This is the brief that you filed on behalf of the U.S. Flag Foundation in the court of appeals, is that correct? Mr. TOWER. Yes, sir. Mr. ROGERS. That will be received for the record. (The documents referred to are as follow :) Court of Appeals State of New York-Kings County Docket No. B5995/1966 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT V. SIDNEY STREET, DEFENDANT-APPELLANT BRIEF OF AMICUS CURIAE UNITED STATES FLAG FOUNDATION, INC. STATEMENT United States Flag Foundation, Inc. respectfully submits this brief in support of the constitutionality of Section 1425, subdivision 16(d) of the New York Penal Law. This statute, enacted in 1917, in pertinent part simply forbids anyone to "publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act" the United States flag. Appellant Sidney Street was convicted and his sentence suspended under this section for publicly and deliberately burning an American flag on a street corner while shouting to a crowd: "We don't need no damn flag". ARGUMENT Appellant on this appeal argues that the flag statute is unconstitutional (1) as a denial of symbolic speech protected by the First Amendment and (2) as sufficiently vague to contravene due process. The ultimate question is the power of the Legislature to enact the statute. In point of fact the record shows a plain violation of a clear-cut statute prohibiting desecration of the American flag. The flag statute upon examination in no way precludes political dissent or prohibits communication of ideas. To permit public burnings of the American flag "under the guise of freedom of speech would certainly weaken, if not destroy, one of our most cherished symbols." Cf. United States Flag Foundation, Inc. v. Radich, 157 (72) N.Y.L.J., p. 17, col. 2 (Sup. Ct. N.Y. Co., April 14, 1967; Irving L. Levey, J.). As early as 1942 this Court in effect upheld the constitutionality of this flag statute now once again under attack. People v. Picking, 288 N.Y. 644, cert. denied 317 U.S. 632, reh. denied 317 U.S. 708 (1942). Appellant contends that no state legislature may constiutionally curtail his public burning of the American flag on a street corner as a self-styled dramatic protest of unpalatable current events. In other words, appellant claims the right to so-called non-violent symbolic speech is absolute any time, any place, any way, anywhere. We submit this notion of constitutional law has been consistently rejected. POINT I-SINCE APPELLANT'S FREEDOM OF SPEECH IS NOT DENIED, THE STATUTE INVOLVED IS CONSTITUTIONAL A. No constitutional right to do as you please Appellant urges that his public burning of the American flag while making a protest speech to a crowd was "symbolic speech" expressing "his outrage against the shooting of James Meredith *** in the most effective manner he knew possible" and that the statute, in forbidding desecration of the American flag, is an unconstitutional abridgement of his freedom of expression, Appellant takes the position that this burning of the American flag was somehow constitutionally protected speech since his demonstration was not otherwise disorderly. (Brief, pp. 19-21.) In Adderley v. Florida, 385 U.S. 39 (1966), petitioners also argued that a State law which made unlawful a peaceful civil rights demonstration on the premises of a county jail was unconstitutional in that it violated the demonstrators' First Amendment rights of free speech and assembly. Mr. Justice Black, speaking for the Court, stated: "Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in *** Cox v. Louisiana, [379 U.S. 536 (1965)] * * *. We reject it again." 385 U.S. at 47-48. B. Non-violent symbolic speech is not always protected The Second Circuit has recently set forth the scope and standards of constitutional protection for symbolic speech in United States v. Miller, 367 F.2d 72 (2d Cir. 1966) (Lumbard, Ch. J., Moore and Feinberg, JJ.). There the Court unanimously affirmed the draft-card burning conviction of pacifist David Miller. The United States Supreme Court, 8-1, denied certiorari. (35 U.S. Law Week 3278.) Said the Second Circuit, by Judge Feinberg: "But that conduct may be symbolic *** is only the beginning of constitutional inquiry. Is *** all symbolic speech protected by the First Amendment? *** [S]incere motivation or the labeling of even non-violent conduct as symbolic does not necessarily transform that conduct into speech protected by the First Amendment." 367 F. 2d at 78-79. (Emphasis added.) C. The test is balancing of interests, no longer clear and present danger The Second Circuit held that, in determining what symbolic speech is or is not protected by the First Amendment, the latest decisions of the United States Supreme Court require application of "a balancing approach to determine the constitutionality of legislation that indirectly restricted speech *** at least where a narrowly-drawn statute on its face regulates conduct, not the communication of ideas." (367 F. 2d at 80 and cases cited.) In the balance are "the public interest to be protected" on the one hand and "the effect of the statute on freeedom of expression" on the other. Id. at 80, 81. Here we have a narrowly-drawn statute which on its face does no more than regulate conduct-simply forbidding desecration of the American flag. Nowhere does the statute prohibit the communication of ideas or political dissent or protest. The statute cannot reasonably be said to constitute "a prior restraint of speech". This can be shown by interpolating the language of the Court in Miller to the facts of this case: "Except to prohibit (desecration of the flag), the statute does not prevent political dissent or criticism in any way. It is narrowly drawn to regulate a limited form of action. Under the statute, aside from (casting contempt upon the flag) appellant and others can protest against the (shooting of James Meredith) in any terms they wish * * *. Appellant claims, however, that the (action for which he was convicted) is more dramatic than mere speech and that he has a right to the most effective means of communication. But surely this generalization has its own limits." Compare 367 F.2d at 81. The Miller opinion rejects the "clear and present danger" test in favor of the more modern and equitable balancing of interests approach to evaluate the constitutionality of the statute. The opinion points out that where the balancing test is applied, the statute involved here is constitutional. D. The statute does not compel political orthodoxy Miller further demonstrates that appellant's reliance on West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) (App. Brief, pp. 13–15, 19–21) is misplaced. Besides applying the now-superseded "clear and present danger" test, Barnette turns on the proposition that “no official * * * can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 319 U.S. at 642. Appellant is not being forced to love his country or his country's flag or, by word or act, to pledge allegiance to either. No compulsion is involved. This statute does not compel respect. Unlike the statute struck down in Barnette, it does not compel salutes to the flag, or any other alternative action. Appellant is not being made to do anything; he is merely prohibited from doing one reasonably and narrowly defined act-disparagement of the United States flag. Surely the 79-543-67-15 Constitution is not dedicated to the proposition that all men can unqualifiedly do as they please.1 E. The first amendment does not give the defendant carte blanche In O'Brien v. United States, F. 2d (1st Cir. April 10, 1967), the First Circuit held unconstitutional the draft-card burning amendment upheld in Miller on the ground that, since it was already a crime to be without possession of one's draft card, the later amendment of the Selective Service statute making it a crime to destroy one's draft card had no proper purpose and impinged upon free speech "[i]n singling out persons engaging in protest for special treatment." Beyond this thin point, the First Circuit does not question the principles of Miller enunciated by the Second Circuit. Indeed, the First Circuit said: "Different considerations arise when the statute has a proper purpose and the defendant merely invokes free speech as a reason for breaking it. We would agree, for example, that a provision relating to injury to the Capitol ornaments could not make it a heightened offense if statuary was defaced for the announced purpose of disparaging the individual memorialized. * * * However, it could hardly be suggested that free speech permitted defacement of a statue with impunity so long as disparagement was the declared motive. The First Amendment does not give the defendant carte blanche." F.2d at and cases there cited. (Emphasis added.) F. The purpose of the flag statute The proper purpose of Penal Law § 1425-16 is to protect the American flag from desecration and to insure its respectful use. Ch. 54, [1917] Laws of New York 106 (caption); 1943 Report of N.Y. Att'y Gen. 90-91; 1941 Report of N.Y. Att'y Gen. 465; 51 N.Y. State Dep't Reports 240 (1934). And the statute forbids all dishonor to the flag-it does not single out for special treatment only those who cast dishonor on the flag for purposes of protest or political dissent. See People v. Picking, 288 N.Y. 644, cert. denied 317 U.S. 632, reh. denied 317 U.S. 708 (1942) affirming defendants' conviction under § 1425-16 for using the flag in connection with advertising. And cf. Halter v. Nebraska, 205 U.S. 34 (1907). G. The public interest to be weighed the inviolability of the flag The public interest to be balanced against the statue's restriction is the interest of the people of New York in protecting from dishonor the symbol of our nationits liberty and its ideals. Our flag, representing as it does our country's past and its future, should be above partisan debate, above party politics, indeed above the government in power. H. Latest constitutional test by this court As Mr. Justice Aurelio observed when, as City Magistrate, he held defendants for trial under §1425-16 in People v. Picking, 23 N.Y.S. 2d 148, 149 (Magis. Ct. N.Y. City 1940): t "The statute is a salutary one. Its aim is to hold up the dignity of the American Flag, the Flag that is the hope of the world and the Symbol of what perhaps is the last true democracy on the face of the earth, today * * * Today, more than ever, the Flag of Destiny must not be sullied." In Picking, defendants were convicted after trial. The Appellate Division unanimously affirmed. 263 App. Div. 36 6(1st Dept. 1942). On appeal, this Court refused to hold the statute unconstitutional and unanimously affirmed without opinion. 288 N.Y. 644 (1942). The Supreme Court denied certiorari and rehearing. 317 U.S. 632, 708 (1942). I. The highest court has been in accord And in Halter v. Nebraska, 205 U.S. 34 (1907), the Supreme Court held constitutional a statute similar to the one at bar, Mr. Justice Harlan noting: "For [the United States] flag every true American has not simply an appreciation but a deep affection. No American, nor any foreign born person who enjoys the privileges of American citizenship, ever looks upon it without taking pride in the fact that he lives under this free Government." 205 U.S. at 41. See also Bolling v. Superior Court, supra. " 1 This distinction was clearly drawn by the Supreme Court of Washington in Bolling v. Superior Court for Callam County, 16 Wash. 2d 373, 133 P. 2d 803 (1943). This Court also held unconstitutional a state statute compelling salutes to the flag in public schools. But in doing so the Court stated: "Our decision in this case must not be considered as authority for tolerating the least disrespect for the Flag which is the symbol of our liberty. Respect for our Flag as a symbol of our country is part of our way of life and disrespect constitutes an offense against our laws." 133 P.2d at 809. The public has a proper interest in regulating the conduct here involvedpublic destruction of the American flag. Regulation of such conduct outweighs the "indirect and minimal abridgement of 'speech'" caused by § 1425-16 of the Penal Law, and "demands the greater protection under the particular circumstances presented.'" United States v. Miller, supra, 367 F. 2d at 82. "The First Amendment does not give the defendant carte blanche." O'Brien v. United States, supra, -F. 2d at * On April 14, 1967, the New York State Supreme Court (New York County, Special Term, Part I; Irving L. Levey, J.) held that § 1425-16 of the Penal Law does not violate the Constitution and does not deny freedom of speech. United States Flag Foundation, Inc. v. Radich, 157 (72) N.Y.L.J., p. 17, col. 2 (4/14/67). The Court held on defendant's motion to dismiss: "Suffice it to say that the statute deals with the flag itself, a symbol of our free and independent country. The statute in no way curtails political dissent or prohibits communication of ideas. The desecration of our flag cannot be utilized as a symbolic act to punish or exhibit disagreement with or opposition to the policies of our government. "To permit such desecration under the guise of freedom of speech would certainly weaken, if not destroy, one of our most cherished symbols." The New York flag statute, we submit, is constitutional. POINT II-THE STATUTE IS NOT UNCONSTITUTIONALLY VAGUE, SINCE IT CONVEYS TO A MAN OF COMMON UNDERSTANDING SUFFICIENTLY DEFINITE WARNING AS TO THE CONDUCT PROHIBITED A. The flag statute is not vague Appellant claims (Brief, Point I B) that the words of the statute making it a misdemeanor to "defile" or "cast contempt upon" the American flag are unconstitutionally vague, in that they are so broad as to include within their ambit activities which comprise an exercise of constitutionally protected freedom of speech. But as pointed out by appellant himself, these words have well-defined, established and accepted meanings-"desecrate," "dishonor," "scorn" and "sully." The Random House Dictionary of the English Language (New York, Random House: 1966), p. 316, col. 1; p. 379, col. 2. See also State v. Schlueter, 127 N.J.L. 496, 23 A. 2d 249, 250-251 (1941). And it has been shown in Point I of this brief that if action involving the United States flag is found to come within the meaning of these terms, such action is not constitutionally protected free speech. Appellant is begging the question when he claims that the statutory words are broad enough to include both innocent and criminal conduct. B. The rule of Roth is applicable If appellant means to argue "that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere", the answer is in Roth v. United States, 354 U.S. 476, 491–492 (1957). There, the Supreme Court held constitutional statutes making it criminal to mail and to keep for sale or advertising material described as "obscene," "lewd," "lascivious," "filthy" and "indecent," stating: "This Court *** has consistently held that lack of precision is not itself offensive to the requirements of due process. . . . [T]he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . . United States v. Petrillo, 332 U.S. 1, 7-8 [1947]." The words used must “give adequate warning of the conduct proscribed and mark ‘. . . boundaries sufficiently distinct for judges and juries fairly to administer the law.... That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense... [Quoting Petrillo and citing numerous other cases.] C. Traditional due process requirements are satisfied The Court thus rejected the argument based on Winters v. New York, 333 U.S. 507 (1948), also relied on by appellant here (Brief, pp. 24-26), "that the statutes to make the Stars and Stripes stronger and more enduring. From the time of our nation's birth it has served as the emblem of our sovereignty. As such, it reminds the peoples of the world, as well as ourselves, of the principles of individual freedom and liberty which all men desire. Our Flag is a source of pride and honor to all true Americans. Federal law established "Old Glory" as our national symbol. Federal law governs the display of our Flag. Why shouldn't Federal law be exercised to grant protection to our national Ensign and punish those who would defame it? The 69,000 members of the Fleet Reserve Association who have devoted the major portion of their adult lives in service to our Flag urge the 90th Congress of the United States to enact such a law. While we have singled out H.R. 1207, introduced by Representative Richard L. Roudebush of Indiana, as the proposed measure to accomplish this, we know that this Committee, exercising its wisdom and experience, will take the action necessary to accomplish the intent of H.R. 1207 and yet preserve the basic freedoms of the individual as provided for in our nation's Constitution. As dedicated career enlisted men of the U.S. Navy and Marine Corps, we thank your Committee for giving this proposed legislation your prompt and serious attention. We appreciate this opportunity to express our opinion for the immediate need of this legislation. We feel the need is imperative for our Flag is the cornerstone of our Association's three cardinal principles, "Loyalty, Protection and Service". CONGRESS OF THE UNITED STATES, Hon. BYRON G. ROGERS, Chairman, Subcommittee No. 4, House Judiciary Committee, DEAR MR. CHAIRMAN: I would appreciate your incorporating the attached editorial from the Shreveport Journal, Shreveport, Louisiana, in the record of hearings on legislation prohibiting the desecration of the American flag which I understand will continue tomorrow. It is my feeling that this editor succinctly represents the prevailing American view on this subject. Kindest regards and best wishes. Cordially yours, EDWIN W. EDWARDS. [From the Shreveport Journal, May 5, 1967] PUNISHMENT FOR FLAG-BURNERS At the beginning of this week U.S. Rep. F. Edward Hébert (D-La.) announced he would press for enactment of an effective law to deal with anti-war demonstrators and draft card burners. Now, another Louisiana Democratic representative, Edwin W. Edwards of Crowley, has called for speedy hearings and quick action on a bill to make it a federal offense to desecrate the U.S. Flag. Both of these proposed laws should be enacted without delay. "I am disgusted with groups and persons who participate in and advocate such activities," Edwards said vehemently in referring to recent flag-burnings and other demonstrations by anti-war demonstrators. "Any person who will desecrate our flag," Representative Edwards said, "let him simultaneously desecrate his citizenship." Mr. Edwards is among many members of Congress who have introduced bills providing a prison term of up to five years and a fine of up to $10,000 or both for persons convicted of offenses against the flag of the United States. Such punishment is long overdue and, in comparison to the offense for which it would be assessed, is all too light. Another U.S. representative-Jack Edwards (R-Ala.)-has a bill of his own to deal with flag-burners. In a recent appearance on the floor of the House of Representatives the Alabama congressman reminded his fellow lawmakers that "no national flag can be burned in public by persons living under the protection of citizenship symbolized by that flag without the entire nation suffering a deep loss" |