Certiorari Denied February 28, 1972. See 92 S.Ct. 1188.
MacKINNON, Circuit Judge:
Following the Declaration of Independence the Continental Congress, finding the Nation in need of a national flag to symbolize its unity and independence,
There is a legend that George Washington, who with Betsy Ross is generally credited with participating in the formulation of the design of the flag, said of its colors:
Other famous citizens of the United States have described the place of the Stars and Stripes in our national life. Justice Holmes in a history of Chief Justice Marshall said:
The United States Supreme Court in Halter v. Nebraska, 205 U.S. 34, 43, 27 S.Ct. 419, 422, 51 L.Ed. 696 (1907) in an opinion by Justice Harlan said:
In a Flag Day speech President Woodrow Wilson expressed his sentiments concerning the American flag as follows:
His tribute indicated his deep feeling for our Nation, its history and the principles which had motivated its actions.
Probably the most moving description of what the American Flag symbolizes to
While he had not known tyranny in the land of his birth, the ennobling thoughts he expressed about the flag are also shared by many millions of our foreign-born citizens who appreciate its myriad blessings from dire personal experience. It may well be that our naturalized citizens are more truly appreciative of the benefits of citizenship under our flag than some of our native-born who do not properly evaluate the worth of their American heritage.
Throughout our history as a nation the flag has been our symbol in many wars, foreign and domestic. It has proudly led our troops in battle and reverently draped the caskets of those who fell. It has signified our national presence on battleships, airplanes, school houses and army forts, and been raised triumphantly in battle on far distant mountain peaks. It was planted on the moon by the Apollo 15 astronauts and one of them, Colonel James B. Irwin, U. S. Air Force, in his historic speech to a Joint Session of Congress on September 9, 1971 said:
117 Cong.Rec.H 8225 (daily ed. Sept. 9, 1971). Even today brave submariners carry it on silent patrol in those dangerous depths beneath the world's seas where with their atomic might they daily preserve the liberty of the free world. It flies over the Nation's Capitol, the Supreme Court, at all our national cemeteries throughout the world and at our Tomb of the Unknown Soldier in Arlington National Cemetery.
However, there are a few who are not appreciative of the blessings it represents, who are intolerant of the finest representative government in the world and who seek to abuse and desecrate the flag because it is our nation's symbol. To prohibit such misuse of the flag every state legislature has enacted laws making flag desecration a criminal offense. On July 5, 1968, Congress enacted a similar statute:
In doing so Congress was motivated by the same attitudes toward the flag as are held by millions of our citizens and which were so well articulated by President Wilson, Justice Holmes, the Honorable Franklin K. Lane, the Supreme Court and by many others.
By an Information filed in the Court of General Sessions for the District of Columbia appellant Joyce was charged with violating this statute as follows:
The allegation of the foregoing acts in the conjunctive is the proper way to allege several acts constituting a single offense committed in violation of a single statute. To charge the offense in the disjunctive (as it appears in the strict language of the statute), that the accused did one thing "or" the other, would make the indictment bad for uncertainty, so it is necessary to connect them with the conjunctive "and" before evidence can be admitted as to more than one act. Then a conviction follows if the testimony shows the accused to be guilty of any one of the acts charged.
The Events of Inauguration Day
On Inauguration Day 1969, at about 11:10 A.M. at the corner of 15th Street and Pennsylvania Avenue, N.W. in the District of Columbia, on the route for the Inaugural Parade a short block from the White House grounds, appellant Joyce was standing on the street corner with two women at the rear of a crowd "where everybody was passing by." Many hundreds were standing "five, six, seven . . . deep along the parade route on both sides of the street," (Tr. 29) and there were people all up and down the parade route. The crowd was rowdy, loud and boisterous and were shouting obscenities at the police and National Guard units that were present.
At the aforesaid time and place Joyce was seen by Detective Manning, who was only three or four feet away from him, to tear an American flag (3" x 5") off a small flag staff he was carrying, throw the staff to the ground and then tear the flag with his hands. Detective Manning testified as follows:
(Tr. 32, emphasis added.)
Later testimony indicated that Joyce "ripped" the flag from the staff (Tr. 43, 44). The trial court had the benefit of an in-court demonstration by Detective
There was no testimony that appellant tore the flag in order to make it easier to tie the flag to his finger or that the tear was in any way used in doing so.
Joyce took the stand, testified in his own behalf and was evasive as to his reason for tearing the flag. His only response to Detective Manning's testimony that he observed him tear the flag was, "I don't recall the ripping of the flag, but I recall everything else." He said he did remember that the flag had originally been on a short staff; and admitted, in effect, that his acts were not spontaneous or the result of being carried away momentarily, that he had a predetermined intention to appear down at the parade route in order to demonstrate, express some idea, communicate
Joyce did describe his display of the flag while wrapped around his right index finger, which was spread away from the adjoining finger to indicate a V sign, as follows:
This explanation was equivocal in that it failed to describe why it was necessary to have a torn flag to convey this "peace" message and it failed to give any reason for the prior act of tearing (mutilating) the flag, which was the offense for which Detective Manning arrested Joyce.
We also note that Joyce testified that his acts with respect to the flag were intended to convey some message. We find his prior act of tearing the flag (before he used it in the V sign) to be sufficient proof of the offense that he thereby knowingly cast contempt upon the flag by publicly mutilating and defacing it.
In passing on this matter we recognize that the court may have found that the contempt was partially proved by the demonstrated manner in which Joyce ripped the flag from its staff, threw the staff to the ground and then tore the flag itself. The testimony was not that Joyce separated the flag from the staff and dropped the staff to the ground and then slit the flag. Rather, the testimony indicates acts of more force from which the normal inference would be that the perpetrator intended to express contempt for the article itself. And the force and manner exhibited could have been more accurately portrayed to the court by demonstration. The trial judge who found Joyce guilty did have the benefit of Manning's reenactment in which he demonstrated the manner in which Joyce performed these acts.
When we pass on the sufficiency of the evidence to support that finding we do not weigh it, but must take the view most favorable to the Government and determine the question of law whether there is substantial evidence, direct or circumstantial, which, together with reasonable inferences that may be drawn therefrom, is legally capable of allowing the trier of fact to be persuaded of guilt.
We conclude from a detailed examination of the entire record that there was substantial competent evidence from which reasonable minds might differ as to the guilt of the accused and hence the decision was for the trier of fact. The court was fully justified on the record here in finding that Joyce publicly mutilated and defaced
Having found that the statute was violated by the physical act of tearing the flag under the attendant circumstances, we do not rely upon the waving of the flag attached to the finger in a V-type gesture in what is alleged to be a "peace" sign as an integral part of the offense. We consider such evidence in its entirety but find nothing in it to explain or excuse the prior misconduct. The judge who conducted the pretrial hearing on the motion to dismiss considered that making the V sign was also contemptuous because it linked the American flag with support for the Viet Cong enemies of our country.
Appellant contends that the statute,
In support of his contention that the statute is unconstitutionally vague appellant points to the requirement of the due process clause of the Fifth Amendment that criminal statutes must provide predictable indicia of guilt so that individuals will have fair notice of the conduct proscribed, Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and that the standard of clarity is high where First Amendment rights are involved, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Building on these guiding principles, with which we agree, appellant then contends that "the essential vice of the statute here under review is its proscription of only those physical acts which intentionally cast `contempt' upon the flag."
It is clear that Congress in the statute intended the word "contempt" to be given its ordinary meaning.
The answer to all such questions exists in the language of the statute which by its plain terms indicates it is not concerned with prohibiting the communication of any particular idea but only with how the flag is used in so doing. If the circumstances in which the flag is used include the commission in public of one of the acts proscribed by the statute which physically damage the flag so that one can conclude from all the circumstances beyond a reasonable doubt that the perpetrator knowingly cast contempt upon the flag, then such use is prohibited regardless of the ultimate message intended to be communicated. For example, one who said he was attempting only to "mock" the flag, yet who did so by publicly throwing manure upon it, obviously thereby would defile the flag and would violate the statute without regard to his ultimate message. The same could be said of one who attempts to convey a claimed message of "peace" by tearing, burning, manure, etc. It is not the ultimate message of peace that is prohibited but solely the acts which physically damage the flag and thereby can be found to knowingly cast contempt upon it. In addition, since this is a federal act that is to be applied by officers under direct federal control, the federal courts can be assured that the narrow construction we place upon the act will be used in its enforcement and citizens will not be required to go through a lengthy sequence of state court litigation before a proper interpretation is secured.
Appellant also contends that the statute invites irrational and selective
The next contention by appellant is that the statute is "overbroad," i. e., that it "sweeps expansively into the area of protected rights where `the threat of sanctions may deter their [protected rights] exercise almost as potently as the actual application of the sanctions' themselves. N. A. A. C. P. v. Button, 371 U.S. 415, 433 [83 S.Ct. 328, 9 L. Ed.2d 405] (1963)." In support of this contention it is asserted that "the deterrent effect which the . . . statute exerts upon the exercise of free speech by virtue of the authority it provides for the arrest of those exercising free speech suffices to render the statute unconstitutional."
In reality, appellant's contentions in this regard are based on his overly-broad reading of a narrowly-drawn statute. As pointed out elsewhere in this opinion, the statute limits itself to proscribed conduct and does not trespass in the area of speech per se.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949).
To the extent that appellant's argument is based on his belief that the statute superficially authorizes arrests for protected activity, we again reiterate that conduct alone is proscribed by the Act's plain terms. That conduct is not described in terms so formless that we are faced with a "statute . . . which readily lends itself to harsh and discriminatory enforcement by . . . officials." Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). Compare, e. g., Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). See generally Note, The First Amendment Overbreadth Doctrine, 83
Since the statute defines the proscribed conduct with acceptable precision and since, in the absence of any evidence to the contrary, we are bound to assume that those charged with its enforcement will do so according to its plain terms, appellant's attack must fail. To be sure, situations may arise in which there is some difficulty in determining whether specific activity is, or could constitutionally be, within the sweep of the Act's prohibitions. The fact that marginal situations are bound to exist, however, does not serve to make the Act unconstitutional.
The gist of appellant's argument seems to be that the First Amendment guarantees everyone freedom to desecrate the flag if, in so doing, he intends to convey some idea. As applied here, his argument is that he is protected in his contemptuous tearing of the flag because he was attempting to convey an idea.
Freedom of Speech
Finally, we consider whether the Flag Desecration Statute as enacted by Congress abridges the freedom-of-speech guarantee of the First Amendment.
At the outset, we recognize that Congress possesses only certain powers enumerated in the Constitution and that document does not contain any specific grant of power to adopt a national flag or to regulate conduct with respect to it. However, we conclude that the power to enact such legislation is an incident of sovereignty which inheres in the Government of the United States of America as a nation and which the Constitution recognizes and implements. Such legislative power is thus conferred by that broad specific grant to Congress "to make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States . . .."
In considering whether the statute is valid under the First Amendment, we first note that it is not directed at speech, but solely at specified conduct.
Moreover, neither the charge against appellant nor the evidence introduced at trial dealt with any oral statement made by him in connection with the offense.
We are not, therefore, concerned with pure speech or with any combination of pure speech and conduct. Compare Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). The question thus becomes whether the statute deals with matters so intertwined with speech that it cannot constitutionally stand. Cf. Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring).
While recognizing that the First Amendment's protections apply to certain non-verbal conduct of a communicative nature
Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949). Indeed, the freedom of speech guaranteed by the First Amendment is crucial to the continuation of our form of government.
Physical acts, however, differ from pure speech. While speech invites discussion, counter-speech and eventual agreement, public acts often have a certain finality about them which is frequently so conclusory and provocative as to be destructive of that rational discourse which we consider to be so essential to the continuing vitality of the Nation. Of course, speech can also be provocative but it provokes a response in kind rather than those which tend to fill
For these and other reasons, the adjudicated cases interpreting the First Amendment have held that certain public conduct is subject to regulation even though it is related to expression.
More recently, in United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968), Chief Justice Warren remarked:
We thus consider the constitutionality of the statute under the standards applicable to those laws which prohibit specific acts, including acts constituting communicative conduct, and not by the standards applicable to those laws which are directed at speech per se. To meet the test of these cases, we hold that the United States does have a substantial, genuine and important interest in protecting the flag from public desecration.
In addition, we are not faced with a statute in which Congress has made criminal the peaceful expression of unpopular views. Compare Edwards v. South Carolina, supra, 372 U.S. at 237, 83 S.Ct. 680. Rather the statute proscribes certain distinctive acts whether they are associated with any particular expression of views which may be popular or unpopular with any group or individual. Distinguishable, then, are cases such as Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 510-511, 89 S.Ct. 733, 21 L.Ed. 2d 731 (1969) where purported regulation of conduct was in reality little more than an attempt to suppress a particular communication protected by the First Amendment. See also Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970).
Dissenting in Street v. New York, supra, 394 U.S. at 616-617, 89 S.Ct. at 1378, Justice Fortas referred to the flag as "a special kind of personalty. * * * property, in a sense; but * * * property burdened with peculiar obligations and restrictions."
Since the Act is not aimed at the suppression of speech, and since it imposes only the smallest restraints on "communication," the fact that those who utilize the flag in a prohibited manner do so with the purpose of conveying a particular idea is irrelevant. Giboney v. Empire Storage & Ice Co., supra. As was stated in the recent case of Parker v. Morgan, 322 F.Supp. 585, 590 (D.N.C. 1971):
We conclude, therefore, that the statute is constitutional as enacted and as applied. Accordingly, the judgment is
FAHY, Senior Circuit Judge (concurring in part, dissenting from affirmance):
I agree that the federal statute, providing for fine or imprisonment or both, for "[w]hoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it," is constitutional in its subparagraph(a).
The flag was about 4 by 6 inches in size. Appellant had come to the Avenue for the Inaugural Parade, accompanied by a young lady and joined by another. They were standing on the sidewalk, at the rear of a crowd, five, six or seven people deep. Some of the people near appellant were shouting and protesting. The atmosphere was emotional. Appellant responded to the excitement in his own way. He silently undertook to use the flag as part of a V sign. In doing so he created no disturbance whatever.
When he was asked at trial what idea he intended to convey by his actions with the flag, he replied:
When pressed on cross-examination why he found it advisable at the particular time, in order to communicate this idea of peace, to take the flag from its post, put it on his finger, and raise his arm above his head, he responded:
The subject being further pursued, he responded:
If this testimony is accepted—and I do not know why it should not be accepted, for his conduct is not inconsistent with it—appellant did not knowingly cast contempt upon the flag by a public mutilation of it. When appellant removed the flag from the rod and made the slit, the officer said he did not then arrest him, indicative to some degree that thus far there had been no knowingly contemptuous mutilation.
The opinion of the court seems not to consider appellant's making of the V sign in determining whether he knowingly cast contempt upon the flag. Such an approach ignores the circumstantial character of proof which was relied on in determining whether appellant's conduct amounted to contempt of the flag. Appellant's conduct must be considered as a whole. When so considered, together with his explanations, it seems clear that if the trial court could find that appellant's conduct was contemptuous of something, his undisclosed contempt was not directed toward the flag, as it must be to come within the statute.
The statute also requires for conviction that a person "knowingly" cast contempt upon the flag by one of several enumerated acts. Unless the word "knowingly" is surplusage, an assumption I cannot make, it requires not only that a court find that appellant cast contempt on the flag, but also that it find that appellant himself was aware he was casting such contempt on the flag by his acts.
It is questionable, finally, whether appellant's tearing of the flag should be said to have been a "public" mutilation. When appellant made the slit he was holding the flag between his waist and shoulders. In addition, Detective Manning testified that he did not know and could not say whether anybody was looking at appellant when he made the tear. See Street v. New York, 394 U.S. 576, 599, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) (Warren, C. J., dissenting); id. at 589 n. 10, 89 S.Ct. 1354 (opinion of Court).
For the reasons stated I would reverse appellant's conviction. The line that must be drawn in cases of this sort is sometimes difficult. When it is remembered, however, that the statute was intended to be construed narrowly to avoid possible conflict with freedoms protected by the First Amendment, see Hoffman v. United States, supra, appellant's conduct ought not be placed on the criminal side of the line, as if justified by proof beyond a reasonable doubt of the essential elements of the crime.
I respectfully dissent from affirmance of the conviction.
On the admission of a new state a new star is added the following 4th of July. 4 U.S.C. § 2 (1970) (July 30, 1947, ch. 389, 61 Stat. 642).
Crain v. United States, 162 U.S. 625, 636, 16 S.Ct. 952, 955, 40 L.Ed. 1097 (1896), Justice Harlan:
Wolpa v. United States, 86 F.2d 35, 39 (8th Cir. 1936), Judge Sanborn:
In Rex v. Hunt, 2 Camp. 583 (1811), Lord Ellenborough held:
Thus, any court is entitled to affirm the conviction on the general finding that appellant "knowingly cast contempt upon the flag by publicly mutilating it."
Street v. New York, 394 U.S. 576, 585-588, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) is distinguishable. It applies only to a finding of guilty where there are several possible grounds for the verdict, one of which is unconstitutional, and where it is not possible to determine that the verdict was not based on the unconstitutional ground because there was evidence to support a conviction on that ground. However, here all the acts charged in the alternative are equally constitutional and valid and we find that there was adequate proof of at least one of them, i. e., that Joyce knowingly cast contempt by public mutilation of the flag. Tearing the flag also constitutes a "defacing." Thus Street is inapposite here.
The dissent also states in footnote 3, "I fail to see how this small flag could have been attached to appellant's finger in any manner but with the strips of the tear tied together at their ends." Actually experiment will prove that it is just as easy to tie the flag "folded" (as the testimony indicates was done) as to tie it with the strip ends created by the tear, but what cannot be done is to tie the flag "folded" and by the strips. Since the testimony is that Joyce "folded it longways with the stars up; and with the assistance of one of his lady friends he was with, he tied it around his right index finger. . . ." (Tr. 32, emphasis added), that disposes of the argument that he used the tear in tying. It also is sufficient to support a finding by the court that Joyce did not tear the flag to enable him to tie it to his finger. Since this is the view of the evidence most favorable to the Government it controls on this appeal. The real defect in the dissent is its unwillingness to recognize the full implications which were indicated by the intentional act of tearing the flag and to consider that view of the evidence most favorable to the Government.
A. Yes, I was going to communicate an idea with the flag. I wasn't part of the demonstration, though.
Q. When did you decide you wanted to communicate an idea with the flag?
A. I had the idea all the time. As soon as I had the flag I thought of it.
Q. How long had you had the flag?
A. I'm not sure. I got it in the morning.
Q. Approximately how long had you had it in your possession?
A. I don't know. About a half an hour, I guess.
Q. And you decided you were going to do this as soon as you got the flag?
S.Rep.No.1287, 90th Cong., 1st Sess. 3 (1968). U.S.Code Cong. & Admin.News, p. 2509. See Hoffman v. United States, 144 U.S.App.D.C. ___, 445 F.2d 226 (1971).
While the officer's testimony is not controlling on the matter, it is plain that insofar as the contempt was based solely on the charge of "mutilating," the officer reached the opinion at the scene that contempt was demonstrated by the mutilation in the manner and under the circumstances he observed. The additional reference in the officer's testimony to "desecrating it by wrapping it around his finger," etc., does not go to proving contempt by mutilation.
THE COURT: You mean tearing the flag, wrapping it around your hand and putting it up in a symbol that supports the enemy of our country is not knowingly casting contempt upon it?
THE COURT: If you want to support the enemies of our country you don't do it with the flag of the country. Wave the Viet Cong flag. Don't tear up the American flag and support the enemy.
The First Amendment never said you can take the national ensign and mutilate it and use it in a manner to support the enemies of the country.
See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-318, 57 S.Ct. 216, 81 L.Ed. 255 (1936); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 411-412, 4 L.Ed. 579 (1819); United States v. Ferguson, 302 F.Supp. 1111, 1114 (N.D.Calif.1969).
In legislating for the District of Columbia, Congress possesses all the powers of a local and national legislature. Kendall v. United States, on relation of Stokes, 37 U.S. (12 Pet.) 524, 619, 9 L.Ed. 1181 (1838):
Stoutenburgh v. Hennick, 129 U.S. 141, 147, 9 S.Ct. 256, 257, 32 L.Ed. 637 (1889):
Accord, Shoemaker v. United States, 147 U.S. 282, 300, 13 S.Ct. 361, 37 L.Ed. 170 (1893); Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434-435, 52 S.Ct. 607, 76 L.Ed. 1204 (1932); O'Donoghue v. United States, 289 U.S. 516, 539, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Bradshaw v. United States, 143 U.S.App.D.C. 344, 349, n. 11, 443 F.2d 759, 764 n. 11 (1971).
Act of February 8, 1917, ch. 34, 39 Stat. 900, 22 D.C.Code § 3414 (1967). When the instant statute was passed, the above language was deleted from the District statute so that the Federal law now applies to the States and the District alike. Act of July 5, 1968, Pub.L.No. 90-381, § 3, 82 Stat. 291.
336 U.S. at 502, 69 S.Ct. at 691.
Street v. New York, supra, 394 U.S. at 605, 89 S.Ct. at 1372. Justice Black stated:
Id. at 610, 89 S.Ct. at 1374. In other cases a similar view has been expressed. Thus in Hoffman v. United States, 256 A.2d 567, 569 (D.C.Ct.App.1969), rev'd on other grounds, 144 U.S.App.D.C. 156, 445 F.2d 226 (1971), the court stated:
Finally, in Parker v. Morgan, 322 F.Supp. 585, 587 (D.N.C.1971) (three-judge court), the court said:
Schacht v. United States, 398 U.S. 58, 62, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970), does not lead to a different conclusion. The statute there involved permitted actors to wear the uniform of an armed service provided that the actor's portrayal did not tend to discredit that service. 10 U.S.C. § 772(f) (1964). The court held, in effect, that the statute was overly broad because it permitted an actor to be convicted if he said things during the portrayal that tended to cast aspersions on the armed service in question. Apart from the differences between a uniform of an armed force and the flag of the United States, we are here faced with no statute which would permit a conviction for speech.
It appears that the court sustained a motion to strike the last question and answer, notwithstanding argument of counsel to the contrary.