Appellees Brief — Radich v. New York

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SUPREME COURT, U. 8.

“JAN. 6 1971

IN THE B, ROBERT SEAVER, CLERK

| Buprem Court of the Buited States

October Term, 1970 :

No. 169

STEPHEN RADICH,

Appellant,-

agamst

THE PEOPLE OF THE STATE OF NEW YORK,

Appellee.’

On Appeal from the Court of Appeals of the

State of New York

BRIEF FOR APPELLEE

Frank S. Hogan ©

District Attorney

New York County

Attorney for Appellee

155 Leonard Street

New York, New York 10013

(212) RE 2-7300

MicHAkEL R. JUVILER |

Wis C..Donnino -

Pau A. SoBELL -

Assistant District Méaraays

Of Counsel

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_ Opinions and Proceedings Below ..................0.0000- ne 1

"~~ Statute Involved ........... ne ene eee re 2

Questions Presented (:.0:.teodneeneruncrni es ay

Statement of the Case oie eee ae 6

The Evidence at the Trial 000. 8

The People’s Case ...:.......c:c:ccccccsetessesessssstesoneeneneepeens 8

The Defendant’s Case ........... poadleeayaviecsquieesoeenunacees 9

Summary of Argument .............. eee — 11

Point I—Conduct that publicly casts contempt upon |

the American flag by physical use of the flag is

not protected by the First Amendment econ omenere 16 .

Point II—The flag statute is not void for vaguenessor ‘

| overbreadth 00.00.0000 ccc peste y vig Mains atesisiases :.)

Point III—The statutory Gxcention that permits cer-

tain non-contemptuous uses of the flag if discon-

nected from advertisements does not deny appel-

-. lant equal protection lcci cosets 51.

MOO MCNSN OED, ose sere estes agers ttre estes cemrees cco a . 54

‘TABLE OF AUTHORITIES |

Cases: — . =

__Adderly v. Florida, 385 US. 39 (1966)... 12,13, 21,24, |

| 27, 30, 40, 41.

Mezander v. United States, 271 Fed. 140 (8th Cir.

1959) ......... tid unaobe Snnes deevsnsuicees erdvpevieneee aarsssuewerersegereiennsans 48

Bachellar v. Maryland, 397 U.S. 564 (1970) . iecoiesess | 29

TABLE OF CONTENTS

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

PAGE ~

Beauharnais v. Illinois, 343 U.S. 250 (1950) . ae 15, 40, 41

_Breard v. Alexandria, 341 U.S. 622 (1951) 0.0.0.0... 22, 28n.

Brown v. Louisiana, 383 U.S. 131 (1966) «00.0000... 24

Bryson v. United States, 396 U.S. 64 (1969) loecweeeeee + 45

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

Rptr. 734 (Dist. Ct. of App. 1962) 0.0.00... 48

Cameron v. Johnson, 390 U.S. 611 (1968) Fo ste 40, 41, 46

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

15, 35, 36, 41, 47, 50

’ Close v. Lederle, 494 F.2d 988 (1st Cir. 1970), cert.

denied, No. 332, Oct. Term 1970 o0.0.0.0.0.00cccce ....18, 28

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

(TO 2G). esadesavseinssscosspsesectationsectoiit wmeauvcessendsusservoreniecccabes = «88

Cowgill v. California; 396 U.S. 371 (1970) oo. - 22

Cox v. Louisiana, 379 U.S. 536 (1965) ...... t sah beesncsinees 12

Cox v. Louisiana, 379 U.S. 559 (1965) .0............. 13, 20, 21,24

Crosson v. Silver, —— F.Supp. ——, No. — Civil

| _ 70-79 Tueson (D. Ariz. Nov. 13, 1970) ee neeeneee: 33, 36

Dennis v. United States, 341 U.S. 494 (1951) .............. 30, 43

Dombrowski v. Pfister, 380 U.S. 479 (1965) ............... 43, 46

Fenster v. Leary, 20 N.Y.2d 309 (1967) ...... a ae — 46

Fox v. Washington, 236 U.S. 273 (1915) .. pahjsastereaten die 43

‘Garner v. Louisiana, 368 U.S. 157 (1961) ooooen. 37

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

Golden v. Zwickler, 394 US. 103 (1969) oo... 43,45

Halter v. Nebraska, 205 U.S. 34 (1907) ........12, 13, 17, 19n,

| 20n, 24, 25, 26, 34, 52

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

11) :) een a 19n

Jordan v. De George, 341 U. S. 223 ( 1951) sescesseeesevecenees 41, 43

‘Joseph Burstyn Ine. v. Wilson, 343 U.S. 495 (1952) "41,43

Joyce v. United States, 259 A2d 363 (D.C. App. 1969).. 19n |

' JTII

. | PAGE

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

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

Kovacs v. Cooper, 836 U.S. 77 (1949) ..........13, 20, 21, 29, 43 ©

Long Island Vietnam Moratorium Comm. v. Cahn, —

— F. 2d

- (2d Cir., Slip’Opn. 328, Dee. 1970).. 42n’

Nash v. United States, 229 U.S. 373 (1918) 00.00... 39°

New York ex rel. Hatch v. Reardon, 204 US. 152

ae eeesenenne pecetrngene seats saeco errata ert 43

, People v. Cowgill, 2%@ Cal. App.,174, 78 Cal. Rotr.

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

871 (1970) 0... Ses eipitntepnearstonsias ates 13, 14, 20n, 22, 34.

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

mied 371 U.S. 863 (1962) (ooo. 48

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

Nassau Ctny) ............. bod do eseg vin sasedanerienacoesededtetsvaperdoretes 42n

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

People v. Radich, 26 N.Y.2d 114 (1970), ‘aft’ g- 57 Mise.

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

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

missed, 375 U.S. 42 (1963) ooccccccccccccecccseeeseeeee 13, ay 29

People v. Street, 20 N.Y.2d 231 (1967), rev'd, 394 U.S. >. |

576. (1969) 0.0... dseareelcees stv steamateriatiesetsneee we 8, 20n, 33:

People v..Verch, 63.Misc.2d 477 (Ct. Spec. Sess.. a 32

Public Utilities Commission v. Pollak, 343 US. 451. 28n

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

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

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

Samuels v. Mackell, 288 F,Supp. 348 (S.B.N.Y. 1968)

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

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

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

iemece v. United States, 367 U.S. 203 (1961) 43, ‘a

Look ; PAGE .

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

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

Sp C:', 5) an 48

Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) ©... 7 45

Smith v. California, 361 U.S. 147 (1959) 00. 16,48

State v. Schlueter, 127 NvJ. C. 496, 23 A.2d 249 (NJ.

FI errecics to ynertorxesescaehiberd ohn stqusprdd cacosizenseraseancoovecic, AT

‘Street v. New York, 394 U. S. 576 (1969) oo 12, 14, 19, 20, 21,

24, 26, 30, 34, 45, 46

Stromberev. California, 283 U.S. 859 (1981) | banshee 45, 32

Time, Ine. v. Hill, 385 U.S. a4 (967 fe edarerionaieen 22

. Toker v. Des Moines School istrict, 393 U.S. 503 -

(1969) potent 20, 21,22, 28, 29, 31

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

(L. Hann, J.) aff’d. 341 U.S. 494 (1951)... “44

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

| Cal. 1969) ooo cseectesseisletieettieoee 19n

United States v. Harriss’ 347 U.S. 612 (1954) ............:38,43 -.

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

1960), cert. denied 364 U.S. 837 (1960) 48

United States v. Knox, 396 U.S. 77 (1969) .00:.00........ ‘salaee 45

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

S (WGOBY i eeecccccclecccccsscsectel sesesineptesepsthesssssseeecte 38, 40, 41

' United States v. Oakley, 290 F.2d 517 ‘(6th Cir: 1961), 3

ert. denied, 368.U.S. 888 (1961) o.oo. ccceccceecceeeee 48

7 United States v. r OBrien, 391 U.S. 367 (1968)....12, 14, 20, 21

, 23, 31, 32, 47, 50

United States v. Petrillo, 832 U.S:1 (1947) oo 30, 41

United States v. Ragen, 314 U.S. 513 (1942) ooo 40

United States v. Wurzbach, 280 U.S. 396 ( 1930) oa 89, 43 |

Valentine v. Chrestenson, 316 US. = (1942). eee on 22

- .

. o. - PAGE -

West oe Board of Edugation v . Barnette, 319 .

U.S. 624 (1948)... ceeeseese eee vee 5, 26; 29 |

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

_Winters v. New York, 333 U.S. 507 (1948) ......: wees 15, 38, 41 |

Zwickler v. Koota, 389 U.S. 241 (1967) .............. es 46

Statutes: + . a |

BS GC) 2S) ” 46.

N.Y. General Business Law $136 ........ ferry een vee Dy 1T

N.Y. Penal Law of 1909 §1425 (16) 20.0.0 12. 5, 6, 8,17, 52

Ch. 54 [1917] Laws of N.Y. 106 (caption) 2.00... 19n

4 U.S.C. _ Ret aoe pista heel ccxsnuetie papncrengtescens 24

15°U.S.C. §1052(b) oon. Paes COs ae nears 25

7 oe S55) Fs 5 re — 26.

U.S.C. §700 (Sapp. IV 1968) bevvetens a stones encase 19

18 U.S.C. §700(c) pests neabeenesereen aes ieee: adeno ~ 19

36.U.S.C. §170 ......... Veessdrasdinmntesersttinieseget. 9AM

56 Stat. 377, ¢. 435, 36: US. C. §§172- 177 eeeeaeeicentes 24

Other Authorities: :

Amsterdam, The Void- oe Vaguenzes: Doctrine in the

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

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

76 (1969) (orev ina kag aii tai aneunenbnsetcsdaredbeanpaamenestov tings 19n —

Joyte Cary, The Horse’s Mouth ...................... tees 37n

Desecration of the Flag, Hearings | on HR. 271 Before \

Subcomm. No. 4 of the House Comm. oni the J udi- .*

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

- Emerson, Toward a General Theory of the. First

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

Flag and the Law, 4 WARPABATBO ULL. Rev. 345 (1970)

, 19n, 36

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

- Lincouy, Coutzcrep Works (Basler ed. 1953) | oft .. 24n

_ vI

a |

. ee PAGE

_ N.Y. Daily News, May 9, 1970 2o0...oocccccccccccceeeee tenes 35n |

N.Y. Post, May 22, 1970 000.00. ooccccccccccceeceeececseseeveveees 35n

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

| Nov. 24,.27,1966 -

Dee. 14, 1966 «00.00.00... aoe esas a . 81n

N.Y. Times, May 12, 1970 |... a ee ey 35n

ONY.. Times, June 14, 1970 2... eee ees 25-6n

Note, The First Amendment Overbreadth- Doctrme, -

| 83 Harv. L. Rev. 844 (1970) ooo, 44

Our Frac (Schauffler ed. 1926) 00.0... ee 24n |

. PREBLE, ORIGIN AND History OF THE AMERICAN Fac -

OTN ese tesreestenent ner veneteiorniesteeSi heels accseaak tes 24n

Quaire, Fue FLaG oF THE ean Soleus ( 1942) eae — 24n

Te American Heritace Dictionary oF THE ENGLISH

Lancy acs, CSG arstie roctsipincicempsenceniensteieat scceeneteeees 36

Tre Ranvom Hause ‘DICTIONARY OF THE ‘Broun ‘Eayn- .

_ @uageE, College. Edition (1968) ............. cbr isle dante: 39

WesstTeR’s THIRD NEW INTERNATIONAL Dictionary, a

) Unabridged 0b ) eseeseesh - 389

51 N.Y.S. Dept. Rep. 240°(1934) . sPerisuststanesuas keteanetsaisenees .. 19n |

_ 1941 Rep. of N.Y. Att’y Gen, 465 soaconidah saeenetawaseerceeaness 19n

1943 Rep. of Att’y Gen. 90-91 0. ctecsssgssssceeeeeee £ T9n

q ,

| Supreme Court of thaluited States 7

October Term, 1970

No. 169

‘Srepnen Ravicu, |

we . ; > Appellant,

, 7 against _ + + *

~ THe Prope oF THE STATE OF New York,

Appellee.

On Appeal from the Court of Appeals of the 7

State of New. York

BRIEF FOR APPELLEE ls

Opinions. and Proceedings Below

Appellant Stephen Radich appeals from an order of the

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

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

of the Appellate Term, First Judicial Department, of the

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

_ 1968, unanimously affirming, without an opinion, a judgment

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

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

_ trial before three judges, one judge dissenting, of malicious

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

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

§136), and sentencing him to a annie of $500 or a days’

imprisonment.

The Court of “Appeals opinions are reported at 26 N.Y.

— 2d 114, 308 N.Y. S.2d 846 and are eeproamcet in the Appen-

dix at pages 6a-22a.

The Appellate Term affirmance, without opinion, is re-

. ported at 57 Mise.2d 1082, 294 N.Y. S.2d 680.

The bisleeourt opinions are qenonied at 53 Mise.2d 717, .

279 N.Y.S.2d 680, and are reproduced i in the Appendix at

pages 25a-36a. .

Statute Involved —

Radich was convicted of a violation of section 1425, ‘sub-

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

_ was repealed, effective: September 1, 1967, with the enact-

ment of a completely revised Penal Law. Upon the repeal,

of the former Penal Law, section: 1425 was transferred to

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

- change: the provision that permitted the recovery of a civil

penalty for each offense in addition to the conviction for a

‘misdemeanor was repealed.

Section 1425(16) of the former Penal Law is reproduced °

in full below, with the subdivision here in question printed

9 ,

in italics, and ‘with the exeeption that: the civil es pro-—

vision is omitted. | . :

— Any -person, who |

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

pisos or cause to be placed, any word, figure, mark,

picture, design, drawing, or any advertisement, of. any

nature upon any flag, standard, color, shield or ensign |

of the United States of Amrevien. or the state of New ~

York, or shall expose or cause. to be exposed to ‘public

view any such flag, standard, color, shield or ensign,

upon which after the first day of September, nineteen

hundred and five, shall have been printed, painted or

otherwise placed, or to which shall be attached, ap-

pended, affixed, or annexed, any word figure, mark,

picture, ‘design or drawing -or any advertisement of

any nature, or |

‘‘b. Shall expose to public view, manufacture, sell,

expose for sale, give away, or have in possession for

sale, or to give away, or for use for’any purpose, any

article, or substance, being an article of merchandise,

or a receptacle of merchandise or article or thing for

carrying or transporting. merchandise, upon which

after the first day of September, nineteen hundred and

five, shall have been printed, painted, attached, or

otherwise placed, a representation of any such flag,

standard, color, shield or ensign, to advertise, call

attention to, decorate, mark, or distinguish, the article

or substance on which so placed, or

‘fe. Shall print, engrave, or otherwise. place or

catise to be printed, engraved or otherwise placed on

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

_ business stationery, 4 representation of any such. flag,

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

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

stationery for basins purposes or correspondence, or

( 4

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

trample upon,.or cast contempt upon ‘either by words ¢

or act, or

6, Shall raffle’or place in pawn any such flag, ~

standard, color, shield or ensign, or

* ““f. Shall publicly carry or display any sablon:

placard: or flag which casts contempt, either by word

or act, upon the flag of the United States of America,

or |

~ «6g Shall publicly use or cause any such flag,.stand-

ard, color,. shield or ensign, to be publicly used as a

receptacle for the placing, depositing or collecting of

money or any other article or thing,

‘‘Shall be guilty of a misdemeanor ;* * *.

- “The words flag, standard, color, shield or ensign,

as used in this subdivision or section, shall include any |

flag, standard, color, shield or ensign, or any picture

or representation, of either thereof, made of ‘any sub-

stance, or- represented on any, substance, and of any

size, evidently purperting to be, either of, said flag,

standard, color, shield or ensign, of the United-States

of America, or of the state of New York, or a’picture

or a representation of either thereof, upon which shall |

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

number of either thereof, or by which the person seeing

the same, without deliberation may believe the same

to represent the flag, colors, standard, shield or ensign

of the United States of America, or of the state of

New York, .

“This subdivision shall not apply to any act ex-

pressly permitted by the statutes of the United States

of America, or by the United States army and navy

regulations, nor.shall it be construed to apply to a

certificate, diploma, warrant, or commission of ap-

pointment to: office, ornamental -picture, article of

jewelry, stationery for use in private correspondence,

or newspaper or periodical on any of which shall be

printed, painted or placed, said flag, standard, color,

shield or ensign disconnected and apart fom any -

advertisement.

‘‘The possession by any person, other than a publi

officer, as such, of any such flag, standard, color, shield -

or ensign, on which shall be anything made unlawful

at any time by this section, or of any article or sub-

stance or thing on which shall be anything made un-

lawful.at any time by this section shall be presumptive

evidence that the same is in violation of this section,

and was made, done or created after the first: day of

September, nineteen huridred and five, and “that such

flag, standard, color, shield, ensign, or article, sub-

stance, or thing, did not exist on the first day of Sep-

tonbee, nineteen hundred and five.”’ \

™

Questions Presented

1. Are acts.that publicly cast contempt upon the flag of

the United States by physical use ‘of actual flags protected

“by the First Amendment?

2. Is the New York statute prohibiting any person from

pitbliely casting contempt upon the American flag by . act -

unconstitutionally vague? __ |

3. Does the statutory exemption of a non-contemptuous _

use of the flag in an ornamental picture,- newspaper or

periodical, not connected with an advertisement, deprive

appellant, a. dealer i in sculptures, of equal protection of the

laws? .

Statenieat of ths Case

The Complaint* oe

CRIMINAL COURT OF THE CITY OF NEW YORK

Part 7, County of New York |

| State of New York ) . | 4

. County of New York ) ss.:

/ ~ Patrolman John P. Burns, of No. 19 Precinct,

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

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

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

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

County of New York, State of New York, the defen- .

dant, StEPHEN Rapicu did commit the crime of: did vid, -

_ late section 1425 of the New York State Penal (er)

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

shall publicly mutilate, deface, defile or defy, trample

4 - upon, or cast contempt upon the flag, standard, shield -

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

words or act or shall publicly carry or display any em-

blem, placard or flag which casts contempt, either by

word or act, upon the flag of the. United States ‘of :

- America:

under the following circumstances : |

your deponent states that at the above location, the

Radich Gallery, on December. 27, 1966 at 8:30 a.m., he

observed that the defendant did have on display, in a

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

United States of America, in the form of a body hang-

ing from a yellow noose. Deponent further states that

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

_ * Reproduced -in the printed Appendix at pp. 2a-3a. Italics iden- —

tify the standard printed portion of the complaint form.

mentioned location, the defendant did have on public

display and for public viewing the flag of the United

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

form of a male sexual organ, protruding from the body

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

and depicting the erected male penis, protruding from

a form of a cross. 2—the flag of the United States of

America, wrapped in a chained bundle. 3—the stand- —

ard of the United States on a form of-an alleged ele-

phant. 4—The Union of the flag of the United States

of America, depicted in the form of an octopus. 5—

the American flag attached to a gas meter. 6—The

American flag wrapped around a bundle attached to a

two wheeled vehicle. 7—The American flag in the form

of a body, h ging from a yellow noose. Your. de-

ponent further states that the defendant is the owner

_ and operator of the premises mentioned abéve.

_ Wherefore deponent prays that me defendant be

dealt with according to law.

Sworn to before me

_ January 4, 1967 :

| . (signed) Ptl. John P. Burns

(signed) Walter J. Bayer.

Judge, Criminal Court

of the City of New York

oct

The Evidence at the Trial

. The People’s Case

Patrolman John P. Burns of the New York City Police

Department testified that on December 27, 1966, at 8:30

~ a.m., while on duty, he was outside the premises 818 Madi-

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

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

United States, formed in the shape of a human body, sus-

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

The following day, December 28, 1966, at 5:00 p.m., he ,

returned to 818 Madison Avente, accompanied by Patrol-

man Myrich of the Police Department’s Photo Unit (40a).

They entered an art gallery located on the second floor.

The gallery was open to the public, free of charge (45a).

- Within the gallery, he saw twelve or thirteen exhibits on.

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

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

. engaged in conversation with an unknown female. When

asked by the officer, the defendant identified himself as

Stephen Radich, proprietor of the gallery. ‘Thereupon,

Patrolman Burns served the defendant with a summons

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

When questioned, the defendant said that he was not

the person who created the works exhibited in the gallery ;

however, he received a commission for their’ sale (40a-41a,

54a-55a). _ ° |

'. Each of the objects in which the American flag appeared |

was photographed and the photographs were received in

evidence as People ’s Exhibits 1 through 9 (4la- 44a).

* References are to the pages of the printed Appendix.

o.. 9 . !

. _ The Defendant’s Case .

Stephen Radich, the defendant, testified that he is the

sole proprietor of an art gallery located at 818 Madison

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

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

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

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

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

88a; Defendant’s Exh. B). = _

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

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

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

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

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

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

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

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

tain societies; injustices in this country; and infringement ©

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

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

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

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

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

cause [like} all other works of arf in the gallery they were >

for sale’’ (944-95a). : 7

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

and 4] was a cross from which protruded the American

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

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

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

draped over the cross’s horizontal and vertical pieces.

In appellant’s opinion, the message imparted by this

sculpture was that there is no separation of church and

state; that this government is inyolved in aggressive acts

of war. he church flags indicated that the organized

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

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

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

disrespectful toward the flag; he thought Morrel questioned

the behavior of the government and organized religion in

aggressive acts of war (92a). | |

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

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

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

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

defendant’s opinion, this sculpture illustrated “Moérrel’s |

doubt whether the people of the United States are hier:

ing their constitutional ‘Tights (94a).

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

qualified as an expert witness after recounting his back-

ground i in the field of art (98a-101a). In his opinion, ‘‘there

is virtually no material which contemporary artists are

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

(101a). He ‘would. define a work of visual art as any

physical object specifically whose visual properties [are]

specifically designed to communicate an aesthetic emotion’’

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

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

art’’ (108a).

. i

_ In the course of his newspaper responsibiliti¢s, Kramer

received an announcement [Deféndant’s Exh. B] of the

Morrel exhibit at the Radich Gallery, and in December

1966 he saw the exhibit at the gallery (101la-102a). In ac-

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

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

108a) ; he also described Morrel’s-: ‘works as “ornamental

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

tended to render some anti-war message, no political meés-

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

Summary of Argument

Appellant Stephen Radich was convicted of committing

an ‘‘act’’ by which he cast contempt” upon the American

flag; he was not convicted for any verbal expression against

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

position to the government or its policies which ‘his act

may be deemed to have conveyed. For Radich chose to

exhibit publicly in his art gallery certain ‘‘constructions”’

which employed the American flag in.a contemptuous man-

ner: One sculpture used the. American flag to depict a

penis and attached the penis to a cross draped with church

flags; another sculpture, i in the show window of the gallery

visible : from the street, used the flag to depict a human body

hanging by the neck from a noose, —

While Radich pc el items to be protest art,

Radich himself had not constructed the items and was not —

himself seeking to communicate social protest by. these

works; his interest appeared primarily commercial: to

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

‘a commission. And, while the art news editor of the New |

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York Times, a defense witness, considered the items protest

= art, they conveyed no political message to him. |

In any ‘event, the First Amendment does not accord a

‘nonverbal act which seeks to express an idea the same pro-

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

Louisiana, 379 US. 36, 555 (1965); Adderley v. Florida,

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

(1968). The First Amendment protects ‘<speech”’ and “the:

press”; an-actual flag ‘in the form of a male sexual organ,

Lo ( ora hanging effigy, is neither “speech”? nor “the press.’’

Consequently, since, | as we “shall demonstrate, there i is

a ‘‘sufficiently important. governmental. interest” in pro-

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

governmental interest is unrelated to the suppression. of

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

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

were justified. ‘United States v. O’Brien, supra, at 376- if

a That there exists a «siifficiently important governmen-:

tal interest”? i in prohibiting conduct that treats. the United

' - States flag contemptuously i in public was made evident by

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

which: recognized the public interest in preserving the in-

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

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

gress and 43. states prohibiting acts ‘that cast contempt

upon the flag, and in the remaining seven states forbid-

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

a speeial kind of personalty.’* Street v. New-York, 394

"U.S. 576, 616-617) (Fontas, J. dissenting). The public may ~

- —=.* eee

prohibit its use as a medium of commercial advertising,

| or as a subject of open physical disgrace or shame; be- .

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

* purposes, just as the grounds near. a courthouse or jail

. may he designated off limits for certain conduct, even con-

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

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

The public interest in preventing public acts that dese-

crate the flag is especially: clear where, as in this.case, the

“dishonored flag is forced upon a captive audience. . Appel-

lant displayed the flag as a corpse -hanging by the ‘neck i in

the show -window of - ‘his gallery facing an important city

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

culated to catch the eyes of passers-by indiscriminately.

This display collided with the- rights of other citizens to

use the street undistracted by unavoidable disturbing

images of the honored national symbol. Such conduet is

an ‘‘assault upon individual privacy,’’ subject to reason:

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

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

(1st Cir. 1970), cert. denied No. 332, Oct. Term, 1970; Peo-

.° plé vi Stover, 12 N.Y.2d 462 (1963), apneal dismissed 375

U.S. 42° (1962) ; moves v. Cooper, 336 U.S..77 (1949).

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

. the flag desecration statute promotes the. important gov-

ernmental interest of preventing ““the outbreak ae

violence by discouraging contemptuous and insulting treat-

- ment of the flag in public.’’?. Se¢ also Halter. v. Nebraska,

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

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

Cowgil, 274 Cal. App. 174, 78 Cal. aah 853 (Ca Super.

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

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

present one, is a fortuitous circumstance that hardly ne-

gates the proposition that contemptuous use of the flag in

public can. be the occasion for violence and that the state |

may proscribe conduct that: potentially breeds disorder

without waiting until the violence erupts.

The governmental purposes envisioned by the’ statute ©

are ‘‘unrelated to the suppression of’free expression.”’

Acts contemptuous of the flag are punishable regardless

whether they are designed to express views, just as destruc-:

tion of .draft cards is punishable regardless whether the -

destruction was ‘‘engaged in for the purpose of expressing

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

stant statute is neutral as to political expression—a disap-

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

contempt: for American appeasement of ‘ ‘international com-

munism’’ would also be covered by the statute. The law is

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

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

method of expressing them. Thus, the criminal complaint

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

expression or political views; only conduct was referred to.

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

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

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

flag are justifiably prohibited, the citizen remains free ver-

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

the draft], including those opinions -which are defiant or

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

ingly, the statute is distinguishable from those statutes or

administrative regulations whose object was either to sup-

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

_ 859 (1931) (prohibiting people from expressing their oppo-

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

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

expressing . their opposition to the Vietnam war by the

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

U.S. 58 (1970) (prohibiting people from ‘‘speaking out ©

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

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

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

(1943) (compulsory flag salute).

Further, that the statute prohibiting casting contempt

upon the flag is not unconstitutionally vague, and that the

exhibited works fall within the statutory proscriptions, can-

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

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

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

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

notice of the acts proscribed i in terms readily understand-

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

matical precision. Thus, men of ordinary intelligence

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

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

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

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

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

491-492 (1957) (‘‘obscene’’) ; Shaplinsky v. New Hamp-

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

‘Another dispositive answer to appellant’s allegation of

vagueness is that it ‘‘is as clear as a pikestaff”’ that hang-

ing the American flag as a body andi using” it to. form,.a

male sexual organ: emerged from pubic hair (91a) cast .

contempt on the flag; therefore, ap Det tain eh be

heard to complain that he was deprivéd of fair no s to

the meaning of the statute. Williams v. United States, 341

U.S. 97, 401, 104 (1951). Similarly, he may.not complain,

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

applied to persons other than himself, whose conduct, such |

as unorthodox gestures toward the flag, may be constitu-

tionally protected. The validity of the application of the

statute to Radich does not depend upon validity of ‘appli-

cation in every hypothetical situation that the mind’ can

conceive of, particularly. since the New York appellate

‘courts have not been called upon to determine whether the

statute applies in those situations. :

The knowing display of such objects need not be excused

because the exhibitor’s specific intent is other than con- -

temptuous. The statute is properly malum prohibitum; the

~ defendant is held to the natural consequences of his deliber-

ate, knowing act of exhibiting items whose subject he was.

aware of and which were found contemptuous of tlie flag.

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

pellant relies, the state was prohibited from punishing a

_ proprietor of a bookstore for exhibiting items whose “sub- ~

ject matter he was unaware of. If the bookseller had been

aware of the contents of the items, his subjective opinion

that they were not obscene would have been ponatrel.

Radich also alleges that the statute ‘dates him equal . |

protection, based on his erroneous reading of an exception

contained in the statute for ‘‘ornamental pictures,’’ and:

‘7

newspapers and periodicals. Radich argues that this pro-

vision denies equal protection to sculptors and exhibitors

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

ously on ornamental sculpture, while permi{ting contemptu-

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

entire statute, the major portion of whith seeks to prohibit

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

the exception is intended to permit only non-contemptuous

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

connected and apart from any advertisement }’ and legisla-

" tive distinctions between contemptuous and ‘non-conteyapte-

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

tion. ‘See Halter v. Nebraska, supra. Since Radich has been

convicted of using the flag contemptuously, the exemption

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

POINT I

Conduct that publicly casts contempt upon the

American flag by physical use of the flag is not pro-

tected by the First Amendment.

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

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

under a statute providing that no person shall ‘‘publicly ©

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

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

Former N.Y. Penat Law §1425(16)(d), now N.Y. GEN.

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

against appellant, in setting forth the statute as a matter

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

he was prosecuted and convicted not for words,but for

publicly displaviue constructions that misused the flag con-

temptuously. No words were-alleged in the. complaint, the

charges being confined to his display of three- -dimensional

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

evidence, although the defense evidence included reference

to protest songs that were broadcast in the gallery during

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

findings of fact, limited. culpability to the ‘‘eonstructions’’

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

tion in. the display window facing Madison Avenue of ‘an.

American flag stuffed and shaped in a form suggesting a.

human body hanging from a yellow noose around its neck’?

(25a; Peo’s Exhs. 1, 2; 41a-42a; Def’s Exh. A; 49a).

Among the 12 other sonstene ine, inside the gallery, the

trial court singled out the one displaying an American flag

in the form of an erect penis protruding from the vertical .

standard of a cross (25a; Peo’s Exhs. 3, 4, 42a). The find-

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

stitute a contemptuous use of the flag of the United States __

and that the defendant by exhibiting them to the public cast

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

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

this findifig, stating: |

“Whether defendant thinks so or not, a- xessonable.

man would consider the wrapping of a: phallic symbol

_with the flag an act of dishonor; he would cénsider the

hanging effigy a dishonor; and to a lesser and more

debatable extent it might be found that wrapping the

flag i in chains, attaching it to a gas meter, and fashion-

ing the other representations involved, were acts dis-

honoring the flag. The exhibitor who, as in this case,

’ engages to join the artist in the commercial exploita-

..19

tion of ‘he supposed expression ‘of protest seamiad in no

_ better position’ (15a); | Ht te,

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

open the question whether the First Amendment permitted -

a prosecution for such conduct, the Court merely deélaring

that freedom of speech barred-a conviction for casting con-

tempt upon: the flag yo ‘‘word. =

’

Appellant’s attack on the constitutionality of the ‘aet”?

provision draws into question not only the New York stat-:

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

states prohibiting desecration of the flag, and a recently

enacted law of Congress making it a crime to knowingly

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

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

U.S.C. §700 ( Supp. IV 1968). The federal legislation spe- _

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

U.S.C. §700(c). In 40 states, laws prohibit casting con- .

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

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

temptuous,’’ prohibit conduct dishonoring the flag. The

remaining seven states prohibit various specified physical

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

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

under the Constitution.” ** The. second purpose is to prevent

_ * Note, Flag and the Law, 4 VALPARAISO U. L. Rev. 345, 362-_

_ 367 (1970) ; Desecration of the Flag, Hearings on H.R. 271 Before

- Subcomm. No. 4 of the’House Comm. on the ss eriieal 90th Cong., —

Ist Sess., ser. 4, 324- 346 (1967). ;

/ .** Ch. 54°[1917] Laws of NY. 106 (caption) ; 1943 Rep. of

Att’y Gen. 90-91, 1941 Rep. of N.Y. Att’y Gen. 465, 51. N.Y.S..

Dept. Rep. 240 (1934) : Brief of N.Y. Att’y Gen. at 3, 4, Street v.

_ New York, 394 US. 576 (1969) ; Joyce v.-United States, 259 A2d

363 (D.C.App. 1969) ; Hoffman v. United States, 256 A2d 567 (D.C.

App. 1969) ; United States v. Ferguson, 302 F.Sup pp. 1111 ——

1969) ; see Halter v. Nebraska, 205 U. es 34; 41-43. (1907).

~ the potential of public disorder occasioned by public dis-.

plays of contempt toward a widely revered national sym-

bol.* : .

Appellant’s, primary contention is that his conviction

and the New York statute violate the First Amendment —

guarantee of freedom of speech. In reviewing such posi-

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

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

but at most with ‘‘expression mixed, with particylar con- .

duct.’? See Cox v. Louisiana, 379 U.S. 559, 564 (1965).

Appellant’s unsupported assertion that this case involves

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

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

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

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

Court said in United States v. O’Brien, 391 U.S. 367, 376

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

- limitless variety of conduct can be labeled ‘speech,’ ’’ even

_ when “the person. engaging in the conduct intends thereby

to express an idea.’’ Appellant’s displaying of actual flags.

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

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

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

‘ were substantial; indeed overpowering—physical altera-

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

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

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

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

_ symbolic acts. ? Id. at 5065. |

* Qa-la; People v. Street, 20 N.Y.2d 231. (1967), rev'd, 394

U.S. 576 (1969) ; People v. Cowgill, 274 Cal. App. 174, 78 Cal.

_Rptr. 853 (Cal. Super. 1969), appeal dismissed, 396 U.S. 37i (1920) ;

Halter v. Nebraska, 205 U.S..34, a1 (1907).

—

ge hergererhe °

21 -

Reasonable regulation of symbolic acts or symbolic’con-

duct is permissible under the’ First Amendment, ‘‘even — |

though intertwined with expression.’’ -Cox v. Louisiana,

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

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

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

speech’ elements are combined in the same course of |

conduct, a sufficiently important governmental interest

_ in regulating the nonspeéech element can justify inci- |

_. dental limitations on First Amendment freedoms * * *

[A] government regulation is sufficiently justified if it.

is within the constitutional power of the government;

-if it furthers an important or substantial governmental

interest ; if the governmental interest is unrelated to

the suppression of free expression; and if the inci-.”

dental restriction on alleged First Amendment freedom

is no greater than is essential to the furtherance of

that interest.’’ - .

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

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

School. District, supra; Adderly v. Florida, 385 U.S. 39

(1966) ; Cox v. Louisiana, supra; Kovacs v. Copier, SS

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

expression, important public interests, and minimal, polit-

ically neutral limitations on expression, permitting reason-

ably adequate alternative means of communication.

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

the conviction of appellant is demonstrated by his candid.

concession at the trial that his interest in displaying the

constructions was commercial; not political. Although ap-

pellant never claimed that he wished to convey political or

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

a ee

7 92

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

artist: At trial "he merely testified to his opinions about

the artist’s intention to express certain protests (82a, 91a-

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

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

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

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

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

a political or social motive is relevant in assessing the

validity of the application of a law to communications.

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

handbills. distributed in the: street; political text added

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

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

validly applied* td salesmen of magazine subscriptions).

Although a commercial intent is not always material when

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

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

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

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

pressive purpose may be considered in assessing the ex-

-pressiveness of his conduct and his claim to First. Amend-

ment protection. _

- Nor do the constructions, by themselves, convey a de- —

terminable thought or idea. Like the flag shirt in People

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

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

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

(1970) (concurring opinion). Although this Court las not -

announced a test of the sufficiency of the communicative or

expressive aspect of a course of conduct that would war-

rant application of the = Amendment, the Court has re- ©

\ ©

ee ee

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

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

objective test: conduct has no sufficient communicative as-

pect warranting application of the First Amendment unless

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

stand its meaning—its alleged ‘‘speech’’ element—in. the

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

-card.publicly would bring into play the First Amendment

- [ef. United. States v. O’Brien, supra at 376]; sitnilarly,

_First Amendment principles did apply to the black arni-

: bands worn by the students in: Tinker, since a reasonably

well-informed member of the school comniunity ‘would

have understood this ‘as a gesture of. protest against

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

usually well-informed man, appellant’s expert witness— .

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

art critic for the New Leader, a magazine of political and -

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

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

~ While he concluded that the artist ‘probably intended to”

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

ence ° by the anti-war songs playing on the sound track ;

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

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

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

communicated a messagevexactly” (108a).

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

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

_ New York statute are important. -. Laws prohibiting public”

contemptuous treatment of the flag of the United States

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

emblem of our unity, our power, our thought =e purpose

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

factor’? that.the New York Court of Appeals alluded to in

_ its opinion in this case (9a)... As Mr. Justice Forras said -.

_ in Street v. ‘New York, 394 US. 576 (1969), ‘‘the flag. is a |

~~ speciakind of personalty.”” Pe, Mtg ay

| celta aad te tauditionally and universally subject to spe-. ”

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

affirmed the constitutionality-of a-staté statute making .

it a crime to use a representation of the United States

flag for purposes of advertising: Halter.v. Nebraska, ~

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

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

a when, how and for what purposes it may and may-not |

+ be used. See, e.g., 4 U.S.C. §3; 56 Stat. 377, c. 435, 36 -

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

ership is subject to special burdens and responsibilities.‘

A flag may be property in Paes but it is property -

burdened with peculiar obligations and restrictions.”’ ”

Id. at 616-617 (dissenting opinion). ©“ = ae

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

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

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

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

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

, 383 U.S. 131, 166 (1966) (Biack, J., dissenting). ~ It is the -

national trademark, not a private brand [cf. H alter v.—

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

; AIFE, THE FLAG OF THE UNITED STATES 193 (1942) ; see also

Halter v. Nebraska, 205 U.S. 34,.41-43 (1907.); Lafayette, letter to

John Adams (1786), quoted in 2 PREBLE, ORIGIN AND HISTORY. OF

THE AMERICAN FLAG, preface (1917) ; 4 ABRAHAM LINCOLN, CoL-

‘2 LecTED Works 192, 219-220 (Basler ed. :1953) ; Francis Scott Key, |

The Star Sparigled Banner, Henry Ward Beecher, address (1861), ~

- Ralph Waldo Emerson, Concord Hymn, collected in Our Frac

(Schauffler ed. 1926); Holmes, C.J., Rémarks, 178 Mass. 627

. (1901) ; 36 U.S.C. §170. . ae ,

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

may restrict its use as a medium of commercial advertising ¢ -—

“ora physical target of disgrace or shame. ‘It: is national,

arid belongs to all the -public.* Protectionaef this, interest g.-

* In an editorial on the gnost recent Flag Day, the Mew York

Times stated: ©

._ “Thirty years ago today the conquering<armies of the most

powerful military dictatorship the world had ever known were °

sweeping. through Western Europe under the hooked cross and

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

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

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

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

“The American people were watching apprehensively, with -

- every passing day of Nazi triumph, increasingly conscious 6f

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

in this spirit and this.atmosphere that Robert_LeDuffus of the :

editorial board of The New York Times wrote the small classic

reine below, which first appeared on this page on Flag Day,

1940. ae ; @ a

« Oo

oes

, | ee =

- “It is stories told. It is the Pilgrims. dying in their first -

dreadful winter. It is the Minuteman standing his ground at

Concord Bridge, and dying there. It is the Army ini rags,-sick,

freezing, starving at Valley Forge. It is the wagons and the

men on foot going westward over Cumberland Gap, floating -

_ down the great rivers, rolling over the great plains. It is the

" settler hacking fiercely at the primeval forest on his new, his own’ *

lands.: It is Thoreau at Walden Pond, Lincoln at Cooper Union,

and Lee riding home from Appomattox. It is corruption’ and

disgrace, answered always, by men who. woyld not. let the flag lie

in the dust, who have stood up in every generation to fight for

the old ideals and the old rights, at-risk of ruin or of life itself. ”

‘ ““It is a great multitude of people on pilgrimage, common

and ordinary people, charged -with the usual human failings, yet -

filled with such a hope as never caught the imaginations and the

hearts of any nation on eartli before. The hope of liberty. The

hope we justice. The hope of.a land in which a man can stand

straight, without fear, without rancor.

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

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

_ manity may aspire to when the wars are over and the barriers -

are down; to these each generation must be dedicated and con-

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

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

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

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

States and the Federal Government do haye the power to

protect’ the - flag from acts of. desecration and disgrace.”

_— 394 U.S. at 605 (Wasa, C.J., —

Such protection is ani: as smicliatat corttends, “compel-

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

any more than laws prohibiting mutilation of draft cards,

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

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

able from West Virginia Board of Education v. Barnette,

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

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

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

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

duct and -affirmation of belief, and allows him’ to speak

, sccratéd anew, to defend with life itself, if néed be, but, bore

all, in friendliness, in-hope, 4in-courage, to live for.’

* Kk O* *

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

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

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

flag should have become distorted and degraded by the partisan

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

be captured either by the repressive legions of the right who

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

‘dents; nor must>its meaning be destroyed by the frustrated

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

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

unity of America. We must not allow it to be_perverted by the

forces of disunity, whether :the Birchers or Weathermen, that

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

16, col. 1 (Emphasis in original).

contemptuoushy of the flag. He merely must abstain from .

publicly desecrating it. Loess 7

‘The governmental interest i in: preserving the integrity of.

’ this emblem is partictlarly strong where, as in this case, the

disgraced flag is thrust upon a captive audience. This Court

has rejected ‘‘the assumption | that people who want to

propagandize protests or views have a constitutional right

to do so whenever and however and wherevex they please.”’

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

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

cadaver hung by the neck, in the window of his gallery

facing a busy’ city street, in a manner designed to draw the .

attention of passing pedestriatis, motorists and ‘bus ‘pas-

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

evidently ‘calculated to shock the viewer; surely it was of-

fensive to many passers-by. Appellant’ s alleged right to *

present an artist’s symbolic protest conflicted with -the \.

“rights of others, adults and children, to use the Street un- |

‘distracted by an eye-catching, unavoidable image, larger

than life, of the —— symbol of America hanging like

a corpse a | ——-— ~

As the Court of Appeals suggested, the range. of this .

brightly colored display on the second floor of the building

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

harangue can be avoided by crossing the street or walking ~

i, \ in a wide are around the soapbox. To respecters of the flag,

or citizens for whom it had Special “significance, perhaps | _

because of the loss ofa relative in the Armed Forces, or |

of an honored national leader, the harm was instantaneous,

_ inflicted as soon as the effigy was seen. Regulation of such

displays does not infringe freedom of speech. As has been

Said in a similar context: . ; ' .

Where a shock effect is s produced by forcing ari

‘obscene’ communication upon a person contrary to his_

wishes, the. issue is somewhat similar to that involved

in private defamation. The harm is direct, immediate

and not controllable. by regulating subsequent. action.

The conduct can realistically be considered an ‘assault’

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

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

only in limited situations such as where the communi-

cation is displayed publicly on a billboard,.or sent into

a private home through’ the mail.. Regulations can be

Pe -’ devised to Heal with this matter that do not create

serious area problems. Under the cireum-® ,.

stances, Testriction of communications of this nature

.would not be inconsistent with the first amendment. ”

Emerson, Toward a General Theory of the First

Amendment, 12 Yate L.J. 877, a (1963).

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

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

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

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

| versity building, although the art was not legally obseene——

It depicted male or female nudes ¢ displaying the genitalia i in

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

effect, a captive audience,”’ including children who regu-.

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

right. to afford protection against ‘assault upon. individual

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

~ Seem Ih People v. Sto: v. Stover, 1% 12 N.Y.2d 462 (1963), appeal

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

*In Redru p ‘the Court spoke of ; thn an assault upon individual privacy

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

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

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

451.

on sete question raised bythe application of an ordi-—

a nance, prohibiting the maintenance of a.clothesline i in a yard

abutting a stteet; to appellants’. clothesline filled with old

clothes and rags, which they displayed as a peaceful protest

against the high taxes imposed by.the town. Judge Fu’.

had noted’ that the ordinanee, apparently. passed in re-

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

signed to proscribe conduct which offends the sensibilities. ””

"_12 NY2d at 470. The rule that ‘‘the public expression of

ideas ‘may not be prohibited merely because the ideas are

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

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

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

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

content of the ideas béing expressed” [ibid. }—it i is doubt-

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

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

the interest of protecting individual privacy from.verbal

assaults, Kovacs v. Cooper,-3386-U.8, 77, 81, |86-89' (1949) -

upheld a prohibition against loudspeakers emitting “loud ;

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

This approach does not impair freedom of expression. -Ap-

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

‘‘on controversial subjects like,the-conflict in Vietnam, if —

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

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

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

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

Thus, ‘the “applicadon of the statute to “the display

in the show window is -clearly consistent with the :

First Amendment. Nor is appellant’s conviction vitiated »

s Pen RTD teeta Sear

—_,

~~.

5 .

ENR REE IT OTE NO ee .

‘may rule on).

ed .

, : :

‘because the statute does not expressly limit its coverage to |

-contemptuous conduct before a captive audience. First, .as-

is discussed throughout this brief, the legislation may val, -

idly be applied to public contempt even before a voluntary

audience. ;

Even if the First Amendment were deemed to preclude

the application of the statute to conduct before a voluntary —

audience, the conviction still would survive. The findings of -

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

—_— :

effigy in the window was-a separate basis of the conviction

7 (9a, 1ba,-25a, 27a); in Street v. New York, by contrast, the |

3" __ generality of the complaint, of the People’s evidence, and of

the verdict led this Court to conclude that the verdict might

have been based upon constitutionally protected behavior,

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

to specify: the theory of unwilling audience. _ The trespass —

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

validly applied to non-violent. protests on jail grounds,

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

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

\In many situations where the First -Amendment is appli-

- gable, the statute may be validly applied if certain facts .

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

- gtitutional eonditions. for prosecution. See Ginzburg v.

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

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

US. 494, 513-515 (1951) (in prosecution for’ conspiracy to

advocate violent overthrow, clear and present danger test

is hot an element of the crime, but. a ‘‘judicial measure of

constitutional applicability,” which the trial court alone

- a

—_

a . . a -

Not only. i is than: an important Public intérest in pre- —

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

grace, but this interest is ‘* utirelated to the suppression of ~

free expression,” and “the incidental restriction on alleged

First | Amendment: freedom iis no greater than-is essential

i. tortie furtherance of that-interest.”” See United States v. .

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

preserved, and is off limits for disgracing acts, no topic is |

proscribed ; the regulation i is unrelated, to ‘‘the prohibition

| : of expression of one particular opinion.’’? Compare Tinker

vo Des Moines School District, supra at 511. Although

appellant? 8 argument -associates contemptuous misuse of

the flag specifically with the expression of sentiment against

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

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

\ the flag currently brings to mind a hawkish position on a |

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

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

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

ing by a lynched flag; or a drooping flag-penis, hig protest

against American troop ‘withdrawals, bombing jalts, cease- °

. fires or truces (all of which occurred or were contemplated

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

woule also be violating the statute. oo

Pure free-floating “<eontempt, ’? the gubject of the statute,

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

templated by the First Amendment ; notwithstanding its

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

is nothing necessarily expressive about such conduct.’’ See

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

26, p- 1, col. 1; Nov. 24, p. 1, eve 1, Nov. 27, p. 1, col. "8, Dec. 14, p. 1,

col. 7%. . a

PS OPRIT SeON IS2 ys BE zy AP Ae ORIEN resins * ae . _

“9

p L \ :

United States v. 0 ’Brien, supra at 376. Indeed, ‘ieeenis-

| destroying or mutilating a draft ecard shows contempt for

~ the draft system, but the statute prohibiting such willful |

: conduct is unrelated to the suppression of ‘expression’? a

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

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

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

tion of the flag is merely inciderital to the thought conveyed, f

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

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

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

as_ occurred in People v. V erch, 63 Mise.2d 477 (Ct. Spec. —

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

aspect inheres in the act alone. ° ’ Prosecutions under the

flag desecration law would’ properly be aimed at: the 1 non-

expressive, physical elements of. this ‘conduct.

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

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

for the purpose of expressing opposition to organized ZOvV-.

ernments; whatever: governmental interest was furthered’

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

the suppression of free expression.. ‘The same is true of.

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

- there permitted use of an American military uniform only in |

-_a theatrical performance, ‘Cif the portrayal does not tend to

| discredit” the: Armed. Service. The supposed governmen-_

— tal interest furthered by this law inherently involved the |

suppression of pure speech; Congress. ‘tin.effect made it :

..a@ erime for an actor wearing a military uniform to say

things during his performance critical of the conduct or |

policies ‘df the Armed Forces.”’ Id. at 62:63. Moreover, —

Aw oe og i

there is no valid governmental interest in protecting the —

| military services from discredit. re.

- The ‘second: governmental. interest served’ a the statute

pare purpose discussed by the New York Court of Appeals

“ (9a)—is the prevention of breaches of the peace:

sctis Ruikaaboa alepaalisig

“ [I]t is within the realm of legislative judgment to find

| that some types of pubke flag desecration will be as

a provocative to many viewers as the kind of personal

‘insult which is often followed by violence. That the

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

7 proper foundation for-legislation directly, ee that

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

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

1970). ° hi

_ And as Chief Judge Pots stated 3 in \ Street, t, “Vila n of

the statute ‘may not be condoned * * . because, no yiolende

~ actually did oceur.”’ 20 N.Y.2d at 237. - Coinpiartne the

_ present -case to Street, the Court of Appeals founds |

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

‘wider public-cireulation and, in consequence, perhaps,

a measurable enhancement of the likelihood ‘of incite-

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

: structions: in a display window. of defendant’s gallery.

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

exhibition antl exposure for sale of the. companion.

. pieces in the public gallery and mercantile establish- ©

_.. ment within. Implicit m-the invitation to view was

the opportunity thereby affordeg to join in the protest,

or in counter-protest, with the consequent potential of

public disorder; or so the trier of facts could bPdied

- find?’ (9a-10a). . .

The triers of the facts did find evidence ' of a thiteat to

public order: »

OB oNtenle. Sia awe

;

state has a substantial interest in preventing a result- |

“In Halter v. N ebraska, 205 U.S: 34, 41, the Supreme -

Court, in upholding a statute. similar to that involved |

here as applied to the use of the flag in advertising

said: . | : sO . <s

human race, banners, standards and ensigns have

been adopted as symbols of ‘the power and history

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

_ often occurred that insults to a flag have been the

‘From the éarliest. period in the history of the

eause of“war, and indignities put upon it, in the .

presence of those who revere it, ‘have often been

resented and sometimes punished on the spot.’ :

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

advertising is less a desecratien and therefore less ‘ :

a threat to public order than the ‘use and exhibition

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

Appellant contends that the state courts have ruled in

effect that casting contempt on the flag in publié ‘‘ereates

‘an irrebuttable presumption that.a breach of the peace will

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

; lant- ignores the other governmental interest protected by —

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

Moreover, the contention is unsound even as to the interest

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

at most: reflects a reasonable presumption that a breach

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

the flag in publie. ~The reasonableness of this expectation

is reflected in the enactment of similar laws throughout the

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

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

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

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

since the “opinion in that case dealt with culpability for

“?

» words, not merely aad desecration of, the flag i in public.

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

_ words’? [ef. Chaplinsky v. New Hampshire, 315 US. 568

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

‘expectation of danger from his indiscriminate’ display on

‘Madison Avenue to a large, undifferentiated, audience for

_ three continuous weeks is reasonable. Indeed, disturbances.

.. ‘in the Wall Street and City Hall areas of Manhattan this ..”

| spring, associated with allegations of mistreatment of the |

flag, illustrate the ‘provocative quality -of such conduct.*.

+ Except for ‘showing that no breach of, the peace actually

occurred, appellant made no ‘offer to rebut the reasonable-

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

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

did ngt protect. orderly picketing: near a courthouse with :.

intent to impede the administration of justice, aa ey ..

legislative determination based on-experience ha h eor

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

even though no evidehce of a breach of the peace or a threat —

‘to the judicial process was introduced at the trial. |

“Appellant. argues that aeecplance: of the — of the-

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

the point.’ The interest is to prevent disorderly reaction

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

‘selves, regardless of’ the views of the actor; that these.

contemptuous uses of the flag may have communicative

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

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

the flag desecration context, unrelated to the suppression °

_ -* Cf. “Indict Wall St. Hardhat,” N.Y. Post, fay 22, 1970, p. 1,’

col. 3; N.Y. Daily News, May 9, id pene: N.Y. Times,

may” 12, 1970, p. 18, col. 2. ;

“a

ar 36

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

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

pact of the ‘‘non speech element.’? Crosson v. Silver, —

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

~ 1970). Moreover, the incidental. restriction on the alleged

communicative value of the act is no greater than essential

to further that interest, in view of the reasonable legislative

determination that such conduct inherently risks disorder.

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

Uniform Law against flag desecration, which has been’ en-

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

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

stitutional because not expressly limited . to desecrations

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

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

and federal laws against publicly mutilating or trampling"

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

lic interest is unjustified.

Disturbing physical acts sack as these, and the displays

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

‘fighting’ words’? [Chaplinsky v. New Hampshire, 315°U.S.

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

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

Such, utterances “are no essential part of any exposition

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

truth that any benefit that may be derived from them is

- clearly outweighed by the social interest in order ‘and

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

any proper sense communication of information or opinion

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

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

ans AE tT nll RE Sant Bn 5 ses te me GAO th. ety! ee

_ municative elements that bring the First Amendment into ;

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

. practice of artists expressing themselves on controversial

_ subjects through materials and symbols appropriate to the °

draft cards, or,»iff' the manner of Gulley Jimson, use the

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

mation or opinion safeguarded by the Constitufion.’? Un-

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

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

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

J. concurring). They: “inflict injury" without ne ré-

course.

Contrary ic the implications of the briefs filed by appel-

lant and amici curiae, artists have no favored position

under the First Amendment. The framers of the First .

Amendment, men of extraordinary learning and culture,

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

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

mining whether the contemptuous acts in question had com-

play. Under narrow circumstances, art may be limited by

government, incidental to the protection of interests un-

further the discussion to complain, as amict have, that ‘‘If.

the conviction below is upheld by this Court, the traditional

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

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

base of the Washington Monument for a mural,* however

‘‘appropriate’” these materials would be to the subject.

Nor may they publicly desecrate the American flag, al-

though they may use it etherwise (see Brief of Amici

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

* Cf. Joyce Cary, THE Horse’s Mout.

mal. Creative artists have other means to express protest,

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

- enjoyment of the national symbol in an orderly atmosphere.

POINT II

‘The flag statute | is not void for. vagueness or, over-

. breadth.

Appellant, convicted under a statute that makes it a

_erime to ‘‘publicly * * *.cast contempt upon’’ the American

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

. unconstitutionally vague from two standpoints ; first, that

it does not give fair notice of the eonduct condemned, and’

second, that it encompasses acts that are protected by the

“First Amendment and is thus impermissibly overbroad.

A criminal statute is not void for lackyof an ascertain-

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

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

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

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

reasonable notice of the forbidden acts in terms that per- .

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

* stand that his contemplated conduct is proscribed’? is all

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

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

476, 494-2 (1957).. ‘‘That there may be marginal cases in

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

which a particular fact situation falls i is no. sufficient reason °

to hold the language too ambiguous to define a criminal

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

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

arbre ele’ cannes

US. 612, 618 (19 4). “Woe ‘whenever the law draws a line

there will be cases Wery near, each other on opposite sides.

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

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

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

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

280 U.S. 396,°399 (1930) ; Nash v. - United aad 229 US.

873, 877 (1913).

In the instant ease, due vegard for the intélligence of a

acts ‘contemptuous of a person or thing. Simply under-

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

_ is apparent to a reasonable man under the circumstances

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

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

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

Wesster’s Turrp New InternationaL Dictionary, Un-

abridged (1969); THe Ranpom House Dictionary oF ‘THE

' Enciisn Lane UAGE, College Edition -(1968); THE AMERICAN

HERITAGE Dictionary OF THE ENGLISH Lancuace (1969).

Appellant’s argument that the term ‘is sibirious be-

‘ " eause persons who. hold political beliefs allegedly repre-

sented by the flag mutilations in question would find them

not contemptuous, completely misses its mark. Contemp-

tuousness can “hardly be judged by the persons who

espouse the particular use that is the subject of such a.

eye of a reasonable man, regardless of pélitical beliefs.

That different juries may reach opposite conclusions as to

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

. determination. Contemptuousness is here judged by the _

SS AERO RE ENeNN

2 nee ntl Ne Dan El ie rl OA AP ATO wt

40 .

common experience that different juries may reach different

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

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

able man must exercise his judgment on the factual ques-

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

a "determination of contemptuousness is no greater a

challenge than, for example, a determination of conduct as

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

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

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

U.S. 29, 32-3 (1963) ; Cameron v. Johnson, 890 U.S.°611, 616 °

(1968). Realistically, a residuum of doubt unavoidably*

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

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

out their lives encounter, experience, and are capable of . “

"+ judging conduct contemptuous of themselves, others, and’

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

tions, if one is sympathetic with contemptuous acts against

the flag, one could hardly doubt their contemptuousness

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

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

tain uses ofthe flag are abicenvely contemptuous.

ii Béparnis v. Illinois, 343 U.S. 250 (1952) this

~ Court sustained against a challenge for vagueness a crim-

inal group libel statute which as an element of the crime

required that the publication or exhibition in question ex-

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

contempt, derision, or obloquy.”’ Comparable é¢xamples -

' of statutory language which this Court has found to give -

sufficient notice of the act proscribed are many indeed.

eee Ee ee ee

Os,

~ prices for the purpose of destroying competition or elimini-

a ties secured or r protected by th the Constitution’’ and ‘under

- inJordanv. De George, supra at 231 n. 15. Thus, given the

. - > -

<5 : . ,

* A.

“ -

n > 5 . . pas

SS ad . P en SOLA RO ERNIE eS aS PRAIA Ta

RENE EER

eo .

44°

Cameron v. Johnson, supra; 390 US. 611, - 616 (1968) _

(‘‘obstruct’’ and ‘cunreasonably interfere’’) ; Adderly ve.

Florida, supra, 885 U. Ss. 39, 42-3: (1966) (“‘“with: a malicious

and mischievous intent’’) ; U nited States v. National Dairy -

nating a competitor’’) ; Roth v. United-States, supra, 354 —

U.S.. 476, 491-2 (1957). (“‘obscene’’) ; Williams y. United

- States, 341 U.S. 97. (1951) (““rights, privileges, « or immuni- - *

- color” law) ; Jordan v. De George, 341°U.S. 223, 230-2- ~

(1951) (“crime involving moral turpitude’) ; United States

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

employees ‘<in excess of the number of. employees needed by

‘such licensee to perform actual services’’) ; Chaplinsky v.,

New Hampshire, 315 US. 568 (1942) (‘‘any offensive, de-

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

unavoidable i imprecision of language and the need for legis-

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

allow easy opportunities ‘‘to nullify the purposes of the leg- |

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

_ (1948) (dissenting opinion)], this Court has: clearly ex- *

pressed a reluctance. to void statutes that draw a line that,

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

lant’s heavy reliance upon Joseph Burstyn Ine: v. ‘ Wilson,

343 US. 495 (1952) is misplaced. Burstyn involved a

statute that permitted the banning of a motion picture

found ‘‘sacrilegious’’ of ‘‘religion.’? The holding ‘of the

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

state to effect a prior restraint on the expression of views

42.

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

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

interest’? in so protecting religiens. Id. at. 505, The

vagueness that inhered in the term sacrilegious stemmed —

from its application to a historically ambiguous object: .

religion. ‘‘What. might have beén definite when a con-

trolling church imposed a detailed scheme of observances

becomes impos\ibly confused and uncertain when hundreds

of sects, with widely disparate and often directly conflicting

ideas of sacredness, enjoy, without discrimination and in

/ equal measure, constitutionally guaranteed ‘religious free-

~dom.’’. Id. at: 528 (concurring opinion). The Object to:

which the act of-contemptuousness is directed in the instant

case is the American flag, not the varying political beliefs

of Americans.*

* The dispositions of the cases cited by appellant in a footnote

(Brief of Appellant; pp. 25-6) are instructive.

The ‘case against the defendant in People v. Pregaskis was dis- .

missed on December 9, 1920 in the Town Justice Court, Town of

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

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

See, N.¥.LJ., March 18, 1970, p. 1, col. 3. qWhile the District °

Attorney filed a notice of appeal in the Hubner case, on August. 11,

1970 he withdrew the appeal. a : .

-In Long Island Vietnam Moratorium Comm. v. Cahn, F.2d

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

““ ”

charged with a violation of subdivision ‘‘a” of the statute—a provision’

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

/bid.- Further, the District Attorney of Nassau County neither acted

improperly in seeking to enforce the statute nor evidenced any political

bias. See New York Times, January 16, 1970, p. 17, cols: 1-2. The

District Attorney, acting on a complaint, indicated his conscientious —

belief that writing or symbols superimposed upon the flag violated

the law, that he “must énforce the law 4s it is written and as it is

“ determined by the courts,” that he would prosecute, “so that the courts

can make

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

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

—*“not because of any political persuasion.” ‘bid. When federal de-

claratory judgment relief was sought the prosecutor pledged to re-

frain from prosecution pending the outcome. * a

e final determination,” the use of peace symbols placed.

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

ginal cases of contemptuous conduct, no one could hang-a. .

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

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

-authorized-conduct. ‘‘ f4]t therefore strains at technicalities

- to say that any issue of vagueness of the Eipraae as con-:

. strued and applied is présent in the case.’? Williams v.

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

prohibited uuder any construction of the ferm does not

admit of an argument that fair notice of the act proscribed ;

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

(1915) ; United States v. Wurzbach, 280 U.S. 396, 399

(1930) ; ; Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (concur- —

ring opinion) ; Jordan v. De George, supra 341 U.S. 223,

- 231-2 (1954) 5 Williams v. United States, supra; 341 U.S. 97

(1951) ; United States v. _ Harriss, 347 U.S. 612, 618 (1954) ;

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

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

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

_ New York e& rel. Hatch v. Reardon, 204 U.S. 152, 160-1

* (1907) ; Dombrowski v. Pfister, 380 U.S. 479, 491-2 (1965) ;

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

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

can flag within the meaning of the statute if vague, is

frivolous. The statute is quite detailed in its description

and while it may encompass many varied representations

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

show, since appellant was convicted ‘for contemptuous use

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

lack of fair notice\that such was within the scope of the

statute.

44° |

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

statute is impermissibly overbroad where his acts were of

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

construction of the statute and were not privileged under

the Constitution. His contention is apparently that even

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

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

explained reason, that other forms, of conduct—such as

‘‘unorthodox gestures ainied at the flag’’ and ‘‘flying one’s.

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

utory proscription and constitutionally protected; there-

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

Denmis, 183 F.2d 201, 214 (2d Cir. 1950) (L. Hanv; J.), aff'd, -

341 U.S. 494 (1951}] of those he believes patently protected «

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

sequences of his patently unprotected conduct. The law —

cannot countenance such a result. |

The methodology of deteimaiutag vagueness in terms of.

overbreadth can be somewhat elusive and mystifying, even

where the specific actions in question approach the border-

line of constitutionally protected. conduct. Amsterdam, The —

Void- for-Vagueness Doctrine in the. Supreme Court, 109

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

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

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

under the Constitution, it flies in the face of rational

and judicial analysis to ask the Court then to set adrift

toHfind any number of hypothetical situations the stat-

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

determing the constitutionality of such application, and

finally, if one Py pomcieal application would be uneon-_

‘ 45>

stitutional, to declare the entire statute void even as applied .

‘ to’ the unprotected conduet. ‘‘The constitutional question, °

_ First Amendment or otherwise, must be presented in the

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

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

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

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

might be applied in ‘some hypothetical fashion to prohibit

the exercise of some constitutionally protected éonduet of |

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

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

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

‘great feat of imagination to envision situations”’ in which

many penal statutes might conceivably be, applied uncon-

stitutionally. Shuttlesworth vy. Birmingham, 382 U.S. 87, :

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

~ Statute as applied to the ‘‘hard- core’’ conduct specifically

in question... Statutes that adinit of varying and different »

application shall be made to constitutionally protected con-

duct and that the varying applications are. separable should

one of them be found unconstitutional. In short, ‘‘it seems

quite reasonable * * * that if the * * * legislature had known .

it could not have all it wanted, it ‘would have wanted all —

it “could have.’’ Samuels v. Mackell, 288 °F. Supp. 348

(S. D.N.Y. 1968) (FRIENDLY, J., for three-judge court), prob.

_ juris. noted, 393 U. S. 975 (1968); restored to cal\for rearg., —

395 U.S. 957 (1969), 399 U.S. 922 (1970). Thus, a judicial

finding that-a particular application of a statute would be

‘unconstitutional does not require that the statute be voided

even as to. applicatrons that clearly come within the statute

and are not constitutionally protected. — See Street v. N ew

ein oe: ih Ct at ith bie Ps eile *

Danie hth 8 St OED ODS, 6 Sib BAL Bhi CE i Rg Ak

7 .

acai ”

Bisinsiiietasainn Wentibees

‘

. .

46 -e

York, 394 U.S. 576 (1969). Further, if any individual is

‘threatened by an application of statute to conduct he

believes is constitutionally protected, he may, in addition

to any state remedy hé may have [see N. Y. CPLR §3001;

Fenster v. Leary, 20 N.Y.2d 309 (1967)], seek a speedy -

determination from the federal courts that the particular

application of the statute in question may not constitution- .

ally be made. See Dombrowski v. Pfister, supra; Cameron

v. Johnson, supra; Zwickler v. Koota, 389 U.S. 241 (1967).

- Moreover, in the case at bar, it is, not. clear that the

New York Court of Appeals was ever properly. presented

with and passed _uporf a question of overbreadth as

to the conduct covered. Appellant’s brief.in the Court. of

Appeals appeared addressed solely to vagueness as a ques-

tion of fair notice ; no hypothetical examples of overbreadth

" were presented the Court of Appeals as they are presented

to this Court. Accordingly, appellee’s brief in the Court of

Appeals addresséd itself solely to vagueness as a question

of fair notice. That court, while passing on all issues raised

by appellant, was silent as to overbreadth. Indeed, the

appellate courts of New York have not passed upon the,

situations now conjured by appellant, and have not indi-

eated whether they. would uphold prosecutions for .such

conduct, as a matter of statutory interpretation or consti-

tutional law. Thus, the question of overbreadth in terms

of the conduct proscribed is not properly before this Court.

Street v. New York, supra, at 581- 2.

In arguing the statute’s sverbrenilth Radich claims that

the Court of Appeals’s holding that the'statute did net re-

quire proof of a specific intent by the actor to east contempt

upon. the flag, would result ina substantial restriction on the

. freedom of Bpeeett We dieaenee:

To begin with, the Court of Appeals appears to have

' been primarily-concerned that the statute would not begome

the focal point either for the suppression -of protected

speerh or for the ev aluation of ‘political beliefs. ‘Thus, in

deciding whether the defense of subjective good faith mo-

tivation of the actor excused conduct objectively contemptu-

ous of the flag, the Coyrt of , Appeals held motives, specific

intent, irrelevant and the act alum prohibitum. But in so

holding the court did not eliminate ‘the basic requirement ~

that a deliberate act, objectively contemptuous, must be

committed. As explained in: State v. Schlugger, 127 N.J.L.

496, 23 A.2d 249, 2504. (NJ. 1941), although the statute did

not requife commission of the act with a specific intent,

“the statute, in making it a misdémeanor to deface or to

defile the flag, used those w ords -in their meaning ‘of ‘dis-

honor’. ‘Dishonor’ is purposeful * * * For illustration:

A blind man stumbles over the flag and, rfot knowing what

it is, walks upon it and then casts it aside. Has he

‘trampled’ upon the flag? Has he ‘defaced’ or “¢defiled’ it?

Has he ‘dishonored’ it? [Has he cast contempt upon it?]

We think not; because those words carry with them, by.

‘inherent meaning, an ‘attitude of mind which is wholly

lacking in the supposed instance.’’ Similarly, in United

Stgtes v. O’Brien, 391 U.S. 367 (1968) once the deliberate

act of burning one’s draft: ecard was proven, the First -

Amendment did not require that the defendant be accorded

7 the defense of good faith political motives. In Chaplinsky

v. New Hampshire, supra, 315 U.S. 568, 574 (1942) in

upholding a statute that punished the defendant for the

expression of ‘fighting words,’’ the court also held that

preclusion of a defense of ‘‘provocation and * * * truth or

falsity of the utterances is open to no Constitutional objec-

tion.’’; No specific intent to provoke a breach of the peace

was constitutionally required, ‘only the utterance of words

objectively ‘‘likely to provoke the:average person to retali- -

ation, andthereby cause a breach of the peace.’’ Thus, the

‘ statute bound Radich.to the natural consequences of his

deliberate, knowing act of exhibiting items whose subject

he'was aware of and which were objectively contemptuous

of the flag. |

_ Smith v. California, 361°U.S. 147 (1959), relied upon by

appellant, is not apposite once it is understood that the

instant ‘statute requires knowledge of the subject matter

of the act and the commission of the act. Smith, the pro-

_ prietor of a bookstore, was punished for exhibiting items -

whose subject matter he was unaware of. If he. had been

- . aware of the contents of the ‘items, his subjective opinion

that they were not obscene under the decision of this Court,

or the lack of a specific intent to sell obscene matter that

‘would be found obscene by a: jury and upon judicial review,

would have been immaterial. Rosen v. Upited States, 161

U'S. 29 (1896) ; Kahm v. United States, 300 F.2d 78, 86 (5th —

- Cir. 1962), cert. denied 369 U.S. 859 (1962) ; United States’

v. Oakley, 290 F.2d 517, 519 (6th Cit. 1961), cert. denied,

368, U.S. 888 (1961) ; Schindler v. United States, 208 F.2d

289 (9th Cir. 1953) ; California v. Williamson, 207 Cal. App.

2d 839, 845, 24 Cal. Rptr. 734, 738 (Dist. Ct. of App. 1962) ;

also see Alexandér v. United States, 271 F.2d 140, 145 (8th

Cir. 1959); United States v. Hockman, 277 F.2d 631, 633

(7th Cir. 1960), cert. denied 364 UtS. 837 (1960) ; People v.

a te

49 -

Finkelstein, 11 -N.Y.2d 300 (1962), cert. denied 371 US.

- 863 (1962).

. in Rosen v. United. States, supra, this Court specifically

rejected a similar contention addressed, to a federal statute.

There the defense requested a trial instruction of, acquittal

7 if a reasonable doubt existed that the defendant knew the

_ mailed material to’ be obscene. In upholding the refusal

‘to charge in this manner the Court declared:

‘<The i inquiry under the statute is whether the paper

charged to have been obscene, lewd, and lascivious was

in fact of that character, and if it was of that character

and was deposited in the mails by one who knew or

had ‘notice at the time of its contents, the offense is

complete, although the defendant himself did not re-

gard the paper as one that’ the statute forbade to be

carried in the mails. Congress did not intend that the

question as to the character of the paper should de-

pend upon the opinion or belief of the person who, with

. knowledge or notice of its contents, assumed the re-

sponsibility of putting it ih the mails.’’ 161 U.S. at 41.

In Ginzburg v. United States, 383 U.S. 463 (1966), the de-

- fendant believed that his material was protected by prior

Supreme Court rulings; he said so specifically in the ad-

; vertisements, which this Court accepted at face value. Id.

| at 468, text and n. 9. Ginzburg’s belief, while both honest

and mistaken, did not prevent his conviction, for he knew

precisely the contents of his publications. Guilt cannot be |

made to depend upon the putative offender’s own ap- |

‘praisal of the legal significance of his conduct. Else a.

man could acquit himself by his own belief in his innocence.

50.

‘Rational. grounds’’ for such belief abound. Upholding

the constitutionality of a statute penalizing certain acts

and at the same time allowing self-serving protestation ‘as

a defense is to nullify in practice the premised ‘eonstitu-

tional power of the state to penalize the acts.

Scales v. United States, 367 U. S. 203 (1961) is equally

of no assistance to appellant. In Scales the government was

found to-possess a justifiable interest. in prohibiting the

association of individuals bent on the overthrow of the

government; ‘the gov ernmental interest was not trans-

gressed unless it was demonstrated that the individual on

" trial assumed membership for the proscribed purpose rath- .

er than for ‘‘the advancement of legitimate aims and poli-

cies.’’? If the governmental interests protected by ‘the in-

stant flag statute are sufficient to justify its constitutionality -

(see Point I, supra), then those interests are irretrievably

transgressed immediately upon commission of. an act ob-.

jectively contemptuous of the, flag, regardless of the actor’s’

motivation—political or commercial. See United States v.

O’Brien, supra; Chaplinsky v: New Hampshire, supra. The

residue’of conduct that would be objectively contemptuous

‘of the flag ‘and yet Aleit protection because the

actor intended a result other than contempt is minimal in

eames ison to the unintended conduct in Scales. There,

the résidue of conduct flowing from membership in an

organization—even one whose aims include “the overthrow

of government—that would: be deserving of protection is |

substantial, absent the member’s specific belief in the one

proscribed purpose of the organization.. —

. POINT III

The statutory exception that-permits certain non-

contemptuous uses of the flag if disconnected from

advertisements does not deny appellant equal protec-

tion. .

Finally, Radich claims that the siakate denies him eoual :

| protection, based on his erroneous reading of an exception

contained in the:statute: 7.

‘<This subdivision shall. not apply to any act ex-

pressly permitted by the statutes of the United States

of America, or by the United States army and navy

regulations, nor shall it be construed to apply to a ~

certificate, diploma, warrant, or commission of appoint--”

ment to office, ornamental picture, article of jewelry, |

stationery for private use in correspondence, or news-

paper or periodical, on any of which shall.be printed,

painted or placed, said flag, standard, olor, shield or

énsign disconnected and apart from any advertise-

.. ment.’’ . -

Radich apparently argues that this provision of the statute .

permits persons to use the flag contemptuously on ‘“‘orna-

‘mental pictures’’ or in a ‘‘newspaper, or periodical’? and

thus denies him equal protection when it forbids him to use

the flag contemptuously on ornamental sculpture. However,

_ read in the context of the entire statute, the major portion

~ of which seeks to prohibit the use of the flag in advertise-

ments, it is quite clear that the exception is intended to »

‘permit only non- contemptuous use of the flag for certain

. purposes, when such use is ‘‘disconnected and apart from _

any advertisement.”’ As the trial court stated:

‘the section does not discriminate between. pictures.

generally and sculpture generally. Only ‘ornamental’

pictures are excepted. The legislature did not intend

to say that pictures deseerating the flag would be ex-

empted as a basis for prosecution and that similar -

~ —-seulpture would not-be so protected- Any. contemptu- _

ous use of-the flag conies within the purview of the

statute, whether two-dimensional or three-dimensional.

We find in this statute no arbitrary discriminatory

easeea Hon” (28a).

. There j is a ready and rational distinction between con-

temptuous and non-contemptuous use of the American flag

that permits the legislature to except frem penal sanctions

certain non-contemptuous uses of the flag without denying

a person who uses the flag contemptuously the equal pro-

- tection of the laws. Indeed, in Halter v. Nebraska, 205 U.S.

34 (1907) this Court was asked to find that the same statu-

tory exception here in question denied Halter equal protec-

tion because Halter was condemned for the non-contemptu-

ous use of the flag in the advertisement of merchandise and

. under the exception similar non-contemptuous use in “a

newspaper, periodical, book, pamphlet, etc.,’’ was not penal-.

ized. The Court held that even distinctions between vari-_.

ous non-contemptuous uses of the flag w were not a denial of.

equal protection :

“It was for the State of Nebraska to say how far

it would go by way of legislation for the protection of

the flag against improper use—taking care, in such

legislation, not to make undue discrimination against

a part of its people. . It chose not to forbid the use of

' the flag for the exceptional purposes specified in the

statute, prescribing the fundamental condition that its

use for any of those purposes should be ‘disconnected

naaei”?,

Tefen

from any advertisement.’ All are alike forbidden to

use the flag as an advertisement. It is easy to be seen

how a representation of the flag may be wholly discon-

nected from an advertisement: and be used upon a

newspaper, periodical], book, etc., in such Way as not to '

arouse a feeling of indignation nor offend the senti-

ments and feelings of those who reverence it. In any

event, the classification made by the State cannot be

regarded as unreasonable or arbitrary or as bringing

the statute under condemnation as denying. the equal

protection of the laws.’’ Id. at 45.

Appellant was convicted of a contemptuous use of the flag ;

the exception was therefore inapplicable and could not have

denied him equal protection. |

_ Conclusion . ~ .

‘The judgment of the Court of Appeals of the State

of New York should be affirmed.

Respectfully submitted,

Frank S. Hogan

District Attorney

New York County

| | | ' Attorney for Appellee

MicwHaeu R. JuvILER

.Wiutiam C. Donnino -

Pavuu A. Sosetu . | s os

Assistant District Attorneys

Of Counsel .

J anuary, 1971

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.