Street v. New York/Dissent Warren

Mr. Chief Justice WARREN, dissenting.

I dissent from the reversal of this judgment, not only because the Court in my opinion has strained to bring this trial within Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), but more particularly because it has declined to meet and resolve the basic question presented in the case. That question has been variously stated by the New York Court of Appeals and the parties. The court below employed the following statement of the question:

'We are called upon to decide whether the deliberate act of     burning an American flag in public as a 'protest' may be      punished as a crime.'

Appellant tells us that the issue presented is:

'May New York State constitutionally impose penal sanctions     upon an individual charged with destroying or damaging an      American flag in an attempt to dramatize his concern with      social conditions existing in the country?'

New York's statement of the issue is identical:

'May the State of New York constitutionally impose penal     sanctions upon one who is charged with publicly and      deliberately desecrating an American flag as a means of      dramatizing his dissatisfaction with social conditions      existing within our Country?'

Any distinctions between the above questions are without a significant difference. The parties obviously believe that the constitutionality of flag-desecration statutes is before the Court. The question posed by the Court of Appeals is the most succinct. Chief Judge Fuld, writing for a unanimous Court of Appeals, answered the question squarely; we should do likewise if we are to meet our responsibility. But the Court specifically refuses to decide this issue. Instead, it searches microscopically for the opportunity to decide the case on the peripheral Stromberg ground, holding that it is impossible to determine the basis for appellant's conviction. In my opinion a reading of he short trial record leaves no doubt that appellant was convicted solely for burning the American flag.

From the beginning to the end of the proceedings below the parties placed only two matters in issue: (1) is burning the flag protected symbolic speech and (2) did appellant burn the flag for the purpose of casting contempt upon it or did he burn it in a dignified manner? The information alleged that 'Sidney Street did commit the crime of Malicious Mischief in that the defendant did wilfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law, under the following circumstances: On the aforesaid date, place and time, the defendant did wilfully and unlawfully set fire to an American Flag and shout, 'If they did that to Meredith, We don't need an American Flag." Although the Court stresses the mention of appellant's words in the information as indicative that he was convicted for uttering these words, the trial proceedings demonstrate that the words were employed only to show appellant's purpose in burning the flag.

At the outset of the trial appellant's counsel moved to dismiss the information, clearly revealing the theory of appellant's defense that flag burning is constitutionally protected and that appellant burned the flag in a dignified manner.

'Mr. Goldstick (appellant's counsel): Before we plead to this     case I would like to make a motion to dismiss the information      upon the ground it does not state facts to constitute a crime on the following grounds:      The defendant was engaged in a constitutionally protected      activity, to wit, freedom of speech. The allegation simply     says that the defendant did wilfully and unlawfully set fire      to an American flag and did say: 'If they did that to      Meredith we don't need an American flag.' Under the first      amendment of the constitution of the United States and under      the New York State constitution on freedom of speech they      provide for protest in many forms, whether it be by burning a      flag, demonstration or picketing. This is a form of     demonstration and protest.

'Court: You say burning the flag is a form of demonstration?

'Mr. Goldstick: Yes.

'Court: Motion denied.

'Mr. Goldstick: Also, there is a Federal statute which     provides for burning the flag. I refer Your Honor

'Court, interposing: So does Section 1425 provide for the     lawful disposition of a flag!

'Mr. Goldstick, continuing: I refer Your Honor to page 6 of     my brief, referring to the United States Code that a flag,      when it is in such a condition that it is no longer a fitting      emblem for display, should be destroyed in a dignified way,      preferably by burning.

'Now, under the supremacy clause, if there is any conflict     with any statute the Federal statute takes precedence; if a      State law is in conflict with a Federal law the Federal law      takes precedence. The Federal law provides you may burn an     American flag; therefore, New York State is without power to      make a complaint and convict a man for the burning of an      American flag.

'Court: Motions denied. The question here would be  whether he burned it because it was in such poor   condition that it should be burned, or if it was an   illegal demonstration.' (Emphasis added.)

Defense counsel insisted that burning the flag, an act he equated with a demonstration or picketing, was a form of speech for which his client could not be constitutionally punished. His colloquy with the trial judge does not give even the slightest suggestion that appellant was being prosecuted for words he might have spoken. The defense counsel believed that appellant's act, not his words, was at issue is further demonstrated by counsel's pre-emption argument. The federal statute to which counsel referred, 56 Stat. 377, c. 435, 36 U.S.C. § 173 et seq., concerns the manner in which the flag is to be displayed and in § 4(j), 56 Stat. 380, 36 U.S.C. § 176(j), mandates that the flag, when no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. At the time of appellant's trial the federal prohibition of flag desecration, which in all material particulars was identical to New York's, applied only to the District of Columbia and could therefore not have pre-empted state legislation on the same subject.

The trial testimony confirms my belief that appellant's act was the sole basis for the verdict as it contains nothing to suggest that either the parties or the trial judge believed that appellant was on trial for his words. The arresting officer testified that, as he was investigating the source of a fire, he heard appellant say, 'We don't need no damn flag.' The officer then asked appellant whether he was responsible for the burning of the flag; appellant replied that he was and that: 'If they let that happen to Meredith we don't need an American flag.' The officer's testimony concluded with a description of the number of people in the vicinity and the extinguishing of the fire. During cross-examination of the officer, defense counsel asked not one question concerning what, if anything, appellant said.

Appellant did not dispute the prosecution's version of the facts. He testified that, hearing the news report of Meredith's shooting, he removed a flag from his dresser drawer, walked to the corner of St. James Place and Lafayette Avenue and burned the flag. According to appellant, he made no remarks to the crowd that had gathered and his reference to Meredith was made to the police officer. Cross-examination by the prosecution explored appellant's motivation for burning the flag; no mention was made of words appellant might have spoken.

We are told by the Court that at least in part appellant's conviction rests on his words. If it does, the trial record is strangely silent, for the State made no attempt to prove that appellant's words were heard by the crowd. Appellant insisted that he spoke only to the officer, yet the New York statute requires that the accused's flag desecration be public. The State argues, without contradiction by appellant, that words spoken to a policeman would not be spoken publicly for purposes of the statute. I think it evident that appellant's words were mentioned in the indictment and introduced at trial only to show that he burned the flag with an intent to desecrate it, a necessary element of the State's case. In the absence of such evidence, the State would have proved that appellant burned a flag but would have left open the possibility that the burning was designed to destroy it in a dignified manner. The fact that appellant's words supplied an element of the State's case does not mean that he was convicted for uttering these words. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949).

Neither the prosecution nor the defense nor the New York courts attached any independent significance to his words. To interpret this record in any other manner ignores the very basic fact that the trial judge and the parties thought that there was one issue in this trial-whether appellant could be criminally punished for burning the flag. This record is not sufficiently ambiguous to justify the Court's speculation that the verdict below might rest even in part upon a conviction for appell nt's words.

I do not believe that the Stromberg line of cases allows us to avoid deciding whether flag burning is protected by the First Amendment. This case does not fit the Stromberg mold.

Miss Stromberg was one of the supervisors of a children's summer camp. She directed a daily ceremony during which the children raised the Soviet flag and recited a pledge of allegiance 'to the worker's red flag.' A California statute made it a criminal offense for any person to display a red flag (1) as a symbol of opposition to organized government or (2) as an invitation to anarchistic action or (3) as an aid to propaganda of a seditious character. The trial judge, following the express terms of the statute, charged that Miss Stromberg could be convicted if she displayed a red flag for any one of the three prohibited purposes. The Court first determined that a criminal conviction for display of a red flag as a symbol of opposition to organized government would impinge upon First Amendment freedoms. Since the jury charge was disjunctive, i.e., Miss Stromberg could be convicted if the jury found that she conducted the ceremony for any of the three statutorily prohibited goals, it was possible that her conviction rested totally upon an act entitled to constitutional protection. Presumably gives the jury's general verdict, it could have convicted Miss Stromberg for raising a red flag solely as a symbol of opposition to organized government but not as either an invitation to anarchistic action or an aid to propaganda of a seditious character.

The teaching of Stromberg is that, if there is any possibility the general verdict below rests on speech or conduct entitled to constitutional protection, then the conviction must be reversed. The Strombery analysis cannot be applied to appellant's conviction as the factual patterns in the two cases are distinct. The record leaves no doubt that appellant did burn the flag. Nor can appellant argue that his act was not an act of desecration. The trial judge emphatically stated that the issue was whether appellant burned the flag to destroy it in a dignified manner or to cast contempt upon it. Appellant's conviction therefore must be based upon a finding that he desecrated the flag by burning and neither he nor the Court suggests otherwise. We are not confronted with a jury trial and the consequent inability to determine the basis for the verdict below. The trial judge at the very outset of the trial made known his view that appellant's motivation for burning the flag was the probative issue. Combining this act of burning with a verbalization of the reasons for it does not allow the Court to avoid determining the constitutionality of appellant's conduct. Since there can be no claim that appellant was convicted for his speech, Stromberg simply does not apply.

My analysis is confirmed by an examination of the other cases upon which the Court relies. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), presents a factual pattern identical to Stromberg. Williams, a resident of North Carolina, obtained a Nevada divorce and then remarried in Nevada. Upon his return to North Carolina, Williams was convicted of bigamous cohabitation. The jury was charged that it could convict Williams if it found either that he procured the divorce based upon substituted service or that he went to Nevada not to establish a bona fide residence but rather to obtain a divorce through a fraud upon the Nevada courts. Holding that the Full Faith and Credit Clause required North Carolina to respect Williams' Nevada divorce even though acquired by substituted service, the Court reversed Williams' conviction since it was possible that the jury found the divorce was not procured by fraud yet convicted Williams. Under this state of facts, the conviction could have been based upon the acquisition of a divorce North Carolina was constitutionally compelled to honor.

Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 3 L.Ed. 1131 (1949), reflects the same approach. Terminiello was charged with disorderly conduct. The jury was allowed to convict if it found that Terminiello's speech either stirred the public to anger or constituted 'fighting words.' Since only the latter may be constitutionally prohibited, the Court reversed. It was possible that the jury found that Terminiello's speech merely stirred the public to anger yet convicted him. Terminiello could have been convicted for constitutionally protected conduct; he was therefore entitled to a reversal. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), also conforms to this pattern. Charged with a violation of the Smith Act, Yates was convicted under instructions which made either 'advocacy' or 'organizing' a statutory violation. The Court decided that the jury instruction with regard to the organizing charge was erroneous; since the jury could have convicted Yates for organizing even if it found that he was not guilty of advocacy, the conviction was reversed.

The Court does not, however, base its reversal only upon a misapplication of Stromberg. Relying also on Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), the Court holds that even if 'the record precludes the inference that appellant's conviction might have been based solely on his words, we are still bound to reverse if the conviction could have been based upon both his words and his act.' Ante, at 587. My reading of Thomas v. Collins indicates, however, that Thomas does not serve as justification for the Court's disposition of this case. In Thomas a union organizer was held in contempt, fined, and imprisoned for disobeying a state court order enjoining him from violating a Texas statute. The statute required that labor organizers register with and procure an organizer's card from a designated Texas official before soliciting memberships in labor unions. Without either registering or procuring a card, the organizer made a speech before a group of workers. He extolled the virtues of union membership in general terms and also asked a specific individual to become a union member. As I read the case, Thomas, holds that both the general solicitation and the solicitation of a named individual were within the protection of the First Amendment:

'The occasion was clearly protected. The speech was an     essential part of the occasion, unless all meaning and      purpose were to be taken from it. And the invitations, both     general and particular, were parts of the speech, inseparable      incidents of the occasion and of all that was said or done. * *  * How one      might 'laud unionism,' as the State and the State Supreme      Court concede Thomas was free to do, yet in these      circumstances not imply an invitation, is hard to conceive. This is the nub of the case, which the State fails to meet     because it cannot do so.' Id., at 534-535, 65 S.Ct., at 324.

Having so held, it was unnecessary for the Court to determine if an individual solicitation could have been enjoined. The union organizer therefore was entitled to relief without regard to whether his conviction was based upon the general or the individual solicitation.

I reiterate my belief that appellant was convicted for his act not his words. Stromberg and the cases based upon it do not allow us the luxury of refusing to treat appellant's claim that the burning of the flag as a protest is worthy of constitutional protection.

I am in complete agreement with the general rule that this Court should not treat broad constitutional questions when narrow ones will suffice to dispose of the litigation. However, w ere only the broad question is presented, it is our task and our responsibility to confront that question squarely and resolve it. In a time when the American flag has increasingly become an integral part of public protests, the constitutionality of the flag-desecration statutes enacted by all of the States and Congress is a matter of the most widespread concern. Both those who seek constitutional shelter for acts of flag desecration perpetrated in the course of a political protest and those who must enforce the law are entitled to know the scope of constitutional protection. The Court's explicit reservation of the constitutionality of flag-burning prohibitions encourages others to test in the streets the power of our States and National Government to impose criminal sanctions upon those who would desecrate the flag.

I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace. But because the Court has not met the issue, it would serve no purpose to delineate my reasons for this view. However, it is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise. Since I am satisfied that the constitutionality of appellant's conduct should be resolved in this case and am convinced that this conduct can be criminally punished, I dissent.

APPENDIX TO OPINION OF WARREN, C.J., DISSENTING.

'Mr. Goldstick (appellant's counsel): Before we plead to this case I would like to make a motion to dismiss the information upon the ground it does not state facts to constitute a crime on the following grounds: The defendant was engaged in a constitutionally protected activity, to wit, freedom of speech. The allegation simply says that the defendant did wilfully and unlawfully set fire to an American flag and did say: 'If they did that to Meredith we don't need an American flag.' Under the first amendment of the Constitution of the United States and under the New York State constitution on freedom of speech they provide for protest in many forms, whether it be by burning a flag, demonstration or picketing. This is a form of demonstration and protest.

'Court: You say burning the flag is a form of demonstration?

'Mr. Goldstick: Yes.

'Court: Motion denied.

'Mr. Goldstick: Also, there is a Federal statute which provides for burning the flag. I refer Your Honor-

'Court, interposing: So does Section 1425 provide for the lawful disposition of a flag!

'Mr. Goldstick, continuing: I refer Your Honor to page 6 of my brief, referring to the United States Code that a flag, when it is in such a condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

'Now, under the supremacy clause, if there is any conflict with any statute the Federal statute takes precedence; if a State law is in conflict with a Federal law the Federal law takes precedence. The Federal law provides you may burn an American flag; therefore, New York State is without power to make a complaint and convict a man for the burning of an American flag.

'Court: Motions denied. The question here would be whether he burned it because it was in such poor condition that it should be burned, or if it was an illegal demonstration.

'Mr. Goldstick: Under the supremacy-

'Court, interposing: Next motion!

'No more argument, please!

'Mr. Goldstick: I plead the defendant not guilty and take exception to Your Honor's rulings.

'Court: Proceed! You may sit down, counselor! Now, we have two cases! One is Disorderly Conduct and one is Malicious Mischief.

'Mr. Goldstick: I see nothing in the information regarding a charge of Disorderly Conduct.

'Court: We have two ch rges before me!

'Show the complaints to counsel!

'Mr. Bonomo (the prosecutor): We have two separate complaints! (Handing papers to Mr. Goldstick.)

'Mr. Goldstick: I plead not guilty to the Disorderly Conduct charge, too, Your Honor.

'Court: Are you ready for trial in each case?

'Mr. Goldstick: Yes.

'Court: Do you stipulate that the two cases will be tried together and the facts adduced in one will be applied to the other wherever necessary, and there will be separate findings on the facts and the law and separate judgments may be rendered?

'Mr. Goldstick: I so stipulate.

'Court: Let us proceed!

'Mr. Bonomo: I will call Patrolman James Copeland!'

(Officer Copeland testified on direct examination concerning the investigation of the source of a fire and his subsequent discovery that appellant had burned a flag.)

'Mr. Bonomo: That's all!

'Mr. Goldstick: Before I cross-examine I move to dismiss both charges upon the ground the People failed to make out a prima facie case.

'Court: Are you going to cross-examine?

'Mr. Goldstick: Yes, but I am making a motion before cross-examination!

'Court: You better cross-examine!'

(The cross-examination of Officer Copeland explored the size of the crowd that had gathered; no mention was made of appellant's words.)

'Mr. Goldstick: No further questions.

'Mr. Bonomo: People's case, in each case!

'Mr. Goldstick: I renew my motions to dismiss upon the ground the People failed to prove a prima facie case.

'Court: Motion denied as to each case.

'Mr. Goldstick: Exception. The defendant will take the stand!'

(Appellant then gave his version of the incident. Reproduced below is his testimony concerning the words spoken.)

'Q. Did the officer speak to you or did you speak to him? A. He spoke to me.

'Q. What did he say? A. He asked me if I set fire to the flag. I said yes.

'Q. Then what happened? A. I said: 'If they do what they had (sic) to Meredith we don't need this flag.'

'Q. While you were burning this flag did anybody say anything to you other than this police officer? A. Nobody.

'Q. Did anybody stop? A. I noticed no unusual crowd.

'Q. Where is that corner? A. St. James and Lafayette.

'Q. Were you on the curb or in the street? A. I was on the curb. The flag was laying on the curb.

'Q. When the police officer came up to you were you still by the flag? A. Yes.

'Q. The flag was still burning when the officer came? A. Yes.

'Q. Other than saying to the police officer 'if they did that to Meredith we don't need an American flag,' did you speak to anybody else at the time? A. No.

'Mr. Goldstick: No further questions!'

(Cross-examination of appellant contains no reference to any of his words.) 'Mr. Bonomo: That's all!

'Mr. Goldstick: The defendant rests.

'Mr. Bonomo: The People rest.

'Mr. Goldstick: I move to dismiss on all the constitutional grounds previously made on all the grounds provided for in the Code of Criminal Procedure, and also upon the ground the People failed to prove a case beyond a reasonable doubt.

'Court: On the charge of Disorderly Conduct the defendant is acquitted; on the charge of Malicious Mischief the defendant is convicted.

'Mr. Goldstick: May we have next Tuesday for sentence?

'Court: No, that is not enough time! August 9th for sentence; bail continued.'