20 N.Y.2d 231, People v. Street

Citation:20 N.Y.2d 231, 282 N.Y.S.2d 491
Party Name:People v. Street
Case Date:July 07, 1967
Court:New York Court of Appeals
 
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Page 231

20 N.Y.2d 231

282 N.Y.S.2d 491

The PEOPLE of the State of New York, Respondent,

v.

Sidney STREET, Appellant.

New York Court of Appeals

July 7, 1967.

Page 232

[282 N.Y.S.2d 493] David T. Goldstick and John Somers, New York City, for appellant.

Aaron E. Koota, Dist. Atty. (Harry Brodbar, Brooklyn, of counsel), for respondent.

Page 233

Peter M. Brown and Terence F. Gilheany, New York City, for United States Flag Foundation, Inc., amicus curiae.

Page 234

FULD, Chief Judge.

We are called upon to decide whether the deliberate act of burning an American flag in public as a 'protest' may be punished as a crime.

On June 6, 1966, after hearing on the radio that James Meredith, the civil rights leader, had been shot by a sniper in Mississippi while participating in a civil rights 'march', the defendant--a decorated World War II veteran-- decided to express his indignation and publicly to protest the tragic happening by burning an American flag. Owning two--one with 50 stars, the other with 48--he selected the latter and burned it on a street corner, telling the small crowd which collected that '(i)f they let that happen to Meredith we don't need an American flag.' The defendant was arrested, tried and convicted for violating the provision of the Penal Law, Consol.Laws, c. 40 (§ 1425, subd. 16, par. d) which makes it a misdemeanor to 'publicly mutilate' the United States flag. 1 He was acquitted of a second charge of disorderly conduct and given a suspended sentence.

There is no doubt that 'nonverbal expression' may be 'a form of speech' within the meaning and protection of the First and Fourteenth Amendments. (People v. Stover, 12 N.Y.2d 462, 469, 240 N.Y.S.2d 734, 739, 191 N.E.2d 272, 276, app. dsmd. 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107; see Brown v. State of Louisiana, [282 N.Y.S.2d 494] 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (sit-in); Carlson v. People of State of California, 310 U.S. 106, 112, 60 S.Ct. 747, 84 L.Ed. 1104 (picketing); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (display of red flag); cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (flag salute).) However, this does not mean that 'the same kind of freedom (is afforded) to those who would communicate ideas by conduct * * * as these amendments afford to those who communicate ideas by pure speech.' (Cox v. State of Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471.) The State may, under its police powers, proscribe many forms of conduct which threaten the peace, security or well-being of its inhabitants, and the Constitution does not require that an exception be made for prohibited activities to which some persons would ascribe

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symbolic significance. (See People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, app. dsmd. 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107, supra; People v. Martin, 15 N.Y.2d 933, 259 N.Y.S.2d 152, 207 N.E.2d 197, cert. den. 382 U.S. 828, 86 S.Ct. 64, 15 L.Ed.2d 72; People v. Penn, 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789, cert. den. 383 U.S. 969, 86 S.Ct. 1275.) Thus, rejecting arguments by defendants that their protest demonstrations were protected by the First Amendment, the courts have, in recent years, upheld convictions for (1) violation of a zoning ordinance (see People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272, app. dsmd. 375 U.S. 42, 84 S.Ct. 147, 11 L.Ed.2d 107, supra); (2) disorderly conduct (see, e.g., People v. Martin, 15 N.Y.2d 933, 259 N.Y.S.2d 152, 207 N.E.2d 197, cert. den. 382 U.S. 828, 86 S.Ct. 64, 15 L.Ed.2d 72, supra; People v. Penn, 16 N.Y.2d 581, 260 N.Y.S.2d 847, 208 N.E.2d 789, cert. den. 383 U.S. 969, 86 S.Ct. 1275, 16 L.Ed.2d 309, supra); (3) trespass (see Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149); (4) failure to retain possession of a draft card (see O'Brien v. United States, 376 F.2d 538 (1st Cir.); cf. United States v...

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