Goguen v. Smith, 72-1204.

• Citation: 471 F.2d 88
• Decision Date: 14 December 1972
• Docket Number: No. 72-1204.,72-1204.
• Parties: Valarie GOGUEN, Petitioner-Appellee, v. Joseph SMITH, Sheriff of Worcester County, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

471 F.2d 88 (1972)

Valarie GOGUEN, Petitioner-Appellee, v. Joseph SMITH, Sheriff of Worcester County, Respondent-Appellant.

No. 72-1204.

United States Court of Appeals, First Circuit.

Heard September 7, 1972.

Decided December 14, 1972.

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Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Criminal Division, were on brief, for appellant.

Evan T. Lawson, Boston, Mass., with whom C. Michael Malm, Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and HAMLEY,^* Senior Circuit Judge.

COFFIN, Chief Judge.

Appellee was sentenced to six months in the House of Correction after having been convicted by a jury in a Massachusetts Superior Court¹ for "publicly treating contemptuously the flag of the United States", in violation of Mass.Gen.Laws ch. 264 § 5.² The treatment found contemptuous consisted of appellee appearing in the business district of Leominster, displaying a small cloth American flag sewn to his blue jeans on the area covering his left buttock. When a police officer questioned appellee, persons with whom appellee was standing were amused. Appellee was arrested the day after this incident. The Massachusetts Supreme Judicial Court affirmed the conviction in a rescript opinion, Commonwealth v. Goguen, 1972 Mass.Adv.Sh. 303, 279 N.E.2d 666, finding the statute not vague as applied to appellee, whatever might be the uncertainties in other circumstances, and neither a facial nor "as applied" restraint upon freedom of speech. Appellee then petitioned for a writ of habeas corpus in the federal district court, which issued the writ after finding that the statute was both vague, in violation of the Fourteenth Amendment, and overbroad, in violation of the First Amendment. Goguen v. Smith, 343 F.Supp. 161 (D.Mass.1972). The Commonwealth appeals.

The Commonwealth first contends that the questions of facial vagueness and overbreadth should not be considered, placing principal reliance on the well-known abstinence prescription of United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960) that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional,"³ and on Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Secondly, it specifically defends against the vagueness charge by pointing out that the statutory words "spell out design" and "describe conduct that affects the physical integrity of a flag of the United States". Finally, the Commonwealth supports its law against the overbreadth attack by arguing that the statutory "desecration words", being aimed at "protecting . . . physical integrity" are not speech-oriented; but that, if appellee be assumed to have been engaging in symbolic speech, the Commonwealth was furthering a substantial government interest, within its power, unrelated to suppression of expression, and no greater than essential to further that interest, thus meeting the requirements of United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

While the facts in this case are clear and simple, the legal issues are complex. This is so because concepts of vagueness and overbreadth are fraternal, not identical twins, having affinity but separate identities and purposes; because the preliminary question, "When may one complain?", requires a different analysis as to each concept; and because, as to the First Amendment challenge of overbreadth, we confront the question which Mr. Justice Harlan noted had been "pretermitted" in clearer cases, i. e., whether wearing a flag is symbolic speech. Cowgill v. California, 396 U.S. 371, 372, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (concurring opinion). We shall order our analysis first by examining if appellee's non-First Amendment attack on the statute's facial vagueness may properly be considered, and then by proceeding to the merits of that attack. We shall then assess whether it is appropriate to subject the statute to a First Amendment overbreadth test, and continue with the detailed inquiries required by such a test. So, while the subject matter of this case is seat-of-the-pants, our analysis cannot be.

Vagueness in a Non-First Amendment Context

We first approach this case on the assumption that there are no First Amendment problems inhering in the statute or in appellee's conduct. The threshold question then becomes, whether appellee's conduct and the proscriptions of the statute are such that it is appropriate for a court to consider his facial challenge, in addition to his allegation that the law is vague as applied to him. The Commonwealth assumes there was no vagueness as applied to appellee, as did the Supreme Judicial Court. The unarticulated premise is that, whether or not the statute may be capable of unconstitutional applications in other situations, it is not vague as to one who sews a flag to the seat of his pants.⁴

Assuming, however, that the statute clearly covers appellee's conduct, we must determine whether a court may hear appellee's complaint that the statute is facially unconstitutional because others would not know whether their proposed conduct would constitute contemptuous treatment. Before Raines, an impressive series of cases considered vagueness attacks by looking solely to the text of the statute without examining the offender's conduct,⁵ some cases involving conduct clearly covered by a statute.⁶Raines, while stating that generally a person may not plead facial unconstitutionality of a statute that is constitutional as to him, noted none of these cases although it recognized a sizeable list of exceptions to its broad principle. Two of these exceptions are relevant to our present inquiry since their rationale supports the instant facial attack. Thus, where a statute has already been declared unconstitutional in a large number of its intended applications, and it appears that it was not intended to stand as valid in the few remaining fortuitous situations to which it might apply, Butts v. Merchants' & Miners' Transportation Co., 230 U.S. 126, 33 S. Ct. 964, 57 L.Ed. 1422 (1913); or where a state court has declared valid one provision or application of a statute which is inextricably tied up with an invalid one, Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 68 L.Ed. 686 (1924) —in such circumstances the broad constitutional challenge may be mounted.⁷ We read these exceptions as not depending upon the historic fortuity that a statute has already been subjected to such holdings but as depending upon the probability of such holdings invited by the wording of the statute. From the failure of Raines to cite the vagueness cases to which we have referred and in the light of the thrust of the foregoing two exceptions, we think the sense of the doctrine is that if the nature of a party's conduct is not so dissimilar from other behavior sought to be proscribed by a statute, such that an interpretation distinguishing his behavior from that of others would not provide more certain notice to potential offenders and would also seem unwarranted in the light of a legislative determination to cover all such activities, then a void-for-vagueness challenge allows a court to rule on the facial constitutionality of that statute. See R. Sedler, Standing to Assert Constitutional Jus Tertii in The Supreme Court, 71 Yale L.J. 599, 608 (1962).

We are confirmed in this view by recent decisions of the Supreme Court.⁸ In Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), numerous parties who had been prosecuted under a city vagrancy ordinance prevailed in their contentions that the law was void for vagueness. Among those permitted to challenge the ordinance on its face was a defendant who had been charged with "disorderly conduct—resisting arrest with violence". Similarly, in Colten the Court entertained a void-for-vagueness claim against a state "disorderly conduct—refusing to disperse" statute which clearly applied to the offender. Although the claim was rejected, the Court specifically agreed with the state court determination that the law was not facially unconstitutional since "`citizens who desire to obey the statute will have no difficulty in understanding it . . . .' Colten v. Commonwealth, 467 S.W.2d 374 at 378." Colten, supra 407 U.S. at 110, 92 S.Ct. at 1957. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), the Court similarly reached the merits of a facial challenge to an anti-noise ordinance, finding it not to be vague. The attack was allowed even though the defendants admitted that the ordinance was not uncertain as applied to their conduct. It is apparent that the conduct punished in each of these three cases was precisely the type of activity which the statute sought to punish.⁹ Assuming the statute was vague as applied in Papachristou, the Court must have recognized that it could not be interpreted so as to provide more certain notice to other potential offenders and hence there was no reason to abstain from a ruling on the claim of facial unconstitutionality. In Colten and Grayned, it was clear that failure to find vagueness as to the particular violators with which the Court was concerned would amount to a clean constitutional bill of health in all but perhaps a small number of peripheral cases, and hence it made no sense to perpetuate any doubts as to facial constitutionality in light of the void-for-vagueness challenge pressed in the case before the Court.¹⁰

Appellee's conduct in the case confronting us consisted of wearing an American flag on the seat of his pants. It is little different from other kinds of alleged contemptuous conduct sought to be covered by ...