Cline v. Rockingham County Superior Court, Exeter, NH

• Decision Date: 06 December 1973
• Docket Number: Civ. A. No. 73-135.
• Citation: 367 F. Supp. 1146
• Parties: James A. CLINE v. ROCKINGHAM COUNTY SUPERIOR COURT, EXETER, NEW HAMPSHIRE.
• Court: U.S. District Court — District of New Hampshire

367 F. Supp. 1146

James A. CLINE v. ROCKINGHAM COUNTY SUPERIOR COURT, EXETER, NEW HAMPSHIRE.

Civ. A. No. 73-135.

United States District Court, D. New Hampshire.

December 6, 1973.

Richard S. Kohn, American Civil Liberties Union of N. H., Vincent P. Dunn, Maynard, Dunn & Phillips, Concord, N. H., for plaintiff.

Robert V. Johnson, II, Asst. Atty. Gen., of N. H., for defendant.

OPINION

BOWNES, District Judge.

This petition for writ of habeas corpus involves First Amendment overbreadth and vagueness challenges to New Hampshire's flag desecration statute. The statute, NH RSA 573:2, reads in pertinent part:

No person shall . . . annex or affix . . . to any . . . flag . . . any inscription, design, device, symbol, name, advertisement, words, marks, or notice whatever, or exhibit or display . . . any such flag . . . .

The facts have been stipulated:

1. On July 29, 1970 at 6:35 p. m., James A. Cline was arrested at Hampton Beach, New Hampshire, by Officer Donald McNutt, Jr., of the Hampton Police Department, who observed him with a blanket draped over his shoulder. The blanket had an American flag attached to it upon which a peace symbol had been penned in ink. (Tr. p. 5)

2. On September 10, 1970, a complaint was brought against the defendant in the Hampton District Court charging that the defendant did:

"Affix a symbol to a flag of the United States of America to wit: did display a flag of the United States of America when said flag had a peace symbol drawn on said flag and did cause this said flag to be displayed in public." (Reserved Case p. 2)

3. Petitioner pled "not guilty." He was found guilty after trial by the Court and sentenced to pay a fifty dollar fine.

4. Petitioner appealed for a trial de novo in the Rockingham County Superior Court.

5. On October 6, 1971, the date of trial at Rockingham County Superior Court, petitioner filed a motion to dismiss on the ground that RSA 573:2 was void for vagueness and in violation of the First Amendment. On the same date, the Court denied the motion.

6. On October 6, 1971, petitioner was found guilty after trial by jury and was sentenced to pay a fine of twenty-five dollars and was also sentenced to the House of Correction for a period of three days. Sentence was stayed pending appeal to the New Hampshire Supreme Court.

7. On November 1, 1971, petitioner filed a motion to vacate sentence on the ground that the imposition of a greater sentence than that imposed in the District Court violated the defendant's constitutional right to appeal. The motion was denied on November 4, 1971.

8. On May 31, 1973, the New Hampshire Supreme Court upheld the constitutionality of RSA 573:2 and overruled petitioner's exceptions.

9. On June 7, 1973, the Rockingham County Superior Court granted a stay of execution of his sentence pending disposition of proceedings in the United States District Court for the District of New Hampshire.

10. When Officer McNutt arrested the petitioner, the latter did not show any contempt towards the flag. (Tr. p. 14)

11. At the time of the arrest, the petitioner complied with the officer's directions (Tr. p. 15) and was a civil young man. (Tr. p. 14)

12. The sole reason for the arrest was that the petitioner had a peace symbol on a flag. (Tr. p. 15)

13. At the time of the County Court trial, the petitioner was living in Nashua, New Hampshire, with his parents. (Tr. p. 16) He was a senior at the Wilton High School and was captain of the cross-country track team. (Tr. p. 16) He was eighteen years of age (Tr. p. 16) and was starting to work at the drop-in center in Nashua with youths who had drug problems or other kinds of personal problems. (Tr. p. 17)

14. Following his arrest and having been advised of his Miranda rights (Tr. p. 5), petitioner admitted to Officer McNutt that he had drawn the peace symbol on the flag with ballpoint ink. (Tr. p. 6) 15. Petitioner testified that he put the peace symbol on the flag "As a protest against war, the war in Vietnam, personally." (Tr. p. 17)

16. Petitioner was of draft age, was registered for the draft (Tr. p. 18), and was "against any war and specifically against the war in Vietnam." (Tr. p. 17)

17. Petitioner testified that his intent in placing the peace symbol on the flag "was to symbolize peace and American justice." "To symbolize — you know — to put together a symbol for peace; a symbol for America as a protest for the Vietnam war." (Tr. p. 18)

18. Petitioner also testified that "I respect the flag as a symbol standing for the United States." (Tr. p. 18)

19. Petitioner further testified that he did not intend to mutilate the flag (Tr. p. 18), that if he had wanted to he probably would have burned it (Tr. pp. 18-19), and that he never had the intention of holding the flag up to contempt. (Tr. p. 19)

20. Petitioner testified that he was vaguely aware that putting the symbol on the flag was against the law. (Tr. p. 19)

21. Officer McNutt testified that he had encountered other young people at Hampton Beach with flags and symbols on their attire. He had seen some "wearing just the American flag and some with flags that really weren't American flags — they had the peace symbol where the stars and blue background is." (Tr. p. 8)

THE LAW

After the decision of the New Hampshire Supreme Court upholding the statute and his conviction, petitioner filed a writ of habeas corpus claiming

that he was illegally arrested and convicted in violation of his rights under the First and Fourteenth Amendments to the United States Constitution in that RSA 573:2 is unconstitutional on its face and as applied to him, because it violates the right to freedom of speech guaranteed by the First Amendment to the United States Constitution and it violates the right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution in that it is overly broad, impermissibly vague and incapable of air sic and reasonable interpretation by public officials.

Jurisdiction rests on 28 U.S.C. §§ 2241 and 2254.¹

Petitioner challenges NH RSA 573:2 as unconstitutional because it impermissibly interferes with his First Amendment freedom of speech. He maintains that the New Hampshire statute is both overvague and overbroad. However, since I rule that the statute is overbroad, it will not be necessary to consider the vagueness challenge.

The First Circuit, in Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972), probable jurisdiction noted, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 969 and oral argument heard, 42 L.W. 3303 (Nov. 20, 1973), has recently set forth guidelines to be followed in this type of overbreadth challenge.

In the context of a federal habeas corpus proceeding a state criminal statute should not be ruled unconstitutional on its face as overbroad unless (1) the area affected by it includes a large proportion of First Amendment activities, (2) it possesses the potential for a substantial number of impermissible applications, and (3) immediate and effective excision of the statute's impermissible applications is not foreseeable without continued interruptions of First Amendment freedoms. Goguen v. Smith, supra, 471 F.2d at 98.

My first inquiry then is "whether this flag desecration law affects an area of interests which includes a substantial proportion of First Amendment activities." Goguen, supra, 471 F.2d at 98. The state maintains that the petitioner was not attempting to communicate any ideas by his conduct and that if he was trying to express himself, his ideas were so "nebulous, ambiguous, and not susceptible to general understanding" that they are not entitled to First Amendment protection. State's Brief at 6-8. On the other hand, petitioner's testimony demonstrates that he intended his action to symbolize "a protest against war, the war in Vietnam" and "peace and American justice." Transcript at 17-18.

It is too late now to deny "that the flag has a meaning — a very special meaning." Goguen, supra, 471 F.2d at 99. "Throughout our history as a nation the flag has been our symbol . . . ." Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971, 975 (D.C.Cir.1971), cert. denied, 405 U. S. 969, 92 S.Ct. 1188, 31 L.Ed.2d 242 (1972). From its inception, it has symbolized protest against, as well as support for, our national goals. "It says everything and is big enough to symbolize the variant viewpoints of a Dr. Spock and a General Westmoreland." Parker v. Morgan, 322 F.Supp. 585, 588 (W.D.N.C.1971). For these reasons, the flag is "always `saying' something." But see Parker v. Morgan, supra, at 588. "If it did not speak by itself as a symbol of the United States of America, I doubt that any state would have sought to protect its message from verbal or physical abuse." Goguen, supra, 471 F. 2d at 99.

The New Hampshire statute does then affect conduct which embodies communicative content. Although the statute is precisely drawn, it casts a shadow over a substantial field of protest activity. Goguen, supra, 471 F.2d at 99-100.

Having decided that the New Hampshire statute does affect a large area of First Amendment activities, I must next determine whether the statute impermissibly restricts those activities. I start with the premise that "many types of flag usage and flag alteration . . . are a . . . means of nonverbal political communication." Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344, 349 (2nd Cir. 1970), United States appeal pending, 42 U.S.L. W. 3016 (July 10, 1973); Thoms v. Smith, 334 F.Supp. 1203, 1208 (D.Conn. 1971), affm'd., 473 F.2d 478 (2nd Cir. 1973). Such communicative activity has always been accorded First Amendment protection. Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L. Ed.2d 731 (1969); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L. Ed. 1117 (1931). I agree with the courts in Thoms v. Smith, 334 F.Supp. 1203 (D.Conn.1971), and Crosson v. Silver, 319 F.Supp. 1084 (D.Ariz.1970), that "it is self-evident that most,...