U.S. Flag Foundation, Inc. v. Radich
| Decision Date | 11 April 1967 |
| Citation | 279 N.Y.S.2d 233,53 Misc.2d 597 |
| Court | New York Supreme Court |
| Parties | UNITED STATES FLAG FOUNDATION, INC., Plaintiff, v. Stephen RADICH, d/b/a Stephen Radich Gallery, Defendant. |
Cadwalader, Wickersham & Taft, New York City (Peter M. Brown, Terence F. Gilheany, New York City, of counsel), for plaintiff.
Richard G. Green, New York City (Shirley Fingerhood, New York City, of counsel), for defendant.
Defendant moves to dismiss pursuant to Rule 3211(a) 3 and Rule 3211(a) 7 of the CPLR on the grounds that the plaintiff does not have the legal capacity to sue and the complaint fails to state a cause of action.
The plaintiff, a non-profit tax-exempt organization formed to promote the display of and respect for the United States flag, sues the defendant, the operator of an art gallery to recover damages under section 1425, subdivision 16, of the New York Penal Law.
In substance, it is alleged that since December 13, 1966 the defendant has exhibited 13 three-dimensional objects, called 'constructions', which are made partly of the United States flag or portions thereof and partly of other objects including a gas mask, Russian flags, a Nazi swastika and a Viet Cong flag.
Two of the 'constructions' on display, are the subject matter of the suit for damages. One, six feet high, consists of a stuffed United States flag shaped in the form of a dead human body being hanged by the neck. The other, about seven feet high, is in the form of a cross made by stuffed church flags, with the United States flag rolled and utilized to depict an erect human penis with pubic hair on the vertical bar of the cross.
There is no doubt that the facts alleged constitute a cause of action pursuant to the provisions of section 1425(16) of the Penal Code.
Defendant has completely failed to establish to this court's satisfaction that the aforementioned section is unconstitutional in that (1) it denies freedom of speech, (2) is vague, (3) violates the equal protection clause, or (4) places the defendant in double jeopardy.
Suffice it to say that the statute deals with the flag itself, a symbol of our feee and independent country. The statute in no way curtails political dissent or prohibits communication of ideas. The descration of our flag cannot be utilized as a symbolic act to publish or exhibit disagreement with or opposition to the policies of our government.
To permit such desecration under the guise of...
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United States ex rel. Radich v. Criminal Ct. of NY
...525-26. 54 At what point, if ever, does a "reasonable man" break the law and breach the peace? 55 United States Flag Foundation, Inc. v. Radich, 53 Misc.2d 597, 279 N.Y.S.2d 233 (Sup.Ct.1967). 56 418 U.S. at 412, 94 S.Ct. at 2731. Street v. New York, 394 U.S. at 590-592, 89 S.Ct. 1354. Cf.,......
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People v. Street
...1st Cir.Ct., No. 36423, decided Dec. 9, 1966, with People v. Radich, 53 Misc.2d 717, 279 N.Y.S.2d 680, and United States Flag Foundation v. Radich, 53 Misc.2d 597, 279 N.Y.S.2d 233.) 3 In the case before us, the defendant concededly burned the flag in public, not for the purpose of destroyi......
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People v. Keough
...Cir. Ct., No. 36423, decided Dec. 9, 1966, with People v. Radich, 53 Misc.2d 717, 279 N.Y.S.2d 680, and the United States Flag Foundation v. Radich, 53 Misc.2d 597, 279 N.Y.S.2d 233). In the case before us, the defendant concededly burned the flag in public, not for the purpose of destroyin......