Radich v. New York

LOCATION: Congress

DECIDED BY: Burger Court (1970-1971)

CITATION: 401 US 531 (1971)
ARGUED: Feb 22, 1971
DECIDED: Mar 24, 1971

Facts of the case


Media for Radich v. New York

Audio Transcription for Oral Argument - February 22, 1971 in Radich v. New York

Warren E. Burger:

We'll hear arguments next in Number 169, Radich against New York.

Mr. Green you may proceed.

Richard G. Green:

Mr. Chief Justice and may it please the Court.

This case involves the conviction of the appellant and it's an appeal by the appellant from his conviction in the New York courts for casting contempt on the flag of the United States by exhibiting in his art gallery certain sculptures.

The issues involve the First Amendment.

They involve the Fourteenth Amendment in the terms of whether the statute is sufficiently clear and definite.

They involve the Equal Protection Clause under the Fourteenth Amendment because of a situation where there is an exemption in the statute for the exhibition, or for the portrayal or photographs of these same sculptures in newspapers and periodicals, and for the display of paintings using a flag motive in art galleries as well.

The appellant was the proprietor of an art gallery on the second floor of a building on Madison Avenue in New York City.

The gallery was recognized in the art world and specialized in exhibits of sculpture.

In the appellant's gallery, he exhibited certain sculptures or constructions as they are called by an artist named Mark Murrell.

The artist Murrell is not a defendant in this case.

The sculptures were made of fabric.

Some of which were of what appeared to be the American flag or may have been actual flags, the record is not clear.

One of the sculptures what appeared to be a flag in the shape of a human body hanging from a yellow noose was in the second floor window of the gallery.

It was visible from within the gallery, and also to passersby on Madison Avenue who happen to look up to the -- up from the street to the second floor.

Potter Stewart:

Is there a representation of that in the appendix anywhere?

Richard G. Green:

It's not in the appendix.

It is in the exhibits which have been submitted to the Court, Your Honor.

Potter Stewart:

Only the original, so it hasn't been reproduced?

Richard G. Green:

No, it has not sir.

Potter Stewart:

We have some many reproductions of it I think --

Richard G. Green:

I'm sorry.

I have another set of copies of them, but they are not exactly as the district attorney's --

Potter Stewart:

The originals have been lodged with the --

Richard G. Green:

That's right sir.

Potter Stewart:


Richard G. Green:

The -- one of the sculptures as I've mentioned could've been seen from the street, this was the noose figure, the figure in what appeared to be human body hanging from a noose if anyone looked up to the second floor window.

The other sculptures were visible only in the art gallery.

The art gallery was open to the public.

Seven of the sculptures are the subject of this prosecution.