394 U.S. 576 (1969), 5, Street v. New York

Docket Nº:No. 5
Citation:394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572
Party Name:Street v. New York
Case Date:April 21, 1969
Court:United States Supreme Court
 
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Page 576

394 U.S. 576 (1969)

89 S.Ct. 1354, 22 L.Ed.2d 572

Street

v.

New York

No. 5

United States Supreme Court

April 21, 1969

Argued October 21, 1968

APPEAL FROM THE COURT OF APPEALS' OF NEW YORK

Syllabus

Appellant, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag which he owned to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating § 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or "publicly [to] defy . . . or cast contempt upon [any American flag] either by words or act." The information charged appellant with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Appellant unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected "demonstration" or "protest." Appellant was tried before a judge without a jury and convicted. The arresting officer testified that, at the time of arrest, appellant was standing on a corner speaking to a small and not unruly group, which did not block the street or sidewalk; on the opposite corner was the burning flag; appellant told the group: "We don't need no damn flag," and said to the officer, "If they let that happen to Meredith, we don't need an American flag." Appellant also challenged the constitutionality of the "words" part of the statute in the Appellate Term and in the New York Court of Appeals, both of which affirmed his conviction, the latter court upholding the constitutionality of the statute without alluding to the "words" part.

Held:

1. Appellant has met the burden of showing that the federal question of constitutionality of the "words" part of the statute was adequately raised in the state courts, by appellant's motion to dismiss in the trial court and his briefs in the appellate courts. Pp. 581-585.

2. The application of § 1425, subd. 16, par. d, to appellant was violative of rights of free expression assured against state infringement by the Fourteenth Amendment, because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. Pp. 581, 585-594.

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(a) Appellant's conviction must be set aside if it could have been based solely upon his words, or upon both his words and his act, and if a conviction on such a basis would be unconstitutional. Stromberg v. California, 283 U.S. 359 (131); Thomas v. Collins, 323 U.S. 516 (1945). Pp. 585-588.

(b) The record here is insufficient to eliminate the possibility that appellant's words were the sole basis of his conviction or that he was convicted for both his words and his deed. Pp. 588-590.

(c) Appellant's conviction under § 1425, subd. 16, par. d, for speaking she did could not be constitutionally justified on the basis that the words he uttered (1) constituted incitement to others to commit unlawful acts; (2) were so inflammatory as to provoke violent retaliation by others; (3) were (apart from the content of the ideas they conveyed) likely to shock passers-by; or (4), in the light of Board of Educ. v. Barnette, 319 U.S. 624 (1943), constituted failure by the appellant to manifest the respect which every citizen must show the flag. Pp. 590-593.

20 N.Y.2d 231, 229 N.E.2d 17, reversed and remanded.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

Appellant Street has been convicted in the New York courts of violating former § 1425, subd. 16, par. d, of the New York Penal Law, which makes it a misdemeanor

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"publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]."1 He was given a suspended sentence. We must decide whether, in light of all the circumstances, that conviction denied to him rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 271, 271-277 (1964).

According to evidence given at trial, the events which led to the conviction were these. Appellant testified that, during the afternoon of June 6, 1966, he was listening to the radio in his Brooklyn apartment. He heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi. Saying to himself, "They didn't protect him," appellant, himself a Negro, took from his drawer a neatly folded, 48-star American flag which he formerly had displayed on national holidays. Appellant left his apartment and carried the still-folded flag to the nearby intersection of St. James Place and Lafayette Avenue. Appellant stood on the northeast corner of the intersection, lit the flag with a match, and dropped the flag on the pavement when it began to burn.

Soon thereafter, a police officer halted his patrol car and found the burning flag. The officer testified that he then crossed to the northwest corner of the intersection, where he found appellant "talking out loud" to a small group of persons. The officer estimated that there were some 30 persons on the corner near the flag and five to 10 on the corner with appellant. The officer testified that as he approached within 10 [89 S.Ct. 1359] or 15 feet of

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appellant, he heard appellant say, "We don't need no damn flag," and that, when he asked appellant whether he had burned the flag, appellant replied: "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag." Appellant admitted making the latter response, but he denied that he said anything else, and asserted that he always had remained on the corner with the flag.

Later the same day, appellant was charged, by an information sworn to before a judge of the New York City Criminal Court, with having committed

the crime of Malicious Mischief in that [he] did willfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law, under the following circumstances: . . . [he] did willfully and unlawfully set fire to an American Flag and shout, "If they did that to Meredith, We don't need an American Flag."

Appellant was tried before another Criminal Court judge, sitting without a jury, and was convicted of malicious mischief in violation of § 1425, subd. 16, par. & 2.2 He was subsequently given a suspended sentence. The Appellate Term, Second Department, affirmed without opinion. Leave was granted to appeal to the New York Court of Appeals, and, after plenary consideration, that court unanimously affirmed. 20 N.Y.2d 231, 229 N.E.2d 187 (1967). We noted probable jurisdiction. 392 U.S. 923 (1968).3

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Street argues that his conviction was unconstitutional for three different reasons. [89 S.Ct. 1360] First, he claims that § 1425, subd. 16, par. d, is overbroad, both on its face and as applied, because the section makes it a crime "publicly [to] defy . . . or cast contempt upon [an American flag] by words. . . ." (Emphasis added.) Second, he contends that § 1425, subd. 16, par. d, is vague and imprecise because it does not clearly define the conduct which it forbids. Third, he asserts that New York may not constitutionally

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punish one who publicly destroys or damages an American flag as a means of protest, because such an act constitutes expression protected by the Fourteenth Amendment. We deem it unnecessary to consider the latter two arguments, for we hold that § 1425, subd. 16, par. d, was unconstitutionally applied in appellant's case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. In taking this course, we resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.

Though our conclusion is a narrow one, it requires pursuit of four lines of inquiry: (1) whether the constitutionality of the "words" part of the statute was passed upon by the New York Court of Appeals; (2) whether, if appellant's conviction may have rested in whole or in part on his utterances and if the statute as thus applied is unconstitutional, these factors in themselves require reversal; (3) whether Street's words may, in fact, have counted independently in his conviction, and (4) whether the "words" provision of the statute, as presented by this case, is unconstitutional.

I

The New York Court of Appeals did not mention in its opinion the constitutionality of the "words" part of § 1425, subd. 16, par. d.4 Hence, in order to vindicate our jurisdiction to deal with this particular issue, we must inquire whether that question was presented to the New York courts in such a manner that it was necessarily decided by the New York Court of Appeals when it affirmed

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appellant's conviction. If the question was not so presented, then we have no power to consider it. See 28 U.S.C. §§ 1257(2), 1257(3); Bailey v. Anderson, 326 U.S. 203, 206-207 (1945). Moreover, this Court has stated that, when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. See, e.g., Bailey v. Anderson, supra; Chicago, I. & L. R. Co. v. McGuire, 196 U.S. 128, 131-133 (1905).

In this case, any want of presentation by the appellant must have occurred at the trial level, for there appears to be no doubt that the...

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