og

protection, based on his erroneous reading of an except

contained in the statute for “ornamental pictures,” 1

17

newspapers and periodicals. Hadich argues that this pro-

vision denies equal protection to sculptors and exhibitors

of sculpture since it forbids him to use the flag contemptu-

ously on ornamental sculpture, while permitting contemptu-

ous use in other media. However, read in the context of the

entire statute, the major portion of which seeks to prohibit

the use of the flag in advertisements, it is quite clear that

the exception is intended to permit only non-contemptuous

ose of the flag for certain purposes, when such use is ‘‘dis-

connected and apart from any advertisement’ and legisla-

dive dictinetions between contemptucus end nan-contempte-

ous use of the flag do not result in a denial of equal protec

tion. See Halter v. Nebraska, supra. Bince Radich has been

convicted of using the flag contemptoously, the exemption

provision, properly construed, is not even here in issue.

POINT I

Conduct that publicly casts contempt upon the

American flag by physical use of the flag is not pro

tected by the First Amendment.

Appellant Stephen Radich was convicted of ‘‘acts’’ that

publicly ‘‘ cast contempt"’ upon the flag of the United States,

under « statute providing that no person shall “publicly

mutilate, deface, defile, or defy, trample upon, or cast con-

tempt upon’’ the American flag, ‘either by word or act.”

Former N.Y. Pewat Law $1425(16)(d), now N.Y. Geax.

Bos. Law §136(d). Although the criminal complaint filed

against appellant, in setting forth the statute as a matter

of form, included the term *‘word"’ as well as ‘‘act"’ (2a),

be was prosecuted and convicted not for words, but for

publicly displaying constructions that misused the flag con.

temptuously. No words were alleged in the complaint, the

charges being confined to his display of three-dimensional

objects (2a-3a), and words formed no part of the People’s

evidence, although the defense evidence included reference

to protest songs that were broadcast in the gallery during

the exhibition. The opinion of the trial court, reflecting its

findings of fact, limited culpability to the ‘‘constructions”

(27a). Violation of the statute was found in the presents

tion in the display window facing Madison Avenue of “as

American flag stuffed and shaped in a form suggesting s

human body hanging from a yellow noose around its neck”

(25a; Peo’s Exhs. 1, 2; 41a-42a; Def’s Exh. A; 4a).

Among the 12 other constructions, inside the gallery, the

trial court singled out the one displaying an American flag

in the form of an erect penis protruding from the vertical

standard of a cross (25a; Peo's Exhs. 3,4, 42a). The fied

ers of fact found ‘‘that these so-called ‘constructions’ con

stitute a contemptuous use of the flag of the United States

and that the defendant by exhibiting them to the public cast

contempt upon it in violation of paragraph (d) of the

statute’ (27a). The New York Court of Appeals upheld

this finding, stating:

‘Whether defendant thinks so or not, a reasonable

tion of the supposed expression of protest stands in no

better position’’ (15a).

In Street v. New York, 394 U.S. 576 (1969), this Court left

open the question whether the First Amendment permitted

s prosecution for such conduct, the Court merely declaring

that freedom of speech barred a conviction for casting con-

tempt upon the flag by “‘word.’’

Appellant's attack on the constitutionality of the ‘‘act’’

provision draws into question not only the New York stat-

ute, which originated in 1899, but laws in all of the other

states prohibiting desecration of the flag, and a recently

enacted law of Congress making it a crime to knowingly

“cast contempt’’ upon the United States flag by publicly

mutilating, defacing, burning, or trampling upon it. 18

USC. 4700 (Supp. IV 1968). The federal legislation spe-

cifically does not pre-empt state legislation in the field. 18

USC. §700(c). In 40 states, laws prohibit casting con-

tempt upon the American flag by act; and laws in three

other states, without using the word ‘‘contempt”’ or “‘con-

temptuous,’’ prohibit conduct dishonoring the flag. The

remaining seven states prohibit various specified physical

acts against the fag.* One purpose of these laws is to pre-

serve the integrity of the flag as a symbol of national unity

under the Constitation.** The second purpose is to prevent

a a 4 Vatranatso U. L. Rev.

362-

M67 (1970) ; Desecration of the Flag, Hearing om HH. 271 hijo

Sate te. 4 the House Come. on the Judiciary, 90th Cong.,

is Ses sr. 4, (1967).

Ch Laws of NLY. 106

Gen. 9051, 1O41 Rep. oh NY. Atty en. 465, 31 ¥

Dee Rep. 240 (1938) oa N.Y. fate Gen 0a 2 4, Sen ©.

New York, 4 US. 199) ; Joyce v. United States, 299 A2d

ped m4 2 199) : H ¥. gh my

19%)

);

wited States ¥. F 08 7 Sopp. 313i

see Halter v. Nebraska, 5.4K, 41

the potential of public disorder occasioned by public dis.

plays of contempt toward a widely revered national sym.

bol.*

Appellant’s primary contention is that his conviction

and the New York statute violate the First Amendment

guarantee of freedom of speech. In reviewing such posi.

tions, this Court has distinguished ‘‘conduct’”’ and “‘pure

speech’’; in this case we deal ‘‘not with free speech alone,”

but at most with ‘‘expression mixed with particular con.

duct.”” See Coz v. Lowisiana, 379 U.S. 559, 564 (1965).

Appellant’s unsupported assertion that this case involves

‘‘pure speech”’ entitled to ‘‘maximum constitutional pro

tection,’’ and is governed by Street v. New York, is with

out merit (Brief for Appellant, p. 13, n.6). Street deal

with the ‘‘words’’ portion of the statute. And as thi

Court said in United States v. O’Brien, 391 U.S. 367, 37

(1968), ‘‘We cannot accept the view that an apparent;

limitless variety of conduct can be labeled ‘speech,’ ”’ ever

when ‘‘the person engaging in the conduct intends thereby

to express an idea.’”’ Appellant’s displaying of actual flag

in the form of a male sexual organ and a dead body hang

ing by the neck was not ‘‘speech.’’ Whatever communica

tive elements it may have had, the non-verbal element

were substantial, indeed overpowering—physical alters

tion, and the display of altered flags, propped with pulleys

ropes, and hung in a window and upon the floor. Thes

displays, like the displays of armbands in Tinker v. De

Moines School District, 393 U.S. 503 (1969), were at mos

“symbolic acts.’’ Id. at 505.

* 9a-lla; People v. Street, 20 N.Y24 231 (1967), —_ b

Rar Ad ism): P 4 sapped 274 Cal 174, 78

pr 83 (Cal Soper 90), fs Gente diomissed, 396 US. ai 1900}

Reasonable regulation of symbolic acts or symbolic con-

duct is permissible under the First Amendment, ‘‘even

though intertwined with expression.’’ Coz v. Lowisiana,

supra at 563. A recent formulation of this principle ap-

peared in United States v. O’Brien, supra:

“This Court has held that when ‘speech’ and ‘non-

speech’ elements are combined in the same course of

conduct, a sufficiently important governmental interest

in regulating the nonspeech element can justify inci-

dental limitations on First Amendment freedoms * * °

[A] government regulation is sufficiently justified if it

is within the constitutional power of the government;

if it furthers an important or substantial governmental

interest; if the governmental interest is unrelated to

the suppression of free expression; and if the inci-

dental restriction on alleged First Amendment freedom

is no greater than is essential to the furtherance of

that interest.’’

Id. at 376-377; see also Street v. New York, 394 U.S. 576,

594-617 (1969) (dissenting opinions) ; Tinker v. Des Moines

School District, supra; Adderly v. Florida, 385 US. 39

(1966); Cox v. Louisiana, supra; Kovacs v. Cooper, 336

US. 77 (1949). This case, we shall show, involves minimal

expression, important public interests, and minimal, polit-

ically neutral limitations on expression, permitting reason-

ably adequate alternative means of communication.

The absence of an appreciable ‘‘expression”’ affected by

the conviction of appellant is demonstrated by his candid

concession at the trial that his interest in displaying the

constructions was commercial, not political. Although ap-

pellant never claimed that he wished to convey political or

social ideas or assist the artist, Mare Morrel, in that pur-

pose, his brief in this Court is written as if he were the

artist. At trial he merely testified to his opinions about

the artist’s intention to express certain protests (82a, 9la-

93a), but when asked by the court his purpose in displaying

the constructions, he stated, ‘‘I displayed them because

they were works of art and because [like] all other works

of art in the gallery they were for sale’’ (94a-95a; see

also 80a, 83a). The existence of a commercial rather than

a political or social motive is relevant in assessing the

validity of the application of a law to communications.

Valentine v. Chrestenson, 316 U.S. 52 (1942) (commercial

handbills distributed in the street; political text added

as an evasion); Breard v. Alexandria, 341 U.S. 622,

641-645 (1951) (prohibition of door-to-door soliciting

validly applied to salesmen of magazine subscriptions).

Although a commercial intent is not always material when

pure speech or freedom of the press is involved [see Time,

Inc. v. Hill, 385 U.S. 374 (1967) ; Bantam Books v. Sullivan,

372 US. 58, 64 n.6 (1963) ], this case involves symbolic acts

at most, not pure speech, and the actor’s lack of an ex-

pressive purpose may be considered in assessing the ex-

pressiveness of his conduct and his claim to First Amend-

ment protection.

Nor do the constructions, by themselves, convey a de

terminable thought or idea. Like the flag shirt in People

v. Cowgill, 274 Cal. App. 174, 78 Cal. Reptr. 853 (Cal. Super.

1969), they display no ‘‘recognizable communicative as-

pect’’ of substance. See Cowgill v. California, 396 US. 371

(1970) (concurring opinion). Although this Court has not

announced a test of the sufficiency of the communicative or

expressive aspect of a course of conduct that would war-

rant application of the First Amendment, the Court has re-

ected a subjective test, based on the intent of the actor.

Jnited States v. O’Brien, supra at 376. We suggest an

bjective test: conduct has no sufficient communicative as-

ct warranting application of the First Amendment unless

, reasonable man, reasonably well-informed, would under-

tand its meaning—its alleged ‘‘speech’’ element—in the

ontext in which it occurs. Thus, burning of a draft

ard publicly would bring into play the First Amendment

cf. United States v. O’Brien, supra at 376); similarly,

first Amendment principles did apply to the black arm-

ands worn by the students in Tinker, since a reasonably

yell-informed member of the school community would

ave understood this as a gesture of protest against

he Vietnam war. But in the present case even an un-

ually well-informed man, appellant’s expert witness—

he art news editor of the New York Times, formerly the

rt critic for the New Leader, a magazine of political and

ocial commentary (98a)—saw no discernible political or

ocial comment in the constructions (105a, 108a, 109a, 110a).

While he concluded that the artist ‘‘probably intended to

onvey a political message,’’ he was assisted in this infer-

mee by the anti-war songs playing on the sound track

109a). As to the construction hung in the display window

-facing passers-by who were unaided by the sound track—

he art critic ‘‘didn’t take the work of art to be one that

ommunicated a message exactly’’ (108a).

While the expression affected in this case was ‘‘min-

mal’’ (cf. 108a), the governmental interests served by the

lew York statute are important. Laws prohibiting public

ontemptuous treatment of the flag of the United States

fotect the integrity of the flag as a national symbol, ‘the

mblem of our unity, our power, our thought and purpose

24

as a nation.’’* Perhaps this was the ‘‘major motivating

factor’’ that the New York Court of Appeals alluded to ip

its opinion in this case (9a). As Mr. Justice Forras gaid

in Street v. New York, 394 U.S. 576 (1969), ‘‘the flag is a

special kind of personalty.’’

‘*Its use is traditionally and universally subject to spe-

cial rules and regulations. As early as 1907, this Court

affirmed the constitutionality of a state statute making

it a crime to use a representation of the United States

flag for purposes of advertising. Halter v. Nebraska,

205 U.S. 34 (1907). Statutes prescribe how the flag

may be displayed; how it may lawfully be disposed of;

when, how and for what purposes it may and may not

be used. See, ¢.g., 4 U.S.C. §3; 56 Stat. 377, c. 435, 3%

U.S.C. §§172-177. A person may ‘own’ a flag, but own-

ership 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,”

Id. at 616-617 (dissenting opinion).

Just as the grounds of a jail or the area near a courthouse

may be declared off limits for protest [Adderly v. Florida,

385 U.S. 39, 47-48 (1966); Cox v. Louisiana, 379 U.S. 559

(1965) ], so may the national flag; it has been ‘‘dedicated

to other purposes’’ by the people. Cf. Brown v. Louisiana,

383 U.S. 131, 166 (1966) (Brack, J., dissenting). It is the

national trademark, not a private brand [cf. Halter v.

* Woodrow Wilson, Flag Day address, June 14, 1917, quoted in

Alre, THe Frac or tHe Unitep States 193 (1942); see also

alter v. Nebraska, 205 U.S. 4" 41-43 (1907) ; Lafayette, letter to

John Adams (1786), quoted in 2 Preste, Oricin Awp History oF

THE AMERICAN FLAG, ay (1917); 4 Apranam Lincoxn, a

Lectep Works 192, 21 fame, Henry Wt 1953) ; Francis Scott

Ward Beecher, address (1861),

collected in Our Fic

+» Remarks, 178 Mass. @

Nebraska, supra at 39; 15 U.S.C. §1052(b)], and the public

may restrict its use as a medium of commercial advertising

or a physical target of disgrace or shame. It is national,

and belongs to all the public.* Protection of this interest

*In an editorial on the most recent Flag Day, the New York

Times stated :

“Thirty years ago today the conquering armies of the most

powerful snltitory ictatorship the world had ever known were

sweeping through Western Europe under the hooked cross and

blood-red banner of Nazi Germany. The flags of Norway, Den-

mark and the low countries had already been struck. On this

very day in 1940 the swastika was for the first time unfurled

atop the Eiffel Tower. The Battle of Britain was about to begin.

“The American peo ot were watching apprehensively, with

every passing day of Nazi triumph, increasingly conscious of

what our own democracy and our own flag meant to us. It was

in this spirit and this atmosphere that Robert L. Duffus y heed

editorial board of The New York Times wrote the small classic

~ gga below, which first appeared on this page on Flag Day,

1940.

7 * ”

dreadful winter. It is the Minuteman pr his nfpneol- at

on ae sas. Vou en It is the Army in rags, sick,

freezing, starvi alley Forge. It is the and the

men on foot jo. Be westward over Cumberland , floating

Olous Oe ee ee, SS Oe Pe ee ee ‘It is the

settler pyr inet tor} 1 forest on his new, his own

lands. It is eau at Walden Pond, Lincoln at Cooper Union,

and Lee riding home from Appomattox. It is

disgrace, answered always fon 3 who would not let hy lie

in the dust, who have every generation to fight for

the old ideals and the old rights, "al ik a on at

auieas Saeed ae ae ilgrimage, common

filled with such a ho charged wi inc

filled with as never caught the imaginations and the

hope of justice. The hope of a land in whi

straight, without fear, without rancor.

“*The land and the people and the flag—the land a con-

tinent, the people of every race, the flag a symbol of what hu-

pray ea Ay nck pelligqeen) sengednrend wipe Baht yon gona

are down; to i

26

is not limited to Congress, but may be offered by the states,

which are ‘‘indissolubly connected’’ with the Union. Halter

v. Nebraska, 205 U.S. 34, 43 (1907). Thus, in Street v. New

York, four members of this Court indicated that ‘‘the

States and the Federal Government do have the power to

protect the flag from acts of desecration and disgrace.”

See 394 U.S. at 605 (Wannzen, C.J., dissenting).

Such protection is not, as appellant contends, ‘‘compel-

ling veneration’’ of the flag (Brief for Appellant, p. 14),

any more oa lowe prohibiting mutilation of draft cards,

coins or paper currency [see 18 U.S.C. §§331, 333] compel

‘*veneration’’ of those objects. This case is distinguish-

able from West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943), which held that a state may not com-

pel a salute to the flag. Barnette involved ‘‘compulsion of

students to declare a belief’’ [id. at 633]; the flag desecra-

tion law at issue leaves appellant free to refrain from con-

duct and affirmation of belief, and allows him to speak

secrated anew, to defend with life itself, if need be, but, above

all, in friendliness, in hope, in courage, to live for.’

* * *

“This was the meaning of the flag thirty years ago; this is

the meaning of the flag today. But it is a measure of the bitter

divisions of the era in which we le that the symbolism of that

flag should have become distorted and degraded by the partisan

extremists of both New Left and Old Right. The flag must not

be captured either by the repressive legions of the right who

employ it daily to prove they are for Agnew against the stu-

dents; nor must its meaning be destroyed by the frustrated

demagogues of the left who find a cheap and easy outlet by re-

viling it and dragging it in the dust. The flag is a symbol of the

unity of America. We mst not allow it to be perverted by the

forces of disunity, whether the Birchers or Weathermen, that

today are abroad in this land.” N.Y. Times, June 14, 1970, p.

16, col. 1 (Emphasis in original).

27

ntemptuously of the flag. He merely must abstain from

blicly desecrating it.

The governmental interest in preserving the integrity of

is emblem is particularly strong where, as in this case, the

sgraced flag is thrust upon a captive audience. This Court

s rejected ‘‘the assumption that people who want to

opagandize protests or views have a constitutional right

do so whenever and however and wherever they please.’’

dderly v. Florida, 385 U.S. 39, 47-48 (1966). For more

an three weeks (78a), Radich displayed the flag as a

daver hung by the neck, in the. window of his gallery

cing a busy city street, in a manner designed to draw the

tention of passing pedestrians, motorists and bus pas-

ngers (Peo’s Exhs. 1, 2, Def’s Exh. A). The effigy was

ridently calculated to shock the viewer; surely it was of-

nsive to many passers-by. Appellant’s alleged right to

resent an artist’s symbolic protest conflicted with the

ghts of others, adults and children, to use the street un-

stracted by an eye-catching, unavoidable image, larger

an life, of the respected symbol of America hanging like

corpse.

As the Court of Appeals suggested, the range of this

rightly colored display on the second floor of the building

as greater than that of a sidewalk speaker (9a-10a), whose

arangue can be avoided by crossing the street or walking

1a wide arc around the soapbox. To respecters of the flag,

r citizens for whom it had special significance, perhaps

ecause of the loss of a relative in the Armed Forces, or

fan honored national leader, the harm was instantaneous,

iflicted as soon as the effigy was seen. Regulation of such

isplays does not infringe freedom of speech. As has been

tid in a similar context:

28

‘Where a shock effect is produced by forcing an

‘obscene’ communication upon a person contrary to his

wishes, the issue is somewhat similar to that involved

in private defamation. The harm is direct, immediate

and not controllable by regulating subsequent action,

The conduct can realistically be considered an ‘assault’

on the other person, and hence placed within the cate-

gory of ‘action.’ Issues of this sort arise, of course,

only in limited situations such as where the communi-

cation is displayed publicly on a billboard, or sent into

a private home through the mail. Regulations can be

devised to deal with this matter that do not create

serious administrative problems. Under the circum.

stances, restriction of communications of this nature

would not be inconsistent with the first amendment.”

Emerson, Toward a General Theory of the First

Amendment, 72 Yaue L.J. 877, 938-939 (1963).

This sound»rationale was applied in Close v. Lederle,

424 F.2d 988 (1st Cir. 1970), cert. denied, —— U.S. —,

No. 332, Oct. Term 1970, to uphold the removal of an art

instructor’s paintings from the walls of a corridor of a uni-

versity building, although the art was not legally obscene,

It depicted male or female nudes displaying the genitalia in

clinical detail, and bore cheap titles. ‘‘ Where there was, in

effect, a captive audience,’’ including children who regn-

larly used the corridor, the school authorities ‘‘had a

right to afford protection against ‘assault upon individual

privacy,’ see Redrup v. New York, 1967, 386 U.S. 767, 769

***9* Tn People v. Stover, 12 N.Y.2d 462 (1963), appeal

dismissed, 375 U.S. 42 (1963), this Court found no substan-

* In Redrup the Court spoke of “an assault upon individual privacy

by publication in a manner so obtrusive as to make it impossible for

an unwilling individual to avoid exposure to it. Cf. Breard v. Alex-

andria, 341 U.S. 622; Public Utilities Commission v. Pollak, 343 US.

451,”

29

tial federal question raised by the application of an ordi-

nance, prohibiting the maintenance of a clothesline in a yard

abutting a street, to appellants’ clothesline filled with old

clothes and rags, which they displayed as a peaceful protest

against the high taxes imposed by the town. Judge Futp

had noted that the ordinance, apparently passed in re-

sponse to appellants’ flamboyant protest, was validly ‘‘de-

signed to proscribe conduct which offends the sensibilities.’’

12 NY2d at 470. The rule that ‘‘the public expression of

ideas may not be prohibited merely because the ideas are

themselves offensive to some of their hearers’’ [see Bachel-

lar v. Maryland, 397 U.S. 564, 567 (1970)] has no applica-

tion to such a case, or to Radich’s. Here, as in Stover,

“any shock effect caused’’ was attributable not to ‘‘the

content of the ideas being expressed’’ [ibid.]|—it is doubt-

ful that any ‘‘ideas’’ were conveyed to the average passer-

by—but to the method of expressing them. Similarly, in

the interest of protecting individual privacy from verbal

assaults, Kovacs v. Cooper, 336 U.S. 77, 81, 86-89 (1949)

upheld a prohibition against loudspeakers emitting ‘‘loud

and raucous noises,’’ even as applied to political messages.

This approach does not impair freedom of expression. Ap-

pellant ‘‘may express his opinions,’’ or Mare Morrel’s,

“on controversial subjects like the conflict in Vietnam, if

he does so * * * without colliding with the rights of others.’’

See Tinker v. Des Moines School District, 393 U.S. 503, 513

(1969) ; see also West Virginia Board of Education v. Bar-

nette, 319 U.S. 624, 630 (1943).

Thus, the application of the statute to the display

in the show window is clearly consistent with the

First Amendment. Nor is appellant’s conviction vitiated

because the statute does not expressly limit its coverage to

contemptuous conduct before a captive audience. First, as

is discussed throughout this brief, the legislation may val-

idly be applied to public contempt even before a voluntary

audience.

Even if the First Amendme. were deemed to preclude

the application of the statute to conduct before a voluntary

audience, the conviction still would survive. The findings of

the trial court and of the Court of Appeals show that the

effigy in the window was a separate basis of the conviction

(9a, 15a, 25a, 27a); in Street v. New York, by contrast, the

generality of the complaint, of the People’s evidence, and of

the verdict led this Court to conclude that the verdict might

have been based upon *onstitutionally protected behavior,

the defendant’s words. Moreover, the statute did not have

to specify the theory of unwilling audience. The trespass

statute in Adderly v. Florida, 385 U.S. 39 (1966), was

validly applied to non-violent protests on jail grounds,

even though it was not limited in terms to such property.

See also United States v. Petrillo, 332 U.S. 1, 212 (1947).

In many situations where the First Amendment is appli-

cable, the statute may be validly applied if certain facts

obtain, even though the statute does not specify these con-

stitutional conditions for prosecution. See Ginzburg v.

United States, 383 U.S. 463 (1966) (evidence of pandering

in obscenity prosecution); Dennis v. United States, 341

U.S. 494, 513-515 (1951) (in prosecution for conspiracy to

advocate violent overthrow, clear and present danger test

is not an element of the crime, but a ‘judicial measure of

constitutional applicability,’’ which the trial court alone

may rule on).

31

Not only is there an important public interest in pre-

serving the flag as a national symbol, free from public dis-

grace, but this interest is ‘unrelated to the suppression of

free expression,’’ and ‘‘the incidental restriction on alleged

First Amendment freedom is no greater than is essential

to the furtherance of that interest.’’ See United States v.

O’Brien, 391 U.S. 367, 377 (1968). While the flag is to be

preserved, and is off limits fer disgracing acts, no topic is

proscribed ; the regulation is unrelated to ‘‘the prohibition

of expression of one particular opinion.’’ Compare Tinker

v. Des Moines School District, supra at 511. Although

appellant’s argument associates contemptuous misuse of

the flag specifically with the expression of sentiment against

the Vietnam war, the statute by its terms conveys no such

meaning. It is an accident of history that in some quarters

the flag currently brings to mind a hawkish position on a

war, or right-wing politics. But the statute was enacted

long before these controversies arose. It is neutral on po-

litical matters, like the flag. A disappointed hawk, express-

ing by a lynched flag, or a drooping flag-penis, his protest

against American troop withdrawals, bombing halts, cease-

fires or truces (all of which occurred or were contemplated

in the fall of 1966, shortly before appellant’s exhibition),*

would also be violating the statute.

Pure free-floating ‘‘contempt,’’ the subject of the statute,

is ‘‘expression’’ in a broad sense, but not in the sense con-

templated by the First Amendment; notwithstanding its

recurrent use as a medium of political expression, ‘‘there

is nothing necessarily expressive about such conduct.’’ See

* N.Y. Times, Oct. 1, 1966, p. 1, col. 2, Oct. 23, p. 1, col. 1, Oct.

i 1, col. 1, Nov. 24, p. 1, col. 1, Nov. 27, p. 1, col. 8, Dec. 14, p. 1,

32

United States v. O’Brien, supra at 376. Indeed, knowingly

destroying or mutilating a draft card shows contempt for

the draft system, but the statute prohibiting such willful

conduct is unrelated to the suppression of ‘‘expression”

in terms of the First Amendment. Ibid. Similarly, public

desecration of the flag, unless explained, conveys no par-

ticular meaning. If it is explained as a protest, the viola-

tion of the flag is merely incidental to the thought conveyed,

and is simply an act dramatizing it. But the statute applies

to the ‘‘act,’’ not the explanation. Thus, hanging a flag

covered with paint out of a window facing a public street,

as occurred in People v. Verch, 63 Mise.2d 477 (Ct. Spee.

Sess. 1970), may cast contempt on it, but no communicative

aspect inheres in the act alone. Prosecutions under the

flag desecration law would properly be aimed at the non-

expressive, physical elements of this conduct.

In Stromberg v. California, 283 U.S. 359 (1931), on the

other hand, the statute prohibited the display of a red flag

for the purpose of expressing opposition to organized gov-

ernments; whatever governmental interest was furthered

by this law, it was directly related by the statutory terms to

the suppression of free expression. The same is true of

Schacht v. United States, 398 U.S. 58 (1970). The statute

there permitted use of an American military uniform only in

a theatrical performance, ‘‘if the portrayal does not tend to

discredit’’ the Armed Service. The supposed governmen-

tal interest furthered by this law inherently involved the

suppression of pure speech; Congress ‘‘in effect made it

a crime for an actor wearing a military uniform to say

things during his performance critical of the conduct or

policies of the Armed Forces.’’ Id. at 62-63. Moreover,

33

there is no valid governmental interest in protecting the

military services from discredit.

The second governmental interest served by the statute

—the purpose discussed by the New York Court of Appeals

(9a)—is the prevention of breaches of the peace.

‘*(I]t is within the realm of legislative judgment to find

that some types of public flag desecration will be as

provocative to many viewers as the kind of personal

insult which is often followed by violence. That the

state has a substantial interest in preventing a result-

ing breach of the peace and that the police power is the

proper foundation for legislation directly toward that

end is well settled doctrine.’’ Crosson v. Silver, ——

F.Supp. ——, No. Civil 70-79 Tucson (D.Ariz. 3,

1970).

And as Chief Judge Fup stated in Street, ‘‘Violation of

the statute may not be condoned * * * because no violence

actually did occur.’’ 20 N.Y.2d at 237. Comparing the

present case to Street, the Court of Appeals found:

‘*Here, the expression, if less dramatic, was given far

wider public circulation and, in consequence, perhaps,

a measurable enhancement of the likelihood of incite-

ment to disorder, by the placement of one of the con-

structions in a display window of defendant’s gallery

on Madison Avenue in the City of New York, and the

exhibition and exposure for sale of the companion

pieces in the public gallery and mercantile establish-

ment within. Implicit in the invitation to view was

the opportunity ther~by afforded to join in the protest,

or in counter-protest, with the consequent potential of

public disorder; or so the trier of facts could properly

find’’ (9a-10a).

The triers of the facts did find evidence of a threat to

public order:

oF

‘‘In Halter v. Nebraska, 205 U.S. 34, 41, the Supreme

Court, in upholding a statute similar to that involved

here as applied to the use of the flag in advertising

said:

‘From the earliest period in the history of the

human race, banners, standards and ensigns have

been adopted as symbols of the power and history

of the peoples who bore them. * * * Hence, it has

often occurred that insults to a flag have been the

cause of war, and indignities put upon it, in the

presence of those who revere it, have often been

resented and sometimes punished on the-spot.’

It seems to us that the prohibited use of the flag in

advertising is less a desecration and therefore less of

a threat to public order than the use and exhibition of

it in the so-called ‘constructions’ here involved’’ (29a).

Appellant contends that the state courts have ruled in

effect that casting contempt on the flag in public ‘‘creates

an irrebuttable presumption that a breach of the peace will

follow’’ (Brief for Appellant, p. 16). In so urging, appel-

lant ignores the other governmental interest protected by

the statute, preservation of the flag as a national symbol.

Moreover, the contention is unsound even as to the interest

of preventing a breach of the peace. As to this, the statute

at most reflects a reasonable presumption that a breach

of the peace is likely to follow acts that cast contempt on

the flag in public. The reasonableness of this expectation

is reflected in the enactment of similar laws throughout the

country, and it was expressed by this Court in Halter v.

Nebraska. See also People v. Cowgill, 274 Cal. App. 174,

78 Cal. Rptr. 853 (Cal. Super. 1969), appeal dismissed, 396

US. 371 (1970). Street v. New York is not to the contrary,

since the opinion in that case dealt with culpability for

ghd ia LEBEL ILO IIE LTE LED LEIP L ORES TT AE . re) a: ~

35

words, not merely physical desecration of the flag in public.

No doubt, many New Yorkers could resist even ‘‘fighting

words’”’ [cf. Chaplinsky v. New Hampshire, 315 U.S. 568

(1942)], just as they resisted appellant’s display. But the

expectation of danger from his indiscriminate display on

Madison Avenue to a large, undifferentiated, audience for

three continuous weeks is reasonable. Indeed, disturbances

in the Wall Street and City Hall areas of Manhattan this

spring, associated with allegations of mistreatment of the

flag, illustrate the provocative quality of such conduct.*

Except for showing that no breach of the peace actually

occurred, appellant made no offer to rebut the reasonable-

ness of this expectation. In Coz v. Louisiana, 379 U.S. 559

(1965), this Court, in holding that the First Amendment

did not protect orderly picketing near a courthouse with

intent to impede the administration of justice, upheld ‘‘a

legislative determination based on experience that such con-

duct inherently threatens the judicial process’ [id. at 566],

even though no evidence of a breach of the peace or a threat

to the judicial process was introduced at the trial.

Appellant argues that acceptance of the breach-of-the-

peace interest justifies a ‘‘heckler’s veto,’’ but he misses

the point. The interest is to prevent disorderly reaction

not to ideas or views expressed, but to physical acts them-

selves, regardless of the views of the actor; that these

contemptuous uses of the flag may have communicative

aspects is no bar to legislation directed at the acts. The

“state interest in preventing breaches of the peace is, in

the flag desecration context, unrelated to the suppression

* Cf. “Indict Wall St. Hardhat,” N.Y. Post, May 22, 1970, p. 1,

col. 3; N.Y. Daily News, May 9, 1970 (centerfold); N.Y. Times,

May 12, 1970, p. 18, col. 2.

of free expression. The interest is affected, not by the

speech element of the conduct,’’ but by the emotional im.

pact of the ‘‘non speech élement.’’ Crosson v. Siler, —— ~

F.Supp. ——, No. Civil 70-79 Tucson (D.Ariz. Nov. 13,

1970). Moreover, the incidental restriction on the alleged

communicative value of the act is no greater than essential

to further that interest, in view of the reasonable legislative

determination that such conduct inherently risks disorder.

Therefore, the holding in Crosson v. Silver, supra, that the

Uniform Law against flag desecration, which has been en-

acted in New York and 28 other states [note, Flag and the

Law, 4 Vauraraiso L. Rev. 345, 361-367 (1970)], is uncon-

stitutional because not expressly limited to desecrations

that tend to cause breaches of the peace, is incorrect; in-

deed, the logical outcome of this holding is that all state

and federal laws against publicly mutilating or trampling

upon the flag are void. Such cavalier rejection of the pub-

lic interest is unjustified.

Disturbing physical acts such as these, and the displays

in the case at bar, are closely akin to the ‘‘insulting or

‘fighting’ words’’ [Chaplinsky v. New Hampshire, 315 US.

568 (1942)], ‘‘those which by their very utterance inflict

injury or tend to incite an immediate breach of the peace.”

Such utterances ‘‘are no essential part of any exposition

of ideas, and are of such slight social value as a step to

truth that any benefit that may be derived from them is

clearly outweighed by the social interest in order and

morality. ‘Resort to epithets or personal abuse is not in

any proper sense communication of information or opinion

safeguarded by the Constitution * * *’’’ Id. at 571-572.

A flag-corpse and a flag-phallus publicly flaunted are ‘‘epi-

37

thets,’’ not in any proper sense ‘‘communication of infor-

mation or opinion safeguarded by the Constitution.’’ Un-

like speech, they do not appeal ‘‘to good sense and to ‘the

power of reason, as applied through public discussion.’ ’’

See Garner v. Louisiana, 368 U.S. 157, 201 (1961) (Hantan,

J. concurring). They ‘‘inflict injury’’ without peaceful re-

course.

Contrary to the implications of the briefs filed by appel-

lant and amici curiae, artists have no favored position

under the First Amendment. The framers of the First

Amendment, men of extraordinary learning and culture,

wrote not of art but of speech. That the statute has been

applied to works of art in this case is relevant only in deter-

mining whether the contemptuous acts in question had com-

municative elements that bring the First Amendment into

play. Under narrow circumstances, art may be limited by

government, incidental to the protection of interests un-

related to the suppression of expression. Thus, it does not

further the discussion to complain, as amici have, that ‘‘If

the conviction below is upheld by this Court, the traditional

practice of artists expressing themselves on controversial

subjects through materials and symbols appropriate to the

subject, will be limited’’ (Brief of Amici Curiae, p. 8). An

artist may not, to protest war, make a collage of mutilated

draft cards, or, in the manner of Gulley Jimson, use the

base of the Washington Monument for a mural,* however

“appropriate’’ these materials would be to the subject.

Nor may they publicly desecrate the American flag, al-

though they may use it otherwise (see Brief of Amici

Curiae at Appendix). Such limitations, however, are mini-

* Cf. Jovce Cary, Tue Horse’s Moura.

mal. Creative artists have other means to express protest,

means that do not conflict with the rights of others to free

enjoyment of the national symbol in an orderly atmosphere,

POINT II

The flag statute is not void for vagueness or over-

breadth.

Appellant, convicted under a statute that makes it a

crime to ‘‘publicly * * * cast contempt upon’’ the American

flag by an ‘‘act,’’ attacks the phrase ‘‘cast contempt’’ as

unconstitutionally vague from two standpoints; first, that

it does not give fair notice of the conduct condemned, and

second, that it encompasses acts that are protected by the

First Amendment and is thus impermissibly overbroad.

A criminal statute is not void for lack of an ascertain-

able standard of guilt if ‘‘men of common intelligence’’ are

not ‘‘required to guess at the meaning of the enactment.”

Winters v. New York, 333 U.S. 507, 515 (1948) ; Connally v.

General Construction Co., 269 U.S. 385, 391 (1926). Fair,

reasonable notice of the forbidden acts in terms that per-

mit a man of average intelligence to ‘‘reasonably under-

stand that his contemplated conduct is proscribed’’ is all

that is required. United States v. National Dairy Corp.,

372 U.S. 29, 32-3 (1963); Roth v. United States, 354 US.

476, 491-2 (1957). ‘‘That there may be marginal cases in

which it is difficult to determine the side of the line on

which a particular fact situation falls is no sufficient reason

to hold the language too ambiguous to define a criminal

offense.’’ Roth v. United States, supra; United States v.

National Dairy Corp., supra; United States v. Harriss, 347

39

U.S. 612, 618 (1954). For, ‘‘whenever the law draws a line

there will be cases very near each other on opposite sides.

The precise course of the line may be uncertain, but no one

can come near it without knowing that he does so, if he

thinks, and if he does so it is familiar to the criminal law

to make him take the risk.’’ United States v. Wurzbach,

280 U.S. 396, 399 (1930); Nash v. United States, 229 U.S.

373, 377 (1913).

In the instant case, due regard for the intelligence of a

reasonable man requires accepting his ability to discern

acts contemptuous of a person or thing. Simply under-

stood, an act will ‘‘cast contempt’’ upon the flag when it

is apparent to a reasonable man under the circumstances

surrounding the commission of the act—for example, muti-

lation—that the flag is the object of scorn, shame, dishonor,

or disgrace, or presented as low, vile, or worthless. See,

Wesster’s Txirp New International Dictionary, Un-

abridged (1969); THe Ranpom House Dictionary or THE

EncuisH Laneuace, College Edition (1968) ; Taz American

Herirace Dictionary oF THE EncuisH Lancuace (1969).

Appellant’s argument that the term is ambiguous be-

cause persons who hold political beliefs allegedly repre-

sented by the flag mutilations in question would find them

not contemptuous, completely misses its mark.» Contemp-

tuousness can hardly be judged by the persons who

espouse the particular use that is the subject lof such a

determination. Contemptuousness is here judged by the

eye of a reasonable man, regardless of political beliefs.

That different juries may reach opposite conclusions as to

the same act does not make the statute imprecise; ‘‘it is

40

common experience that different juries may reach different .

results under any criminal statute.’’ Roth v. United States,

supra, 354 U.S. 476, 492 n. (1957). Although the reason.

able man must exercise his judgment on the factual ques.

tion of contempt, that does not of itself create ambiguity;

a determination of contemptuousness is no greater a

challenge than, for example, a determination of conduct as

reasonable or unreasonable. See, United States v. Ragen,

314 U.S. 513, 523 (1942); Adderly v. Florida, 385 U.S. 39,

42-3 (1966); United States v. National Dairy Corp., 372

U.S. 29, 32-3 (1963) ; Cameron v. Johnson, 390 U.S. 611, 616

(1968). Realistically, a residuum of doubt unavoidably

shrouds borderline conduct. See, Ginzburg v. United States,

383 U.S. 463, 475 n. 19 (1966). But reasonable men through-

out their lives encounter, experience, and are capable of

judging conduct contemptuous of themselves, others, and

things. And, while one may choose to applaud flag mutila-

tions, if one is sympathetic with contemptuous acts against

the flag, one could hardly doubt their contemptuousness

where the flag is hung in effigy and represented as a phal-

lus. Men of all political persuasions may agree that cer-

tain uses of the flag are objectively contemptuous.

In Beauharnais v. Illinois, 343 U.S. 250 (1952) this

Court sustained against a challenge for vagueness a crim-

inal group libel statute which as an element of the crime

required that the publication or exhibition in question ex-

pose ‘‘the citizens of any race, color, creed or religion to

contempt, derision, or obloquy.’’ Comparable examples

of statutory language which this Court has found to give

sufficient notice of the act proscribed are many indeed.

(

(

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41

meron v. Johnson, supra, 390 U.S. 611, 616 (1968)

o»bstruct’’ and ‘‘unreasonably interfere’’); Adderly v.

rida, supra, 385 U.S. 39, 42-3 (1966) (‘‘with a malicious

| mischievous intent’’) ; United States v. National Dairy

rp., supra, 372 U.S. 29, 32-3 (1963) (‘‘unreasonably low

ces for the purpose of destroying competition or elimini-

ing a competitor’’); Roth v. United States, supra, 354

3. 476, 491-2 (1957) (‘‘obscene’’); Williams v. United

tes, 341 U.S. 97 (1951) (‘‘rights, privileges, or immuni-

secured or protected by the Constitution’’ and ‘‘under

yr’? of law); Jordan v. De George, 341 U.S. 223, 230-2

51) (‘‘crime involving moral turpitude’’) ; United States

etrillo, 332 U.S. 1, 6-8 (1947) (to coerce a license to hire

jloyees ‘‘in excess of the number of employees needed by

h licensee to perform actual services’’) ; Chaplinsky v.

v Hampshire, 315 U.S. 568 (1942) (‘‘any offensive, de-

ve or annoying word’’); additional examples are cited

fordan v. De George, supra at 231 n.15. Thus, given the

voidable imprecision of language and the need for legis-

res to draw statutes that are not so unduly narrow as to

w easy opportunities ‘‘to nullify the purposes of the leg-

tion’? [Winters v. New York, supra, 333 U.S. 507, 524-5

8) (dissenting opinion)], this Court has clearly ex-

ssed a reluctance to void statutes that draw a line that,

ere, can fairly be recognized as it is approached. Appel-

’s heavy reliance upon Joseph Burstyn Inc. v. Wilson,

U.S. 495 (1952) is misplaced. Burstyn involved a

ute that pérmitted the banning of a motion picture

nd ‘‘sacrilegious’’ of ‘‘religion.’’ The holding of the

rt was that the term ‘‘sacrilegious’’ permitted the

e to effect a prior restraint on the expression of views

42

distasteful to any or all religions, and that from the stand.

point of freedom of speech the state had ‘‘no legitimate

interest’? in so protecting religions. Jd. at 505. The

vagueness that inhered in the term sacrilegious stemmed

from its application to a historically ambiguous object:

religion. ‘‘What might have been definite when a con.

trolling church imposed a detailed scheme of observances

becomes impossibly confused and uncertain when hundreds

of sects, with widely disparate and often directly conflicting

ideas of sacredness, enjoy, without discrimination and in

equal measure, constitutionally guaranteed religious free-

dom.”’ Id. at 528 (coneurring opinion). The object to

which the act of contemptuousness is directed in the instant

case is the American flag, not the varying political beliefs

of Americans.*

* The disposit of the ed footnote

(Bret of nt, p. 25) 45.6) on tos - agai

defendant in People v. Pr is was dis-

er. on > Deaeier B 1970 in the Town Justice Town of

Claverack, Columbia County, New York.

The case against the defendant in People v. Hubner was dismissed

on March 17, 1970 in the District Court, Nassau County, New York.

See, N.Y.LJ., March 18, 1970, p. 1, col. 3. While the Districa

Attorney filed a netice of appeal in the Hubner case, on August Il,

1970 he withdrew the appeal.

In Long Island Vietnam Moratorium Comm. v. Cahn, —— F2A4

—— (2d Cir., Slip Opn. 328, Dec. 1970), the defendants were

with a violation of sulxlivision “a” of the statute—a provision

not in question. In any event, the defendants were victorious

Ibid. Further, > tes Dictsiet Attorney of Nassau County neither acted

improperly in ing to enforce the statute nor evidenced an

bias. See New Y at Toute, January 16, 1970, p. 17, cols. i.

District a wri acting on a complaint, indicated his conscientious

Soemadieaeauane” that he would prosecate, “so thet the cout

can make the final determination,” the use of peace symbols placed

over the flag as well as displays of the flag with the inscription Love

it or leave it,” since he was acting as a law enforcement office and

“not because of any political persuasion.” /bid. When federal de-

claratory judgment relief was sought the prosecutor pledged to re

iain Soom: goasceation pending the ouleemse.

ov Oat a eed

BOOP Pe PO A SR owe

asc 2 & B@,

| a]

> 8

Berets eB

43

In any event, whatever may be said about judging mar-

nal cases of contemptuous conduct, no one could hang a

g in effigy or display it as a penis protruding from pubic

ir (91a) and not realize that he had passed the line of

thorized conduct. ‘‘ [I]t therefore strains at technicalities

say that any issue of vagueness of the [statute] as con-

raed and applied is present in the case.’’ Williams v.

sited States, 341 U.S. 97, 104 (1951). Conduct so squarely

ohibited under any construction of the term does not

mit of an argument that fair notice of the act proscribed

1s not given. Fox v. Washington, 236 U.S. 273, 277

915); United States v. Wurzbach, 280 U.S. 396, 399

930); Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (concur-

ng opinion); Jordan v. De George, supra 341 US. 223,

1-2 (1951); Williams v. United States, supra, 341 U.S. 97

951) ; United States v. Harriss, 347 U.S. 612, 618 (1954) ;

mnis v. United States, 341 US. 494, 515-6 (1951); Scales

United States, 367 U.S. 203, 223 (1961); Ginzburg v.

piled States, supra, 383 U.S. 463, 475 n. 19 (1966); see

ew York ex rel. Hatch v. Reardon, 204 U.S. 152, 160-1

907) ; Dombrowski v. Pfister, 380 U.S. 479, 491-2 (1965) ;

ylden v. Zwickler, 394 U.S. 103, 110 (1969).

Radich’s further claim, that the definition of an Ameri-

n flag within the meaning of the statute is vague, is

ivolous. The statute is quite detailed in its description

id while it may encompass many varied representations

‘the flag, it is hardly vague. And, as the cases just cited

ow, since appellant was convicted for contemptuous use

an actual American flag, it is ridiculous for him to claim

eck of fair notice that such was within the scope of the

atute.

a :

44

Similarly, it is of no avail for Radich to argue that the

statute is impermissibly overbroad where his acts were of

the ‘‘hard core’’ type that would be prohibited under any

construction of the statute and were not privileged under

the Constitution. His contention is apparently that even

if his conduct—based on the actual mutilation of a flag—is

not constitutionally protected, he is certain, for some un-

explained reason, that other forms of conduct—such as

‘‘unorthodox gestures aimed at the flag’’ and ‘‘flying one’s

flag at half mast’’—would be both included within the stat

utory proscription and constitutionally protected; there

fore, as the ‘‘vicarious champion’’ [see United States y.

Dennis, 183 F.2d 201, 214 (2d Cir. 1950) (L. Hawn, J.), aff'd,

241 U.S. 494 (1951)] of those he believes patently protected

by the Constitution, he claims to be absolved from the con-

sequences of his patently unprotected conduct. The law

cannot countenance such a result.

The methodology of determining vagueness in terms of

overbreadth can be somewhat elusive and mystifying, even

where the specific actions in question approach the border-

line of constitutionally protected conduct. Amsterdam, The

Void-for-Vagueness Doctrine in the Supreme Court, 16

U. Pa. L. Rev. 67 (1960) ; Note, The First Amendment Over-

breadth Doctrine, 83 Hanv. L. Rev. 844 (1970). But where,

as here, the litigant’s conduct could not be protected

under the Constitution, it flies in the face of rational

and judicial analysis to ask the Court then to set adrift

to find any number of hypothetical situations the stat

ute may be thought someday to be applied to, then to

determine the constitutionality of such application, and

finally, if one hypothetical application would be uncom

45

stitutional, to declare the entire statute void even as applied

to the unprotected conduct. ‘‘The constitutional question,

First Amendment or otherwise, must be presented in the

context of a specific live grievance * * * ‘A hypothetical

threat is not enough.’ ’’ Golden v. Zwickler, 394 U.S. 103,

110 (1969). It makes a mockery of law to permit one who

has engaged in hard-core conduct to assert that the statute

might be applied in some hypothetical fashion to prohibit

the exercise of some constitutionally protected conduct of

a class of individuals to which he clearly does not belong.

Cf. Bryson v. United States, 396 U.S. 64 (1969); United

States v. Knox, 396 U.S. 77 (1969). For, “it requires no

great feat of imagination to envision situations’’ in which

many penal statutes might conceivably be applied uncon-

stitutionally. Shuttlesworth v. Birmingham, 382 US. 87,

91 (1965). But the remedy is hardly to strike down the

statute as applied to the ‘‘hard-core’’ conduct specifically

in question. Statutes that admit of varying and different

applications carry with them an implicit proviso that no

application shall be made to constitutionally protected con-

duct and that the varying applications are separable should

one of them be found unconstitutional. In short, ‘‘it seems

quite reasonable * * * that if the * * * legislature had known

it could not have all it wanted, it would have wanted all

it could have.’’ Samuels v. Mackell, 288 F.Supp. 348

(S.D.N.Y. 1968) (Fuexviy, J., for three-judge court), prob.

juris. noted, 393 U.S. 975 (1968), restored to cal. for rearq.,

395 U.S. 957 (1969), 399 U.S. 922 (1970). Thus, a judicial

finding that a particular application of a statute would be

unconstitutional does not require that the statute be voided

even as to applications that clearly come within the statute

and are not constitutionally protected. See Street v. New

46

York, 394 U.S. 576 (1969). Further, if any individual is

threatened by an application of statute to conduct he

believes is constitutionally protected, he may, in addition

to any state remedy he may have [see N. Y. CPLR 43001;

Fenster v. Leary, 20 N.Y.2d 309 (1967)], seek a speedy

determination from the federal courts that the particular

application of the statute in question may not constitution.

ally be made. See Dombrowski v. Pfister, supra; Cameron

v. Johnson, supra; Zwickler v. Koota, 389 U.S. 241 (1967),

Moreover, in the case at bar, it is not clear that the

New York Court of Appeals was ever properly presented

with and passed upon a question of overbreadth as

to the conduct covered. Appellant’s brief in the Court of

Appeals appeared addressed solely to vagueness as a ques-

tion of fair notice ; no hypothetical examples of overbreadth

were presented the Court of Appeals as they are presented

to this Court. Accordingly, appellee’s brief in the Court of

Appeals addressed itself solely to vagueness as a question

of fair notice. That court, while passing on all issues raised

by appellant, was silent as to overbreadth. Indeed, the

appellate courts of New York have not passed upon the

situations now conjured by appellant, and have not indi-

cated whether they would uphold prosecutions for such

conduct, as a matter of statutory interpretation or consti-

tutional law. Thus, the question of overbreadth in terms

of the conduct proscribed is not properly before this Court.

Street v. New York, supra, at 581-2.

In arguing the statute’s overbreadth, Radich claims that

the Court of Appeals’s holding that the statute did not re-

quire proof of a specific intent by the actor to cast contempt

47

upon the flag, would result in a substantial restriction on the

freedom of speech. We disagree.

To begin with, the Court of Appeals appears to have

been primarily concerned that the statute would not become

the focal point either for the suppression of protected

speech or for the evaluation of political beliefs. Thus, in

deciding whether the defense of subjective good faith mo-

tivation of the actor excused conduct objectively contemptu-

ous of the flag, the Court of Appeals held motives, specific

intent, irrelevant and the act malum prohibitum. But in so

holding the court did not eliminate the basic requirement

that a deliberate act, objectively contemptuous, must be

committed. As explained in State v. Schlueter, 127 N.J.L.

496, 23 A.2d 249, 250-1 (N.J. 1941), although the statute did

not require commission of the act with a specific intent,

“the statute, in making it a misdemeanor to deface or to

defile the flag, used those words in their meaning of ‘dis-

honor’. ‘Dishonor’ is purposeful * * * For illustration:

A blind man stumbles over the flag and, not knowing what

it is, walks upon it and then casts it aside. Has he

‘trampled’ upon the flag? Has he ‘defaced’ or ‘defiled’ it?

Has he ‘dishonored’ it? [Has he cast contempt upon it?]

We think not; because those words carry with them, by

inherent meaning, an attitude of mind which is wholly

lacking in the supposed instance.’’ Similarly, in United

States v. O’Brien, 391 U.S. 367 (1968) once the deliberate

act of burning one’s draft card was proven, the First

Amendment did not require that the defendant be accorded

the defense of good faith political motives. In Chaplinsky

v. New Hampshire, supra, 315 U.S. 568, 574 (1942) in

upholding a statute that punished the defendant for the

expression of “‘fighting words,’’ the court also held that

preclusion of a defense of ‘‘provocation and * * * truth or

falsity of the utterances is open to no Constitutional objec.

tion.’’ No specific intent to provoke a breach of the peace

was constitutionally required, only the utterance of words

objectively ‘‘likely to provoke the average person to retali-

ation, and thereby cause a breach of the peace.’’ Thus, the

statute bound Radich to the natural consequences of his

deliberate, knowing act of exhibiting items whose subject

he was aware of and which were objectively contemptuous

of the flag.

Smith v. California, 361 U.S. 147 (1959), relied upon by

appellant, is not apposite once it is understood that the

instant statute requires knowledge of the subject matter

of the act and the commission of the act. Smith, the pro-

prietor of a bookstore, was punished for exhibiting items

whose subject matter he was unaware of. If he had been

aware of the contents of the items, his subjective opinion

that they were not obscene under the decision of this Court,

or the lack of a specific intent to sell obscene matter that

would be found obscene by a jury and upon judicial review,

would have been immaterial. Rosen v. United States, 161

U.S. 29 (1896) ; Kahm v. United States, 300 F.2d 78, 86 (5th

Cir. 1962), cert. denied 369 U.S. 859 (1962) ; United States

v. Oakley, 290 F.2d 517, 519 (6th Cir. 1961), cert. denied,

368 U.S. 888 (1961); Schindler v. United States, 208 F.2d

289 (9th Cir. 1953) ; California v. Williamson, 207 Cal. App.

2d 839, 845, 24 Cal. Rptr. 734, 738 (Dist. Ct. of App. 1962);

also see Alexander v. United States, 271 F.2d 140, 145 (8th

Cir. 1959); United States v. Hockman, 277 F.2d 631, 633

(7th Cir. 1960), cert. denied 364 U.S. 837 (1960) ; People v.

49

Finkelstein, 11 N.Y.2d 300 (1962), cert. denied 371 US.

963 (1962).

In Rosen v. United States, supra, this Court specifically

rejected a similar contention addressed to a federal statute.

There the defense requested a trial instruction of acquittal -

if a reasonable doubt existed that the defendant knew the

mailed material to be obscene. In upholding the refusal

to charge in this manner the Court declared:

‘*The inquiry under the statute is whether the paper

charged to have been obscene, lewd, and lascivious was

in fact of that character, and if it was of that character

and was deposited in the mails by one who knew or

had notice at the time of its contents, the offense is

complete, although the defendant himself did not re-

gard the paper as one that the statute forbade to be

carried in the mails. Congress did not intend that the

question as to the character of the paper should de-

pend upon the opinion or belief of the person who, with

knowledge or notice of its contents, assumed the re-

sponsibility of putting it in the mails.’’ 161 U.S. at 41.

In Ginzburg v. United States, 383 U.S. 463 (1966), the de-

fendant believed that his material was protected by prior

Supreme Court rulings; he said so specifically in the ad-

vertisements, which this Court accepted at face value. Id.

at 468, text and n. 9. Ginzburg’s belief, while both honest

and mistaken, did not prevent his conviction, for he knew

precisely the contents of his publications. Guilt cannot be

made to depend upon the putative offender’s own ap-

praisal of the legal significance of his conduct. Else a

man could acquit himself by his own belief in his innocence.

50

‘‘Rational grounds’’ for such belief abound. Upholding

the constitutionality of a statute penalizing certain acts

and at the same time allowing self-serving protestation ag

a defense is to nullify in practice the premised constitu.

tional power of the state to penalize the acts.

Scales v. United States, 367 U.S. 203 (1961) is equally

of no assistance to appellant. In Scales the government was

found to possess a: justifiable intérest in prohibiting the

association of individuals bent on the overthrow of the

government; the governmental interest was not trans-

gressed unless it was demonstrated that the individual on

trial assumed membership for the proscribed purpose rath-

er than for ‘‘the advancement of legitimate aims and poli-

cies.’’ If the governmental interests protected by the in-

stant flag statute are sufficient to justify its constitutionality

(see Point I, supra), then those interests are irretrievably

transgressed immediately upon commission of an act ob-

jectively contemptuous of the flag, regardless of the actor’s

motivation—political or commercial. See United States v.

O’Brien, supra; Chaplinsky v. New Hampshire, supra. The

residue of conduct that would be objectively contemptuous

of the flag and yet deserving of protection because the

actor intended a result other than contempt is minimal in

comparison to the unintended conduct in Scales. There,

the residue of conduct flowing from membership in an

organization—even one whose aims include the overthrow

of government—that would be deserving of protection is

substantial, absent the member’s specific belief in the one

proscribed purpose of the organization.

PEELE LES I OO LIOTTA LEI IL AIE LY CIOs OFM GN ID

51

POINT III

The statutory exception that permits certain non-

contemptuous uses of the flag if disconnected from

advertisements does not deny appellant equal protec-

, :

_ Finally, Radich claims that the statute.denies him equal

protection, based on his erroneous reading of an exception

contained in the statute:

‘‘This subdivision shall not apply to any act ex-

pressly permitted by the statutes of the United States

of America, or by the United States army and navy

regulations, nor shall it be construed to apply to a

certificate, diploma, warrant, or commission of appoint-

ment to office, ornamental picture, article of jewelry,

stationery for private use in correspondence, or news-

paper or periodical, on any of which shall be printed,

painted or placed, said flag, standard, color, shield or

ensign disconnected and apart from any advertise-

ment.’’

Radich apparently argues that this provision of the statute

permits persons to use the flag contemptuously on ‘‘orna-

mental pictures’’ or in a ‘‘newspaper, or periodical’’ and

thus denies him equal protection when it forbids him to use

the flag contemptuously on ornamental sculpture. However,

read in the context of the entire statute, the major portion

of which seeks to prohibit the use of the flag in advertise-

ments, it is quite clear that the exception is intended to

permit only non-contemptuous use of the flag for certain

purposes, when such use is ‘‘disconnected and apart from

any advertisement.’’ As the trial court stated:

52

‘‘the section doves not discriminate between pictures

generally and sculpture generally. Only ‘ornamental’

pictures are excepted. The legislature did not intend

to say that pictures desecrating the flag would be ex.

empted as a basis for prosecution and that similar

sculpture would not be so protected. Any contemptu-

ous use of the flag comes within the purview of the

statute, whether two-dimensional or three-dimensional,

We find in this statute no arbitrary discriminatory

classification’’ (28a).

There is a ready and rational distinction between con.

temptuous and non-contemptuous use of the American flag

that permits the legislature to except from penal sanctions

certain non-contemptuous uses of the flag without denying

a person who uses the flag contemptuously the equal pro-

tection of the laws. Indeed, in Halter v. Nebraska, 205 US.

34 (1907) this Court was asked to find that the same statu-

tory exception here in question denied Halter equal protee-

tion because Halter was condemned for the non-contemptu-

ous use of the flag in the advertisement of merchandise and

under the exception similar non-contemptuous use in ‘a

newspaper, periodical, book, pamphlet, etc.,’’ was not penal-

ized. The Court held that even distinctions between vari-

ous non-contemptuous uses of the flag were not a denial of

equal protection :

‘*Tt was for the State of Nebraska to say how far

it would go by way of legislation for the protection of

the flag against improper use—taking care, in such

legislation, not to make undue discrimination against

a part of its people. It chose not to forbid the use of

the flag for the exceptional purposes specified in the

statute, prescribing the fundamental condition that its

use for any of those purposes should be ‘disconnected

SOE OOP Fa! Ie OPN Ny

Ap}

the

den:

of I

53

from any advertisement.’ All are alike forbidden to

use the flag as an advertisement. It is easy to be seen

how a representation of the flag may be wholly discon-

nected from an advertisement and be used upon a

newspaper, periodical, book, etc., in such way as not to

arouse a feeling of indignation nor offend the senti-

ments and feelings of those who reverence it. In any

event, the classification made by the State cannot be

regarded as unreasonable or arbitrary or as bringing

the statute under condemnation as denying the equal

protection of the laws.’’ Id. at 45,

ellant was convicted of a contemptuous use of the flag;

exception was therefore inapplicable and could not have

ied him equal protection.

Conclusion

The judgment of the Court of Appeals of the State

Yew York should be affirmed.

Respectfully submitted,

Frank 8. Hocan

District Attorney

New York County

Attorney for Appellee

HAEL R, JUVILER

tim ©, Donnino

L A, Sopen

Assistant District Attorneys

Of Counsel

uary, 1971