Motion to Dismiss or Affirm — Street v. New York

Supreme Court brief1969

Ask Donna

What actually matters in this document.

Text

CIBRARY (| PETS out us

SUPREME COURT. U. 8 | , . a

x a a eT cAN 8 1968

: | | gekiy | sun F, DAMS, CLERK

“Sunrenie Conrt af th the United Piates

OCTOBER Tine, a

Ns 5 } ee pe]

_ SIDNEY STREET,’ © °°).

a © Pig Pre Appellant,

‘Arne PEOPLE OF THE STATE’ OF NEW YORK, |.

Wn! Aes - —

“ _ ON APPEAL #ROM THE COURT OF APPEALS oF.

.THE STATE OF. NEW YORK

Aazon BE. Koora

» District: Attorney,

_ Kings County ©

“ : Office & P,O. Address.

Municipal Building)

a ee : - “ Brooklyn, N.Y. 11201

: 4 ; - .Tel.: (212) 643-5100

Attorney for Appellees

| ee Seeieeh ae

1 a a | Assistant District | Attorney. ; i; ;

nie Counsel - | : sees o

‘Mp 32 . Case Paxss Inc., 421 Hupson Sr., N.Y—ORegon 5-4540

bis 7 ; . PAGE

el Preliminary Statement ........--..-+- naeabec vat tage

et Opinion Below ...... hebaacaeise da ceeis cosets leet:

¢ The Stagute Involved ..... aero = +. ais eedades 2

Questions Presented .......... 4 Recledass eee

Statement of the Case .......:.0.ceeeeeeeeeeeeee 4

The Trial ...........sceceeeess nes eeececeseees ee a

A. The People’s Case saa bnipyRON ATEN hess Aap +

'B. The Defense eteeeeeee tae eeneeeeees or a es

“Summary of Arguments .1.......2+0000+5 iceuce “=

— e .

Tue AncuMENts: : : is |

ae * - Question is Moot .-........ sian oor 9

1 ‘The Statute, as a proper exercise of the ‘State’s ©

- police power, dges not unconstitutionally deni-

} ae , grate potato fundamental right of expres-

: '. gion, symbolic or otherwise, and is clearly de-

_. ..- fined, being neither vague, imprecise ora

Py 7 gan overly ae sein wrctesees perrer 12

; Cand oA erecceccee eee , 44

, ee

| Cases |

~. American Communications Assn. v. Douds, 339 TS.

_ 382, 70 8. Ct. 674 (1950) . woe aR per a ace )

Adderley v. Florida, 385 U.S. 3087 S. Ct. 242 [1966]. ”

ng "

2 |

<< Baggett'v. Bullitt, 377 U.S. 360, 84 S. Ct, 1316 (1964) 41, 42

Barenblatt v. United States, 360 US. 109,79 S. Ct.

-- 1081: (1959). PeRes CR Kale ee Kk CN eETS Vee e eke ene ee 26

<. Brown et al. v. Louisiana, 383 U. S. 131, 86S. Ct. t 19

EE sass un cada er ccg kde uidacgaecdsncheosczse’ .20 -

Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900

i} SR Ree SN ee 23.

Carlson y. California, 310 U. S. 106, 60 8. Ct. -746 a,

ed a ee ek CML whens 5% ve 20

Chaplinsky v. New tienpehies, 315 U. S. 568, 62 S. > Saas

thu oh aek heh see chee heawn chanics ss 34.

Cox v. Louisiana, 379 U.S. 536, 85 S. Ch 453 (1965). :>

Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 453 (1965)*. 21

Cox v. New Hampshire, 312 U.S. 569, 61 8. Ct. 762

- (1941) ...... euaes dedece ictiinteleeed. ios

Davis v. Massachusetts, 167 US. 43, a S. Ct. ‘BI

(1897) .:...... SEES Fenn et Sone pen Eee 13

Debs v. United*Stzites, .249 US. 211, De S. Ct, 252

2 ere MRR GNA Teeth Paes RINE, Ser aaa 24, 29

Dennis v. United States, 341 U.S. 494, 71'S. Ct. 857 ees

PO ea ties cast se uwds 25, 27, 33, 39 -

‘Durable Toy & Novelty Corporation v. J. Chein 5 Co.,

133 F. 24 853 [24°Cir. 1943] ...... 0... eee e eens. 15:

Edwards v. South Carolina, 372 US. 229, 83 S. Ct.

el kk cen is - 20

Ex parte Starr, 263 F. 145 (Dist. Ct., Mont. 1920) . . 19, 32 ;

‘Fiswick v. United States, 329 U.S. 211, 67 S. Ct. 224

TES Ae tay a ee OEE a er an 11

Frend v. United Gisies, 100 F. 2d 691 (D. C. Cir.1938) 32

Frowerk v. United States, 249 U.S.. 204, 39 S. Ct. 249

SE veh ia nsw se cken CORSibags nee skas gos cnx ... 24,29

Garner v. Louisiana, 368 U. S. 157, § 82 S. Ct. 248 (1961). 20-21.

— v. Pennsylvania, 382 U.S, 399,’ 86 S. Ct. 518 |

(1966) veep eseeeeee ere eee ee tee eater teeta: 43

/ PAGE :

-Gitlow v. New ‘York, 268 U.S. 652 45 8. Ct. 625.

SNE dicated upenedsacges meses eesaken 12, 13, 14, 33,34

Gompers v. Bucks Stove & Range Co.,. 221 U.S. 418,. on

ED oc cces capcom anigdeass peur 13. .

Grosjean v. American ieee Co., 297 U. B. 233, - 8.

“Ct. 444 (1936) ...... ESI Pp ry vee re ere. ee ae

Halter v. Nebraska, 205 U. 8. 34, 27 8. Ct. 419 (1906)

“ a 15, 16, 18, 36:

Halter v. State, 74 Neb. 7 57, 105 N. W. 298 (1905) . 16

Jacobs v. New York, 388 U.S. 431, 87 S. Ct. 2098... .8, 10, 11

_ Konigsberg v. State Bar, 366 U. S. 36, 81 S. Ct. 997

REE eee eerie seem eer 26

~ Kovaes v. Cooper, 336 U.S. 77, ‘69 S. Ct. 448 (1949). 23

, Lambert v. California, 355 U.S. 225, 78 8. Ct. 340 -

rs oi a Sls aes aati dnias "43

Lovell v. Griffin, 303 U.S. 444, 58-8. Ct. 666 (1938) .. ~ 23

N.A.A.C.P. v.. Alabama, 357. U.S. 449, 78°S. Ct. 1163.

(1958)... .-eeeereeeceecewesebegepeceeescsene aes

'’ Parker v. Ellis, 362-U.8. 574, 80 S. Ct. ‘909 (1960) . oe |

Pennekamp v. Tee, 328 U.S. 331, 63 S. Ct: 1029 hee

cS er em re rere nar — 28

‘People v. Byron, 17 N.Y. 2d 64 (1966) kines maken ie 40.

People ex rel. Alpha P. C. Co: v. Knapp, 230 N.Y. 48 |

(1920), rearg. dented, 231 N.Y. 516 (1921), cert.

denied, 256 U.S. 702, 41 S. Ct. 624 (1921) ........ 35

People v. Martin, 15 N.Y. 2d 933 (1965), cert. denied, .

8828. 828' (1965) Sica tue esikawab orcs erry 22

People v. Merolla, 9 NY 2d 62 (1961) ...... errs lee - 40

People v. Penn, 16 N.Y. 2d 581 (1965), cert. ‘denied, |

BOE Nr OOP CHD i Sha di iv epeci ders ctronies a Sy

People v. Picking, — ‘Mise. —, 23 N.Y.S. 2a 148, 149

. (N.Y. City Mag. Ct. 1940), aff'd, 263 App. Div. 366

(Ist Dept. 1942), aff’d, 288 N.Y. 644: (1942), cert.

denied; 317 U.S. 632 (1942), rehearing denied, 317 ;

U: S. 708, 63 S. Ct. 156 er Sere reer Ory ee 17, 36

Bele 5) rs iv

‘People Street, QO-N.Y. 2d 23T-(1967) .....5 eee 35

: People y. Stover, 12 N-Y. 2d 462 (1963), appeal dis-.

. . missed; 375 U.S. 42 (1968) ©2202... cc cee teen eee . 22

People ex rel. McPike v. Van De Cai; 91 Keo. Div. :

20 (1st Dept. 1904), aff’d, 178 N.Y. 425. (1904) ... 14, 35

Peterson v. City of Greenville [South Carolina], 37 3 ,

U.S. 244, 83 8. Ct 1119 (1963) ......... 0. eee 20

"Prudential Insurance Co. v. Cheek, 259 US. 580, 42 is

$. Ct. 516 (1922) pewhinekt Die Ane ae Ko seo NES 0 de 12

Saia v. New York, 334 U.S. 558, 68 S. Ct. 1148 (1948) 23

. Schenck v. United States, 249 U.S. 47,398.Ctat

- 249 (1919) 2.22.2... skeen soa coe +++ 138, 24,28, 29

Smith v. United States, 368 F’. 2d 529 (8th Cir. 1966) 26

- State v. Peacock, 25 A. 2d 491 (Sup. Jud. Ct., Maine,

NS SUEE Se Oh ade Vad caw eaenn oat atees oe Gok - 38

State v. Schlueter, 127 N.J.L. 496, 23 A. ba 249 (Sup.

Rik SON UN MINER oon 300 bh csencin nes 41,43

St. Places ¥; United States, 319 U.S. 41, 63 8. Ct. 910

Bae! | Paice tne nice eee oat Sere ae 7

* - Stromberg v. California, 283 U.S. 359; 51 S. Ct. 532

eS eink eeeee ye TE 20

Tannenbaum v. New York, 388 US.. 439, ‘87 S. Ct.

“5 MES ih Eee FSM ae V6 CaaS 6nd RE EO Ran ekaaes ~ 8,10

Tenney. v. Liberty News Distributors, oi. 27 Misc

2d 692, iv. Gali 2d 733 (Sup. Ct. 1960) ........ ~~ B-

sont omg v. Qalifornia, 310 U.S. 88, 60 S. Ct. ;. . eee

ES 5 <5 6k ea bk CEPA AN eS) Lea ence hts ~ 20

United. States 1 Vv. Ancona: 310 F. 2d 341 (2d Cir,1962) 26

~ United States v. Congress of Industrial Organiza-.

. tions, 335 U.S. 106, 68 S. Ct. 1349 (1948) ......... 41

+ United States v. Miller, 367, F. 2d 72 (2d Cir. 1966), |

‘cert. denied, 386 U.S. 911° (1967 a ee A era "236

United States v. Morgan, am: U.S. 502, 74 8. Ct. 247

——_ Rie ee eee eS Swe aay ee ib

—

PAGE °

United States v. O’Brien, 376 F. 2a 548 (1st Cir.

SINE hve ences aaa hidenakess hae - 26.

_ United States. v. Petrillo, 332 U. 8. 4 67 8. Ct. 1538 — :

QIDGT) | aici vicg ec ceesbcses teu atestaccevicaneays A ie

‘United States v. Schwimmer, 279 v. S. 644, 49 8. Ct. Be

PT) Rae pers rR ES ert Gaparier |e 12

United States v. Wurzbach, 280 US. 396, 50 S. ct. i:

WOE TG) cvcnacccdedeebecevsnsuhs Moseasanks 40 |

. West Virginia Board of. Edueation: v. Barnette, 319 }

U.S. 624, 662, 63 S. Ct. 1178, 1196 rigors (dissent- -

ae <n; <add PePer er Tet: Pre er 9, 13, 20, 26

| - passim

Whitney v. California, 274 U.S. 357 a S. Ct. 641.

CEMMEEO os accibvipt Veet bamescdade cies %: . .12, 14, 25, 26

Williams v. Wallace, 240 F. op 100,” N. D. Ala. jan

COONS oh. nk0d isciaokh conde Lacaiapeereeabekiene 200. .

Winters v. New York, 333 U.S. 507, 68:8. Ct. 665

_ (1948). Sates th sven cise se siesta Behess Vitesbqiiess ae

Rules

PIRES TEC eS OTE ree er oer ree. Pe 1

» Statutes”

" Sec. 1425, subd. 16, New’ York State Penal Law... af

= ioe sf SRS ge - passim

36 U.S.C.A., Sec. 176(j) ..........0.. PONE, HPT aL |

‘US.C.A., See. 700, subsev. [c] .....,........ A J me.

Sec. 136, General Business Law of State of New York: 2, 37

U: nited States Constitution

‘First Amendment lritsanwees we etorerr,, eB: passim

Fourteenth Amendment ....... a Seah 4, 12,13, passim

_ Miscellaneous

eyes ; ; ; ; PAGE

1941 N.Y. Att’d Gen. Rep. 465°...... ES oer “ 17

Logit aitigent Ahern igs mae eae 1 we

36a, C.J.S.,; 746, sec. 2.2.2... eee PS Satie 20

51 N.Y. State Dept. Rep. 240 (1934) ................ 17,37

Chafee, Freedom of Speech 170 (1920) Matecicemes + 34

. District of Columbia (4 U.S.C.A., Sec. 3) .......... 19 ©

——+«...Dombauld, Bill of Rights and what it means Today:

RN ores se vasibe sic dae ccs secccese 13, 27

Emerson, Towards a General Theory of the First eee

- Amendment, 72 Yale L.J. 877, (1963) ........... - 25

Foreword to Quaife, Weig & Appleman, The History —

_. Of the United States Flag at 11 (1961) .......... _ 29

H.R. 10480, chapter 33, title 18, U.8.C.A., Sec. 700,

cc cuce buss cciebanveccicns 18

McKinney’s Cons.. Laws of XN. Y., Book 1, Statutes, !

- - ‘pp. 237-38, Section 150 and cases cited {Nereon oo Gh

_ McKinney’s Cons. Laws of N.Y., Book 1, Statutes, .

Section 130, eoiON 141 5 .....0.:.55, ikon beeee 40

_ N.Y. Times, April 11, 1967, p. 8, col. 1 .2..0........ . 32

Gidea s New Int. Dictionary (3rd ed. 1964) ere a

2 —

sees

.*) .

IN THE

Suyreme Court of the United States

October bused 1967

No. 688

Sipney Street,

- Appellant,

—against— :

| THE PEOPLE OF THE ; Stare or New York,

Appellees. ~

. 4

MOTION TO DISMISS OR AFFIRM |

; Appellees, People of the State of New York, pursuant to .

'- Rule 16 of the Revised Rules of the Supreme Court of the

' United States, effective October 2, 1967, move to dismiss on

' the ground that the appeal is not within the jurisdiction of ©

this Court, or, in the alternative, to affirm the order of the

Court of Appeals of the State of New York appealed from,

on the ground that the questions presented are so unsub-

stantial as not to need further argument.

Preliminary Statement

_ This is a direct appeal by the appellant from the order

of the Court of Appeals of the State of New York, entered

- on July 7, 1967, affirming thé order of the Appellate Term

of the Supreme Court, Second Department, dated Decem-

ber 23, 1966, which affirmed the judgment of the Criminal

Court of the City of New York, County of Kings, of August

) , , “ ,

7 9, 1966, Seacbsine him of Malicious’ Mischief, Sec. 1425,

subd. 16, para. dof the Penal Law of the State of New

; York, said statute making it a misdemeanor to “publicly

- mutilate, deface; defile, or defy, . . . or east contempt [upon],

‘ either by words or act... the flag of the United States of

‘America.”’ The ae was suspended.

Opinion Below

The opinion of the Court of Appeals of the State of Sen f

York was Kanded down July 7, 1967-and is reported in 20 |

NY 2d 231, 282 NYS 2d 491, 229 N.E. 2d 187. See Juris-

_*. o dictional Statement, Appendix, pp. 1a-8a, for text of the —

2 ‘opinion. No written, opinion or memorandam was handed

.*% down by the Appellate Term of the Supreme Court of the »

State of New York, Second ‘Department, or the Criminal

ie ‘Court of the City of New York, County of Kings.

PP o& \

ve The Statute Involved

| ‘Gatien 1425 of the Penal Law. of the State of New York

provides in its pertinent parts as follows: °

0 ©8606 -@,

By L L. 1965, c. 1031, Sec. 52, eff. b Sept 1, 1967, this statute has

be P superseded by Section. 136 of the General Business Law of

the State of New York in which the identical language is em-

ployed, se for a portion thereof not relevant herein. Since

+ a to the prior ion in the Jurisdictional

. Statement, appellees will alten to d@ likewise with the under-

standing that the references are — to the more recent

enactment. -

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

— upon, or cast tise i either by words or

as * *« *¢ *

f. Iptoseeibing still another atl | . the flag of

the Umited States of America . Re

Shall be deemed guilty of a misdemeanor...

The words flag... . as used in this subdivision or

section, shall inelude any flag... . upon which shall

be shown the colors, the stars and ‘the stripes, in any

number of either thereof, or by which the person see-

ing the same, without over may believe the .

same to er the flag . - of Se United States

of America .

This enbdivlibiin shall not pe to any ost ex-

pressly ease; by the statutes of the United States

of America . — (Zanphasis eapeed.)

: Questi eotnied:

- 1, Should this Co depart from the well-recognized

doctrine of “mootness’ since appellant’s conviction carries

with it no disabilities, and the period during which the sus- ;

pended sentence imposed can be revoked under New York:

law (N.Y. Code Crim. Proc., Sec, 470-a) has now been con-

cluded?

?2. Is the silks (Sec. 1425, nbd: 16, para..d, of the Penal

Law of the State of New York, supra), on its face or as

applied, an unwarranted abridgement of the constitutional

guarantee of freedom of expression as mandated wd the

First Amendment to the United States Constitution?

_ 8. Is the statute (Sec. 1425, subd. 16, pera. d, of the °

Penal Law of the State of New York, ope) 80 ambiguous,

PJ 3

of naa

a a

a vague eal indefinite on its face or a8 applied that it fails

a’

to adequately inform a person of the acts proscribed, or sa

-- ‘Bo overly broad, as to violate the Fourteenth Amendment f

to the United States Constitution? _

. Statement of the Case

The Trial

A: 7

: . The People’s Case

At the commencement of the trial, the atihiiad moved ts

Fe disiniss the complaint upon the ground that the First

Amendment to the United States Constitution, as well as_

the Constitution of the State of New York (Article 1, Sec-

~ tion 8), with regard to. freedom of speech, protected his

- right to protest ‘‘in many forms, whether it. be by burning

_ a flag, demonstration or picketing,” and that the appellant’s -

act was & “form of demonstration and protest” (7).* The

_ appellant’s motion to dismiss the complaint was also predi-

cated on the j premise that the applicable statute was in viola-

tion of the Supremacy Clause of the United States Constitu-

tion. This argument, too, was not acceptable to the trial

- court, and that “motion was likewise denied (8). A stipula-

tion was entered into that the charges against the appellant, .

- Malicious Mischief, and Disorderly Conduct, which had been

set forth in two separate: complaints, would be tried .

together, and that the facts adduced in one would be applied

to the other ‘wherever necessary,, and there will be

separate findings on the facts and the law and separate

judgments may be rendered’’ (8-9).

* Numbers in parentheses refer to Ra in the certified Record on

j Appeal. 1 Aig?

See Reka mcaye

Piatettenal James Popeland; a Ne ew York City Police :

: Officer, testifiéd substantially, as follows: ;

On June 6, 1966, at or about 7:00 P.M., te toad Gace

to be present at Lafayette Avenue and St. J ames Place, in |

the County of Kings, City and State of New York, vast

he saw a crowd collected at the corner (9). There wag a .

fire burning, and the officer got out of his car, and walked

_ over toward’the fire areund which the crowd was ‘ stan ding

(910). According to the officer, a large folded flag, which

he recognized to be an American flag, was burning. After

inquiring of the people in the crowd as to the identification #

of the person responsible for this, the officer-walked over to

the northwest side of Lafayette Avenue, on the other side

of the street, where he saw the appellant standing and rw

ing loudly (10-11). The appellant was motiohing withjis’ |

hands, and saying, ‘‘We don’t need no damn flag The a

officer asked him if he burned the flag, to which the appellant ©

answered, ‘Yes, that is my flag; I burned i it’’, and, ‘‘If they —

- let that happen to Meredith* we don’t‘need an American |

flag’’ (11). The officer then extinguished the fire,, placed.

- the appellant under arrest, and took him, and the remaining

portion of the flag, to the precinct (11). According tothe

officer, about 30 people were present at the scene when the

‘officer arrived, and by the time the arrest was made, about

35 to 40 people were in the group (11). He had been 10 or:

. 15 feet from. the appellant when he began to understand

what the latter was talking about (12).

* Referring to the unfortunate incident which occurred during a

Civil Rights march when the noted Civil Rights Leader, James~

‘'H. Meredith, was wounded by a sniper’s bullet near Hernando,

Mississippi, on June 6, 1966. ;

MH ee — re eo as : oe: ‘

On erons-ocaminadion, the 5 dlene testified that at the time

of. the incident he had been i in a patrol car with another

',. Officef, who was not then présent i in court. That officer had —

. been present during the entire occasion, and the witness Be

stated that if his partner were then in court he would‘sub- _

»stantiate the testimony (12). Prior to approaching: the

~ appellant, the officer wae vehicle in front of the flag,

on the northeast side of yette Avenue and St. James

Place, the appellant then stafiding on the northwest corner

(12). There were people standing. on all four corners, with

“about 30 persons on the northeast corner where the flag was,

_ and 5 or 10 persons on the northwest corner where the .

" appellant was then stationed (13). When the witness left

- the patrol car, he began to stamp out the burning flag: The

officer left the. flag on the ground and went over to the.

appellant across the street. Portions of the flag were picked

= _up by the officer after the appellant was brought over to the

patrol car (13-14). No crowd overflowed. so as to obstruct

. traffic, and not all of the persons who stopped to see what

was happening continued to move,on (14). The widé side- —

e walk was not obstructed and persons were able to pass by. ©

The crowd was not unruly, and neither were there any .

, threats or ‘shouts ( 14). According, to the officer, who was

» acquainted withthe correct manner of folding an, American

: flag, it was folded with the stars and stripes facing up, He

+ did not know if the flag’ had been folded in the proper way -

+ because cit was burned quite badly”? ( 15). The flag had not -

» been ona newspaper ‘‘or. ee (15).

".%

‘

ig Same 9

‘ The Defense wet Tee

} The appellant testified i in his own behalf iui es

follows: puahatane: ve . en :

He was isin as a he hitver by the ‘Mier York City

. Transit Authority for 20 years, and was married. He had

- never appeared i in a court before (15). He had servedinthe .

“qnilitary service for a period ‘of 5 years, and in the Quarter- .

master Corps. Hé was a recipient of the Bronze Star (16).

_ On the day of the | occurrence he had been in his apartment

wien he heard a news.report that James Meredith had been

shot. When he heard that he.said, ‘‘They didn’t protect

Unig,” and went to his dresser drawer ard took oft the

American flag (16). The 48-star flag had been given to his

wife’s mother and had draped the coffin at the funeral of his

wife’s stepfather. The flag was faded, about 20 yea eld,

-and had been displayed by him on national holidays (17):

He had a second flag with 50 stars. After hearing the broad-

casted report about: Meredith, he took the flag to St. James

Place and Lafayette Avenue. There he placed a piece of

_newspaper on the ground, held-Ahe flag in his left hand,

“struck. a ‘match and made a flame and I stood there and‘I

held it as long as I could. When it began to burn my hand I

dropped the flag”? (17). The patrol car then came by, and

: the officer asked him if he had set fire to the flag (17-18). He.

admitted.:that he had, and told the officer, ‘‘If they do what

they had (sic) to Meredith we don’t need this flag’’ (18).

Y No ee else spoke to him, and he noticed no unusual crowd.

The flag which was still burning when the officer came, was |

on the curb. The appellant did not speak to _— else at ;

the time (18). |

a 4

On cross-examination, the appellant testified that the par

Aicular flag involved had been in the dresser drawer for at ©

least one year, and’ that he had displayed a new flag the

previous Memorial Day. (18).: The’ flag i in question had not

| been displayed after the new one was purchased. When .

ra asked when he had decided to burn the old flag, the appel-— |

lant téstified that the idea of doing so had come when the

| ; new one was purchased. ‘However, he did burn it after he

heard that James Meredith had been shot, although “not.

immediately ;? he had planned to burn the flag ing before

he “‘heard about Meredith’”’ (19)..:

At the conclusion of the trial, the appellant was acquitted

of the charge of Disorderly Conduct, and found guilty of

Malicious Mischief in that he violated Section 1425, subd.

“ee

16, para. d, of the Penal Law, supra, (19), for which _ re- °

ceived a suspended sentence (4, 24). -

Sciiniey of Arguments

. "This Court has long enunciated the doctrine of ‘*moot-

ness’’ wherein no attempt will be made to review an appeal

on the merits without a showing of factors vital enough to

move the Court from this traditional rule.. It is the respect-

ful submission of the appellees that there do not exist any

considerations to veer this Cofrt from the majority deter-

mination as recently declared as June 12, 1967 in Jacobs v.

New York, 388 U.S. 431, 87 S. Ct. 2098, and, Tannenbaum

ve New York, 388. U.S. 439, 87 S. — 2107. . .

In addition, thé statute in “question, Sec. 1425, subd. 16,

para. d, of the Penal Law of the State of New York, supra,

designed to preserve the dignity of the flag of the United

States of America, the cherished symbol of ‘‘our heritage

and our hopes,’’* is not vague or overbroad, nor is it an

unreasonable Fést¥aint of free expression. There is a serious

need for such legislation, especially in these critical times —

which appellees choose to refer to as an ‘‘era of arrogance.”’

’ Proscribing the appellant’s act of desecration is. dictated.

"by a legitimate State interest, and not solely by any desire

_to suppress underlying thought or opinion. The concern

to protect the safety and well-being of a free and orderly

society ‘transcends individual liberties so that a reasonable:

restraint upon the exercise of free expression becomes war-

ranted in order to assure that a greater, good will be accom-

plished. It is the appellees’ intention to emphasize the vital

need for such a statute, and in so doing, to establish that

the questions presented by the-appellant are so unsubstan-

tial as to preclude any farthey Pees in this Court.

THE ARGUMEN Ts

The Question is Moot.

It.is the fespectful submission of the appellees herein

that since the sentence imposed upon the appellant was

suspended on August 9, 1966, and the conviction carries.no' -

disabilities such as loss of civil rights, the doctrine of

‘‘mootness’’ can be properly applied after the period during

which such suspended sentence can be revoked and replaced —

by a vrison sentence which, in the State of New York, is

- one year from. the date of original sentence. (See N.Y.

Code Crim. Proc., Sec. 470-a.) Neither New York law nor.

* Mr. Justice Frankfurter in W est Virginia Board of Education v.

Barnette, 319 U.S. 624, 662, 63 S. Ct. 1178, 1196 (1943) (dis-

; — opinion).

| federal ’ ‘law i imposes any further penalty for conviction =.

the misdemeanor involved in this appeal. Consequently,

we are constrained to rely on the authority of ‘the majority,

holdings in Jacobs v. New York, 388 U.S. 431, 87 S. Ct. 2098 -

m3 r (1967), supra, and Tannenbaum vy. NewYork, 388 U.S. 439,

_ '87 8. Ct..2107. (1967); supra,® -wherein this Court applied -

ee the doctrine of ‘‘mootness’’ in situations substantially simi-

— lar-to the case ‘at bar, and which also involved first’ amend-

_ ment considerations. : mere 8

Any contention that the appellant’s “< subsequent conduct

_ will be significantly chilled by. the conviction on his record”

(See Jacobs v. New York, 388 U.S. at 433, 87 S. Ct. at. 2099,

_ supra, Warren, C.J., dissenting opinion) cannot be legally

acceptable i in the light of the appellees’ claim that the con-

* duct upon which the conviction was predicated is not con-

| stitutionally-protected, and will continue to be reprehensi-

ble in nature, thereby dissipating all claims that fundamen-

tal rights have been interfered with. (ARcument II, infra). .

Although in Jacobs, supra, the appellants argued that

“sthey should not be constitutionally convicted because

~ their conduct demonstrates their good-faith belief that

° they were not exhibiting obscene material’’ (388 U.S. at

433, 87.S. Ct. at 2100), such-a contention appears to rest

on more tenable ground, because of the prevalence of con-

_flicting notions regarding views as to what is obscene, than

would any. position concerning flag-desécration ‘which ap-

‘ pellees herein do not feel can ‘be recognized on first im-

pression to be within the ambit of protection afforded by

* the United States Constitution. Thus, it cannot be truly

propounded that there willbe an in | terrorem effect if the

* In Tannenbaum, supra, “omen was \ denied (388 U. S.

October 9, 1967 ).

Court does not note jurisdiction and — to review. the °

case on the merits. | ;

With regard to the sisal herein; there is no pecuniary

interest in the outcome of this appeal for there is nothing

_that can bé claimed to be the subject of forfeiture.. To

reiterate, algo, there is no loss of ‘civil rights. - (Compare

- Fiswickv. United States, 329 U. S. 211, 67 S. Ct. 224.[1946] ; ;

United States v. Morgan, 346 U.S. 502, 748. Ct. 247 [1954]. )

In St. Pierre v. United States, 319 U.S. 41, 42, 63 S. Ct.

910, 911 (1943), this Court stated :

“A federal court is without power to decide toot _ |

questions or. to give advisory opinions which cannot —

affect the rights of litigants in the case before it

[citing cases]. ma. i

' It is 3 also significant that i in St. Pierre, supri, it was also

advanced:

‘‘Petitioner also suggests that the judgment may a

impair his credibility as a witness in a future legal

‘proceeding. But the moral stigma of a judgment. | ~

~ which no longer affects legal rights does not present

@ case or controversy for appellate review.’ (Id. at

43, 63 S. Ct. at 911-12.)

Unlike the appellant in Parker v. Ellis, 362 US. 574, 80

S. Ct. 909 (1960), the appellant herein was represented by

counsel at all stages of the proceeding.

In viewgof the foregoing, it is senpaettadiy urged that

contrary to the position taken by Mr. Chief Justice Warren

in his dissenting opinion i in Jacobs v. New Y ork, 388 US.

‘431, 434, 87S. Ct. 2098, 2100. (1967), supra, this Court would

not be ‘‘straining the mootness doctrine’? if the said. doc-

_trine weap to the instant appeal.

e. M.

"The Sinha: « asa proper exercise of the State’s police «

“ power, does not unconstitutionally denigrate appel-

’.Jant’s fundamental right of. expression,. symbolic or _

; & = aaheerveee, and is clearly defined, being neither vague,

_imprecisenor overly broad. —

Sec. 1425, cali 16, para. d, of the, Penal Law of the State -

of New -York, supra, provides that amy; person who shall

_ “publicly mutilate, deface, defile, or defy, trample upon, or '

’ cast contempt upon either by words or act’’ any flag of the.

United States of America, said flag described as one show- |

ing the ‘‘colors, the stars, and the stripes . . . or by which —

thé person seeing the same, without deliberation may be-

lieve the same to represent the flag . . . of the United

States of America,’’ shalibe guilty of a mi€demeanor. 3

The appellees are mindful of the fact that a State-may'

_ not unreasonably make any law abridging freedom or lib-

_ erty of speech (First and Fourteenth Amendments to the

United States Constitugion). (See Gitlow v. New York, 268 —

U.S. 652, 666, 45 S. Ct. 625, 630 [1924]; Whitney v. Califor-

- na, 274 U8, 357, 373, 47 S. Ct. 641, 647 [1927]; Grosjean v.

American Press Co., 297 US. 233, 243, 244, 56 8. Ct. 444, 446

[1936].) The right to “sneak freely” i is the foundation of

democratic government, and as expounded by Mr. Justice

Holmes in United States v. Schwimmer, 279 U.S. 644, 654-

55, 49 S. Ct.*448, 451 (1929) (dissenting opinion), ‘‘[I]f. _

there. is any principle of the [U.S.] Constitution that more

imperatively ‘calls’ for attachment than any other it is the:

principle of freé-thought—not free thought for those who

‘ agree with us but freedom for the thought we hate.’’ Yet it

is significant that until about 1922, the United States Su-

preme Court accepted the view that the Fourteenth healed

ment did not make the First Amendment» binding on the.

States. (See Prudential Insurance Co. v. Cheek, 259 U.S.

530, 543, 42 8. Ct. 516, 522 [1922].) In 1925, the Court in

Gitlow v. New York, supra, at 666, 45 S. Ct. at 630, ‘‘ven-

tured the tentative assumption that the ‘freedom’ of speech

‘protected by the First Amendment was included in the ‘lib- -

erty’ which the Fourteenth Amendment required the states

to respect.’ (See Dumsavip, Bu or Ricuts anp WHAT IT

. MEANS Topay 133 [1957 ].) Eventually, through the process

of © ‘incorporation’? or ‘‘absorption,”’ all of the First

Amendment liberties were made binding against the States:

In the area of free speech, the case of West Virginia State

Board of Education v. Barnett, 319 U.S. 624, 633, 63 S. Ct.

1178, 1183 (1943), is particularly noteworthy as showing

just when a State may not be permitted to gensor or sup-

press expression of opinion. Thus, although a -flag salute

was involved, it was this Court’s majority view that *‘ [t]o

sustain the compulsory flag salute we are required to. say

that a Bill of Rights which guards the individual’s right to

speak his own mind, left it open to public authorities to

compel him to utter. what is notin his mind.’’ (id. at, 634,

688. Ot. at 1183.)

Yet, conceding the shorowanct — of First iodine

freedoms, particularly the one concerned with free speech, —

it is respectfully submitted that a State may, in the exercise |

-of its police power, place reasonable regulations and re- nae

_ strictions upon this constitutional guarantee in the interest

' of public order. (See Davis v. Massachusetts, 167 U.S. 43, 47;

178. Ct. 731, 733 [1897] ; Gompers v. Bucks Stove & Range

Co., 221 US. 418, 439, 31.8. Ct. 492, 497 [1911] ; Schenck v.

United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249 [1919];

Ly Gitlow v. Sins York, 268 U.S. 652, supra, at 667, 45 8. Gt.

_at630; Whitney v. ‘California, 274 U.S. 357, 37 1, 47 8. Ct.

646, CAT. [1927], supra.)

_ In order to sustain the position of the itines herein,

_ it becomes vital to point eut in some detail the philosophy

underlying the need for a statute such as Sec. 1425, subd. 16,

-para. d, of the Penal Law of the State of New York, supra.

In People ex rel. McPike v. Van De Carr, 91 App. Div. 20,

26 (1st Dept. 1904), aff’d, 178 N.Y. 425 (1904), Mr. Justice

Patterson, in emphasizing the need for the statute, stated

as*follows : it

“Tt 5 was siiciasitiak for the Lediuhatats to make it

a@ misdemeanor to publicly mutilate, deface, defy, de-

file, trample upon or cast contempt, either by word ,

or act, upon the National or State flag, and mutilation ©

- of the flag may mean the printing of an advertise-

ment on the ensign itself. Such legislation i is within

the.police power of the State, for it relates to the

preservation of thé peace. It tends to prevent the

commission of acts which would arouse thé indigna-

tion of the public and lead to the ‘infliction of sum-

_ mary chastisement upon an offender; for it is not a

. mere rhetorical phrase to say that the people have

constituted themselves the guardians and- protectors

of the National flag. The State has taken upon itself —

the punishment of those whose acts would excite the -

- people to viplence, and legislation to accomplish that

restlt,relates directly to the preservation of the pub- _

lie peace and the good order of society.”’. ae

sis supplied.)

It is sigaiiieniat that Mr. Justice ‘Patteseon ’s language

was later unanimously approved by the Court of Appeals

(178 N.Y. 425, supra), although the court also affirmed a

td ‘

finding ‘that anallick portion of the statute, not, en

herein, was constitutionally. defective since it waa impro-

perly applied, also, to articles manufactured and in exist- .

ence before the section was enacted, thereby destroying:

existing property rights. : : : i

Nor has the Supreme Court of the United States failed to

.voice its feeling about the “object. of national piety’’ (Dur-

able Toy & Novelty Corporatign v. NJ. Chem & Co., 133 F. 2d

853, 855 [2d Cir. 1943] [Cir. Judge Learned Hand]). In

Halter v. Nebraska, 205 U.S. 34, 27 §. \Ct. 419 (1906), the

_Court (per Mr. Justice Harlan), in passing upon the con-

stitutionality of a statute which proscribed. the use of the ;

flag for advertising purposes, stated : N

‘‘From the earliest periods in the hicew of. the

human race, banners, standards and ensigns have

been adopted as symbols of the power and history

of the peoples who bore them. It is not then, remark-

able that the American people, acting: through the

legislative branch of the Government, early in their

history, prescribed a flag as symbolical of the exist-\.

ence and sovereignty of the Nation. Indeed, it would

have been extraordinary if the Government had

started this country-upon its marvelous career with-

out giving it a flag to be recognized as the emblem

of ‘the American Republic. For that flag every true

_ American has not simply an appreciation, but a deep

affeetion. No American, nor any foreign-born per-

son who enjoys the privileges of American citizen-

ship, ever looks upon it without taking pride in- the

fact that he lives under this free Government. 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. (Id.

at 41, 27S. Ct. at 421.)

: ee

‘‘[ W]e are of opinion that those who enacted the

| statute knew, what is known of all, that to every true |

American the flag is the symbol of the Nation’s

_° power, the emblem of freedom in its truest, best

sefise. It is not extravagant to say that to all lovers

of the country it signifies government resting on the

consent of the governed} liberty regulated by law; |

_ the protection of the weak against the strong; se-

curity against the exercise of arbitrary power; and

absolute safety for free institutions against foreign

aggression. As the statute in question evidently had

its origin’ in a purposé to cultivate a feeling of

patriotism among the people of Nebraska, we ‘are

' unwilling to adjudge that in legislation for that pur-

-. pose the State erred in duty or has infringed the

constitutional right of anyone. On the contrary, it

_ may reasonably be affirmed that a duty rests upon

each State in every legal way to encourage its peo- ;

ple to love the Union with which the State is in-

dissolubly connected. ”? (Id. at 43, 27 8. Ct. at 422. )

- Although Halter, supra, was concerned with the use of

- @ representation of the flag in an advertising scheme, the |

case is nevertheless pertinent because the statute therein

involved contained language substantially analogous to the

statute now before this Court.

It is also significant that many States have subscribed to

the view that the flag of the United States merits respect

as a symbol of Americanism, and ‘‘an object of patriotic

adoration’’. (Halter v. State, 74 Neb. 757, 105 Nw. 298, 300

[1905]. ) Accordingly, the Legislatures of those States

have potemayaton legislation to 0 protest its meaning.*

* See Halter v. norte a, S, 34, 39-40, 27 5. Ct. at 421,

Supra. = states ha € since followed suit. :

‘W

' In People v. Picking, — Mise, —, 23 N.Y.S. 2d 148, 149

(N.Y. City Mag. Ct. 1940), aff’d, 263 App. Div. 366 (1st

Dept. 1942), aff’d, 288 N.Y. 644°(1942), cert. denied, 317

U.S. 632 (1942), rehearing denied, 317 U.S. 708, 63 8.. Ct.

156 (1942), the court referred to the instant statute as a

‘salutary one,”’ and that ‘‘[i]ts aim is to hold up the

dignity of the American Flag, the Flag that is the hope

of the world and the Symbol of what perhaps is the last

true democracy on the face of the earth, today.’’ The i

Court of Appeals affirmed the judgment of conviction of

the trial court and upheld the constitutionality of the stat-—

ute without opinion. The conduct condemned by the trial

court had been one which involved the placing of an ad-

vertisement on a car in close proximity to the flag of the

United States.

- Section 1425, subdivision 16, of the Penal oil supra, has

been the subject of interpretations through the years. In

- 1934, Hon. John J. Bennett, Jr., as Attorney General of the

State of New York, advanced the opinion that the ‘‘intent

. of the legislature in‘ enacting Section 1425 was to insure “

that the use of the Flag of the United States, or of the

representation thereof. be appropriate. and respectful,”

(See 51 N.Y. State Dept. Rep. 240 [1934].) “The-statute

is comprehensively designed to prevent desecration of the__

Flag... of the... United States.”’ (See 1941 BR. Att ny

Gen. — 465) |

Any contention that Sec. 1425, subd. 16, para. 4, of the

- Penal Law, supra, is inconsistent with 36 U.S.C.A., Section

. 176(j),* and, thus, violative of the Supremacy hie of the

United States Constitution, would be inappropriate. ;

* . 36 U.S:C.A., Sec. 176(j): “The, fag, when it is in such condi-

- tion that it is no longer a fitting emblem for display, should be

There i is no provision in ‘the federal liv which prohibits - :

a State from enacting, and enforcing legislation designed to.

_ ‘prévent disrespect to a symbol of Americanism.* The Amer-

. jean flag is as much a part of d State as it is of the Nation.. —

es -Any* contempt cast on it. also _affronts. the dignity and

ipa well-being of a State. (Halter v. Nebraska, supra.) ;

That a State.has the power to: 80 legisInte was succinctly

a “expressed by: ‘Mr. J ustige Harlan in Halter v. N ebraska, 205

-%. S. m4, 27 S. Ct. 419, supra, as follows:

"2 «4942. 435, sec; 4|-56Stat. 3

agi “In. our ‘Shnaideration of the quosticeie presented

‘*. .°we mtst not overlook, certain principles of constitu-

_, tional construction, long: ago established ‘and steadily

be adhered to, which ‘preclude a judicial tribunal, from

holding a legislative enactment, Federal or. state; un-

constitutional and. void, unless’ it be manifestly 80.

'. Another vital principle is that, except as restrained,

: cate by: its own fundamental law, or by the Supreme Law *. * |

H./ ‘the Land, a State pagsesses all - legislative’ —

—“eonsistent with’a républican form of government;

ae therefore, each State, when not thus. restrained, and

= 80 far.as this court i is concerned, may, by legislation, —

- provide not only for health, morals and safety: of

* its-people) but. for the cdr on good, as-involved in

_ the-well-beli peace, happiness and prosperity. of the ©

“peo 9 (Id. at 40-41, 27\8. Ct. at 481.5"

dive yed in. a’ dignified way sRferably by ‘burning. = 2,

355; Dec, 22 1942,c. 806, sc. 4, 56

ES TY Stat.’ 1076. " This subdivision % is prefaced by the language, “No

“disrespect should be Shown to the flag. of the United: tates of,

“America ; oe OS

Soe f * In /tact OP LESEES ‘as_the result of Hearings hatin |

“Subcommitte No. 4 of-the Committee’ of the Judiciary, House of —

38 waaly dope 0th Congress, Ist Session, 1967, ‘Report No. \

dispefs any doubt in this regard by expressly reserving ©

to: the ¥ tate,- territory, possession of the Commonwealth of .

“Puerto Riso: << jurisdiction over-any offense over which it

~ would have’ jurisdiction in the ‘absence of this section” (H.R:

~ 10480, shpesiash 33, title 18, U.S.C. A, Sec. 700, subsec, (el).

rn Wd eee eS

*‘Tt may be said that, as the flag is an emblem of

National sovereignty, it was for Congress alone, by.

-- appropriate legislation, to prohibit its use for illegiti-

mate purposes. We cannot yield to this view. If Con-

gress has'not chosen to legislate on this subject, and —

‘if an enactment by it would supersede state laws of

like character, it does not follow that, ix the absence -

of National legislation, the State is without power to

act. There are matters which, by legislation, may be

brought within the exclusive control of the General —

Government; but over which, ‘in the absence of Na-

tional legislation,.the State may exert some control in _

. the interest of its own people. . . . [A] State may

‘ exert its power to strengthen the bonds of the Union .

and therefore, to that-end, may encourage patriotism

and love of country among its people. When by its

_——— legislation, the State encourages a feeling of patriot-

: | ism-towards the Nation, it necessarily encourages a -

like féeling towards the State. One who loves the

Union will love the State in which he resides, and

love bath of the common country and of the State

will diminish in proportion.as respect for the flag i is

weakened. Therefore a,State will be wanting i in care |

for the well-being of its people if it ignores the fact

that they regard the flag as a symbol of fheir coun-. .

try’s power and prestige, and will be impatient if any _

open disrespect is shown towards ” (Id. at 41-42,

& a7'8. Ct. at 421- - .

/- Ex sai Siete, 263 F. 145, 146 (Dist. Ct., Mont: 1920), |

it was held that a. State statute was not -pre-empted by |

Federal legislation which ‘‘neither pardons the offense nor

draws it within Federal jurisdiction. . fa

It is noteworthy that-a statute similar to ‘the ‘instant one

was passed in the District of Columbia i in —. ¢ U8. . ch m

-See. = aes

See 36A, C.J.S., 746, sec. 2, (Flags:. Laws Relating to /

United States or State Flags). ” pens .

- In fine, both the New York and federal statutes do ine

conflict with each other since both are designed to prohibit

that conduct for which the appellant herein was tried and | |

found guilty.

It is the appellant’s contention that the statute ‘herein

davebved, designed to protect the flag of the United States,

estops persons from ‘communicating, hy. actions relating to

that symbol, a contrary message’’ (Jurisdictional State- _

ment, p. 11), and ‘‘not only deprives, persons of. the. rights 3 t

guaranteed them by the First Amendment but deprives soci-

ety of its most effective means for self-correction”’ (Juris- é

dictignal Statement, p. 12). This, stresses the appellant, me :

occurs when it is sought to ‘‘choke off the peaceful, though

non-verbal, means by which . . . citizens can make their

message known : . ” tJastedieasinal Statement, p. 12, em- “

phasis supplied). Yet. in the-cases relied upon by- the ap-

pellant (Edwards v. South Carolina, 372 U.S. 229, 235,

236, 83 S. Ct. 680, 683, 684 [1963] ; Peterson v. City of Green-

ville TSéuth Carolina], 373 U.S. 244, 247, 83 S. Ct. 1119,

1121 [1963]; Williams v. Wallace, 240 F. Supp. 100, 104-05

N.D. Ala. [1965] ; Brown et al. v. Louisiana, 383 U.S. 131,

141-42, 86 S. Ct? 719, 723- 24 [1966]), the acts evinced there-

. in were those-of ‘‘peaceful’’ conduct. een

‘ Accord, Stromberg v. Califorsia, 283 U.S. 359, 366, 51 ; |

S. Ct. 532, 534 (1931) ; Thornhill v. Californig, 310 U.S. 88,

94, 60 S. Ct. 736, 740 (1940) ; Carlson v. California, 310 U.S.

| 106, 110-11, 60 S. Ct. 746, 748 (1940) ; West Virgimia State

\, Board. of Education v. Barnette, 319 U.S. 624, 63 8. Ct. 1178 . |

~ (1943),.supra; Garner v. Louisiana, 368 U.S. 157, 170, 172, | /

bikes) | Cae

82 S. Ct. 248, 255, 256 (1961), wherein the various acts de-

picted were likewise not. beset with agitation. |

The appellant’s behavior in burning a symbol of Ameri-

-canism in a public place, while simultaneously spewing

words of contempt, was not an act of ‘‘peaceful’’ expression —

entitled .to constitutional protection. This act of ‘‘vio-

‘lence,’’* regardless of its degree, cannot be ‘protected albeit

the appellant verbally expressed views such as, ‘‘We don’t |

need no damn flag,’’ and, ‘‘If they let that happen to Mere-

difi\we don’t need an American flag’’ (11). (Compare

Giboney v. Empire Storage & Tee Co:, 336 U.S. 490, 498,

502, 69 S. Ct. 684, 688-89, 690-91 [1949], wherein it was held

that violence or other unlawful conduct will not be pro-

tected ‘‘merely because the conduct was in part initiated;

evidenced, or carried out by means of language, either

spoken, written, or printed.’’)

Accord, Coz v. Louisiana, 379 US. 536, 550, 85 'S. Ct. 453,

464-65 (1965) ; Same parties, 379 U.S. 559, 564, 85 8. Ct. 453,

480-81 (1965). .

Yet, even if we are to assume, arguendo, that the conduct

of the appellant was expression by symbolic speech, itfis

respectfully | reiterated, nevertheless, that ffm its very ©

nature, attaching to it the protection accorded by the First .

Amendment to the United States Constitution would be

unwarranted. Symbolic speech has never been given the

same significance as the written or spoken word. A’s stated

by Mr. Justice Goldberg in Cox v. Loutstana, 379 U.S. 536,

555, 85'S. Ut. 453, 464-65 (1965), — :

* “Violence” is defined as follows :- la: exertion of any ohysical

force so as to injure or abuse ..., 2: injury in the-form of

revoking, repudiation .. . . or ‘irreverence to a thing . » D:

vehement feeling or expression. . . .” (Webster’s New Int. Bie

. Dictionary [3rd ed. 1964] — supplied]. a

“Ss

©.

22.

' ‘©We emphatically reject the notion . . . that the

_ First and Fourteenth Amendments afford’the same

kind of freedom to. those who would communicate

_ ideas: by conduct’ “such as patrolling, marching and

picketing on streets and highways, as these amend-

' ments afford to those who communicate ideas by

pure speech.’’ (Emphasis supplied.)

' In a more recent case, this Court, in a majority holding,

rejected the argument that ‘‘people who Wwant.to propa-

gandize protests or views have a constitutional right to do.

so whenever and however and wherever {hey please.’’ (See

Adderley v. Florida, 385 U.S. 39, 47-48, 87 S. Ct. 242, 247

[1966] [Black, J.].) ros

Thus, Mr. ‘Justice Black ie also drawn a line between ,

‘speech and conduct. -

See also, People v. Stover, 12 N.Y. 2d 462 (1963), appeal

dismissed, 375 U.S. 42 (1963) (symbolic expression ‘‘ offend-

ing sensibilities’’) ; People v. Martin, 15 N.Y: 2d 933 (1965),

cert. denied, 382 U.S, 828 (1965) (sit-in); People v. Penn, i

"16 N.Y. 2d 581 (1965), cert. denied, 383 U.S. 969 (1966)

‘(picketing). ca

~ To: reiterate, ‘‘peaceful”? acts of protest have been-recog- ©

nized as permissible. Appellant statew that ‘‘those who have

‘greatest cause to protest are those who, by reason of eco-

nomic and educational deprivation, do not have access to

_ the mass media and cannot undertake the lobbying activities

of better endowed groups . ,.*..{and] [p]ublic demonstra- _

tions symbolizing their grievances are. often their. only

* -pecourse’’ (Jurisdictional Statement, p. . 9). ‘Thiscanbeno °

. license for conduct deemed “%iolent”’ in nature for such 3

disadvantaged persons ofttimes have their desire for pro-

23.

test satisfied by eloquent and articulate champions of:

their causes who command respect and who are successful

in attaining worthwhile goals. It would now. appear that .

_ any differences in the ‘‘access ‘to the mass media’ and

‘lobbying activities’? between. such persons and ‘‘better ..

endowed groups”’ is negligible indeed. There is no desire

— tochoke. off responsible expression, verbal or non-verbal,

and public desecration of the flag of our Country, contrary

‘to the view of appellant, can never be an effective means

_of society’s self-correction, but can only lead to destruction.

(See J urisdictional Statement, PP. 11-12. ) ca

' Any ooltentices that the instant statute is tantamount. to

a “prior restraint’’ of speech, - ‘and therefore constitu-

tionally objectionable, i is without merit. The statute, being

a narrowly-drawn one, does not leave-in an unreasonable’.

and discriminatory fashion the determination as to what

‘‘words or act’? will violate its terms. (Compare Lovell v.

Griffin, 303 U.S. 444, 58 S. Ct. 666 [1938] ; Cantwell v. Con-.

_ necticut, 310 U.S. 296, 60 S. Ct. 900 [1940]; Saia v..New

York, 334 U.S. 558, 559-60, 68.8. Ct. 1148, 1149-50 [1948]; -

but cf. Kovacs v. Cooper, 336 US. 77, 82- 83, 69 bus Ct. 448,

451 [1949]).

“See also, Tenney v. Liberty News Distributors, Inc., 27

Mise 2d 692, 211 NYS 2d 733 (Sup. Ct. 1960).

It is the‘appellant’s contention that his act of desécrating

the flag in the manner he did ‘‘is not an ‘incitement to riot,’

was was found to exist in Feiner v. New, York, 340 U.S. 315

(1940),’’ or within the ‘‘ ‘clear and present danger’ which

would authorize interference with his First Amendment

a pane" (J urisdictional Statement, Pp. 15)...

It would appear that the appellant geeks to rely solely -

upon the application of such tests to the facts in the instant °

- ap Notwithstanding this, however, it is the appellees’

respectful submission that — tests are iced applic-

. able. |

The claséic ihiiithiietenit teagee” test is succinctly

set forth in Schenck v. United States, 249 U.S. 47, supra, at

52, 39 S. Ct. at 249 (1919),* when Mr. ‘Justice Holmes ex-

pressed the view that ‘‘[t]he question in every case is

: wh¢her the words used are used i in such circumstances and

and are of. such a nature to create a clear and present dan-

ger that they will bring about the substantive ‘evils that

Congress has a right to prevent.’’ rr

’ However, it.now appears that in recent Supreme Court

decisions, particularly i in those matters involving narrowly- .

drawn statutes which on their face regulate conduct, rather

than the communication of*ideas, as in Schenck, the ‘‘clear-

and-present-danger’’ test has been replacd with a ‘‘balanc-

ing-of-interests”” test. Prior to then, and according to Mr.

Justice Brandeis, who, as co-architect, amplified the ‘‘clear- >

_ and-present-danger”’ test, ‘‘no danger flowing from speech

can be deemed clear and present, unless the incidence of the —

evil apprehended is so imminent that it may befall before

there is opportunity for full discussion. If there be time

to expose through discussion the falsehood and fallacies, to

_. avert the evil by the processes of education, the remedy to

: be applied is more speech, not enforced silence. Only an

| * Schenck involved mere speech as a means by which to accom-

. plish sedition in time of war, and in violation of the Espionage

Act of June 15, 1917. Accord, Frowerk v. United States, 249

U.S. 204, 39 S. Ct. 249 3) Debs v=-United Si tates, 249

US. ail, 39 S. Ct. 252 (1919)

emergency can justify repression.”? (See ‘Whitney v. Cali-

fornia, 274 U.S. 357, 377, 47 S. Ct. 641, 649 [1927], supra,

[concurring opjnion].) Yet, despite the views of Mr. Jus--

ticés Holmes and Brandéis, it thereafter became necessary

‘to apply a ‘‘balancing-of-interests’’ test by which ‘‘conduct ~

[was] regulated i in the interest of public order’’ so thas it

_ became necessary to allow the. operation of a regulation

albeit: there was an ‘indirect, conditional, partial abridge-

ment of speech.”’ (See American Communications Assn

v.Douds, 339 U.S. 382, 399, 70 S. Ct. 674, 684 {1950].)* Now eg

the stage was set for the. courts to decide which of two con-

flitting interests dictated the greater need for rotection.

The courts in applying this new formula would ibe required

“in each ease to ‘‘balance the individual and ‘social interest

in freedom of expression against the social.interest sought

by the regulation which restricts expression.””. (See Emer-

son, Towards a General Theory of ei First Amendment,

72 Yale LJ. 877, 912 [1963].) :

Thus, in Dennis v. Umted States, | 341 U. Ss. 496, | 510,°71

8. Ct. 857, “868 (1951), affirming 183 F. 2d 201, 212 (2d Cir. :

- 1950), four of the six members of the Court who joined in |

- upholding the conviction, accepted Chief Judge Learned

Hand ‘g restatement of the ‘‘clear-and-present-danger”’

oe - test, oe. thetréby mgr. it into a bélancing test.

* ti was ba Does tar Md. Chief Justice Vinson first enunciated

-the “balancing-of-interests” test. ; -

** The restatement by Judge Hand ig inherent in the language: “In

each case [courts] must ask whether the gravity of the ‘evil,’

discounted by its improbability, justifies such invasion of free

speech as is renee we or avoid the danger. We have purposely .

substituted “improbability’ for ‘remoteness,’ because that must

be the right interpretation. Given the same probability, it

be wholly irrational to condone future evils which we should

prevent tf they were immediate ; that can be reconciled only: by

_an indifference to those who come.after us.” (183 F. 2d at 212,

: emphasis supplied. a

aCe

‘That the “‘balancing”’ test has continued to maintain its

effectiveness is evident from.the holdings in N.A.A.C.P.

_. v, Alabama, 357 U.S.:449, 461, 78 S. Ct. 1163, 1171 (1958) ;

Barenblatt v. United States, 360 U.S. 109, 126-27, 79 S. Ct.

; 1081, 1093 (1959); Konigsberg v. State Bar, 366 U.S. 36, -

49-51, 81 S.. Ct. 997, 1006-07 (1961); United States v.

Aarons, 310-F. 2d 341, 345 (2d Cir. 1962);* and United

| States v.: Miller, 367 ¥. 2d 72 (2d Cir. 1966), cert. denied,

386 U.S. 911 (1967).** a),

The ‘‘balancing-of-interests’’ test denies that any speech

has an absolute right of protection under the First. Amend-

‘ment. That free speech is not absolute was also recognized

. | by Mr. Justice Brandeis in Whitney v. California, 274 U.S. -

357,373, 47 -S. Ct. 641, 647 (1927), supra, (concurring

opinion).t Sisk 1

* It is interesting to point out the court’s statement (per Circuit

Judge Friendly) that “[e]ven if we were to assume in appel-

lant’s favor that action designed ‘to block the launching’ con-

stituted epeech ... , ‘freedom of speech . . . does not compre-

hend the right to, speak on any +. 7 at ‘time’, American - .

Communications Assn v. Douds, 339° U.S ,» 94...” (310

_ Kaaba. 4 se ;

** Although ‘it is respectfully submitted that the willful mutilation

of a draft card is far less significant than the wanton destruction

. of a symbol of freedom, the Méilér case condemns such an act

3 nevertheless. (But cf. United States v. O’Brien, 376 F. 2d 538

| [1st Cir. 1967] [now pending before this Court] ). Since a draft

card is the personal property of a registrant, the impact of burn-

ing it does not appear to be as serious as the desecration of the

flag of the United States which s to the citizenry at large.

' See also, Smith v. United States, 368 F.2d 529 (8th ir. 1966).

» F Itis oe that in Board of Education v. Barnette, 319 U.S.

624, 643, 63 S. Ct. 1178, 1188 [1943], supra, Mr. Justices Black

- and stated that “[n]o well-ordered society can leave to -

_ the individuals an absolute right to make final decisions, unas-’.

’ sailable by the State, as to everything they ‘will or will not do.

The First Amendment does not go so far.” pr

Yet, even the ‘‘clear-and-present-danger”’ { seit as restated

by Judge Hand in Umted States'v. Denmis (2d Cir. 1950), |

183 F. 2d 201, 212, supra, has not entirely lost its vitality

-. for as one writer has observed: .

‘‘Its essential features have been preserved, but’

adapted to the peculiar fact-situation presented by

the menace of current Communist enterprise. In its

. new form the rule might be called the ‘electric eye’

theory of clear and present danger. The danger is

deemed to exist if there is a present and continuing

mechanism which upon the occurrence of appropriate

- conditions will trigger into activity afature operation —

which constitutes a danger of substantial magni-

tude.’’ (See DumBauLp, Bu or Ricuts anp Wuart IT

Means Topay 122 [1957], supra.)

Ought not the atmosphere of these times also prompt us'to

deem the application of such a test (as restated by Chief

) Judge Learned Hand) as equally appropos? Is not the ap-

pellant’s act. (although having affected the sensory percep-

tions of but a relatively small segment of our population on

a Brooklyn street) when taken with the mamfold dangerous

behaviorisms of owr day,* one. which may “trigger émto

activity a future operation which constitutes a danger of:

substantial magnitude?’’ Is the act less dangerous because

its ex.ect, unlike in United States v. Dennis, 341 U.S. 494, 71

S. Ct. 857 (1951), supra, does not immediately envelop a

' muth larger audience? Does not the rebellion of ‘the appel-

lant have the same imminent devastating effect as the acts

, of Dennis and -his followers? aie

' % See p. ay _—

The . Rn enn Or test has never been a

technical verbal formula. (See Pennekamp v. Florida, 328

U.S. 331, 352-53, 63.8. Ct. 1029, 1040 [1946] [Frankfurter, J. ~~.

‘concurring].). -And whether or not the ‘modified test of a |

_ Chief Judge Learned Hand be applied, it, too, as the ‘‘bal-

o ff ancing-of-interests”’ test, can be practically, considered in

_ the instant appeal so that the appellant’s. act eannot escape

the reprobation it so richly deserves. Is not an act such

as committed by the appellant one which will ‘‘treasonably’’

lend aid and comfort to the enemy by strengthening its | .

hand? Any failure to preserve law and order creates the

‘clear and present danger that the expression involved,

symbolic or otherwise, ‘‘will bring about the substantial

evils that Congress has a right to prevent.”’ (Schenck -v.

United, States, 249 US., supra, at 52, 39 S. Ct. at 249

- [1919].), The question of free expression must yield to the

higher requirement that the United States of America must

survive in the hostile atmosphere of a tumultuous present-

day history. It is this vital need which makes even -the

“words by the appellant, in derogation of the flag, without’

more, subject to criminal punishment. The danger of under-

* mining the morale of our fighting men abroad by public

_ acts of flag-desecration, whether by ‘‘words or act,’’ will, ’

if such misdeeds go unpunished, produce serious and dis- °

- astrous consequences upon the well-being and security of

the Nation. Circumstances appear again to have restored i

the Schenck, Frowerk, and Debs cases,* to a new vitality.

‘The American flag symbolizes everything dear to us, and

is entwined within the very framework of our Bill of Rights. {

* Schenck’yv. United States, 249 ‘US. 47, 39 S. Ct. 247. (1919

supra; Prowerk v. United States,.249 US. 204, 39S. Ct. 9

(1919), supra; Debs v. United States, 249 U.S. 211, 39 S. Ct.

252 (1919). .

The flag is a — away from home per throughout the

-world whenever an American chances to see it, the inspira-

tion derived from ifs presence if immeasurable. To accord

the appellant license-to mistreat the flag is as implausible

and inconceivable as a determination that one has-a consti-

tutional right to destroy the Constitution. For it was on

.,, June 14, 1777 that ‘‘Old Glory’? was formally adopted by.

~ the Continental Congress as the national flag, and ‘‘. . . the

flag like the nation itself, evolved slowly and painfully from

small beginnings ; that it was shaped by many hands and

brains. ..’’ (Butterfield, Foreword to Quaife, Weig & Apple-

man, THe History or THe Unirep States Fac at 11 [1961].)

| To sanction the appellant ’s conduct as constitutionally-pro-

tected expression is to lend aid and comfort to those who

seek to corrupt the very foundation of the liberties,we seek

to preserve. , Thus, those liberties which are inherent in the -

= wellspring of Democracy are demeaned and negated so that —

the cherished liberty of free speech, symbolic or otherwise;

becomes slowly and undeniably destroyed, rather than per-

petuated. Contempt and hatred are contagious and mis-

_ anthropes, totalitarians, and malcontents harken to their

, call. To paraphrase Mr. Chief Justice Hughes, the excesses

of free speech are apt to déstroy free speech itself, unless

properly fettered. (See Cox v. New Hampshire, 312 U.S.

569, 574, 61 S. Ct. 762, 765 [1941].) The appellant by his

conduct was in a manner openly inviting others to share his

contempt for the flag and the country it represents. It is in

these times, especially, that honor to the flag must be given

‘its fullest meaning. To condone the public disapprobation -

of a symbol of America itself is (especially when combined

with such present-day events as tle assassination of.a

President, destroying of draft cards, wholesale evacuations ,

ae Nation, conflagrajions and : dis

as nomically-disadvantaged areas,

\-. generation, open contempt for decorum on the part of elect-

.. ar

: & ; e s ; “ : © i ; / ws

-. 7 ; ¥ : = ; . ; . “. ‘ ; / ¢ t

._. to Canada to, avoid military service for the United States,

student riots in Ft. Laude and other sections ‘of our

bances in socially and eco-- =

ergence. of a ‘‘hippie”

éd officials in. “positions of trust, rise in crime. statistics, ac-

. |; tivities of extremist groups, ‘the new “palliative” (2) world

of LSD and its psychedelic adventures) * a vivid portrait .

| of disrepect for our institutions. Society may 3000 find it

exceedingly onerous to. withstand the challenges of an era

_ of arrogance. -Can anyone. of us, today, hoyestly and confi-

: dentally take the position that. the appellant’s act of defi-.

antly burning: the flag, if ignored, will not ignite the spark

et which will flape into chaos and rebellion tomorrow? Ore sae

-need not be a prophet of doom to state that we must look at -

) reality with a circuthspect’ eye. It would be the height of.

naiveté to say that we are living i in a predominantly patri-

‘otic society free ‘from undermining influénces: It would ap-

pear reasonable to state.that we are part of a society which .

; ~ consists of a significant populace who either have chaotic

and anarchic thought, on the one hand; or, ; who harbor cold

inidifference, on the other. ‘To legitimatize the appellant’s¢

unforgiveable act is to, draw. the attention of the world to

> our problems, with ensuing, disrespect. Certainly there can

uw be no reverence for a flag that can ‘be defiled and treated -

? x | with — Nor. will there be any meaning = for the

* In the lig t of these events which have. occurred ir in our Country:

in recent times, it ‘would not be unreasonable to question the ap-

’ pellant’s statement that “we have long since passed the“era that. -

_ the threat of an angry crowd, or resentment by the listener

"against what is said, is a substantive reason for enactment of a

Statute. that on its face restri¢ts free aegeestl a oonal

oo Se Ne

‘ flag which deaped thie caskets af those who: ‘shed their: lives a

- for.our N ation, and inspired countless deeds of glory. To

_ dignify the appellant’s. cofiduct is to reducg the flag to an

_- empty piece of cloth, and to transform it from meaningful- - a

_ néss to meaningless ornament. If therflag i is pow to take on

merely an ornamental significance, then. can it not be said

_ that those who have shed their. livés for it were not only _

_ \ duped by it, but that it has made@ mockery of patriotism? —_-

, _ | It cannot be denied that to scorn.a g is to erode a nation!

. oe There i is a. “public interest i in n having our flag waving asa

. symbol ofthe United States: Disrespect for it is inimical 3

‘the same. Theoflag must continue to remain, in ap-exalted

position as symbolic of unity, strength, and friendly recog- —

or nition. : ‘Where. healthy, critigjsm may help to correct, the

“a appellant’s act can = chip: cota at the pillars of demioc-

2 peby.

Insofar as the appéllant’s : act is concerned, patriotism’ *

-expression the appellant now seeks to assert. His conduct,

‘if unchecked, will further debilitate and debauch: public

morals, for it transcends permissive expression.

- While such cases as West Virginia State. Board ee oh.

cation v. Barnette, 319 U.S. 624, 63 S. ‘Ct. 1178 (1943), su-

‘pra, hold that one need not salute the flag, it. does not fol- s

‘low from such a det@imination that it can become the —

| proper subject‘of desecration, or upon which to cast calum-_—

ny. The statute extirpated in Barnette, supra, compelled

: positive action of saluting the flag. The present sthtute does

not require any affirmative action nor does it prescribe or-

thodox nenee- It aad forbids public acts s of dishonor -..

nee

> i>.

. ing that we have. the,correlative obligation of similarly pun- _

ishifg those wiiosé acts are also as offensive to us, ‘particu-

” larly when thé act complained of is the burning of our cher-

ished flag. (See N.Y. Times, April. 11, : -1967, p. 8, col. 1,

“wherein it was reported that oral protest was presented by

- : . . . ,

‘ - o j °

- > \ -

‘ ~

‘ - ! : =

- a .

- 7 . "+

to the flak of the United States. The right to communicate —

: ideas or engage in political dissent or protest in a respon-

sible manher-remains unimpaired. The encouraging of rev- _

erence and respect. for the flag is not to be equated with

.. “eompeliing an expression of helief in violation of the First

eee Amendment’? (Jurisdictional Statement, p. 15). Such: en-

ne conraging becomes instilled in others wien “words oF

actis]’’ ef defilement of the flag are not caused to. be im- ~~

pressed upon their senses. + 4.

It would be ironic indeed to maintain that we have a atty

to punish those who ‘‘bring int public odium any foreign .

government . . or bring into public disrepute its political,

social, ‘or economic acts or views”? (see Frend v. United

ates, 100 F. 2d 691, 692 [D.c, Cir. 1938]), without conced-

’ Robert H. McBride, the United States ‘Embassy Minister,

tod jacques de Beaumarchais, director of Political ‘Affairs at,

the Foreign Ministry, for the _ incident i in Paris

on April 7, 1967.) =p heed

To vindicate the ‘Sppellant’s right to express himself i in

is to create an “open sesame’? to like conduct. On the

other hand, to condemn the appellant’s act, as it should be,

will not be a sign of fanaficism bit, rather, of patriotism.

(Compafe ex parte Starr, 263 F. 145 (Dist. Ct, Mont.’

oe: that there i is a danger to oe erermment in defiling

~ the manner he did, if indeed it be deemed symbolic speech, . ake

> i

* ‘

Sr ce - |

wv aoe

>. ee flag, notwithstanding appellant 's contrary view (See

§ urisdjctional Statement, p15). -

In fine, we must protect our country at all: ‘times. ‘The « an-

ticipation of an_ attempt to overthrow our basic tenets of -|° «.

democracy. by, arrogant behavior designed to flaunt our in-’.

~ «stitutions, wal flag-burning i is such an attempt, must‘be- our |

prime concern. We cannot afford to experiment by permit- -

ting all .acts and words “denigrating our basic philosophies

‘ to freely reach ‘the nfarketplace of ideas. The vitality of

such a view-was inherent in the determination of Dennis v.

United States, 341 U.S. 494 (1951), supra, at 509-10, 71 8.

, Ct. at 867, when it was ssnosinstly stated :

> We must reject’ . . the ‘contention that success;

or probability of. success [to overthrow the Govern-"

ment], i is the criterion. »? (Concurring opigion.) _

In another landanaik case, this Court declared :

ic 5 [T]he immediate danger is none the less real snd .

thbstantial, because the effect of a given utterance

; cannot be accurately foreseen. The State cannot rea-_

- sonably be required to measure the danger from

avery: such utterance in the nice balance of a jewel-

er’s scale. A single revolutionary spark may kin

a fire that; smouldering for a time, may burst into a

sweeping ard destructive conflagration. It cannot he

said that the:State is acting arbitrarily or unreason-

ably: when in the exercise of its judgment as to the

. measures necessary to protect the public peace and

cs safety, it seeks to extinguish the spark without wait-

ing until it has enkindled the. flame or blazed into

the conflagration; . ._. it may in the exercise of its

judgment, suppress the threatened~danger in.its in- ae

jeipiency.”’ (Gitlow v. New York, 268 U.S. 652, 669, ~~

45 S. Ct. 625, 631 [1923], supra, [Sanford, a, J)

ties ss.

—>

: 3 we . . a ae 4 i

To paraphrase Gitlow, supra, are we required to wait for:

an epidemic to break out before the doctor is summoned? ~

- The ‘apbeflant’s right as a citizen to criticize his country

and to effectively participate i in public’ affairs is not denied . |

him by the “fact that ‘Sec. 1425, subd. 16, para. d, of the

; Penal Law o6.the State of New York, supra, also bar's’

the use of ‘‘werds’’ as wejl as ‘‘act’’ in the interdicted

* conduct affecting the flag of the United States: The use

upon the flag ‘are no essential: wnat of any expositién

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

to truth that any benefit that may | be derived from them is

_ greatly outweighed by the social interest, i in order and mo-

--- rality.”” (See Chaplinsky v. New Hampshire, 315 U.S. 568,

572, 62 8. Ct, 766, 769 [1942]; Cuarze, Frzepom or Srzecn -

- 170 [1920].). The statute, being narrowly drawn; does not”

. violate any constitutional mandates regarding the right to

enjoy freedom of speech. And if there be any doubt as to

the constitutional propriety of including ‘‘words’ within

the prohibition of the statute, which we, do not-anticipate | :

(for. the reasons already ‘presented, and especially ‘when we

——gote the rebellious nature of the words employed hérein

simultaneously with the. act performed), that doubt ean.

easily be.resolved by excising that language and leaving ~

inwolate the punishment of the act of which the appellant |

was accused, except insofar as the language employed

mane out the “contempt”? Gisplayed by him.-

; ourts will exert themselves to save part of a.

statute, and if valid and invalid provisions are in-

| corporated i in the same act, the former, if separable, .

__-will-be upheld though the latter must fall . . *’’. (Mc-

- Kinney’s Cons. Laws of,N.Y. » Book 1, Statutes, pp.

3 337-38 ee 150 and cases ‘ited oe

“eh

EE Re tee . “Spe doa

-- ee also, People ex rel. Alpha P.C.Co. v. Knapp, 230 N.Y.

4. + 48, 60, 62-63 (1920) (Cardozo, J.), rearg. denied, 231 N.Y.

N or can any view that the instant statute has* for ‘its

"purpose the encouragement of adhering to symbols be |

furter i in West Virgima State Board of — v. Bar-

a nette, 319 U.S. 624, 63 S. Ct. 1178 (3943), supra: |

“We dre told that symbolism is a dramatic but

primitive way of communicating ideas. Symbolism ~

is inescapable. Even the most.sophisticated live by.

symbols. But it is not for this Court to make psycho-

: ° logical judgments as to, the effectiveness of a par-

: | | ticular. symbol in inculcating co ededly indispens- .

=e ‘accepted as sound. As aptly stated by Mr. Justice Frank- =

able feelings, particilarly if the state happens-to

see fit to utilize the symbol that represents our heri-

tage and our hopes.” ”? (Id. at 662, 63-8. Ct. at-1196,. :

3 dissenting: opinion, emphasis supplied.)

The appellant’s reference to. “symbols of sobcesailey. ‘ei “3

ii and the extent to which free expression may bé restricted

‘in order to protect them, is not entirely accurate (Juris-

. dictional Statement, p. 7). The flag is better described as he

a symbol of ‘‘our heritage and our hopes.” * . -

Although ‘the Court of ‘Appeals of the Btate of New

York predicated its determination upon the view that the

Matabory p purpose of the statute was tos‘prevent the out:

“break of . . violence by discouraging contemptuous and

insulting. iceaionct of the flag in public’ (People v: Street,

, 20 N Y 2d 231, 236 [1967], supra; Jurisdictional Statement,

" pp. 6a, 7a), and as was emphasized in People ex rel. Mc- -

| Pike v. Van De Cort, 91 App. Div. 20, 26 (ist Te 1904), 2

ce Le ih Ueonentge

of d, 178 N.Y. 425 (1904)*, supra, it was. ‘bat ‘position at

_ the time of argument i in the Court of Appeals, and to which.

"we respectfully still adhere, that what is also apparent is

"= «that the contemptuous’ treatment of the ) flag-of the United

_ '» States of America,** which would shock. the conscience of

..- any true American, nay,. ofany. decent person, is serious

enough? per se se, to-be treated asa misdemeanor and ee |

aes if committed “publicly. Kormreen re ’

5 ye a5 ~ Itis the public display of oot ignominious ‘igiaat which eae?

; accentuates the danger of the act, not only from a ‘‘breach- .

of-the-peace”’. “sense, ‘but. from + the ineffaceable debasing

2. effect; however slight, such desecration may-have upon

another’s respect for the symbol of our cherished iia

if what is thus i seen goes unpunished. |

What can be eainkdyin abusing our flag under the guise

3 “of unfettered expression? Certainly, the ‘harm that will® -

result greatly outweighs the need for constitutional protec-

tion that is sought for such expression. An act of contempt

done in public, as inathis case, is condemnable. because ‘it.

demeans our fee! in the eyes of others, and detracts from

yn * See also, Halter v. Nebraska, 205 U.S. 34, 41, 27 S. Ct. 419, -

421 (1906), supra. But see People v. Picking Mige.:.° ,-

NYS AUS. 149 (N.Y.C. Mag Cts 1946); a ’d, 263 App.

Div. 366 (1st Dept: 1942), aff'd, N.Y. 644: (1942), cert.

denied, 317 US. -632 (1942), reheating denied, 317°U.S. 708. ,

(1942), supra, where the court indicated that the aim of the

statute “hold up the dignity of the American Flag .

: ** It Sbvion tat for the, pnpoes ofthe statute hein

? snvdivel an y asserted claim of “title” to the flag by a defendant .

Be _would - be. The: flag, as such, like money, is the

“unique the United States of America and its citizens

asa e, except that the proper use of it by individuals is

= The ore —— of the flag, although in

, ¢ appellant, must yield to stronger t to it as

a _ “ight |

, .

Me ‘ ae

* - e . » .

4 ; © : 4. ’

4 . : ‘

the respect one would ordinarily show for the flag if he

were not ‘‘treated’’ to such a spectacle. It may even en-

_, » courage others to perform similar, or as equally unforgive-_

oe me able, acts against the flag of our Nation. Thus, in order to

Pa preserve. ‘the sanctity of the flag, the Legislature of the

~ State of New York* wisely provided that an act such as

committed. by the appelJant herein would suffer punishment

if done ‘‘publicly.”’ It is interesting to note that “eon- ai

- tempt’? is defined as follows: ° . z

tga: wilful disobedience . be or open inition

of the valid rules, orders, or prdécess or\ the dignity

or authority of a court or a judge acting in a judicial

capacity . . .’’ (Webster’s New Int. Dictionary [8rd

- “ed. 1964] {emphasis supplied].)

| “It j is, noteworthy that Sec. 1425, subd. 16, para,\d, of the

Penal Law of the State of New York, supra, 8 sets forth »

- conduct violative of Article 134, which has for its gole pur-

* pnose'the prohibition of various forms of conduct, specified

. -~n detail, and described as ‘‘Malicious Mischief. a of

this has been superseded by L. 1965, c.,1031, seé. '52. eff...

. . Sept.:1, 1967, and further identified as Section 136\of. the -

+’ General Business Law of the State of New York) This.

gh would | indicate an additional legislative purpose nl pro-

tect the flag from. public desecration dehors: any desire to

_ prevent a breach of the peace.. -Otherwise, many acts of dese-

- eration would escape punishment because of the difficulty in

showing that a breach of the peace occurred, or might have:

-. been oécasioned (i.e., when the flag is used for advertising ~

purposes). The proseription, therefore, is two-pronged.

®t See $1 N.Y: State Dept. Rep. 240 (1934), and 1941 N.Y. Atty

gee . Gen. Rep. 465, panee, .

a 23 ald ;

Thus, ‘‘open,’? which is synonymous with ‘‘publi¢,”’ when

"considered in the light of, the above definition of ‘‘con-

tempt,”” lends significance to the view that punishment in

_ the.instant case is mahdated, not only for a “‘breach of the -

peace”’ or its likelihood, but, algo, for the act of disrespect,

in and of itself... The contempt ‘of the type shown in the

rf above dictionary meaning does not need to rest upon any.

consideration of ‘‘breach of the ‘peace,’’ since what is pun-

Sp ished i is the ‘“demeaning”’ of, or ‘casting disrespect upon,

a court and judge in the presence of others who comprise. oe

the ‘‘ public.’ ** And so it is with the instant statute; it is

‘the contumelious conduct toward the flag. of the United.

‘States in the presence of others which we seek to reproach

so that a symbol of. our Aven is not xefegatod to a state

of opprobrium.® ; | ,

It must not be overlouked that there was a strong proba-

: bility indeed that the appellant’s act could easily have re- -

i sulted in a‘breach of the peace: A war veteran, for example, } |

. would not be likely to be insensible to the sight of the appel- -

lant’s desecration of the flag. , |

Had not the ‘police officer chanced to be nearby, there .

_ would have been a grave possibility that the impact of the

: appellant’s conduct might have penetrated the récesses' of

the minds of some of those passersby in that socially and —

' action favoring the appellant’s act. Such an occurrence is

- not too remote when wetonsider the Various disturbances

throughout the Country i in recent times. Thaf it did not hap-

pen, though fortunate, i is of no Report, for, to reiterate, there

* See State-v. Peacoth, 25 A. 24491 0 tl Ct., Msne 1942)

(court's charge regarding “publicly”

ier

. , . ° ? ’ °

, y 2 seo’

|< ; ° , 4

j - * - a . “ / 4

os ok . .

OC ie oe Lees, \ 39

was a likelihood of it, and, in\ any event, the appellant’s

‘*contempt’’ for the fing ppp warrants: punishntent :

under the statute. - an

e Appropriate, indeed, is the language: of Mr. Justice Doug-

las who, in recognizing that conditions may affect be-

havior, stated in‘ Denms v. United States, 34 U. ‘S. 494,

as Ct. 857 (1951), supra: Pore

Tn days of seid and i ccialtadSoi when aed

/ lines were long, when the unemployed walked the

| streets, when people were starving, the adyocates of °

| ashort-cut by revolution might have a chance to gain

adherents.’’ (Id. at 588, 71 8. Ct. at 906, dissenting:

; ie ae ‘

/ : ‘ he ‘ . -

: Appellant? 8 contention that the statute does not define

with ‘sufficient qarity the words or’ acts proseribed, thus

sweeping within its ambit conduct both innocent and criin-

inal (see J urisdictional Statement, pp. 13-14, A6;17), is be-

-lied by’ the very verbiage of the enactment. The statute is.

- -eoncise and provides that no person “‘{s]hall publicly a:

_ late, deface, defile or defy, trample upon, or cast contempt

upon either by wordsor act... the flag of the Umted States _

from’ desecration is one ‘‘upon which shall be shown the

colors, the stars and the stripes . . . or by which the person

i seeing the same, without sliberstion, may believe the same

¢ (Sec. 1425, subd. 16, para. d, of the Penal Law of the State .

_ of New York, supra). There is no doubt as ‘to what was

intended to be forbidden at the time -the statute. was en-

acted. The words ‘‘defile,” ‘defy, ” “cast contempt,”’ are ’

ye \ “sufficiently: clear io: cniahia a person of the conduct the *

red \ gubject statute is intended to ban. -

+ | vie

OT Ay ‘ einiinal « statute must bé sufficiently definite, a

- clear. and positive to give unequivocal: warning <to

citizens of thé rule which is to be obeyed. It is also |

true, of course, that: all’ presuniptions ‘and intend-

ments favor the validity of a statute and mere doubt. -

- does not afford Lemme reason ae a judicial sa ate

“tion of invalidity. :

eo a

e - . e

“sy $“The test i is whether a see man subject to

the statute would be informal of the nature of the —

offense prohibited and what is-required of him.’ —

. (See People v.. Byron, 17 N 7 2d 64, 66, 4 F [i968

[Keating; J. | eae ,

“And, also:; e

/. The. clarity on certainty | necessgry to ern ;

- reference to the context in which the term ig used.?””

(See People v. Merolie, 9 N Y-2d 62, 66 ieee x

‘[Froessel, J.]. s

** All parts of a statute are to. - sonattter: ed to- .

gether . . .”? (McKinney’s Cons. Laws of'N.Y., Book ~

1, Statutes, Section 130 and cases cited therein; see

also, Section 141, ‘same authority. c. ,

oe United.States v. Wurebach, 280 U.S. 396, 399, 50 s. Ct.

: 167, 169 ( 1930), Mr. Justice Holmes aptly stated: .

~«Whenever the law draws a line there will be.

"gases very near each other on opposite sides. The

: ui

>, :

‘

: go, if he thinks, and.if he does so it is familiar to the

| | 3 :; ei aay

precise course of the line may be uncertain, but no —

one.can come near it without knowing that he does

ete

a : :

. 5 wg ‘ . , .*

te: 2 ) or

F ow . . ,

' Rare .

eS em ee

ea o ie ee a wad Se , oi,

criminal law.to make .bim™ -~ the risk. Nash v.

United States, 229 U.S. 373.” ee ues

Te the same effect, see U nited States v. Petrillo, 330 U. S.

- 1, 7-8767 8. Ct. 1538, 1542 (1947).

-In State ‘v. Schlueter, 127 N J .L. 496, 23 A. 2a 249 (Sup.

te New J ersey 1941) the court, in affirming defendant’ s.

conviction as the” result of her conduct (she was a self- a |

confessed Nazi) in tearing and crumpling a small American -

. flag and throwing it to the ground, stated: .

oc eS. understand that the ‘statute, in making it a

‘ -misdemeanor ‘to deface or to defile the flag, used

those words in their meaning of.‘dishonor’. ‘Dis- .

‘honor’ is purposeful. The word implies a lively sense:

. of shaming or an equivalent acquiscent callousness.

. @, <For illustration: a blind stumbles over the flag

an and, not knowing what At is, ‘walks upon it and then

_" east® it aside. Has he ‘trampled’ upon the flag Has °°

he ‘defaced’ or ‘defiled’ it? _Has he ‘dishonored’ it?

We think got; because those words carry with them,

by inherent meaning, an attitude of mind . a.

at aes. ) (Case, og -

The statute herein entieen does pot create any

‘<(b]lurred | signposts to. criminality’ (Usted States v.-

Congress of Industrial Organizations, 335 U.S. 106, 142,

68 S. Ct. 1349, 1367-4488) « since it is narrowly drawn to

encompass the exact purpose of the statute—to assure re-

({ sponsible actions and judicious dissent insofar as the flag of

\the, United States of Perey concerned.

Appellant’s reliance on Baggett v. Bullitt, 377 U. g,

» 84.8. Ct. 1316 (1964), is inappropriate. ‘(See arial. :

Statement, pp. 16-17.) The ‘‘range of activities® referred. -

kts

to in Baggett, supra, at 371, 84 8. Ct. at 1822, which might

be ‘considered disrespect following the taking of oaths by

: f ‘teachers, said oaths designed to combat subversive conduct,

~ cannot be equated with ‘‘words or act[s]’’ (Seo. 1425, subd.

-. 16, para. d, .of the Penal ‘Law: of the State of New York, |

supra) aimed ab desecrating our \flag. ‘To: reiterate, the

* statute does not ‘require any positive conduct and is, there-

‘fore, unlike the one in West Virginia State Board of Educa-

- HOn.v, Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943), supra,

"whieh required saluting the flag. An.intent to dishonor the .

- flag is easily recognizable for it is not left to surmise.

It is undeniable. that the appellant by his statements at:

the time of the burning meant to degrade and lessen the

esteem for the flag of our Country, and by the act of burn-

: ing it in a public place, intended that qthers should share the

game feelings with him. Mewas this fear which“prompted’ -

the New York Legislature ‘to pass the statute so many years

ago (derived from Chap. 272, Sec. 1, of the Laws of 1903), xs

: Appellant? 8. reliance on. Winters v. New Y ork, 333 U.S.

507, 68 S. Ct. 665 (1948), is not well taken. In Winters,

the State ef New York (Obscene. Prints. and Articles), as

, it then read, indicated to the United States Supreme Court -

* that the statute would be difficult to enforée since it would -

create a problem in determining when such material .would

be interdicted by the. statute. ‘There was a possibility that

collections of other stories; otherwise unexceptional, might

- also be. corisidered “massed”? 80 as to become “vehicles for

*. inciting violent and depraved crimes.’ (Id. at 520.) In the .

instant ‘appeal no such problem exists for the statute: herein 3

involved ee as to the cop of conduct — sO

supra, a reading of Section 1141(2) of the Penal.Law of aie

3 43°

_° ee

that innocent acts affecting the flag of the United States of.

America -are not brought within its ambit. (See. e.g., "State. . "

yw, Schlueter, 127-N.J.L. 496, 23 A. 2d 249 1 Ct., New

2 Jersey 1941], supra.)

To reiterate, the instant statute concisely apprises. the —

public of the conduct. intended to be prohibited and. clearly

mandates law enforcement officers of their duty to prevent.

its breach. (See Giaccé’ v. Pennsylvania, 382: U.S.- 399,

402-03, 86 S. Ct. 518, 520-21 [1966]. Compare Lambert v.

California, 355 US. 225, 78 S. Ct. 240 [1957].) Since its

wording does not becloud the sanctions inherent therein, —

there is no violation of the due process clause of the Four-

teenth Amendment.

fn concluding, it is 5 eBpectéally prayed that no constitu- 3

tional guarafitee be‘fiermitted to shield the appellant’s act

‘from punishment, and whether this Court shall, or shall.

not, attach the quality of symbolic expression to the burn-

ing of the:flag of the United States, it is, nevertheless, so

patently offensive to, and ‘‘sacrilegious’’ of,*the deep tra- .

ditional feéTings of the American and the very ‘spirit. of

.. this Country’ s- history, that it’ would be unthinkable to. I

shelter such conduct ynder the protective mantle of our

treasured Constitution with which the flag ia inseparably :

‘fused, so as to require the need for the Firs! Amendment |

to be’ considered. To do that, would make constitutional i :

Guanes the very ‘means of self-annikilation|! ms

; “This flag, which we honor and under which we

- serve, is the emblem of our unity, our power, our

thought and purpose as a nation. It has no other

character than that which we give it-from generation |

z a '

to generation. _ The choices are ours. «It floats in ma- .

5: “‘jestic silence above the hosts~ that execute. those

= 44 rs , A 3

7 deka whether in peace or war. And it though

silent, it speaks to us—speaks to us of the past, of

the men and women who went befere us, and of the

- . records they wrote upon _.

It follows, therefore, that there is no substantial ques: iion .

. . which would warrant any further argumént in this Court.

Nor is there any basis for any claims that the pertinent

statute, which satisfies constitutional . requirements, is

‘Vague, ambiguous, indefinite, or overbroad so, a* to result i in ,

a deprivation of individual liberty without due process of

- Jaw, in violation of the Fourteenth Amendment to the

: ‘United States Cease ;

3 " CONCLUSION

For the foregoing reasons, the appeal should be dis-

missed; or, in the alternative, that the order of the

| ' Court of Appeals of the State of New York appealed

oe from, be affirmed.

Dated: Brookiyn, New York.

Teeny 2, 1968

a: ryt s

—— 1 ae ger oe a

| Respectfully submitted,

° 3

iia E. a:

District Attorney.

5 Kings County

——— for Appellees

a Hasay hens : ee

* Assistant District Attoracy aS a a yi

of Counsel ; :

* eet Woodrow Wilson in a 1 Flag id address on June

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.