Street v. New York, 394 U.S. 576 (1969)

Docket Number:5

U.S. Supreme Court STREET v. NEW YORK, 394 U.S. 576 (1969) 394 U.S. 576

STREET v. NEW YORK. APPEAL FROM THE COURT OF APPEALS OF NEW YORK. No. 5. Argued October 21, 1968. Decided April 21, 1969.

Appellant, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag which he owned to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or "publicly [to] defy . . . or cast contempt upon [any American flag] either by words or act." The information charged appellant with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Appellant unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected "demonstration" or "protest." Appellant was tried before a judge without a jury and convicted. The arresting officer testified that at the time of arrest appellant was standing on a corner speaking to a small and not unruly group, which did not block the street or sidewalk; on the opposite corner was the burning flag; appellant told the group: "We don't need no damn flag," and said to the officer, "If they let that happen to Meredith, we don't need an American flag." Appellant also challenged the constitutionality of the "words" part of the statute in the Appellate Term and in the New York Court of Appeals, both of which affirmed his conviction, the latter court upholding the constitutionality of the statute without alluding to the "words" part. Held:

[Page 394 U.S. 576, 578]

"publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]."[Footnote 1] He was given a suspended sentence. We must decide whether, in light of all the circumstances, that conviction denied to him rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 271, 276-277 (1964).

[Page 394 U.S. 576, 579]

appellant, he heard appellant say, "We don't need no damn flag," and that when he asked appellant whether he had burned the flag appellant replied: "Yes; that is my flag; I burned it. If they let that happen to Meredith we don't need an American flag." Appellant admitted making the latter response, but he denied that he said anything else and asserted that he always had remained on the corner with the flag.

Later the same day, appellant was charged, by an information sworn to before a judge of the New York City Criminal Court, with having committed "the crime of Malicious Mischief in that [he] did wilfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law, under the following circumstances: . . . [he] did wilfully and unlawfully set fire to an American Flag and shout, `If they did that to Meredith, We don't need an American Flag.'"

Appellant was tried before another Criminal Court judge, sitting without a jury, and was convicted of malicious mischief in violation of 1425, subd. 16, par. d.[Footnote 2] He was subsequently given a suspended sentence. The Appellate Term, Second Department, affirmed without opinion. Leave was granted to appeal to the New York Court of Appeals, and after plenary consideration that court unanimously affirmed. 20 N. Y. 2d 231, 229 N. E. 2d 187 (1967). We noted probable jurisdiction. (1968).[Footnote 3]

[Page 394 U.S. 576, 580]

Street argues that his conviction was unconstitutional for three different reasons. First, he claims that 1425, subd. 16, par. d, is overbroad, both on its face and as applied, because the section makes it a crime "publicly [to] defy . . . or cast contempt upon [an American flag] by words . . . ." (Emphasis added.) Second, he contends that 1425, subd. 16, par. d, is vague and imprecise because it does not clearly define the conduct which it forbids. Third, he asserts that New York may not constitutionally

[Page 394 U.S. 576, 581]

punish one who publicly destroys or damages an American flag as a means of protest, because such an act constitutes expression protected by the Fourteenth Amendment. We deem it unnecessary to consider the latter two arguments, for we hold that 1425, subd. 16, par. d, was unconstitutionally applied in appellant's case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. In taking this course, we resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.

Though our conclusion is a narrow one, it requires pursuit of four lines of inquiry: (1) whether the constitutionality of the "words" part of the statute was passed upon by the New York Court of Appeals; (2) whether, if appellant's conviction may have rested in whole or in part on his utterances and if the statute as thus applied is unconstitutional, these factors in themselves require reversal; (3) whether Street's words may in fact have counted independently in his conviction; and (4) whether the "words" provision of the statute, as presented by this case, is unconstitutional. I. The New York Court of Appeals did not mention in its opinion the constitutionality of the "words" part of 1425, subd. 16, par. d.[Footnote 4] Hence, in order to vindicate our jurisdiction to deal with this particular issue, we must inquire whether that question was presented to the New York courts in such a manner that it was necessarily decided by the New York Court of Appeals when it affirmed

[Page 394 U.S. 576, 583]

The motion was denied. It was renewed at the end of the State's case and at the end of the trial, and on both occasions was again denied.

The issue whether a federal question was sufficiently and properly raised in the state courts is itself ultimately a federal question, as to which this Court is not bound by the decision of the state courts.[Footnote 5] However, it is not entirely clear whether in such cases the scope of our review is limited to determining whether the state court has "by-passed the federal right under forms of local procedure" or whether we should decide the matter "de novo for ourselves." Ellis v. Dixon, 349 U.S. 458, 463 (1955). In either event, we think appellant has met the burden of showing that the issue of the constitutionality of the "words" part of 1425, subd. 16, par. d, was adequately raised in the state trial court. The motion quoted above explicitly referred to appellant's words. Appellant's counsel termed appellant's overall activity a "demonstration" or "protest," terms which encompass words as well as conduct. Indeed, if appellant's intention was to protest alleged governmental inaction in connection with the shooting of James Meredith, his words were an essential element, for without them no one would have known the object of his protest.

[Page 394 U.S. 576, 584]

constitutional right" New York appellate courts may review the correctness of a jury charge even though the appellant failed to except to the charge in the trial court. The Court of Appeals reached this result despite the fact that 420-a of the New York Code of Criminal Procedure then required that an exception be taken "expressly" if the issue of the correctness of a jury charge was to be preserved for appellate review. In the present case, the right asserted by appellant was surely "fundamental," and under New York law a less precise objection was required than to a jury instruction.[Footnote 6]

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his raising of the issue in the two appellate courts.[Footnote 7] We therefore conclude that the question is properly before us. II. We next consider whether it is our duty to reverse if we find, as we do in Parts III and IV, infra, that Street's words could have been an independent cause of his conviction and that a conviction for uttering such words would violate the Constitution.

That such is our duty is made apparent by a number of decisions of this Court. In the leading case of Stromberg v. California, (1931), the appellant was convicted by a jury under a California statute making it an offense publicly to display a red flag for any one of three purposes. Finding that it would be unconstitutional to punish one who displayed for the first-named reason, this Court rejected the state court's reasoning that the appellant's conviction could nevertheless be sustained because the other two statutory reasons were severable and constitutional. This Court said:

"The verdict against the appellant was a general one. It did not specify the ground upon which it rested. . . . [I]t is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses . . . was invalid, it cannot

[Page 394 U.S. 576, 587]

unconstitutional - a matter to which we shall turn in a moment.

Moreover, even assuming that the record precludes the inference that appellant's conviction might have been based solely on his words, we are still bound to reverse if the conviction could have been based upon both his words and his act. This is made apparent by Thomas v. Collins, supra. The Court in that case noted that Thomas had been cited for contempt because during a meeting he allegedly had violated a court restraining order both by soliciting a single individual to join a union and by soliciting all nonunion men present. The Court found it unnecessary to consider the State's contention that the judgment could be sustained on the basis of the individual solicitation alone. The Court said:

"The motion for the fiat in contempt was filed and the fiat itself was issued on account of both invitations. The order adjudging Thomas in contempt was in general terms, finding that he had violated the restraining order, without distinction between the solicitations set forth in the petition and proved as violations. The sentence was a single penalty. In this state of the record it must be taken that the order followed the prayer of the motion and the fiat's recital, and that the penalty was imposed on account of both invitations. The judgment therefore must be affirmed as to both or as to neither. Cf. Williams v. North Carolina, 317 U.S. 287, 292; Stromberg v. California, 283 U.S. 359, 368." 323 U.S., at 528-529. (Footnotes omitted.)

Finding that a conviction based upon the general solicitation could not stand, the Court reversed the entire conviction.[Footnote 8]

[Page 394 U.S. 576, 588]

As in Thomas, appellant here was charged with two acts violative of the statute: burning a flag and publicly speaking defiant or contemptuous words about the flag; and evidence was introduced to show the commission of both acts. Here too the verdict was general and the sentence a single penalty. Hence, unless the record negates the possibility that the conviction was based on both alleged violations, Thomas dictates that "[t]he judgment . . . must be affirmed as to both or as to neither."

We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as "intertwined" and have rested the conviction on both together. See 323 U.S., at 528-529, 540-541. There is no comparable hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of those counts,[Footnote 9] for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others. III. We turn to considering whether appellant's words could have been the sole cause of his conviction, or whether

[Page 394 U.S. 576, 589]

the conviction could have been based on both his words and his burning of the flag. As Stromberg teaches, we cannot take the opinion of the New York Court of Appeals as obviating our duty to examine the record for ourselves in order to ascertain whether the conviction may have rested upon such grounds. The sworn information which charged appellant with the crime of malicious mischief, and which is quoted more fully supra, at 579, recited not only that appellant had burned an American flag but also that he "[did] shout, `If they did that to Meredith, We don't need an American Flag.'" Section 1425, subd. 16, par. d, the statute which appellant was charged with violating, made it a crime not only publicly to mutilate a flag but also "publicly [to] defy . . . or cast contempt upon [any American flag] by words."

The State argues that appellant's words were at most used to establish his unlawful intent in burning the flag.[Footnote 10] However, after a careful examination of the comparatively brief trial record, we find ourselves unable to say with certainty that appellant's words were not an independent cause of his conviction. While it is true that at trial greater emphasis was placed upon appellant's

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action in burning the flag than upon his words, a police officer did testify to the utterance of the words. The State never announced that it was relying exclusively upon the burning. The trial judge never indicated during the trial that he regarded appellant's words as relating solely to intent. The judge found appellant guilty immediately after the end of the trial, and he delivered no oral or written opinion.

In the face of an information explicitly setting forth appellant's words as an element of his alleged crime, and of appellant's subsequent conviction under a statute making it an offense to speak words of that sort, we find this record insufficient to eliminate the possibility either that appellant's words were the sole basis of his conviction or that appellant was convicted for both his words and his deed. IV. We come finally to the question whether, in the circumstances of this case, New York may constitutionally inflict criminal punishment upon one who ventures "publicly [to] defy . . . or cast contempt upon [any American flag] by words . . . ."

[Page 394 U.S. 576, 592]

Nor could such a conviction be justified on the second ground mentioned above: the possible tendency of appellant's words to provoke violent retaliation. Though it is conceivable that some listeners might have been moved to retaliate upon hearing appellant's disrespectful words, we cannot say that appellant's remarks were so inherently inflammatory as to come within that small class of "fighting words" which are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). And even if appellant's words might be found within that category, 1425, subd. 16, par. d, is not narrowly drawn to punish only words of that character, and there is no indication that it was so interpreted by the state courts. Hence, this case is again distinguishable from Chaplinsky, supra, in which the Court emphasized that the statute was "carefully drawn so as not unduly to impair liberty of expression . . . ." Id., at 574. See also Terminiello v. Chicago, supra.

Again, such a conviction could not be sustained on the ground that appellant's words were likely to shock passers-by. Except perhaps for appellant's incidental use of the word "damn," upon which no emphasis was placed at trial,[Footnote 11] any shock effect of appellant's speech must be attributed to the content of the ideas expressed. It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. See, e. g., Cox v. Louisiana (I), supra; Edwards v. South Carolina, supra; Terminiello v. Chicago, supra; cf. Cantwell v. Connecticut, (1940). And even if such a conviction might be upheld on the ground of "shock," there is again no indication that the state courts regarded the statute as limited to that purpose.

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Finally, such a conviction could not be supported on the theory that by making the above-quoted remarks about the flag appellant failed to show the respect for our national symbol which may properly be demanded of every citizen. In Board of Educ. v. Barnette, 319 U.S. 624 (1943), this Court held that to require unwilling schoolchildren to salute the flag would violate rights of free expression assured by the Fourteenth Amendment. In his opinion for the Court, Mr. Justice Jackson wrote words which are especially apposite here:

"The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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remand for resentencing, was carefully considered. The case was originally argued during the 1943 Term but was ordered to be restored to the docket and reargued the following Term, with the parties directed to brief, inter alia, the question whether the general solicitation was a basis of Thomas' conviction.

Footnote 9 See, e. g., Claassen v. United States, 142 U.S. 140 (1891); Pinkerton v. United States, 328 U.S. 640 (1946); Barenblatt v. United States, 360 U.S. 109 (1959).

Footnote 10 The State also contends that appellant's words could not have been a ground of conviction because they obviously were not spoken "publicly," as required by 1425, subd. 16, par. d. However, although appellant testified that he spoke solely to a police officer, the officer himself gave evidence from which the trial judge might have concluded that appellant's remarks were made either to or within hearing of a small crowd. See supra, at 578-579. Moreover, the sworn information recited that appellant "shout[ed]" his words on a city street, thereby apparently satisfying the statutory requirement that the words be said "publicly."

Nor do we think it impossible for the trial judge to have found that by his statements, "We don't need no damn flag" and "If they let that happen to Meredith we don't need an American flag," appellant "def[ied] . . . or cast contempt upon [an American flag] by words" in violation of 1425, subd. 16, par. d.

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peripheral Stromberg ground, holding that it is impossible to determine the basis for appellant's conviction. In my opinion a reading of the short trial record leaves no doubt that appellant was convicted solely for burning the American flag. I. From the beginning to the end of the proceedings below the parties placed only two matters in issue: (1) is burning the flag protected symbolic speech and (2) did appellant burn the flag for the purpose of casting contempt upon it or did he burn it in a dignified manner?4 The information alleged that "Sidney Street did commit the crime of Malicious Mischief in that the defendant did wilfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law, under the following circumstances: On the aforesaid date, place and time, the defendant did wilfully and unlawfully set fire to an American Flag and shout, `If they did that to Meredith, We don't need an American Flag.'" Although the Court stresses the mention of appellant's words in the information as indicative that he was convicted for uttering these words, the trial proceedings demonstrate that the words were employed only to show appellant's purpose in burning the flag.

At the outset of the trial appellant's counsel moved to dismiss the information, clearly revealing the theory of appellant's defense that flag burning is constitutionally protected and that appellant burned the flag in a dignified manner.

"Mr. Goldstick [appellant's counsel]: Before we plead to this case I would like to make a motion to dismiss the information upon the ground it does not

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protest and those who must enforce the law are entitled to know the scope of constitutional protection. The Court's explicit reservation of the constitutionality of flag-burning prohibitions encourages others to test in the streets the power of our States and National Government to impose criminal sanctions upon those who would desecrate the flag.

I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace. But because the Court has not met the issue, it would serve no purpose to delineate my reasons for this view. However, it is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise. Since I am satisfied that the constitutionality of appellant's conduct should be resolved in this case and am convinced that this conduct can be criminally punished, I dissent.


"Mr. Goldstick [appellant's counsel]: Before we plead to this case I would like to make a motion to dismiss the information upon the ground it does not state facts to constitute a crime on the following grounds: The defendant was engaged in a constitutionally protected activity, to wit, freedom of speech. The allegation simply says that the defendant did wilfully and unlawfully set fire to an American flag and did say: `If they did that to Meredith we don't need an American flag.' Under the first amendment of the Constitution of the United States and under the New York State constitution on freedom of speech they provide for protest in many forms, whether it be by burning a flag, demonstration or picketing. This is a form of demonstration and protest.

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"Court: We have two charges before me!

"Show the complaints to counsel!

"Mr. Bonomo [the prosecutor]: We have two separate complaints! (Handing papers to Mr. Goldstick.)

"Mr. Goldstick: I plead not guilty to the Disorderly Conduct charge, too, Your Honor.

"Court: Are you ready for trial in each case?

"Mr. Goldstick: Yes.

"Court: Do you stipulate that the two cases will be tried together and the facts adduced in one will be applied to the other wherever necessary, and there will be separate findings on the facts and the law and separate judgments may be rendered?

"Mr. Goldstick: I so stipulate.

"Court: Let us proceed!

"Mr. Bonomo: I will call Patrolman James Copeland!"

[Officer Copeland testified on direct examination concerning the investigation of the source of a fire and his subsequent discovery that appellant had burned a flag.]

. . . . .

"Mr. Bonomo: That's all!

"Mr. Goldstick: Before I cross-examine I move to dismiss both charges upon the ground the People failed to make out a prima facie case.

"Court: Are you going to cross-examine?

"Mr. Goldstick: Yes, but I am making a motion before cross-examination!

"Court: You better cross-examine!"

[The cross-examination of Officer Copeland explored the size of the crowd that had gathered; no mention was made of appellant's words.]

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upon the ground the People failed to prove a prima facie case.

"Court: Motion denied as to each case.

"Mr. Goldstick: Exception. The defendant will take the stand!"

[Appellant then gave his version of the incident. Reproduced below is his testimony concerning the words spoken.]

. . . . .

"Q. Did the officer speak to you or did you speak to him? A. He spoke to me.

"Q. What did he say? A. He asked me if I set fire to the flag. I said yes.

"Q. Then what happened? A. I said: `If they do what they had [sic] to Meredith we don't need this flag.'

"Q. While you were burning this flag did anybody say anything to you other than this police officer? A. Nobody.

"Q. Did anybody stop? A. I noticed no unusual crowd.

"Q. Where is that corner? A. St. James and Lafayette.

"Q. Were you on the curb or in the street? A. I was on the curb. The flag was laying on the curb.

"Q. When the police officer came up to you were you still by the flag? A. Yes.

"Q. The flag was still burning when the officer came? A. Yes.

"Q. Other than saying to the police officer `if they did that to Meredith we don't need an American flag,' did you speak to anybody else at the time? A. No.

"Mr. Goldstick: No further questions!"

[Cross-examination of appellant contains no reference to any of his words.]

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"Mr. Bonomo: That's all!

"Mr. Goldstick: The defendant rests.

"Mr. Bonomo: The People rest.

"Mr. Goldstick: I move to dismiss on all the constitutional grounds previously made, on all the grounds provided for in the Code of Criminal Procedure, and also upon the ground the People failed to prove a case beyond a reasonable doubt.

"Court: On the charge of Disorderly Conduct the defendant is acquitted; on the charge of Malicious Mischief the defendant is convicted.

"Mr. Goldstick: May we have next Tuesday for sentence?

"Court: No, that is not enough time! August 9th for sentence; bail continued."

[Footnote 1] People v. Street, 20 N. Y. 2d 231, 234, 229 N. E. 2d 187, 189 (1967).

[Footnote 2] Brief for Appellant 2. Appellant also suggests that the New York statute is unconstitutionally vague. The Court does not deal with this issue, nor do I.

[Footnote 3] Brief for Appellee 5.

[Footnote 4] The Appendix to this opinion reproduces in full those portions of the trial record which have any conceivable bearing upon the basis for the verdict.

[Footnote 5] See 4 U.S.C. 3. Federal legislation enacting flag-desecration prohibitions on a national scale was not passed until July 5, 1968, two years after appellant's trial. This legislation specifically does not pre-empt state flag-burning statutes. See 82 Stat. 291, 18 U.S.C. 700 (c) (1964 ed., Supp. IV).

[Footnote 6] It appears that the New York courts would so construe their legislation. See People v. La Sister, 9 Misc. 2d 518, 170 N. Y. S. 2d 702 (Ct. Spec. Sess. 1958); cf. State v. Peacock, 138 Me. 339, 25 A. 2d 491 (1942).

[Footnote 7] I need not consider to what extent the Thomas Court's implicit assumption that Thomas could test the constitutionality of the restraining order without first attempting to secure judicial relief is inconsistent with Walker v. City of Birmingham, 388 U.S. 307 (1967); see id., at 336 (DOUGLAS, J., dissenting).

[Footnote 8] Desecration of the Flag, Hearings on H. R. 271 before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., ser. 4, 324-346 (1967).

[Footnote 9] 82 Stat. 291, 18 U.S.C. 700 (1964 ed., Supp. IV).

[Page 394 U.S. 576, 615]

The Court is obviously wrong in reversing the judgment below because it believes that Street was unconstitutionally convicted for speaking. Reversal can follow only if the Court reaches the conviction for flag burning and finds that conviction, as well as the assumed conviction for speech, to be violative of the First Amendment.3 For myself, without the benefit of the majority's thinking if it were to find flag burning protected by the First Amendment, I would sustain such a conviction. I must dissent.

[Footnote 1] The Court's theory is not that of unconstitutional overbreadth; it does not argue that New York may not convict for burning because the entire statute is unconstitutional for permitting convictions for insulting speech as well as for the act of flag burning.

[Footnote 2] E. g., Pinkerton v. United States, 328 U.S. 640, 641-642, n. 1 (1946); Whitfield v. Ohio, 297 U.S. 431, 438 (1936); Sinclair v. United States, 279 U.S. 263, 299 (1929); Abrams v. United States, 250 U.S. 616, 619 (1919); Ballew v. United States, 160 U.S. 187, 197-203 (1895); Goode v. United States, 159 U.S. 663, 669 (1895); Evans v. United States, 153 U.S. 584, 595 (1894); Evans v. United States, (1894). This Court has recognized the applicability of the same rule to court-martial proceedings, Carter v. McClaughry, 183 U.S. 365, 384-387 (1902); to forfeiture actions, Snyder v. United States, 112 U.S. 216, 217 (1884), Clifton v. United States, 4 How. 242, 250 (1846), Locke v. United States, 7 Cranch 339, 344 (1813); and to civil cases under state law, Bond v. Dustin, 112 U.S. 604, 609 (1884). In United States v. Gainey, 380 U.S. 63, 65 (1965), the Court applied the related concurrent sentence rule to a general sentence on a guilty verdict on an indictment charging several counts. See Transcript of Record 48-50, No. 13, October Term, 1964.

[Footnote 3] Arguably, under today's decision any conviction for flag burning where the defendant's words are critical to proving intent or some other element of the crime would be invalid since the conviction would be based in part on speech. The Court disclaims this result, but without explaining why it would not reverse a conviction for burning where words spoken at the time are necessarily used to prove a case and yet reverse burning convictions on precisely the same evidence simply because on that evidence the defendant might also have been convicted for speaking. The Court's seemingly narrow holding may be of potentially broader application, particularly in view of Thomas v. Collins as now rewritten by the Court.

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