415 U.S. 566 (1974), 72-1254, Smith v. Goguen

Docket Nº:No. 72-1254
Citation:415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605
Party Name:Smith v. Goguen
Case Date:March 25, 1974
Court:United States Supreme Court

Page 566

415 U.S. 566 (1974)

94 S.Ct. 1242, 39 L.Ed.2d 605




No. 72-1254

United States Supreme Court

March 25, 1974

Argued November 12-13, 1973




Appellee, for wearing a small United States flag sewn to the seat of his trousers, was convicted of violating the [94 S.Ct. 1244] provision of the Massachusetts flag-misuse statute that subjects to criminal liability anyone who "publicly . . . treats contemptuously the flag of the United States. . . ." The Massachusetts Supreme Judicial Court affirmed. The District Court in appellee's habeas corpus action found the "treats contemptuously" phrase of the statute unconstitutionally vague and overbroad. The Court of Appeals affirmed.


The challenged statutory language, which had received no narrowing state court interpretation, is void for vagueness under the Due Process Clause of the Fourteenth Amendment, since, by failing to draw reasonably clear lines between the kinds of nonceremonial treatment of the flag that are criminal and those that are not, it does not provide adequate warning of forbidden conduct, and sets forth a standard so indefinite that police, court, and jury are free to react to nothing more than their own preferences for treatment of the flag. Pp. 572-576, 578.

2. By challenging in state courts the vagueness of the "treats contemptuously" phrase as applied to him, appellee preserved his due process claim for purposes of federal habeas corpus jurisdiction, Picard v. Connor, 404 U.S. 270, since the challenged language is void for vagueness as applied to appellee or to anyone else. A "hard-core" violator concept has little meaning with regard to the challenged language, because the phrase at issue is vague not in the sense of requiring a person to conform his conduct to an imprecise but comprehensible standard, but in the sense of not specifying any ascertainable standard of conduct at all. Pp. 576-578.

3. Even if, as appellant contends, the statute could be said to deal only with "actual" flags of the United States, this would not resolve the central vagueness deficiency of failing to define contemptuous treatment. Pp. 578-579.

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4. That other words of the desecration and contempt portion of the statute address more specific conduct (mutilation, trampling, and defacing of the flag) does not assist appellant, since appellee was tried solely under the "treats contemptuously" phrase, and the highest state court in this case did not construe the challenged phrase as taking color from more specific accompanying language. Pp. 579-50.

5. Regardless of whether restriction by that court of the scope of the challenged phrase to intentional contempt may be held against appellee, such an interpretation nevertheless does not clarify what conduct constitutes contempt of the flag, whether intentional or inadvertent. P. 580.

471 F.2d 88, affirmed.

POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 583. BLACKMUN, J., post, p. 590, and REHNQUIST, J., post, p. 591, filed dissenting opinions, in which BURGER, C.J., joined.

POWELL, J., lead opinion

MR. JUSTICE POWELL delivered the opinion of the Court.

The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag misuse statute unconstitutionally vague and overbroad. 471 F.2d 88 (1972), aff'g 343 F.Supp. 161 (Mass). We noted probable jurisdiction. 412 U.S. 905 (1973). We affirm on the vagueness

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ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.


The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers.1 The flag was approximately four by [94 S.Ct. 1245] six inches, and was displayed at the left rear of Goguen's blue jeans. On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen's apparel.2 No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominster.

The following day, the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag misuse statute. The relevant part of the statute then read:

Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the

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United States . . . whether such flag is public or private property . . . shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . .3

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[94 S.Ct. 1246] Despite the first six words of the statute, Goguen was not charged with any act of physical desecration.4 As permitted by the disjunctive structure of the portion of the statute dealing with desecration and contempt, the officer charged specifically and only that Goguen "did publicly treat contemptuously the flag of the United States. . . ."5

After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, ___ Mass. ___, 279 N.E.2d 666 (1972). That court rejected Goguen's vagueness argument with the comment that, "[w]hatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here." Id. at ___, 279 N.E.2d at 667. The court cited no Massachusetts precedents

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interpreting the "treats contemptuously" phrase of the statute.6

After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. 343 F.Supp. 161. The District Court found the flag contempt portion of the Massachusetts statute impermissibly vague under the Due Process Clause of the Fourteenth Amendment, as well as overbroad under the First Amendment. In upholding Goguen's "void for vagueness" contentions, the court concluded that the words "treats contemptuously" did not provide a "readily ascertainable standard of guilt." Id. at 167. Especially in "these days when flags are commonly displayed on hats, garments and vehicles . . . ," the words under which Goguen was convicted "leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution." Ibid. The court also found that the statutory language at issue "may be said to encourage arbitrary and erratic arrests and convictions." Ibid.

The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amendment and vagueness grounds. 471 F.2d 88. With regard to the latter ground, the Court of Appeals concluded that "resolution of [Goguen's "void for vagueness"] challenge to the statute as applied to him necessarily adjudicates the statute's facial constitutionality. . . ." Id. at 94. Treat

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ing as-applied and on-the-face vagueness attacks as essentially indistinguishable in light of the imprecision of the statutory phrase at issue, id. at 92, 94, the court found that the language failed to provide adequate warning to anyone, contained insufficient guidelines for law enforcement officials, and set juries and courts at large. Id. at 996. Senior Circuit Judge Hamley, sitting by designation from the Ninth Circuit, concurred solely in the "void for vagueness" holding. Id. at 105. Judge Hamley saw no need to reach the "far broader constitutional ground" of First Amendment overbreadth relied on by the majority, noting the "settled principle of appellate adjudication that constitutional questions are not to be dealt with unless this is necessary to dispose of the appeal." Ibid.


We agree with the holdings of the District Court and the Court of Appeals [94 S.Ct. 1247] on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here.7 The doctrine incorporates notions of fair notice or warning.8 Moreover, it requires

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legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent "arbitrary and discriminatory enforcement."9 Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.10 The statutory language at issue here, "publicly . . . treats contemptuously the flag of the United States . . . ," has such scope, e.g., Street v. New York, 394 U.S. 576 (1969) (verbal flag contempt), and at the relevant time was without the benefit of judicial clarification.11

Flag contempt statutes have been characterized as void for lack of notice on the theory that "[w]hat is contemptuous to one man may be a work of art to another."12 Goguen's behavior can hardly be described as art. Immaturity or "silly conduct"13 probably comes closer to the mark. But we see the force of the District Court's observation that the flag has become

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"an object of youth fashion and high camp. . . ." 343 F.Supp. at 164. As both courts below noted, casual treatment of the flag in many contexts has become a...

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