People v. Street

• Citation: 282 N.Y.S.2d 491,20 N.Y.2d 231,229 N.E.2d 187
• Parties: , 229 N.E.2d 187 The PEOPLE of the State of New York, Respondent, v. Sidney STREET, Appellant.
• Decision Date: 07 July 1967
• Court: New York Court of Appeals

Page 491

282 N.Y.S.2d 491

20 N.Y.2d 231, 229 N.E.2d 187

The PEOPLE of the State of New York, Respondent, v. Sidney STREET, Appellant.

Court of Appeals of New York.

July 7, 1967.

David T. Goldstick and John Somers, New York City, for appellant.

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

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

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 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 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. Miller, 2 Cir., 367 F.2d 72, cert. den. 386 U.S. 911, 87 S.Ct. 855, 17 L.Ed.2d 787); and (5) deliberate disregard of an order closing a river to navigation. (See United States v. Aarons, 2 Cir., 310 F.2d 341.) As the Supreme Court observed in the Adderley case (385 U.S. 39, 48, 87 S.Ct. 242, supra), freedom of expression does not license individuals to speak 'whenever and however and wherever they please' (See, also, Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.)

It is the teaching of the cases that the constitutional guarantee of free speech covers the substance rather than the form of communication and that the right to employ a particular mode of expression will be vindicated only if it has been outlawed, not because of any legitimate State interest, but solely for the purpose of censoring the underlying idea or thought. (See, e.g., Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, supra; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471, supra; Carlson v. State of California, 310 U.S. 106, 60 S.Ct. 747, 84 L.Ed. 1104, supra; Thornhill v. State of Alabama, 310 U.S. 88, 101--106, 60 S.Ct. 736, 84 L.Ed. 1093; Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, supra; O'Brien v. United States, 1 Cir., 376 F.2d 538, supra; but cf. United States v. Miller, 2 Cir., 367 F.2d 72, cert. den. 386 U.S. 911, 87 S.Ct. 855, 17 L.Ed.2d 787, supra.) On the other hand, if the State can show that the prohibition of certain conduct is designed to promote the public health, safety or well-being, then, 'the circumstance that such prohibition has an impact on speech or expression' does not render the legislation violative of the First Amendment (People v. Stover, 12 N.Y.2d, at p. 469, 240 N.Y.S.2d at p. 739, 191 N.E.2d at p. 276) providing, of course, that other channels of communication are open and available. (Compare Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 93 L.Ed. 513, supra, with Bakery & Pastry Drivers & Helpers Local 802 etc. v. Wohl, 315 U.S. 769, 775, 62 S.Ct. 816, 86 L.Ed. 1178.) ²

For many years now, public desecration of the American flag has been a criminal offense in all of the States. (See 'Desecration of the Flag', Hearings on H.R. 271 Before Subcommittee No. 4 of House Committee on Judiciary, 90th Cong., 1st Sess. (Serial No. 4), pp. 324--346.) There is, in fact, a Uniform Flag Law (9B Uniform Laws Annotated (1966), pp. 51--54), closely resembling subdivision 16 of section 1425 of our Penal Law, which has been adopted by more than a dozen States. This sort of legislation was enacted, it has been said, as a reaction to the unseemly practice, adopted in the 1896 presidential campaign, of affixing political slogans to the flag. (See 9B Uniform Laws Annotated (1966), p. 48.) In any event, whatever motivated the Legislature to act, the statutory purpose is clear--it is to prevent a breach of the peace. (See People ex rel. McPike v. Van de Carr, 91 App.Div. 20, 26, 86 N.Y.S. 644, affd. 178 N.Y. 425, 70 N.E. 965; Halter v. State of Nebraska, 205 U.S. 34, 41, 27 S.Ct. 419, 51 L.Ed. 696; People v. Von Rosen, 13 Ill.2d 68, 70--71.) As the Supreme Court noted in the Halter case (205 U.S. 34, 41, 27 S.Ct. 419, 421, supra), 'insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.' Subdivision 16 of section 1425 is designed to prevent the outbreak of such violence by discouraging contemptuous and insulting treatment of the flag in public. Happily, the courts have not been called upon to apply the statute, or others like it, with any degree of frequency. In People v. Picking, 288 N.Y. 644, 42 N.E.2d 741, we sustained a conviction under subdivision 16 for exploitation of the American flag in commercial advertising (see, also, Halter v. State of Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696, supra) and other jurisdictions have, on occasion, similarly punished such disrespectful conduct as publicly tearing a flag or throwing it to the ground. (See Hinton v. State, 223 Ga. 174, 154 S.E.2d 246; State v. Schlueter, 127 N.J.L. 496, 23 A.2d 249.)

We need not at this time concern ourselves with a display of the flag in a manner which does not clearly manifest an intention to desecrate it. (Compare State v. Kent, Hawaii 1st Cir.Ct., No. 36423, decided Dec. 9, 1966, with People v. Radich, 53 Misc.2d 717, 279 N.Y.S.2d 680, and United States Flag Foundation v. Radich, 53 Misc.2d 597, 279 N.Y.S.2d 233.) ³ In the case before us, the defendant concededly burned the flag in public, not for the purpose of destroying it 'in a dignified way' (U.S.Code, tit. 36, § 176, subd. (j)) but rather to express his indignation and sense of outrage. ⁴ It was an act of incitement, literally and figuratively 'incendiary' and as fraught with danger to the public peace as if he had stood on the street corner shouting epithets at passing pedestrians. (See Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.) The State may legitimately curb such activities in the interest of preventing violence and maintaining public order. (See 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; Chaplinsky v. State of New Hampshire, 315 N.Y. 568, 62 S.Ct. 766, 86 L.Ed. 1031, supra; Milk Wagon Drivers Union v. Meadowmoor Co., 312 U.S. 287, 294, 61 S.Ct. 552, 85 L.Ed. 836; Carlson v. People of State of California, 310 U.S. 106, 113, 60 S.Ct. 747, 84 L.Ed. 1104, supra; Halter v. State of Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696, supra; cf. Brown v. State of Louisiana, 383 U.S. 131, 139, 86 S.Ct. 719, 15 L.Ed.2d 637, supra; Garner v. State of Louisiana, 368 U.S. 157, 173--174, 82 S.Ct. 248, 7 L.Ed.2d 207.)

The violation of the statute may not be condoned simply because the defendant's agitation resulted...