Street v. New York/Opinion of the Court

Appellant Street has been convicted in the New York courts of violating former § 1425, subd. 16, par. d, of the New York Penal Law, McKinney's Consol.Laws, c. 40, which makes it a misdemeanor 'publicly (to) mutilate, deface, defile, or defy, trample upon, or ast contempt upon either by words or act (any flag of the United States).' He was given a suspended sentence. We must decide whether, in light of all the circumstances, that conviction denied to him rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, 271, 276-277, 84 S.Ct. 710, 720, 721, 723-724, 11 L.Ed.2d 686 (1964).

According to evidence given at trial, the events which led to the conviction were these. Appellant testified that during the afternoon of June 6, 1966, he was listening to the radio in his Brooklyn apartment. He heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi. Saying to himself, 'They didn't protect him,' appellant, himself a Negro, took from his drawer a neatly folded, 48-star American flag which he formerly had displayed on national holidays. Appellant left his apartment and carried the still-folded flag to the nearby intersection of St. James Place and Lafayette Avenue. Appellant stood on the northeast corner of the intersection, lit the flag with a match, and dropped the flag on the pavement when it began to burn.

Soon thereafter, a police officer halted his patrol car and found the burning flag. The officer testified that he then crossed to the northwest corner of the intersection, where he found appellant 'talking out loud' to a small group of persons. The officer estimated that there were some 30 persons on the corner near the flag and five to 10 on the corner with appellant. The officer testified that as he approached within 10 or 15 feet of appellant, he heard appellant say, 'We don't need no damn flag,' and that when he asked appellant whether he had burned the flag appellant replied: 'Yes; that is my flag; I burned it. If they let that happen to Meredith we don't need an American flag.' Appellant admitted making the latter response, but he denied that he said anything else and asserted that he always had remained on the corner with the flag.

Later the same day, appellant was charged, by an information sworn to before a judge of the New York City Criminal Court, with having committed 'the crime of Malicious Mischief in that (he) 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: * *  * (he) 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."

Appellant was tried before another Criminal Court judge, sitting without a jury, and was convicted of malicious mischief in violation of § 1425, subd. 16, par. d. He was subsequently given a suspended sentence. The Appellate Term, Second Department, affirmed without opinion. Leave was granted to appeal to the New York Court of Appeals, and after plenary consideration that court unanimously affirmed. 20 N.Y.2d 231, 282 N.Y.S.2d 491, 229 N.E.2d 187 (1967). We noted probable jurisdiction. 392 U.S. 923 (1968).

Street argues that his conviction was unconstitutional for three different reasons. First, he claims that § 1425, subd. 16, par. d, is overbroad, both on its face and as applied, because the section makes it a crime 'publicly (to) defy * *  * or cast contempt upon (an American flag) by words *  *  * .' (Emphasis added.) Second, he contends that § 1425, subd. 16, par. d, is vague and imprecise because it does not clearly define the conduct which it forbids. Third, he asserts that New York may not constitutionally punish one who publicly destroys or damages an American flag as a means of protest, because such an act constitutes expression protected by the Fourteenth Amendment. We deem it unnecessary to consider the latter two arguments, for we hold that § 1425, subd. 16, par. d, was unconstitutionally applied in appellant's case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. In taking this course, we resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.

Though our conclusion is a narrow one, it requires pursuit of four lines of inquiry: (1) whether the constitutionality of the 'words' part of the statute was passed upon by the New York Court of Appeals; (2) whether, if appellant's conviction may have rested in whole or in part on his utterances and if the statute as thus applied is unconstitutional, these factors in themselves require reversal; (3) whether Street's words may in fact have counted independently in his conviction; and (4) whether the 'words' provision of the statute, as presented by this case, is unconstitutional.

The New York Court of Appeals did not mention in its opinion the constitutionality of the 'words' part of § 1425, subd. 16, par. d. Hence, in order to vindicate our jurisdiction to deal with this particular issue, we must inquire whether that question was presented to the New York courts in such a manner that it was necessarily decided by the New York Court of Appeals when it affirmed appellant's conviction. If the question was not so presented, then we have no power to consider it. See 28 U.S.C. §§ 1257(2), 1257(3); Bailey v. Anderson, 326 U.S. 203, 206-207, 66 S.Ct. 66, 68, 90 L.Ed. 3 (1945). Moreover, this Court has stated that when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. See, e.g., Bailey v. Anderson, supra; Chicago, I. & L.R. Co. v. McGuire, 196 U.S. 128, 131-133, 25 S.Ct. 200, 201, 49 L.Ed. 413 (1905).

In this case, any want of presentation by the appellant must have occurred at the trial level, for there appears to be no doubt that the issue of the constitutionality of the 'words' part of the statute was raised in appellant's briefs in both the Appellate Term and the Court of Appeals, and the State does not suggest the contrary. In the trial court, appellant's counsel raised the constitutional issues by means of the following motion:

'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.' The motion was denied. It was renewed at the end of the State's case and at the end of the trial, and on both occasions was again denied.

The issue whether a federal question was sufficiently and properly raised in the state courts is itself ultimately a federal question, as to which this Court is not bound by the decision of the state courts. However, it is not entirely clear whether in such cases the scope of our review is limited to determining whether the state court has 'by-passed the federal right under forms of local procedure' or whether we should decide the matter 'de novo for ourselves,' Ellis v. Dixon, 349 U.S. 458, 463, 75 S.Ct. 850, 853, 99 L.Ed. 1231 (1955). In either event, we think appellant has met the burden of showing that the issue of the constitutionality of the 'words' part of § 1425, subd. 16, par. d, was adequately raised in the state trial court. The motion quoted above explicitly referred to appellant's words. Appellant's counsel termed appellant's overall activity a 'demonstration' or 'protest,' terms which encompass words as well as conduct. Indeed, if appellant's intention was to protest alleged governmental inaction in connection with the shooting of James Meredith, his words were an essential element, for without them no one would have known the object of his protest.

To the extent that the matter is governed by New York law, we have found no New York statutes or decisions which require that an issue be raised in the trial court with greater specificity than occurred h re. In fact, in People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846, 848 (1965), the New York Court of Appeals held that when an appellant claims 'deprivation of a fundamental constitutional right' New York appellate courts may review the correctness of a jury charge even though the appellant failed to except to the charge in the trial court. The Court of Appeals reached this result despite the fact that § 420-a of the New York Code of Criminal Procedure then required that an exception be taken 'expressly' if the issue of the correctness of a jury charge was to be preserved for appellate review. In the present case, the right asserted by appellant was surely 'fundamental,' and under New York law a less precise objection was required than to a jury instruction.

Insofar as the question of sufficient presentation is one for our independent decision, the controlling principle was set forth in the leading case of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67, 49 S.Ct. 61, 63, 73 L.Ed. 184 (1928):

'There are various ways in which the validity of a state     statute may be drawn in question on the ground that it is      repugnant to the Constitution of the United States. No     particular form of words or phrases is essential, but only      that the claim of invalidity and the ground therefor be      brought to the attention of the state court with fair      precision and in due time. And if the record as a whole shows     either expressly or by clear intendment that this was done,      the claim is to be regarded as having been adequately      presented.' (Footnote omitted.)

We think this requirement was satisfied by appellant's previously quoted motion in the trial court and his raising of the issue in the two appellate courts. We therefore conclude that the question is properly before us.

We next consider whether it is our duty to reverse if we find, as we do in Parts III and IV, infra, that Street's words could have been an independent cause of his conviction and that a conviction for uttering such words would violate the Constitution.

That such is our duty is made apparent by a number of decisions of this Court. In the leading case of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), the appellant was convicted by a jury under a California statute making it an offense publicly to display a red flag for any one of three purposes. Finding that it would be unconstitutional to punish one who displayed for the first-named reason, this Court rejected the state court's reasoning that the appellant's conviction could nevertheless be sustained because the other two statutory reasons were severable and constitutional. This Court said:

'The verdict against the appellant was a general one. It did     not specify the ground upon which it rested. * *  * (I)t is      impossible to say under which clause of the statute the      conviction was obta ned. If any one of these clauses * *  *      was invalid, it cannot be determined upon this record that the appellant was not      convicted under that clause. * *  * It follows that *  *  * the      conviction cannot be upheld.' Id., at 367-368, 51 S.Ct. at     535.

The principle established in Stromberg has been consistently followed. In Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), this Court again held itself compelled to reverse a conviction based upon a general jury verdict when the record failed to prove that the conviction was not founded upon a theory which could not constitutionally support a verdict. The Court stated:

'To say that a general verdict of guilty should be upheld     though we cannot know that it did not rest on the invalid      constitutional ground *  *  * would be to countenance a      procedure which would cause a serious impairment of      constitutional rights.' Id., at 292, 63 S.Ct. at 210.

The rule was again applied in Cramer v. United States, 325 U.S. 1, 36, n. 45, 65 S.Ct. 918, 935, 89 L.Ed. 1441 (1945); Terminiello v. City of Chicago, 337 U.S. 1, 5-6, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949); and Yates v. United States, 354 U.S. 298, 311, 77 S.Ct. 1064, 1072, 1 L.Ed.2d 1356 (1957).

It is true that in the present case the general verdict was rendered by a judge, not a jury. However, if the ground of the judge's decision cannot be ascertained from the record, then the danger of unconstitutional conviction is not significantly less than in the cases just discussed. Cf. Thomas v. Collins, 323 U.S. 516, 528-529, 65 S.Ct. 315, 321-322, 89 L.Ed. 430 (1945). Nor would it be appropriate to remand the case to the trial judge for a post hoc explanation of the grounds of his decision. Cf. Central Greyhound Lines, Inc. of New York v. Mealey, 334 U.S. 653, 655, 68 S.Ct. 1260, 1262, 92 L.Ed. 1633 (1948). Hence, we conclude that the case is governed by the rule of Stromberg, and that appellant's conviction must be set aside if we find that it could have been based solely upon his words and that a conviction resting on such a basis would be unconstitutional-a matter to which we shall turn in a moment.

Moreover, even assuming that 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. This is made apparent by Thomas v. Collins, supra. The Court in that case noted that Thomas had been cited for contempt because during a meeting he allegedly had violated a court restraining order both by soliciting a single individual to join a union and by soliciting all nonunion men present. The Court found it unnecessary to consider the State's contention that the judgment could be sustained on the basis of the individual solicitation alone. The Court said:

'The motion for the fiat in contempt was filed and the fiat     itself was issued on account of both invitations. The order     adjudging Thomas in contempt was in general terms, finding      that he had violated the restraining order, without      distinction between the solicitations set forth in the      petition and proved as violations. The sentence was a single     penalty. In this state of the record it must be taken that     the order followed the prayer of the motion and the fiat's      recital, and that the penalty was imposed on account of both      invitations. The judgment therefore must be affirmed as to     both or as to neither. Cf. Williams v. North Carolina, 317     U.S. 287, 292, 63 S.Ct. 207, 210, 87 L.Ed. 279, 143 A.L.R.     1273; Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484.' 323 U.S., at 528     529, 65 S.Ct., at 322. (Footnotes omitted.)

Finding that a conviction based upon the general solicitation could not stand, the Court reversed the entire conviction.

As in Thomas, appellant here was charged with two acts violative of the statute: burning a flag and publicly speaking defiant or contemptuous words about the flag; and evidence was introduced to show the commission of both acts. Here too the verdict was general and the sentence a single penalty. Hence, unless the record negates the possibility that the conviction was based on both alleged violations, Thomas dictates that '(t)he judgment * *  * must be affirmed as to both or as to neither.'

We take the rationale of Thomas to be that when a single-count indictment or information charges the commission of a crime by virtue of the defendant's having done both a constitutionally protected act and one which may be unprotected, and a guilty verdict ensues without elucidation, there is an unacceptable danger that the trier of fact will have regarded the two acts as 'intertwined' and have rested the conviction on both together. See 323 U.S., at 528-529, 540-541, 65 S.Ct., at 321-322, 327. There is no comparable hazard when the indictment or information is in several counts and the conviction is explicitly declared to rest on findings of guilt on certain of those counts, for in such instances there is positive evidence that the trier of fact considered each count on its own merits and separately from the others.

We turn to considering whether appellant's words could have been the sole cause of his conviction, or whether the conviction could have been based on both his words and his burning of the flag. As Stromberg teaches, we cannot take the opinion of the New York Court of Appeals as obviating our duty to examine the record for ourselves in order to ascertain whether the conviction may have rested upon such grounds. The sworn information which charged appellant with the crime of malicious mischief, and which is quoted more fully supra, at 579, recited not only that appellant had burned an American flag but also that he '(did) shout, 'If they did that to Meredith, We don't need an American Flag." Section 1425, subd. 16, par. d, the statute which appellant was charged with violating, made it a crime not only publicly to mutilate a flag but also 'publicly (to) defy * *  * or cast contempt upon (any American flag) by words.'

The State argues that appellant's words were at most used to establish his unlawful intent in burning the flag. However, after a careful examination of the comparatively brief trial record, we find ourselves unable to say with certainty that appellant's words were not an independent cause of his conviction. While it is true that at trial greater emphasis was placed upon appellant's action in burning the flag than upon his words, a police officer did testify to the utterance of the words. The State never announced that it was relying exclusively upon the burning. The trial judge never indicated during the trial that he regarded appellant's words as relating solely to intent. The judge found appellant guilty immediately after the end of the trial, and he delivered no oral or written opinion.

In the face of an information explicitly setting forth appellant's words as an element of his alleged crime, and of appellant's subsequent conviction under a statute making it an offense to speak words of that sort, we find this record insufficient to eliminate the possibility either that appellant's words were the sole basis of his conviction or that appellant was convicted for both his words and his deed.

We come finally to the question whether, in the circumstances of this case, New York may constitutionally inflict criminal punishment upon one who ventures 'publicly (to) defy * *  * or cast contempt upon (any American flag) by words *  *  * .'

The relevant evidence introduced at appellant's trial, considered in the light most favorable to the State, must be taken to establish the following. At the time of his arrest, appellant was standing on a street corner and speaking to a small crowd; on the opposite corner lay the burning flag. Appellant said to the crowd: 'We don't need no damn flag'; and when questioned by a police officer appellant stated: 'If they let that happen to Meredith we don't need an American flag.' According to the officer, the crowds which gathered around appellant and around the flag did not obstruct the street or sidewalk and were neither unruly nor threatening.

In these circumstances, we can think of four governmental interests which might conceivably have been furthered by punishing appellant for his words: (1) an interest in deterring appellant from vocally inciting others to commit unlawful acts; (2) an interest in preventing appellant from uttering words so inflammatory that they would provoke others to retaliate physically against him, thereby causing a breach of the peace; (3) an interest in protecting the sensibilities of passers-by who might be shocked by appellant's words about the American flag; and (4) an interest in assuring that appellant, regardless of the impact of his words upon others, showed proper respect for our national emblem.

In the circumstances of this case, we do not believe that any of these interests may constitutionally justify appellant's conviction under § 1425, subd. 16, par. d, for speaking as he did. We begin with the interest in preventing incitement. Appellant's words, taken alone, did not urge anyone to do anything unlawful. They amounted only to somewhat excited public advocacy of the idea that the United States should abandon, at least temporarily, one of its national symbols. It is clear that the Fourteenth Amendment prohibits the States from imposing criminal punishment for public advocacy of peaceful change in our institutions. See, e.g., Cox v. Louisiana (I), 379 U.S. 536, 546-552, 85 S.Ct. 453, 459-463, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 237 238, 83 S.Ct. 680, 684, 9 L.Ed.2d 697 (1963); Terminiello v. City of Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949); cf. Yates v. United States, 354 U.S. 298, 318-319, 77 S.Ct. 1064, 1076-1077, 1 L.Ed.2d 1356 (1957). Even assuming that appellant's words might be found incitive when considered together with his simultaneous burning of the flag, § 1425, subd. 16, par. d, does not purport to punish only those defiant or contemptuous words which amount to incitement, and there is no evidence that the state courts regarded the statute as so limited. Hence, a conviction for words could not be upheld on this basis. See, e.g., Yates v. United States, supra; Terminiello v. City of Chicago, supra.

Nor could such a conviction be justified on the second ground mentioned above: the possible tendency of appellant's words to provoke violent retaliation. Though it is conceivable that some listeners might have been moved to retaliate upon hearing appellant's disrespectful words, we cannot say that appellant's remarks were so inherently inflammatory as to come within that small class of 'fighting words' which are 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace.' Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031 (1942). And even if appellant's words might be found within that category, § 1425, subd. 16, par. d, is not narrowly drawn to punish only words of that character, and there is no indication that it was so interpreted by the state courts. Hence, this case is again distinguishable from Chaplinsky, supra, in which the Court emphasized that the statute was 'carefully drawn so as not unduly to impair liberty of expression * *  * .' Id., at 574, 62 S.Ct., at 770. See also Terminiello v. City of Chicago, supra.

Again, such a conviction could not be sustained on the ground that appellant's words were likely to shock passers-by. Except perhaps for appellant's incidental use of the word 'damn,' upon which no emphasis was placed at trial, any shock effect of appellant's speech must be attributed to the content of the ideas expressed. It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. See, e.g., Cox v. Louisiana (I), supra; Edwards v. South Carolina, supra; Terminiello v. City of Chicago, supra; cf. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). And even if such a conviction might be upheld on the ground of 'shock,' there is again no indication that the state courts regarded the statute as limited to that purpose.

Finally, such a conviction could not be supported on the theory that by making the above-quoted remarks about the flag appellant failed to show the respect for our national symbol which may properly be demanded of every citizen. In West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), this Court held that to require unwilling school-children to salute the flag would violate rights of free expression assured by the Fourteenth Amendment. In his opinion for the Court, Mr. Justice Jackson wrote words which are especially apposite here:

'The case is made difficult not because the principles of its     decision are obscure but because the flag involved is our      own. Nevertheless, we apply the limitations of the     Constitution with no fear that freedom to be intellectually      and spiritually diverse or even contrary will disintegrate      the social organization. * *  * (F)reedom to differ is not      limited to things that do not matter much. That would be a     mere shadow of freedom. The test of its substance is the     right to differ as to things that touch the heart of the      existing order.

'If there is any fixed star in our constitutional     constellation, it is that no official, high or petty, can      prescribe what shall be orthodox in politics, nationalism,      religion, or other matters of opinion or force citizens to      confess by word or act their faith therein. If there are any     circumstances which permit an exception, they do not now      occur to us.' Id., at 641-642, 63 S.Ct., at 1186. (Footnote     omitted.)

We have no doubt that the constitutionally guaranteed 'freedom to be intellectually * *  * diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous.

Since appellant could not constitutionally be punished under § 1425, subd. 16, par. d, for his speech, and since we have found that he may have been so punished, his conviction cannot be permitted to stand. In so holding, we reiterate that we have no occasion to pass upon the validity of this conviction insofar as it was sustained by the state courts on the basis that Street could be punished for his burning of the flag, even though the burning was an act of protest. Nor do we perceive any basis for our Brother WHITE's fears that our decision today may be taken to require reversal whenever a defendant is convicted for burning a flag in protest, following a trial at which his words have been introduced to prove some element of that offense. Assuming that such a conviction would otherwise pass constitutional muster, a matter about which we express no view, nothing in this opinion would render the conviction impermissible merely because an element of the crime was proved by the defendant's words rather than in some other way. See United States v. O'Brien, 391 U.S. 367, 369-370, 376-377, 88 S.Ct. 1673, 1675, 1678-1679, 20 L.Ed.2d 672 (1968).

We add that disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history. Cf. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907). Nevertheless, we are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects.

For the reasons previously set forth, we reverse the judgment of the New York Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Reversed and remanded.

Mr. Chief Justice WARREN, dissenting.