# Appellees Brief — Radich v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1483%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 531 ## Text 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 Pere eee eee eee Peer Cee eee eee eee eee eee eee ere er eee ee eee ee eee eee eee ee eee eer rr ee ee eee eee eee eee eee eee rere 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 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. ( ( I a ( I 0 T ‘ t Cc ( v e 8 N r i u 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1483%3A07. Public record. Not legal advice.