Parties: Street v. New York
Date: 1969-04-21
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Paragraph: 40 - the N87* '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.
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Paragraph: 38 - N86* '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.
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Paragraph: 159 - If the arsonist asserted that he was burning his shirt or trousers or shoes as a protest against the Government's fiscal policies, for example, it is hardly possible that his claim to First Amendment shelter would prevail against the State's claim of a right to avert danger to the public and to avoid obstruction to traffic as a result of the fire. This is because action, even if clearly for serious protest purposes, is not entitled to the pervasive protection that is given to speech alone.
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Paragraph: 72 - 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.
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Paragraph: 140 - It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against. N39* 'It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.' Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949). In my view this quotation from the Giboney case precisely applies here. The talking that was done took place 'as an integral part of conduct in violation of a valid criminal statute' against burning the American flag in public. I would therefore affirm this conviction.
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Paragraph: 159 - If a statute provided that it is a misdemeanor to burn one's shirt or trousers or shoes on the public thoroughfare, it could hardly be asserted that the citizen's constitutional right is violated. If the arsonist asserted that he was burning his shirt or trousers or shoes as a protest against the Government's fiscal policies, for example, it is hardly possible that his claim to First Amendment shelter would prevail against the State's claim of a right to avert danger to the public and to avoid obstruction to traffic as a result of the fire. This is because action, even if clearly for serious protest purposes, is not entitled to the pervasive protection that is given to speech alone. See Cantwell v. Connecticut, 310 U.S. 296, 303—304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). It may be subjected to reasonable regulation that appropriately takes into account the competing interests involved.
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Paragraph: 6 - 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.
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Paragraph: 155 - The Court is obviously wrong in reversing the judgment below because it believes that Street was unconstitutionally convicted for speaking. Reversal can follow only if the Court reaches the conviction for flag burning and finds that conviction, as well as the assumed conviction for speech, to be violative of the First Amendment. For myself, without the benefit of the majority's thinking if it were to find flag burning protected by the First Amendment, I would sustain such a conviction. I must dissent.
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