Com. v. Goguen

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation361 Mass. 846,279 N.E.2d 666
Decision Date02 February 1972
PartiesCOMMONWEALTH v. Valerie GOGUEN.

Page 666

279 N.E.2d 666
361 Mass. 846
COMMONWEALTH

v.
Valerie GOGUEN.
Supreme Judicial Court of Massachusetts, Worcester.
Argued Jan. 3, 1972.
Decided Feb. 2, 1972.

[361 Mass. 847]

Page 667

Evan T. Lawson, Boston (C. Michael Malm, Boston, with him), for defendant.

John M. O'Connor, Asst. Dist. Atty., for Commonwealth.

Before CUTTER, REARDON, BRAUCHER and HENNESSEY, JJ.

[361 Mass. 846] RESCRIPT.

The defendant was convicted of publicly treating contemptuously the flag of the United States in violation of G.L. c. 264, § 5. The case is before us on the defendant's amended bill of exceptions. There was evidence that on Main Street in Leominster he was wearing a cloth American flag sewn to the seat of his blue jeans, and that certain bystanders were amused. We reject his claim that the statute is on its face or as applied to him a restraint upon the right of freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Halter v. Nebraska, 205 U.S. 34, 41, 27 S.Ct. 419, 51 L.Ed. 696; Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 86 L.Ed. 1031; United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672; Sutherland v. DeWulf, 323 F.Supp. 740, 743--746 (S.D.Ill.); Oldroyd v. Kugler, 327 F.Supp. 176, 178 (D.N.J.). Compare Cowgill v. California, 396 U.S. 371, 372, 90 S.Ct. 613, 24 L.Ed.2d 590 (concurring opinion of Harlan, J.); Hiett v. United States, 415 F.2d 664, 672 (5th Cir.), cert. den. sub nom. United States v. Hiett, 397 U.S. 936, 90 S.Ct. 941, 25 L.Ed.2d 117; Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344, 348--350 (2d Cir.), cert. den. 400 U.S. 956, 91 S.Ct. 353, 27 L.Ed.2d 264. His communication, if any, was so thoroughly inarticulate as to lack the slightest redeeming social importance. See Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498. He was not prosecuted for being 'intellectually . . . diverse' or for 'speech,' as in Street v. New York, 394 U.S. 576, 593--594, 89 S.Ct. 1354, 22 L.E.2d 572, or for a 'vulgar allusion,' as in Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284. Whatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here. Sutherland v. DeWulf, supra, 323 F.Supp. at 746--749; Oldroyd v. Kugler, supra, 327 F.Supp. at 178--179. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367. Compare Rep.A.G., Pub.Doc. No. 12 (1968)...

To continue reading

Request your trial
5 practice notes
  • Goguen v. Smith, No. 72-1204.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1972
    ...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 "......
  • Smith v. Goguen 8212 1254 v. 12 8212 13, 1973, No. 72
    • United States
    • United States Supreme Court
    • March 25, 1974
    ...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 vagu......
  • Johnson v. State, No. 372-86
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 20, 1988
    ...followed a number of cases from other jurisdictions. State v. Van Camp, 6 Conn.Cir. 609, 281 A.2d 584 (1971); Commonwealth v. Goguen, 361 Mass. 846, 279 N.E.2d 666 (1972) (conviction later reversed as violative of the First Amendment sub. nom. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 3......
  • Delorme v. State, No. 45250
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 10, 1973
    ...to those presented here and where the prosecution was under an identical or similarly worded statute. In Commonwealth v. Goguen, 279 N.E.2d 666 (1972), the Supreme Judicial Court of Massachusetts upheld the conviction of the defendant, who was publicly treating contemptuously the flag of th......
  • Request a trial to view additional results
5 cases
  • Goguen v. Smith, No. 72-1204.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1972
    ...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 "......
  • Smith v. Goguen 8212 1254 v. 12 8212 13, 1973, No. 72
    • United States
    • United States Supreme Court
    • March 25, 1974
    ...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 vagu......
  • Johnson v. State, No. 372-86
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 20, 1988
    ...followed a number of cases from other jurisdictions. State v. Van Camp, 6 Conn.Cir. 609, 281 A.2d 584 (1971); Commonwealth v. Goguen, 361 Mass. 846, 279 N.E.2d 666 (1972) (conviction later reversed as violative of the First Amendment sub. nom. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 3......
  • Delorme v. State, No. 45250
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 10, 1973
    ...to those presented here and where the prosecution was under an identical or similarly worded statute. In Commonwealth v. Goguen, 279 N.E.2d 666 (1972), the Supreme Judicial Court of Massachusetts upheld the conviction of the defendant, who was publicly treating contemptuously the flag of th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT