# Motion to Dismiss or Affirm — Street v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0019%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1969 - **Citation:** 394 U.S. 576 ## 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 ry 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 | ! 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 Cs | 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 “ _ 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) 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 = \ to the public welfare and can only encourage others to do © ‘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’ * ‘cannot take a ‘‘back seat’’ to. any purported ight of-free © -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.’ 1920], supra.) It is the. appelldes’. respectful submission © 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. —> 4? * : 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 of ‘‘wWords’’? which ‘defile or defy ... © or cast contempt’’ 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 of : ve eS Soi 35 © 7 j = we ae : -- 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. (© "$16 (1921), cert: denied, 256.U.S. 702, 41 8. Ct..624 (1921). 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. | a 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 | 4 , . 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 ; 3 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 — economically-disadvantaged area, and thus incited violent © ' 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’ |, : © ‘ : 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 . Ne 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. . @,