# Appellees Brief — Radich v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0319%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 531 ## Text d ——s 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 \ ¢ : ; ; . . " ; ; ; : * ‘ « : , , . - : : é 9. 2 . 2 a e . ; . See ee ees ieee _ er ta ea aie - ~e - ” ° —_ : . : od - : : . . - = . : : ; ° e . . - . ; : ’ ; _ : . | wy * mo . , : P * 7 , ; : tid . .° 7 ‘ = * 7 . e . . ; | ~ > PAGE _ 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 22 TABLE OF CONTENTS Bantam Books v. Sullivan; 372 U.S. 58 (1963) ....... _ It 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 uy 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 - . Vv . 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 \ ne ee 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 ha 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 2 _ 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 s » 9 , 3 ~ 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 5. 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 | ~ e | 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. 7: 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 @ 10 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 / u _ 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 | Fs TINY TG HE NGI PT Ls Biteee PSEA LEE REP LRN “pam nm ‘ oad ; 8 renee v . . \ } \ . 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 ‘ 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 conqueringits 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). 97 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 e 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. ee 99 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). Oe 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 —_ 31 a . . a - . ae . 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 “ 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 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- wl Lr 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 s thets,’’ not in any proper sense ‘ - 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 - Corp. supra, 372 U.S. 29, 32- 3 (1963) (‘‘unreasonably low . © 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 ‘ 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 » -applications carry with them am implicit proviso: that’no © application shall be made to constitutionally protected con- duct and that the varying applications are. separable should one of them be found unconstitutional. In short, ‘‘it seems quite reasonable * * * that if the * * * legislature had known . it could not have all it wanted, it ‘would have wanted all — it “could have.’’ Samuels v. Mackell, 288 °F. Supp. 348 (S. D.N.Y. 1968) (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 es ein oe: ih Ct at ith bie Ps eile * c Danie hth 8 St OED ODS, 6 Sib BAL Bhi CE i Rg Ak 7 . acai ” Bisinsiiietasainn Wentibees ‘ . . a 46 -e i 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 ad 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 48 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 a 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: ‘