United States v. Crosson

• Decision Date: 28 July 1972
• Docket Number: No. 71-2049.,71-2049.
• Citation: 462 F.2d 96
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sharon K. CROSSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

462 F.2d 96 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Sharon K. CROSSON, Defendant-Appellant.

No. 71-2049.

United States Court of Appeals, Ninth Circuit.

May 26, 1972.

Rehearing Denied July 28, 1972.

W. Edward Morgan (argued), Tom R. Clark (argued), of Mesch, Marquez & Rothschild, Tucson, Ariz., for defendant-appellant.

Ann Bowen, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., for plaintiff-appellee.

Erik M. O'Dowd, of O'Dowd, Fahringer & Diamos, Tucson, Ariz., amicus curiae for American Civil Liberties Union.

Before BROWNING, KILKENNY and TRASK, Circuit Judges.

Rehearing In Banc Denied July 28, 1972.

KILKENNY, Circuit Judge:

Appellant was indicted, tried by a jury and convicted of publicly burning the flag of the United States in violation of 18 U.S.C. § 700. She was sentenced to imprisonment for a period of four months and fined.

FACTS

While there is some dispute as to the facts, the jury, in order to convict, must have accepted the government's version briefly outlined in the following narrative.

Two undercover agents of the Arizona Department of Public Safety joined a group of war protestors consisting mainly of University of Arizona students. This occurred on May 6, 1970. The agents, upon return of the protestors to the campus from downtown Tucson, proceeded to the second floor of the R. O. T. C. Building, known as "Old Main", where fifty to seventy-five persons had gathered. Shortly thereafter, one of the agents observed appellant entering the building with another girl. The girls were carrying an American flag. Upon reaching the group, the appellant uttered a very unladylike expression, threw the flag on the floor, and sprayed it with a fluid from a yellow can. Several of those gathered then held up the flag, appellant again sprayed it, borrowed and lit a match and threw it on the flag causing the latter to burn. Later, several other bystanders also tossed lighted matches on the flag. One of the participants picked up the remnants of the flag with a stick and carried it from the building. The flag measured approximately four feet in width by six feet in length, had seven red and six white stripes, a field of blue with fifty, five-pointed stars.¹ Appellant presented several witnesses who testified that she remained outside the building during the entire affair. Obviously, the jury resolved this issue against her.

CONSTITUTIONAL CHALLENGES

A threshold question presented for decision is the constitutionality of 18 U.S. C. § 700(a) (b), quoted in pertinent part in the footnote.² The only item of the legislation with which we are here concerned is a flag.

POWER OF CONGRESS

The main thrust of appellant's argument is that authorization for this type of legislation cannot be found in any of the enumerated or implied powers of the Constitution, Article I, Section 8.

We start with the premise that it is our duty to uphold, if possible, the constitutionality of the legislation. Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

Early in the history of our nation, the Supreme Court spoke on the powers necessarily implied and those expressly granted. We are told that in construing the Constitution, we must accept as a tenet the proposition that the implications of the express language are as much a part of the instrument as that which is expressed. Beyond that, we are taught that this principle, in its application to the Constitution, more than almost any other writing, is a necessity, by reason of the inherent inability to put into words all derivative powers—a difficulty clearly recognized by the Constitution itself when it conferred on Congress the authority to pass all laws necessary and proper to carry into execution the powers expressly granted and all other powers vested in the government or any branch of it by the Constitution. Ex parte Yarbrough, 110 U.S. 651, 658, 4 S.Ct. 152, 28 L.Ed. 274 (1884); South Carolina v. United States, 199 U.S. 437, 451, 26 S.Ct. 110, 50 L.Ed. 261 (1905).

Even at an earlier date, the Supreme Court recognized that it would be a most unreasonable construction of the Constitution which would deny to the government created by it, the right to freely employ every means, not prohibited, necessary for its preservation. Legal Tender Cases, 12 Wall 457, 79 U.S. 457, 534, 20 L.Ed. 287 (1871).

We need only look to Article I, Section 8, to find grants of express power which we hold necessarily include implied power to legislate on the subject before us. Manifestly, the power to: (1) regulate commerce with foreign nations; (2) raise and support armies; (3) provide and maintain a navy; (4) provide for calling forth the militia; (5) establish a uniform rule of naturalization; (6) declare war; (7) provide for organizing, arming and disciplining the militia; (8) make rules for the regulation of the land and naval forces, when read in the light of the powers granted in the concluding paragraph of Section 8, to-wit: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof", includes the power to legislate upon the subject of and adopt a national flag.

That the existence of a national flag was considered of great significance to the members of the Continental Congress³ is demonstrated by the adoption on June 4, 1777, of a national flag.⁴

The Supreme Court has said that the flag is the symbol of the nation's power, the emblem of freedom in its truest and its best sense, and that to all lovers of the country the flag signifies government resting on the consent of the governed; liberty regulated by laws; protection of the weak against the strong; security against the exercise of arbitrary power and absolute safety for free institutions against foreign aggression. Halter v. Nebraska, 205 U.S. 34, 43, 27 S.Ct. 419, 51 L.Ed. 696 (1907). The first legislation defining the flag, following the adoption of the Constitution, was the Act of January 13, 1794, 1 Stat. 341(c)1. For our purposes, the language of this legislation was identical with the language of the resolution of the Continental Congress, except that the Act provided for 15 stars, rather than the 13, mentioned in the resolution. The concern of the Congress with the flag's place in the national picture is again demonstrated by the legislation with reference to Flag Day, 36 U.S.C. § 157, National Flag Week, 36 U.S.C. § 157a and numerous holidays on which the flag must be displayed, 36 U.S.C. § 9. Beyond that, the national concern is evinced by the legislation, 36 U.S.C. § 176, requiring respect for the flag.

We take judicial notice of the use of a flag as a representative national emblem of organized government for many centuries prior to the adoption of our Constitution and hold that in the light of our history and the express and implied power granted under Article I, Section 8, that the Congress had the power to enact the challenged legislation.

Our conclusions on this challenge find full support in Hoffman v. United States, 144 U.S.App.D.C. 156, 445 F.2d 226 (1971); Joyce v. United States, 454 F.2d 971 (D.C.Cir., 1971).

VAGUENESS AND OVERBREADTH

These issues were raised in appellant's motion to dismiss and quash the indictment and are now argued together. Entwined with the argument is a discourse on First Amendment rights.

It is argued that 18 U.S.C. § 700(a) makes it a crime for burning a flag, while 36 U.S.C. § 176(j) authorized burning of the same flag. The distinction lies in the purpose and intent of the actor. The flag may be destroyed under § 176(j) only when it is in "such condition that it is no longer a fitting emblem for display", while § 700(a) requires the actor to cast "contempt" upon the flag by publicly burning it. True enough, as argued by the appellant, the impression of the picture of a president or the Seal of the United States on a flag might "deface" it, but such an impression or superimposition could not be viewed as casting "contempt" upon a flag. The suggestion of Amicus that writing the language, "I love this country" across the flag would "deface" it just as effectively as writing "I hate this country" upon the flag. The argument is specious. Of course, no "contempt" for the flag could be drawn from the use of the former.

We must presume that the Congress used the word "contempt" in its usual and settled sense. United States v. Stewart, 311 U.S. 60, 61 S.Ct. 102, 85 L.Ed. 40 (1940), rehearing denied 311 U.S. 729, 61 S.Ct. 390, 85 L.Ed. 475 (1940); Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 40 (1968); rehearing denied 391 U.S. 929, 88 S.Ct. 1800, 20 L.Ed.2d 671 (1968); Malat v. Riddel, 383 U.S. 569, 86 S.Ct. 1030, 16 L.Ed.2d 102 (1966). Turning to Webster's New International Dictionary, 3d Edition, we find the common definition of the word "contempt" to mean: "despise", "to hold in low esteem", "disrespect", "disgrace", "scorn" and "shame". As so interpreted and used in the context of the language of the statute, the public can have no doubt as to what acts are illegal. Certainly, there is no doubt as to what is meant by "contempt". Although recognizing, as we do, that statutes having a potentially chilling effect upon freedom of speech, must withstand stricter than average standards of permissible vagueness. Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Winters v. New York, 333 U.S. 507, 517, 68 S.Ct. 665, 92 L.Ed. 840 (1948). We have no difficulty in holding that a person of commonplace mental capacity from a mere reading of the statute could readily comprehend that conduct which involved deliberately burning a flag was beyond the pale. It is only necessary that the statute have such precision as to give fair notice to the average man that specific acts are prohibited. Other arguments presented by appe...