Goguen v. Smith, Misc. Civ. No. 72-22 LC.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtLEVIN H. CAMPBELL
Citation343 F. Supp. 161
PartiesValerie GOGUEN, Petitioner, v. Joseph A. SMITH, Sheriff of Worcester County, Respondent.
Docket NumberMisc. Civ. No. 72-22 LC.
Decision Date25 May 1972

343 F. Supp. 161

Valerie GOGUEN, Petitioner,
v.
Joseph A. SMITH, Sheriff of Worcester County, Respondent.

Misc. Civ. No. 72-22 LC.

United States District Court, D. Massachusetts.

May 25, 1972.


343 F. Supp. 162

Evan T. Lawson, Glickman, Lawson & Tenney, Boston, Mass., for petitioner.

Charles E. Chase, Asst. Atty. Gen., Boston, Mass., for respondent.

MEMORANDUM AND OPINION

LEVIN H. CAMPBELL, District Judge.

I

Petitioner applies for a writ of habeas corpus to obtain release from a six months sentence to the House of Correction imposed after his conviction in the Worcester County Superior Court. The conviction was upon a complaint that he "did publicly treat contemptuously the flag of the United States" in violation of G.L. c. 264, § 5.1 The conviction was

343 F. Supp. 163
affirmed by the Supreme Judicial Court. Commonwealth v. Goguen, 1972 Mass. Ad.Sh. 303, 279 N.E.2d 666

At the time he filed this petition, (February 23, 1972), petitioner had very recently commenced serving the sentence imposed by the Superior Court. The sentence had previously been stayed by the Massachusetts Supreme Judicial Court pending consideration of his state appeal. On March 3, 1972, this Court released the petitioner on bail pending further consideration of his case.

The defendant has filed a return and a Motion to Dismiss the Petition.

The case is submitted by agreement on a record consisting of the record and briefs presented to the Supreme Judicial Court.

The issues were argued by the parties, and briefs were submitted. After consideration, it is my opinion that the writ must be granted.

II

On January 30, 1970, a Leominster Police Lieutenant observed the petitioner standing with a group of persons on Main Street in Leominster. The petitioner was wearing a short coat, blue jeans and shoes. A cloth American flag, approximately 3 × 5 or 4 × 6 inches was sewn to the blue jeans in the vicinity of the left portion of the petitioner's buttocks. When the Lieutenant questioned the petitioner, the other persons present were laughing.

On the same date another police officer saw the petitioner "walking in the downtown business district of Leominster, wearing a short coat, casual type pants and a miniature American flag sewn on the left side of his pants."

The petitioner was arrested upon a warrant issued by the Leominster District Court. On January 31, 1970, a complaint was issued that the petitioner "on the thirtieth day of January . . . at Leominster did publicly treat contemptuously the flag of the United States in violation of G.L. c. 264, § 5 as amended."

The petitioner was tried and convicted on this charge in the District Court.

He appealed to the Superior Court, where he was tried before a district court justice sitting by designation and a jury on April 14 and 15, 1971. At the outset of trial in the Superior Court, the petitioner presented and argued a Motion to Dismiss the Complaint on the ground that G.L. c. 264, § 5, is unconstitutional on its face and as applied to him under the First and Fourteenth Amendments of the United States Constitution. In the motion, the petitioner asserted that the statute violated the right to due process "in that it is overly broad, impermissibly vague and incapable of fair and reasonable interpretation by public officials." The Motion to Dismiss was denied by the trial judge. A subsequent motion for directed verdict was also denied after argument.

343 F. Supp. 164

At the trial, the two police officers who had observed the petitioner's conduct on January 30 testified to the facts already outlined.

The defense presented as a witness a so-called vexillologist.2 Through him, efforts were made to introduce into evidence various contemporary uses in magazines and newspapers and on products of the "actual design of the United States flag and the stars and stripes pattern," including ties made of flag material, pants with a stars and stripes design, a footstool with a flag on the seat, and a bathing suit of flag design. This evidence was offered to assist the jury in determining whether the defendant's treatment of the flag was contemptuous by contemporary standards. Objections made by the Commonwealth to introduction of the foregoing were sustained by the trial judge.

The defense vexillologist testified that the flag the defendant was alleged to have been wearing conformed to official standards.

The trial judge refused the defendant's request that he instruct the jury that in order to find the defendant guilty they must find that the flag alleged to have been treated contemptuously was an official flag of the United States within the meaning of, and as defined by Executive Order number 10834, issued by the President of the United States pursuant to Title 4 United States Code, chapter one, section one, and set forth therein. (It is not entirely clear what instructions the judge gave. It would appear from page 2 of the Bill of Exceptions that he left it to the jury to determine what the term "flag of the United States" meant).

The jury returned a verdict of guilty and sentence was entered thereon.

A timely Bill of Exceptions was thereafter prepared, and an amended bill allowed by the trial judge; and the petitioner's exceptions were heard by the Supreme Judicial Court. In its rescript opinion, the Court rejected the petitioner's "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." While the Court did not refer specifically in its opinion to the Fourteenth Amendment, it stated, "We see no vagueness in the statute as applied here." The Court also ruled that rejection of the vexillologist's evidence as to contemporary use and treatment of the flag was not an abuse of discretion.

No contention is now made that the petitioner has not exhausted state remedies, nor that the constitutional issues presented here were not raised appropriately in state proceedings.

III

Flag cases have proliferated in the past several years. Most deal with situations carrying overtones of political protest. Others, like the present one, seem to stem more from the contemporary use of the national flag as an object of youth fashion and high camp: one sees the flag on ski-sweaters, shirts, hats, helmets, shopping bags, automobiles and jackets, often in conjunction with no discernable set of beliefs. These new, informal usages, at variance with traditional flag etiquette, add to the difficulty of interpreting older flag laws which, like the Massachusetts law, condemn one who treats the flag contemptuously, but do not define exactly what is meant.

In this case, two issues are uppermost. First, to what extent the Commonwealth of Massachusetts may constitutionally regulate conduct towards the flag of the United States. Second, if it may regulate such conduct, whether the penal statute under which the petitioner was convicted is sufficiently limited in scope measured by the standards of the First and Fourteenth Amendments.3

343 F. Supp. 165

Both questions arise because, as is now generally agreed, many types of flag use and flag alteration are "symbolic expression."4 Only as necessary to further a substantial or important governmental interest may the state curtail symbolic expression. See United States v. O'Brien, 391 U.S. 367, 376-377, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968).

In the recent flag cases, courts have identified two governmental interests as authorizing certain types of flag regulation.

One is the state's undoubted interest in preventing breaches of the peace.5 However, that interest may be exercised only in narrowly drawn legislation directed towards conduct which, under the specific circumstances of the moment, may incite retaliation. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Unquestionably an insult to the national flag may sometimes threaten to provoke a breach of the peace. But often it may not. (In the present case, for example, there was no evidence that petitioner's conduct threatened a breach of the peace; and the Massachusetts statute does not require proof that a breach of the peace is imminent. Accordingly, a valid state interest sufficient to sustain the petitioner's conviction...

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8 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
    ...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 The Commonwealth first contends that the questions of facial vagueness 471 F.2d 91 and overbreadth should no......
  • United States ex rel. Radich v. Criminal Ct. of NY, No. 71 Civ. 2738 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 7, 1974
    ...U. S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (per curiam); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). 25 343 F.Supp. 161 26 471 F.2d 88 (1 Cir. 1972). 27 Petitioner urges that this Court find the New York statute "void for vagueness", as well as impermissibly ......
  • Smith v. Goguen 8212 1254 v. 12 8212 13, 1973, No. 72
    • United States
    • United States Supreme Court
    • March 25, 1974
    ...the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F.2d 88 (1972), aff'g, 343 F.Supp. 161 (D.C.Mass.). We noted porbable jurisdiction. 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 969 (1973). We affirm on the vague- Page 568 ness ground. W......
  • Foster, In re, No. 1
    • United States
    • Court of Appeals of Maryland
    • April 29, 1974
    ...at issue is sufficiently unbounded to prohibit, as the District Court noted, 'any public deviation from formal flag etiquette . . ..' 343 F.Supp. 161 at 167. Unchanged throughout its 70-year history, the 'treats contemptuously' phrase was also devoid of a narrowing state court interpretatio......
  • Request a trial to view additional results
8 cases
  • Goguen v. Smith, No. 72-1204.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 14, 1972
    ...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 The Commonwealth first contends that the questions of facial vagueness 471 F.2d 91 and overbreadth should no......
  • United States ex rel. Radich v. Criminal Ct. of NY, No. 71 Civ. 2738 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 7, 1974
    ...U. S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (per curiam); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). 25 343 F.Supp. 161 26 471 F.2d 88 (1 Cir. 1972). 27 Petitioner urges that this Court find the New York statute "void for vagueness", as well as impermissibly ......
  • Smith v. Goguen 8212 1254 v. 12 8212 13, 1973, No. 72
    • United States
    • United States Supreme Court
    • March 25, 1974
    ...the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F.2d 88 (1972), aff'g, 343 F.Supp. 161 (D.C.Mass.). We noted porbable jurisdiction. 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 969 (1973). We affirm on the vague- Page 568 ness ground. W......
  • Foster, In re, No. 1
    • United States
    • Court of Appeals of Maryland
    • April 29, 1974
    ...at issue is sufficiently unbounded to prohibit, as the District Court noted, 'any public deviation from formal flag etiquette . . ..' 343 F.Supp. 161 at 167. Unchanged throughout its 70-year history, the 'treats contemptuously' phrase was also devoid of a narrowing state court interpretatio......
  • Request a trial to view additional results

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