CANNELLA, District Judge.
The writ of habeas corpus is granted.
On May 5, 1967, the petitioner, Stephen Radich, was convicted in the Criminal Court of the City of New York of casting contempt on the American flag in violation of then § 1425 (16) (d) of the New York Penal Law, now recodified as § 136(d), of the McKinney's Consol. Laws, c. 20, New York General Business Law.
Immediately upon the affirmance by the Supreme Court, petitioner commenced the instant action in this Court
In December of 1966, petitioner, the proprietor of an art gallery on Madison Avenue in New York City displayed in his gallery certain "constructions", comparable to sculptures, which had been created by an artist named Marc Morrel. These constructions were partly composed of United States flags or portions thereof, and partly of other objects including a Vietcong flag, a Russian flag, a Nazi swastika and a gas mask. Three of the thirteen three-dimensional art forms which had been displayed in the gallery were singled out for particular attention by the state courts: an object resembling a gun caisson wrapped in a flag, a flag stuffed into the shape of a six-foot human form hanging by the neck from a yellow noose, and a seven-foot "cross with a bishop's mitre on the head-piece, the arms wrapped in ecclesiastical flags and an erect penis wrapped in an American flag protruding from the vertical standard."
At trial, the complaining police officer testified that on December 27, 1966, from a vantage point on Madison Avenue, he had observed the construction which appeared to be a human form hanging from a yellow noose in the window of Radich's second floor gallery. He further testified that upon entering the gallery the following day with a police photographer in order to serve petitioner with a criminal summons he had observed this construction, as well as the others.
The petitioner and Mr. Hilton Kramer, the art news editor of The New York Times, testified for the defense. Both stated that in their expert opinions the constructions were, under contemporary standards, works of art. In addition, petitioner testified that he had not intended to cast contempt upon or show disrespect for the American flag by virtue
Petitioner was convicted by a three-judge panel in the New York City Criminal Court. That court, Judge Basel dissenting, concluded that Radich had "cast contempt" upon the American flag by virtue of his exhibition of the Morrel contructions in violation of subsection 16(d) of former § 1425 of the Penal Law (now § 136(d) of the General Business Law). The court found the constructions not to come within the ambit of protection afforded to speech by the First Amendment, and that the state, by means of the statute and the prosecution of the petitioner, had properly exercised its police power to restrict acts which might pose an "immediate threat to public safety, peace, or order."
On appeal, the New York Court of Appeals affirmed the conviction by a divided bench (5-2).
The decision of the New York Court of Appeals was affirmed by an equally divided United States Supreme Court.
On the instant petition, Radich challenges his state conviction upon First and Fourteenth Amendment grounds, specifically, that: (a) the involved statute violates the First Amendment in that casting contempt on the American flag may not constitutionally be made a criminal offense; (b) the statute is unconstitutionally overbroad and vague; and (c) the statute violates the equal protection clause of the Fourteenth Amendment in that it arbitrarily bars sculpture which casts contempt on the flag while permitting other forms of expression, such as pictures, photographs and cartoons which cast contempt on the flag.
In the first flag related decision of the 1973 Term, Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), the Court affirmed a First Circuit decision which had granted habeas corpus relief to a state prisoner who had been convicted of violating a Massachusetts statute making it a crime to "treat contemptuously" the flag of the United States. The district court
In June of this year, subsequent to its decision in Smith, the Supreme Court, in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), reversed the state court conviction of an individual who had been found guilty of violating a Washington statute proscribing improper uses of the flag. Spence, a college student, had hung a United States flag from his apartment house window. The flag was in an upside down position and had attached upon both of its sides a peace symbol fashioned of removable black tape. At trial, Spence testified that he had put the symbol on the flag in protest against the then recent invasion of Cambodia by United States forces and the killings at Kent State University. It was conceded by the state that the sole reason for the arrest was his placing of the peace symbol on the flag and exposing it to public view in that condition. The Supreme Court, in a per curiam opinion (three Justices dissenting), reversed the conviction. The Court found that Spence's use of the flag constituted the expression of an
In addition to the decisions in Smith and Spence, the Supreme Court, during the 1973 Term, summarily disposed of five other appeals involving the flag and its relationship with the First Amendment.
In Spence, the Court recognized that certain "activity [is] sufficiently imbued with elements of communication [as] to fall within the scope of the First and Fourteenth Amendments. . . ."
The American flag has long been recognized as a symbol possessed of a "very special meaning."
Other federal courts which have considered the symbolic nature of the American flag have been eloquent in defining its expressive qualities,
by means of statutes such as that now at bar.
In addition to the symbolic nature of which the American flag is possessed standing alone, "the context in which [this] symbol is used for purposes of expression is important, for the context may give meaning to the symbol."
THE INTERESTS OF THE STATE OF NEW YORK
Having thus concluded that petitioner's exhibition of the sculptures constituted speech and communicative expression coming within the purview of the First Amendment, the Court next turns to consider those state interests which might be advanced to support his conviction and the resulting suppression of expression. In Spence, the Court, drawing upon its earlier opinion in Street v. New York,
Similarly, there is no evidence in the state court record which would demonstrate that the flags employed in the Morrel constructions were other than privately-owned flags and, it is clear, that the constructions were displayed in Radich's own art gallery; upon private property.
PRESERVATION OF THE FLAG AS AN UNALLOYED SYMBOL
In Spence, the Court discussed the state's interest in preserving the flag "as an unalloyed symbol of our country" in the following terms:
Notwithstanding the fact that petitioner has been convicted under the New York desecration statute of casting contempt
The quality of the flag as a symbol embraced within Morrel's sculptures was the expression intended by their exhibition. Unlike the consumption of the flag when it is burned as the vehicle for expression of an idea, the flag as displayed by petitioner in his gallery was itself the idea, the sine qua non for the artist's endeavors. The symbol was not consumed by the sculptures, but rather, flourished in all of its communicative majesty, unalloyed and undiminished. "It is the character, not the cloth, of the flag which"
PROTECTION OF THE SENSIBILITIES OF PASSERSBY
The second factor which was stated, analyzed and rejected by the Court in Spence, "that the State may have desired to protect the sensibilities of passersby," is similarly unavailing to the State of New York in the instant case.
PRESERVATION OF THE PUBLIC PEACE
In affirming the lower courts' conviction of the petitioner, Judge Gibson, speaking for the New York Court of Appeals, stated, "the prime reason for the statute [based upon the legislative history] was not to insure suppression of . . . ideas, but rather to insure preservation of the public peace."
This Court has read and reviewed the transcript of petitioner's trial in the New York City Criminal Court and is unable to find in it any objective evidence
There is no question but that preservation of the public peace is a valid interest which the state may invoke in order to justify prosecutions for flag desecration. Spence and the earlier Supreme Court case of Street v. New York so state.
Numerous courts have concluded, as did the New York Court of Appeals in Radich, that acts of flag desecration are, of themselves, always so inherently inflammatory as to pose so great a danger to the public peace as warrants the state to act.
As Mr. Justice Holmes long ago stated, "[e]very idea is an incitement."
So too, New York's undifferentiated fear
While it is not the duty of this Court in the present case to determine the extent of the objective evidence which must be shown before a state may constitutionally suppress an act of flag desecration, whether the anticipated disorder be imminent or probable or whether such potential disorder present a clear and present danger to the public peace,
Our Constitution and the guarantees which are embodied in it are the supreme symbol and law of our nation. Its values and meaning surpass all other symbols and law. In seeking to afford our citizenry the right to speak freely, to assert views which may be unpopular to the majority, and, even, to deprecate those symbols which others hold dear, the framers consciously chose to construct a society and a nation in which the free dissemination of ideas, the thoughts of all free-thinking men, even the smallest dissenting voice, might be heard without fear of prosecution. This is our birthright as Americans. The "freedom to differ is not limited to
The flag and that which it symbolizes is dear to us, but not so cherished as those high moral, legal and ethical precepts which our Constitution teaches. When our interests in preserving the integrity of the flag conflict with the higher interest of preserving, protecting and defending the Constitution, the latter must prevail, even when it results in the expression of ideas about our flag and nation which are defiant, contemptuous or unacceptable to most Americans.
For its own part, this Court does not subscribe to the views espoused by the petitioner by means of his display of the Morrel constructions, but his right to express his mind is guaranteed by our Constitution and, on the state of this record, the Court finds no cause for the state's abridgement of that right.
It is the opinion and decision of this Court that the conviction of petitioner, Stephen Radich, in the Criminal Court of the City of New York, as affirmed by the Appellate Courts of the State of New York, served to deprive him of his rights under the First and Fourteenth Amendments to the Constitution of the United States and that § 1425(16)(d) of the New York Penal Law, now § 136(d) of the New York General Business Law, is unconstitutional as applied to him.
Let the writ of habeas corpus issue forthwith upon the submission of an appropriate order.
This statute, which finds its origin in the Uniform Flag Act, has counterparts in many other states. See, e. g., Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash.U.L.Q. 193 (1972); Note, Flag Desecration: Illegal Conduct or Protected Expression?, 22 Case W.Res.L.Rev. 555, 556-59 (1971). Compare, the Federal Flag Statute, 18 U.S.C. § 700(a),
and its legislative history, H.R.Rep.No.350, 90th Cong., 1st Sess. (1967); S.Rep.No. 1287, 90th Cong., 1st Sess. (1968) with the present New York formulation. See also, Smith v. Goguen, 415 U.S. 566, 582 n. 30, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
People v. Radich, 26 N.Y.2d at 118 n. 1, 308 N.Y.S.2d at 848 n. 1, 257 N.E.2d at 31 n. 1.
Id. at 123, 308 N.Y.S.2d at 852, 257 N.E.2d at 35. And later in its opinion, the court declared:
Id. at 124, 308 N.Y.S.2d at 853, 257 N.E.2d at 36.
He thereafter suggested a four-pronged test for the analysis of governmental action in symbolic speech cases.
Id. at 377, 88 S.Ct. at 1679.
26 N.Y.2d at 124, 308 N.Y.S.2d at 854, 257 N.E.2d at 36.
Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). See also, Goguen v. Smith, 471 F.2d 88, 105 (1 Cir. 1972) (Hamley, J., concurring), aff'd on other grounds, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
In rejecting petitioner's "void for vagueness" argument, the New York Court of Appeals stated:
26 N.Y.2d at 125, 308 N.Y.S.2d at 854, 257 N.E.2d at 36. The State, in response to petitioner's present argument, asserts that whatever facial vagueness might heretofore have plagued the statute has been divested by the judicial gloss found both in Radich and the subsequent case of People v. Keough, 31 N.Y.2d 281, 338 N.Y.S.2d 618, 290 N.E.2d 819 (1972). While it may be said that these decisions speak to the relationship between the enforceability of the statute and the constitutionally necessary requirement of a "likelihood of incitement to disorder", the Court does not perceive them to address the vagueness which might be found inherent in the statutory phrase "cast contempt". It is to this term that petitioner addresses his vagueness challenge and it is this question that the Court does not here reach, in light of the conclusion that the statute is unconstitutional as applied to Radich.
It should be noted, however, that the "treats contemptuously" phrase contained in the Massachusetts statute which was held impermissibly vague by the Court in Smith has been distinguished from the "cast contempt" language employed in the New York formulation. See, e. g., State v. Royal, 305 A.2d 676, 679 (Sup.Ct.N.H.1973) (discussed in Mr. Justice White's concurring opinion in Smith v. Goguen, 415 U.S. at 588-589 n. 3, 94 S.Ct. 1242; but see, Commonwealth v. Young, 325 A.2d 315 (Pa.Super.1974) (declaring unconstitutional a Pennsylvania statute worded identically to that of New York).
Additionally, it may be said that the New York statute retains vitality as presently formulated and as construed by the cases in certain limited instances. For example, in the case of Van Slyke v. State, 489 S.W.2d 590. (Tex.Cr.App.1973), appeal dismissed, 418 U.S. 907, 94 S.Ct. 3198, 41 L.Ed.2d 1154 (1974), the defendant was convicted under the Texas flag desecration statute for purporting to masturbate into the American flag while seated on a raised platform in the commons room at Rice University, at a time when numerous persons, were present, one of whom attempted to physically take the flag from Van Slyke. Cases embracing facts of this sort well comport with the analysis set forth in the ensuing paragraphs of this decision and present the type of conduct against which the state may justifiably act; breach of the peace may well be perceived as imminent in such circumstances.
Note, 68 Colum.L.Rev., supra note 23, at 1117. Se also, Smith v. United States, 502 F.2d 512 (5 Cir. 1974); Nimmer at 37 ("[S]ymbolic speech requires not merely that given conduct results in a meaning effect, but that the actor causing such conduct must intend such a meaning effect by his conduct."); Comment, 56 Iowa L.Rev., supra note 23, at 620-621. Compare, United States v. Donner, 497 F.2d 184 (7 Cir. 1974), petition for cert. filed, 43 U.S.L. W. 3095 (July 9, 1974) (No. 74-98).
Note, 32 Ohio St.L.J., supra note 23, at 146. See also, Rosenblatt, supra note 1, at 219-223 (discussing flag related conduct as art).
As Mr. Justice White declared in his concurring opinion in Smith, 415 U.S. at 587, 94 S.Ct. at 1254:
See also, Mr. Justice Rehnquist's dissenting opinion in Smith, 415 U.S. at 601-603, 94 S.Ct. 1242.
Crosson v. Silver, 319 F.Supp. 1084, 1086 (D.Ariz.1970) (three-judge court).
As the three-judge court in Parker v. Morgan, 322 F.Supp. 585, 588 (W.D.N.C.1971) stated,
See also, Joyce v. United States, 147 U.S. App.D.C. 128, 454 F.2d 971, 973-976 (D.C. Cir. 1971), cert. denied, 405 U.S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972).
Note, 68 Colum.L.Rev., supra note 23, at 1107. See also, Emerson, supra note 23, at 88.
Smith, 415 U.S. at 587, 94 S.Ct. at 1254 (White, J., concurring). See also, Mr. Justice Rehnquist's dissenting opinion in Smith, 415 U.S. at 591, 94 S.Ct. 1242, as well as his later dissent in Spence, 94 S.Ct. at 2733.
It is interesting to compare the analysis of the several Justices with the thoughts of Professor Nimmer, as expressed in the following passage.
Nimmer at 56-57. See also, Comment, 32 U.Pitt.L.Rev., supra note 23, at 528; Note, 12 Ariz.L.Rev., supra note 23, at 85.
Other courts have also considered the state's interest in preserving the physical integrity of the flag, as well as the flag as a national symbol. Some have found such interest to be sufficient ground upon which a criminal conviction for flag desecration might be predicated; others have dismissed this factor as insufficient to warrant abridgment of constitutional rights; while still others, applying an O'Brien test, have arrived at diverse results, finding either that such interest was so inexplicably intertwined with the ideas expressed by means of the flag related conduct as not to form a sufficient independent basis for denying constitutionally guaranteed rights or not so inexplicably intertwined as to prevent its invocation. See, cases cited and accompanying text, Goguen v. Smith, 471 F.2d at 100 nn. 19-21. See also, United States v. Crosson, 462 F.2d 96 (9 Cir. 972); Cline v. Rockingham County Superior Court, 367 F.Supp. at 1150-1151; Jones v. Wade, 338 F.Supp. 441 (N.D.Tex. 1972), rev'd on other grounds, 479 F.2d 1176 (5 Cir. 1973); Crosson v. Silver, 319 F.Supp. at 1087; People v. Vaughan, 514 P.2d at 1323; State v. Farrell, 209 N.W.2d at 106; State v. Royal, 305 A.2d at 680. The latter view is apparently that which was adopted by the Court in Spence and it is specifically adopted by this Court in the instant case.
Id. at 119, 308 N.Y.S.2d at 849, 257 N.E.2d at 32. Compare, the court's statement with Note, 66 Mich.L.Rev., supra note 23, at 1050-51.
As the Court stated in State v. Kool, supra (adopted by Mr. Justice Douglas in Spence, 418 U.S. at 416, 94 S.Ct. at 2733):
The second case, People v. Sutherland, 9 Ill.App.3d 824, 292 N.E.2d 746 (1973), involved the prosecution of several individuals under a statute identical to that of New York for burning a flag upon the lawn adjacent to the Federal Building in Rock Island, Illinois. After the fire had been started, a passing motorist stopped his car, double parked, and proceeded to stomp on the flag to put out the fire. The appellate court relied upon the state's interest in prevention of breaches of the peace and preservation of public order to sustain the conviction. It stated "The defendants also argue that the likelihood of a breach of the peace was not established. We disagree. It appears to us that the desecration of the flag by burning it in a public place is highly likely to cause a breach of the peace. . . . Violence might have resulted in the case before us if the defendants had not been girls." Id. at 827, 292 N.E.2d at 749. Again, the Supreme Court vacated the state court's decision and remanded the case. 418 U.S. 907, 94 S.Ct. 3198, 41 L.Ed.2d 1154 (1974). It so acted both in light of Spence and Smith.
Although these summary actions by the Court are not to be accorded the weight of precedent, they are instructive and give indication of the Court's thinking.
Note, Summary Disposition of Supreme Court Appeals: The Significance of Limited Discretion and a Theory of Limited Precedent, 52 B.U.L.Rev. 373, 420 (1972). See also, R. Stern and E. Gressman, Supreme Court Practice § 5.12 at 220 (4 ed. 1969).
At the least, these decisions demonstrate that the rationale of Spence is to be considered applicable in desecration cases and, Farrell and Sutherland can be viewed, to a limited extent, as supportive of this Court's thesis that possible or hypothetical breaches of the peace are insufficient grounds upon which the abridgment of First Amendment rights can be justified.
Nimmer at 53-55 (footnotes omitted).
Note, 22 Case W.Res.L.Rev., supra note 1, at 573-74.