People v. Radich

• Decision Date: 18 February 1970
• Parties: , 257 N.E.2d 30 The PEOPLE of the State of New York, Respondent, v. Stephen RADICH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 846

308 N.Y.S.2d 846

26 N.Y.2d 114, 257 N.E.2d 30

The PEOPLE of the State of New York, Respondent, v. Stephen RADICH, Appellant.

Court of Appeals of New York.

Feb. 18, 1970.

Richard G. Green, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Jerry Slater and Michael R. Juviler, New York City, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Maria L. Marcus, New York City, of counsel), amicus curiae.

GIBSON, Judge.

The issue is whether defendant's conviction of a violation of New York's flag desecration statute was in contravention of his right of free speech under the First Amendment to the Constitution of the United States. The particular penal provision found to have been violated provides, in substance, that any person who shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon the flag of the United States of America, either by words or act, shall be guilty of a misdemeanor (former Penal Law, § 1425, subd. 16, par. d, now General Business Law, § 136, subd. d). The constitutional question in respect of the proscribed defilment by an 'act', rather than by 'words', was expressly left open in Street v. New York, 394 U.S. 576, 594, 89 S.Ct. 1354, 22 L.Ed.2d 572, which reversed our affirmance of a conviction under this same statute (People v. Street, 20 N.Y.2d 231, 282 N.Y.S.2d 491, 229 N.E.2d 187). We have concluded that the conviction in the case now before us infringed no constitutional guarantee.

The defendant, the proprietor of an art gallery in the City of New York, publicly displayed and exposed for sale, certain 'constructions', comparable to sculptures, which had been fashioned by an artist as expressive of protest against the Vietnam war and which, in each case, prominently incorporated the American flag.

The complaint, upon which defendant was charged and convicted, alleged, among other violations of the statute, that defendant publicly displayed the flag of the United States of America in the form of the male sexual organ, erect and protruding from the upright member of a cross; also, in the form of a human body, hanging from a yellow noose; and again, wrapped around a bundle resting upon a two-wheeled vehicle, shown by photographs in evidence to resemble a gun caisson. ¹

For the purposes of this opinion it seems necessary to discuss only the first of the constructions complained of. Testifying in his own behalf, the defendant said that this was protest art; and that during the exhibition of the constructions, background music, consisting of war protest songs, was played from a tape. Asked, on cross-examination, as to the use of the flag for the purpose of protest, he said that the object extending from the vertical member of the cross and wrapped in a small flag was representative of a human penis; that tassels at the base of this protrusion represented 'probably * * * decorative or pubic hair, depending on what one decides it looks like to him.' ² Asked as to the particular expression and protest intended to be conveyed, the witness said that perhaps the penis represents the sexual act, which by some standards is considered an aggressive act; that organized religion is also symbolized by the figure, which seems to suggest that organized religion is supporting the aggressive acts suggested.

Only recently this court had occasion to give extended consideration to section 1425 of the former Penal Law and specifically to paragraph d of subdivision 16 thereof. In People v. Street, 20 N.Y.2d 231, 282 N.Y.S.2d 491, 229 N.E.2d 187, revd. 394 U.S. 576, 89 S.Ct. 1354, Supra we affirmed the conviction of a defendant who, upon hearing of the shooting of the civil rights leader James Meredith, took an American flag to a street corner, burned it, saying, 'We don't need no damn flag', and made other statements to people who gathered to watch these actions, one of these being the arresting policeman, to whom defendant said: 'If they let that happen to Meredith, we don't need an American flag.' The crux of the defense was that defendant's acts and speech were proper forms of protest legitimized by the First Amendment. Synopsizing Chief Judge Fuld's opinion upholding the conviction, we find the position of the court to be this: While nonverbal expression may be a form of speech within the protection of the First and Fourteenth Amendments, the same kind of freedom is not afforded to those who communicate ideas by conduct as to those who communicate ideas by pure speech; that the State may legitimately proscribe many forms of conduct and no exception is made for activities to which some would ascribe symbolic significance; that, in sum, the cases show that the constitutional guarantee of free speech covers the substance rather than the form of communication, but that if the substance is being conveyed by a form violative of the public health, safety or well being, then the First Amendment protection is subordinated to the general public interest. With regard specifically to the flag desecration statute it was squarely held that it was a valid statute in that, regardless of the major motivating factor behind its enactment, there was a clear legislative purpose to prevent a breach of the peace; that the Supreme Court long ago in Halter v. Nebraska, 205 U.S. 34, 41, 27 S.Ct. 419, 421, 51 L.Ed. 696 stated: '(I)nsults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.' This court said that our statute was designed to prevent the outbreak of such violence by discouraging contemptuous and insulting treatment of the flag in public.

The Chief Judge's opinion then noted that concededly defendant's acts arose out of indignation and a sense of outrage; that the act was one of incitement and as such threatened the public peace, a result which the State is legitimately interested in preventing. With regard to Street's purpose--to express indignation and protest--the parallel to the case before us is clear. Here, the expression, if less dramatic, was given far wider public circulation and, in consequence, perhaps, a measurable enhancement of the likelihood of incitement ot disorder, by the placement of one of the constructions in a street display window of defendant's gallery on Madison Avenue in the City of New York, and the exhibition and exposure for sale of the companion pieces in the public gallery and mercantile establishment within. Implicit in the invitation to view was the opportunity thereby afforded to join in the protest, or in counterprotest, with the consequent potential of public disorder; or so the trier of the facts could properly find.

The Supreme Court's reversal of Street (394 U.S. 576, 89 S.Ct. 1354, Supra) seems not to have questioned or disturbed the rationale enunciated here by Chief Judge Fuld. The majority felt that since it could not be determined what part of Street's conviction rested on the fact that he was charged with uttering constitutionally protected words and what part upon his act of setting fire to the flag, the conviction could not be upheld. The majority expressly left open the question concerning the validity of the conviction insofar as it was sustained on the basis that Street could be punished for flag burning 'even though the burning was an act of protest' (p. 594, 89 S.Ct. p. 1366). ³

The dissenters considered that the few words that Street uttered were part of the act of symbolic conduct, from which they could not be separated, and thus posed an issue which the majority opinion should have met. ⁴

While it seems well established that a clear violation of a valid statute may not be saved on First Amendment grounds, it is necessary in this case eventually to reach a somewhat different question, which is, whether or not the act said to constitute the violation is tempered by the application of the First Amendment. In other words, while burning, spitting upon and stomping upon the flag are clearly and inherently disrespectful, do we reach a point where other acts may be performed with regard to the flag which do not so easily admit of the requisite contemptuousness; where the intent behind the act may be of the purest sort, but where the results of the act may nevertheless have the effect which, as Chief Judge Fuld found in Street, the statute was validly designed to prevent--the arousement of passions likely to lead to disorder? Before considering that problem, and in aid of its solution, it would be well to examine several significant recent cases.

In Hoffman v. United States, 256 A.2d 567 (Ct. of App., D.C., 1969), the defendant, who was to testify before the House Un-American Activities Committee, upon approaching the House Office Building was arrested for desecrating the flag, in that he was wearing a shirt that resembled the American flag. He was convicted of breaching that part of the statute which proscribed defilement of the flag. On appeal to the District of Columbia Court of Appeals, Hoffman argued that the statute was vague, that he was entitled to First Amendment protection and that his acts did not constitute defilement since he undertook no physical destruction of the flag. On the vagueness question the court held that the statute admitted of that degree of reasonable certainty as to what could constitute a violation, so that it could not be said that a person possessing a reasonable degree of intelligence could not understand what conduct would be disrespectful to the flag and what conduct would not. The First Amendment argument was rather summarily disposed of, the court relying on the recently decided case of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, a draft card burning case hereinafter discussed. Finally, the court held that wearing the flag, or part of it, as a shirt was a rather clear act of defilement in that...