Hodsdon v. Buckson

• Decision Date: 18 March 1970
• Docket Number: Civ. A. No. 3500.
• Parties: William M. HODSDON, Plaintiff, v. David P. BUCKSON, Attorney General of the State of Delaware, and Ruth M. Ferrell, Deputy Attorney General of the State of Delaware, Defendants.
• Court: U.S. District Court — District of Delaware

310 F. Supp. 528

William M. HODSDON, Plaintiff, v. David P. BUCKSON, Attorney General of the State of Delaware, and Ruth M. Ferrell, Deputy Attorney General of the State of Delaware, Defendants.

Civ. A. No. 3500.

United States District Court, D. Delaware.

March 18, 1970.

COPYRIGHT MATERIAL OMITTED

William E. Taylor, Jr., of Taylor & Lindh, Wilmington, Del., for plaintiff.

David P. Buckson, Atty. Gen. of Delaware and Ruth M. Ferrell, Deputy Atty. Gen., for defendants.

Before SEITZ, Circuit Judge, and WRIGHT and LAYTON, District Judges.

OPINION

WRIGHT, District Judge.

Plaintiff William M. Hodsdon is here seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and 42 U.S.C. § 1983. Specifically, he requests this court to declare a section of the Delaware Code, 11 Del.C. § 532, unconstitutional, and to enjoin defendants David P. Buckson, Attorney General of Delaware, and Ruth M. Ferrell, Deputy Attorney General, from continuing to prosecute him for a violation thereof. This three-judge court was convened because requests for relief invoke the provisions of 28 U.S.C. §§ 2281-2284.

The state indictment of which plaintiff here complains is the culmination of a series of efforts to cause him to cease using his American flag to express displeasure with United States involvement in the Vietnam war and with what he considers various civil injustices. The state of Delaware first brought an action in the United States District Court for the District of Delaware seeking to enjoin plaintiff's display of the flag inconsistent with the flag etiquette provisions of 36 U.S.C. §§ 174-178. The District Court dismissed that action for lack of jurisdiction. State of Delaware ex rel. Trader v. Hodsdon, 265 F.Supp. 308 (1967).

On April 18, 1967, defendants secured an indictment in the Delaware Superior Court against plaintiff for violation of 11 Del.C. § 532. That section reads, in relevant part, as follows:

"Whoever publicly mutilates, defaces, defiles, defies, tramples upon or casts contempt either by word or act, upon (the American flag) — Shall be fined not more than $100 or imprisoned not more than 30 days, or both."

The indictment charged that plaintiff had violated the act at numerous times beginning in July, 1966, by

"displaying simultaneously on the front of his residence at 3202 Fernwood Place, Wilmington, Delaware, the United Nations flag in the position of honor on the right side of his house and the United States flag in the subordinate position on the left side of his house and flown in a half-mast position."

Plaintiff moved to dismiss the action in the state court. His motion was denied, as was his request for a writ of prohibition from the Delaware Supreme Court. 239 A.2d 222 (Del.1968). He then instituted this action on March 14, 1968. This Court heard argument on motions to dismiss and plaintiff's motion for summary judgment. Decision was deferred by agreement among the parties¹ so the Court could have the benefit of an impending decision of the United States Supreme Court thought to deal with the issues here. Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969).

Plaintiff urges this Court to declare the statute unconstitutional "in that it abridges plaintiff's right of freedom of speech," and on the ground "that it is impermissibly vague and indefinite."

If plaintiff attacked the statute solely for its vagueness, it would be necessary to decide if a narowing construction by the state courts "would avoid or modify the constitutional question." Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). The possibility of such construction would require abstention from needless intervention in state court proceedings. Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). Here, however, plaintiff also attacks the statute on its face, and if no conceivable construction² will repair unconstitutional infirmities, abstention is both unnecessary and improper. Zwickler v. Koota, supra, at 249-252, 88 S.Ct. 391.

Having carefully examined this statute, giving due presumption to its validity, the Court concludes that no construction could remedy its impermissible intrusion into areas of expression protected by the First Amendment. The Court cannot abstain, and, for reasons hereafter stated, holds that 11 Del.C. § 532 is unconstitutionally overbroad.

As Mr. Justice Harlan pointed out in Zwickler overbreadth and vagueness are not always easy or profitable to distinguish. 389 U.S. at 255-257, 88 S.Ct. 391 (concurring opinion). Statutes which suffer from one often suffer from the other.³ This Court understands overbreadth to be the statutory result when the legislature, having the power to regulate certain conduct, strikes so bluntly as to proscribe constitutionally protected conduct as well. See Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.R. 67, 96-97 (1960), and Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.R. 844 (1970). Whether the overbroad sweep results from a clear intent to regulate both types of conduct, or from use of vague and confusing terms, the defect is fatal.

The danger of chilling the exercise of fundamental freedoms, especially those protected by the First Amendment, requires that when the conduct regulated approaches a protected zone, government regulate "only with narrow specificity." "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms," because those freedoms need "breathing space to survive." NAACP v. Button, 371 U.S. 415, 433, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).

As the Supreme Court noted in Button, the objectionable aspect of overbreadth is not the absence of fair notice of the statute's import, but rather the danger of tolerating "a penal statute susceptible of sweeping and improper application. * * *" Id. at 432-433, 83 S.Ct. at 338. In Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960), the Court said:

"* * * even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."

See Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464 (1969). The Delaware statute attacked here is capable of an application so sweeping and improper that even if some of its goals may constitutionally be reached,⁴ it must fall in its entirety, lest protected expression be deterred by fear of prosecution.

No cases provide clear precedent for the holding here, but several decisions of the Supreme Court offer guiding principles. In Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), the defendant asserted that his conviction under a New York statute⁵ substantially identical to the one attacked here abridged his freedom of expression. To protest the shooting of civil rights leader James Meredith, Street burned an American flag on a Brooklyn street corner. As the flag burned, he exhorted a small crowd, "We don't need no damn flag * * *. If they let that happen to Meredith we don't need an American flag."

The Supreme Court agreed with Street that the conviction abridged his freedom of expression. It based the holding, however, on the fact that the statute permitted him to be convicted either solely for the contemptuous words which accompanied his burning the flag or for the combination of words and act. His words, said the Court, were protected by the First Amendment and could not constitutionally support a conviction.

The Court identified four governmental interests that might be furthered by punishing Street for his words: (1) an interest in preventing him from vocally inciting others to commit unlawful acts; (2) an interest in preventing him from uttering words so inflammatory that they would provoke others to retaliate physically against him, causing a breach of the peace; (3) an interest in protecting the sensibilities of passersby who might be shocked by Street's words about the American flag; (4) an interest in assuring that Street, regardless of the impact of his words on others, showed proper respect for the national symbol. None of those interests, concluded the Court, could constitutionally justify a conviction under the statute. The Court had "* * * no doubt that the constitutionally guaranteed `freedom to be intellectually * * * diverse or even contrary,' and the `right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous." Street v. New York, supra, at 593, 89 S.Ct. at 1366.

The Supreme Court intimated no opinion in Street as to the constitutionality of efforts to punish acts alone which "mutilate, deface, defile or defy, trample upon, or cast contempt upon" the flag. Defendants here urge that the "words" portion of the Delaware statute is severable, and that insofar as the "acts" portion is concerned, Street made no determination of its validity. This Court agrees. The crucial issue, therefore, is whether, although the state may not by a statute like the one here punish words defiant or contemptuous of the flag, it may nevertheless punish acts which convey identical ideas.

Expression is not confined to the spoken and written word. A court may take judicial notice of the symbolic significance of particular acts.⁶ Nor is expression deprived of constitutional protection because it is nonverbal. In Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), a state statute forbidding display of a red flag "as a * * * symbol * * * of opposition to organized government or as an invitation or stimulus to anarchistic action" was held unconstitutional. More recently, in Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), the Court held that...