Parker v. Morgan

• Decision Date: 22 January 1971
• Docket Number: No. 2694.,2694.
• Citation: 322 F. Supp. 585
• Court: U.S. District Court — Western District of North Carolina
• Parties: Charles Bruce PARKER and James Robert Berg, Plaintiffs, v. Robert MORGAN, Jerry Whitley, John Whitley and Robert M. Blackburn, Defendants.

322 F. Supp. 585

Charles Bruce PARKER and James Robert Berg, Plaintiffs, v. Robert MORGAN, Jerry Whitley, John Whitley and Robert M. Blackburn, Defendants.

No. 2694.

United States District Court, W. D. North Carolina, Charlotte Division.

Argued November 6, 1970.

Decided January 22, 1971.

George S. Daly, Jr., Joseph H. Tieger, Charlotte, N. C., for plaintiffs.

Robert Morgan, N. C. Atty. Gen., James F. Bullock, Deputy Atty. Gen., James L. Blackburn, and William Lewis Sauls, Staff Attys., Raleigh, N. C., for defendants.

Before CRAVEN, Circuit Judge, and JONES and McMILLAN, District Judges.

CRAVEN, Circuit Judge:

This is a suit brought to test the constitutionality of one of North Carolina's miscellaneous police regulations, codified as N.C.G.S. § 14-381, and entitled "Desecration of State and National flag". The statute is printed in the margin.¹ Enacted in 1917 during a period of national chauvinistic fervor, it is an uncommonly bad statute. Despite our respect, and indeed love, for these symbols of state and nation, we are compelled to hold the statute unconstitutional.

I.

The factual context of the case is undisputed. On April 9, 1970, on the premises of the University of North Carolina at Charlotte, Parker wore a jacket on the back of which he had sewn an American flag, on which was superimposed the legend "Give peace a chance" and the depiction of a hand with index and middle finger forming a "V". Arrested by a campus security officer, he was thereafter charged with a violation of the statute and tried and convicted in the 26th Judicial District Court. Expressing the view that he was compelled by the terms of the statute to find Parker guilty, the district judge, nevertheless, commended him for displaying the flag in the cause of peace. Subsequently, on appeal to the Superior Court of North Carolina, Parker's motion to quash the warrant was allowed.

Plaintiff Berg's confrontation with the statute occurred under bizarre circumstances. For his own personal enjoyment and satisfaction, and, unlike Parker, apparently without any purpose to communicate an idea, Berg had affixed a United States flag to the ceiling of his automobile and in the course of doing so had torn it about the edges and pierced it with fasteners. Berg left his automobile on the edge of Interstate 85 and it was recovered by the police. When he claimed it, he was charged with a violation of the statute and brought to trial before another judge of the 26th Judicial District Court who granted his motion to quash the warrant.

II.

Before proceeding to the merits we may quickly dispose of the state's procedural defenses. Clearly the plaintiffs have standing to prosecute the suit. The state through its two solicitors joined as parties defendant admits a duty to enforce the statute and the intention to do so. Obviously Parker and Berg may reasonably apprehend further arrest and prosecution. Indeed the evidence tends to show that Parker, because of his apprehension, has discontinued wearing his flag jacket. We think these plaintiffs have a sufficient personal stake in the outcome of this lawsuit, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962), and that the dispute is a genuinely adversary one susceptible to judicial resolution, Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

The state's contention that we should abstain to await authoritative interpretation of the statute by the state courts is without merit. It is now settled that the abstention doctrine is inappropriate for cases where "statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities," Dombroski v. Pfister, 380 U.S. 479, 489-90, 85 S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965). The state does not suggest any acceptable limiting construction of the statute that may readily be anticipated as the result of a single criminal prosecution, and indeed none occurs to us. Dombroski, 380 U.S. at 491-492, 85 S.Ct. 1116, 14 L.Ed.2d 22. It is clear that abstention is improper where there is no issue of state law that might be dispositive, or where it is clear that the state statute is unconstitutional no matter how it may be construed by the state courts. C. A. Wright, The Law of Federal Courts, § 52, at 207-08 (2d Ed. 1970).

III.

We believe the flags of the United States of America and the State of North Carolina to be sui generis. In our opinion the Congress of the United States is constitutionally empowered to reasonably regulate display of the national emblem, and may constitutionally permit the states also to reasonably regulate such display. Doubtless Congress could exercise exclusive dominion with respect to the national emblem, but it has chosen not to do so.²

We reject plaintiff's argument that because the national flag is a symbol it is always "saying" something, and because it says something control of its display and usage is outlawed by the freedom of speech clause of the First Amendment. The argument is based on a false premise: that what the flag stands for can be authoritatively stated, i. e., that it represents government and/or official policy. If the flag says anything at all, and we agree it often may in a given context, we think it says everything and is big enough to symbolize the variant view-points of a Dr. Spock and a General Westmoreland. With fine impartiality the flag may head up a peace parade and at the same time and place fly over a platoon of soldiers assigned to guard it.

The flag has never been a trademark of government. It is not "official" in the sense that its display is limited to the Army or the Navy or to public buildings or for state occasions. It no more belongs to the President than it does to the most private citizen. It may be flown, and often is, over the YMCA and the Jewish synagogue, the Peace Corps and the Army post, the American Federation of Labor and General Motors. It belongs as much to the defeated political party, presumably opposed to the government, as it does to the victorious one. Sometimes the flag represents government. Sometimes it may represent opposition to government. Always it represents America—in all its marvelous diversity.

That the government in the name of all the people may reasonably regulate usage and display of the flag, qua flag, does not mean, we think, that the government may appropriate the colors red, white and blue and the depiction of stars and stripes. Thus we think for a flag control statute to be constitutional it must precisely define a flag and carefully avoid expropriation of color and form other than the defined emblem itself, e. g., it seems to us that red, white and blue trousers with or without stars are trousers and not a flag and that it is beyond the state's competence to dictate color and design of clothing, even bad taste clothing.

The trouble with the North Carolina statute is that it attempts too much and goes much too far and infringes upon the reserved liberties of the people. We think it void both for vagueness and overbreadth.

The definition of a flag in the North Carolina statute is simply unbelievable. It would doubtless embrace display of the Star of David against a red, white and blue background. The statute makes plain that it matters not how many stripes or how many stars. One of each is enough. This is expropriation of color and design—not flag protection.³ Size is of no consequence and substance of no importance. It is even possible that the stars could be omitted entirely and the colors alone infringe the statute, for there is a disjunctive clause leaving it to the subjective determination of any person to believe, without deliberation, that a substance or design may represent the flag of the United States. Read literally, it may be dangerous in North Carolina to possess anything red, white and blue. Such a definition is a manifest absurdity. Since it is not suggested that the state has the slightest interest in singling out from the spectrum certain colors for unique protection, this definition alone is sufficient to void the statute.

"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. * * * `A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'" Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L. Ed. 888.

But there are other flaws. Inserted about half way through the rubric beginning with the disjunctive "or" are these words:

or who shall publicly mutilate, deface, defile, or defy, trample upon or cast contempt, either by words or act, upon such flag, * * *

Previous clauses purport to forbid placing any word, figure, mark, picture, design or drawing upon a flag. It is impossible to tell in the context of this unintelligible statute whether it was the legislative intent to prohibit all marks, figures, etc., or simply those thought to deface, defile or cast contempt upon the flag. It is not clear, for example, whether the Great Seal of the United States might be superimposed on the flag if viewed as an embellishment rather than a defilement. It is difficult to conceive of any state interest in preventing such a design.

If the middle section is the heart of the statute, it is clearly unconstitutional. For the forbidden conduct includes casting contempt upon the flag by words and it is now settled that such state control is forbidden by the First Amendment. In Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1968), the Supreme Court considered the constitutionality of a statute virtually identical in language to the middle portion of the North Carolina statute. New York had made it a misdemeanor ...