Radich v. New York

PETITIONER:Radich
RESPONDENT:New York
LOCATION:Congress

DOCKET NO.: 169
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

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

Facts of the case

Question

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:

Alright.

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.

Richard G. Green:

There were 13 — there are more seven exhibits because there’s a duplication of some of the sculptures in certain of photographs.

There were 13 works by Murrell in the exhibit including three paintings.

One of the noose figure, the same figure which was in the window and two others using the flag motive.

None of the paintings was mentioned in the complaint.

Now the appellant here was not found guilty of defacing or mutilating the flag.

He was convicted only and directly of casting contempt on the flag by exhibiting seven of Murrell’s sculptures.

The exhibition had been going on in the art gallery for two weeks when the summons were served.

There was no evidence of any disorder inside or outside the gallery or of any circumstances that might lead to disorder, nor of any complaints of disorder.

Only the defendant and one other person were in the art gallery when the police visited.

What sentence did he get?

Richard G. Green:

He got a sentence of $500.00 or 60 days in jail.

The courts below held that no showing of disorder or any threat of disorder was necessary for conviction.

The circular announcing the exhibition which is the defendant’s exhibit B which is also with the exhibits, was sent to the defendant’s regular mailing list of collectors, of museum people, the press, universities and art departments.

It announced simply an exhibition of constructions by Mark Murrell and gave the dates and place of the exhibit.

The same circular was also available in the gallery.

Potter Stewart:

And these were all for sale, were they?

Richard G. Green:

The paintings, the sculptures are all for sale, yes sir.

War protest songs were played on a tape recorder in the gallery while the works were on exhibition.

The sale arrangement was the customary New York Art Gallery arrangement whereby the dealer receives a commission of thirty-three and third percent of the sale price.

The appellant who had been in the art gallery business for 14 years and has a degree in Fine Arts from Columbia, and Hilton Kramer who was the art news editor of the New York Times and who reviewed the Murrell exhibit for that newspaper testified.

They testified that modern day artists use various materials in their work.

They use fabric, metal, wood, paint, pieces of junk and that they mix them in the same work.

And that today, there is no longer a difference between two dimensional and three dimensional works between painting, sculpture or so called mixed works.

They testified also that they consider the Murrell constructions to be works of art of the genre known generally is “Protest Art.”

Kramer the critic, said that he personally was more interested in the aesthetic qualities of the work than in the political protest.

The defendant testified that he had no intent to cast contempt on the flag.

He testified also that he thought the artist, Murrell, did not intend any contempt for the flag, but that actually what the artist was dong was questioning the behavior of others, who he thought were using the flag for aggressive purposes.

Potter Stewart:

Was the artist a witness?

Richard G. Green:

No sir, he was not.

The New York statute is subdivision 16d of Section 1425 of the old penal law of New York.

Richard G. Green:

It is now on in Section 136 of the general business law.

The statute is frequently been termed by the courts and by others as a desecration statute, and it makes it a crime to publicly mutilate, deface, defile or defy trample upon or cast contempt by words or act.

There is no logic to the sentence.

The flag is not mentioned, but presumably that’s what’s intended.

This Court in the Street case read the phrase by words out of the statute.

Now, we contend first that appellant’s conviction violates the First Amendment guarantee of freedom of speech.

That the First Amendment prohibits punishment for exhibition of sculpture on the ground that it is contemptuous of the flag.

It is important I think for the Court to note here that so far as this appellant is concerned, the statute is directed solely at communication of an idea or an attitude, casting contempt.

He was convicted only of casting contempt on the flag.

Now the lumping of the term casting contempt in the statute with physical acts of mutilation and defacement may perhaps tend to obscure this, as perhaps also does the existence of the legal concept of contempt of court which is a different concept.

But the fundamental fact here is that this statute is directed entirely at communication at casting contempt.

That being so, we do not believe it can stand under the First Amendment.

Warren E. Burger:

That would be true of a contempt of court too, would it not, where the contempt was charged was based on utterances or other expressions?

Richard G. Green:

I think not, Your Honor.

I think that in the case of contempt of court, the concept is a different one.

The concept is one having to do with the administration of justice and it isn’t — it directed toward the administration of justice and the function of the court.

Warren E. Burger:

And I was talking — to the act.

The act of the person charged is alleged at least to be his utterance, and in that respect, do you see a difference?

Richard G. Green:

Yes, I see a difference Your Honor.

For example in the Pennekamp case and in the Bridges case, the contempt of court thing is related directly to the process of the court to the administration of justice.

In Bridges and in Pennekamp for example where there were comments which could be held to be contemptuous in a sense of communication of the court.

Nonetheless, there was no contempt of court in a legal sense and I think therefore that there is a difference.

Now, that being so, we don’t believe that this conviction the statute can stand under the First Amendment.

We intend to show to the Court that this case involves pure speech under the First Amendment.

But even if we treat these sculptures as an act, as conduct, what we have here is a statute that prohibits not the act, but the communication.

Now if we assume for the moment that these sculptures or their exhibition or conduct, this case is very different.

It’s quite the opposite of the ordinary so called symbolic speech case.

In the usual symbolic speech case, the statute on its face prohibits conduct which the state has a right to prohibit and the defendant comes in and argues that since he employed that conduct for communicative purposes, then the First Amendment prohibits the application of the statute to him.

That’s not this case.

In this case, the point of the statute under which appellant has been convicted prohibits communication; communication of an idea, contempt.

Richard G. Green:

And if it’s applied to symbolic conduct, it would be applied to the communicative aspect of the conduct.

What the statute prohibits here is the communicative aspect of the conduct and not the conduct itself.

Hence, even if we assume that this is not pure speech, the question before the Court would therefore be not whether conduct prohibited by a statute is protected by the First Amendment, but whether the Constitution permits a statue to be directed entirely at communication, solely because the means of communication could be an act subject to state control.

Now, we do contend however that we are dealing here with speech not with so called symbolic speech, or with conduct akin to speech and we contend further that this case is governed by this Court’s holding in Street.

We submit that painting and sculpture are speech as that term is used in the First Amendment as much as words.

We submit, we point out to the Court that the earliest form of writing was picture writing, cut or drawn on stone, long before men could write words.

Photographs and cartoons for example have always been considered writing in the law of defamation.

It is our contention that works of art, whether they are books, motion pictures, cartoons, paintings or sculpture are protected by the First Amendment.

These sculptures we say are therefore entitled to the same protection as the words in Street.

Now, works of art have traditionally been used to express political protest.

In the Instant case, the courts below have found that these sculptures were political protests.

At the same time, we don’t discount our contention of all works of art, whether or not they communicate a political message, are protected by the First Amendment.

Now, it should be noted here that the statutory language which forbids casting contempt on the flag precludes punishment of an artist for using the flag to praise United States policy.

On its face, the statute permits the artist to use the flag in support of United States policy, but forbids them to use it if he would condemn U.S. policy.

Whether he would condemn it in the case of the Vietnam War as overly aggressive or is insufficiently so, if he would condemn U.S. policy, he is forbidden to use the flag.

Now this is essentially the same vice which this Court condemned in Shack where the statute permitted the use of the United States military uniform in theatrical productions, only if it did not discredit the particular armed force.

This prohibition of derogatory use clearly violates the First Amendment and First Amendment rights.

We argue also that the only governmental interest furthered by this New York statute is compelling respect for the flag, an interest which cannot be furthered without violating the First Amendment.

In Street, this Court suggested four possible interests which might support the state’s prohibition of Street’s contemptuous words.

We believe that we have demonstrated in our briefs that none of these possible interests can support this conviction, just as they could not support the conviction of Street.

Appellee and the New York Court of Appeals nonetheless have urged that the function of the statute is one to assure respect for our national emblem, and two, to prevent breaches of the peace and that these are valid state interests.

As to assuring respect for our national emblem, Street and Barnett have made it clear that compelling respect for our flag is an interest that has no place in a free society.

It is extremely significant I think Your Honors that this statute is commonly referred to as a desecration statute.

Actually, the effect of the statute is really to create the crime of secular or patriotic sacrilege.

The statue in effect makes a religious object, a secular icon out of the flag, but in our country, we submit under our constitution, we have not place for sacred items or totems.

No one can be compelled to respect or pay obeisance to any symbol, religious or secular.

That is something that is reserved for totalitarian states.

Warren E. Burger:

Well do you suggest that it follows automatically from that, that because respect cannot be compelled, the desecration may not be forbidden?

Richard G. Green:

Desecration under a statute which is intended at communication Your Honor, we say cannot be forbidden.

Warren E. Burger:

But some forms of desecration can be?

Richard G. Green:

I’m saying that under this such a statute as this which is directed at communication, no.

I think that conceivably a statute sufficiently narrowly drawn might perhaps be able to achieve this, but not as desecration.

In other words, I think desecration gets into the same problem as casting contempt.

I don’t mean to quibble about words.

I think that conceivably there could be a narrowly drawn flag statute that would be something that could be supported.

In that connection Your Honor, I had intended to mention it later, last night it was brought to my attention one additional federal three-judge-court case, a North Carolina case on the subject of flag statute where again one was held unconstitutional.

I’ll submit the name of that case to the clerk afterwards.

Now, the court below and the appellee — I’m sorry sir.

Do you distinguish as part of the statute from the flag burning part?

Richard G. Green:

I’m sorry sir?

Do you distinguish this part of the statute from the flag burning part?

Richard G. Green:

Well in this case, our appellant was convicted only of casting contempt.

He was not convicted of mutilation.

He was not convicted of defacing.

So that what we have here and I think I had assumed that perhaps this was one reason the Court particularly was interested in this case, was that you have clearly and directly the communicative aspect, because the words of which — the thing that he was convicted of was casting contempt on the flag.

Now, the court below and the appellee also seek to justify the statute as one intended to prevent breaches of the peace.

However, there’s nothing in the design of the statute to suggest that as its purpose.

Subdivision 16 of the — it is in a really a great conglomeration of the statutes which are all lumped in Section 1425 of the former penal law.

They have to do with things as varied as skating on someone’s commercial ice pond or taking somebody’s oysters and I think in one case, there’s business of stealing firearms from a National Guard armory.

It is not a breach of the peace statute anymore than the statute in Stromberg was.

Furthermore, the statute is neither phrased nor has it been construed to require a finding of a public disturbance or an immanent breach of the peace.

In fact, it’s been construed as not to require that.

The court below simply assumes a possible breach of the peace.

In effect, what the court below has done has been to create by fiat, a heckles veto even when as in this case, there are no hecklers, none in sight; none suggested.

Now, New York it should be noted does have a breach of the peace statute.

Now, we say also that unlike for example, the situations in O’Brien and in Aderlee, there is no governmental interest here which is entirely distinct from the suppression of the ideas expressed.

Here, the statute’s direct thrust is at communication.

Preventing a breach of the peace is used only as a justification for suppressing the communication of the idea of contempt, not as a governmental interest independent of the suppression of communication.

Hence, since we are dealing with communication with First Amendment rights, the states’ first duty is to protect the communicator and only as a last resort can it intervene against him when it has demonstrated an actual danger of a breach of the peace.

There was no such danger here, nor was there any attempt to show one.

Richard G. Green:

And the courts below have held that there is no need to show one.

Now, appellee suggests for the first time in this Court that the conviction can also be sustained on an assault theory.

The theory of assault on a captive audience, but there was no captive audience here.

No one had to climb the stairs to appellant’s second floor gallery to see this exhibit.

And as for the noose figure in the second floor window, if a passerby happened to glance up to the second floor in the Madison Avenue traffic, all he had to do is redirect his eyes to street level far less than he would have had to do to avoid Mr. Street, or to avoid the sidewalk speaker who is suggested in the appellee’s brief.

This case is not in any way like for example Rowan against the United States Post Office which had to do with a householder is right to stop communications addressed to him in his home.

The assault theory therefore is inappropriate to the facts of this case.

The case was not and could not have been tried on that theory.

No evidence of assault was offered.

The state did not raise this contention on prior appeals, nor did the courts below base their findings on holding on such a finding.

The trial court simply found that the defendant cast contempt by exhibiting these seven sculptures of Murrell’s.

We state also that the New York statute is unclear, uncertain and overbroad on its face, so much so as to violate this appellant’s Fourteenth Amendment rights.

I do not here want to repeat the detailed argument on this point which is in our briefs.

However, I think the Court need only look at the recent history of litigation in the various federal courts and in the state courts involving this and similar statutes, they’re almost all pretty much the same in other states, to see how vague and imprecise the statute is and how it invites uneven application by local officials.

The one fact that stands out clearly from all these various cases is that no one really knows what is legal and what is illegal under this statute.

For example, it defines a flag.

How many stars and how many stripes make a flag under the statute?

What is casting contempt?

Is it the thumbing one’s nose, or making some other gesture at the flag?

Is it painting stripes on an automobile or flying a flag at half mast in mourning over something that a local district attorney or court does not find the cause for mourning?

Or is it wrapping a flag around an oil can as in one of the editorial cartoons in the appendix to our reply brief?

The trial court here suggested that if the defendant approaches the brink of what is proscribed, he must gamble on an adverse finding by the court.

Well, we submit Your Honors that this does not meet the constitutional standards that first he must know what is proscribed that the statute must provide local officials with adequate standards for its enforcement.

That the statute must not include constitutionally protected conduct within its ambit, and that there can be no strict liability offense in the area of the First Amendment.

We claim also Your Honors, that this statute defies appellant equal protection in that it permits newspaper and magazine publishers to show photos of the same sculptures, to print cartoons and paintings on similar subjects and it permits the exhibition of paintings that use the flag.

The statute has an exemption for on the metal pictures, for newspapers and periodicals.

Murrell’s paintings were not included in this complaint.

At the time of the sentencing, we called to the attention of the court, a painting in the collection of Governor Rockefeller, which was then on public exhibition in New York City, which consists, it’s a collage, it is a painting of the flag on which have been imposed picture of potatoes, the words Iowa, New York, used fork and a picture of Governor Rockefeller.

That painting was then on public display in New York City, it was used as the circular for the advertising that exhibit.

It was used as the cover of the New York Times Sunday magazine during that period of time.

Richard G. Green:

As a matter of fact, it was hanging in the executive mansion in Albany when we argued this case in the Court of Appeals, and when I called that to the attention of the court, Judge Full suggested that they had enough trouble with this case without our getting into Governor Rockefeller’s painting.

But the point is that the flag is permitted to be used in paintings.

It is permitted to be used in any way contemptuous or non-contemptuous in magazines, in newspapers.

We have all of these various uses and we say that such a distinction discriminates against sculpture.

Now, appellee suggests that the statute permits only non-contemptuous use of the flag in paintings and periodicals.

But there’s nothing in the statute that limits the exemption to non-contemptuous use of the flag.

And as the Court of Appeals in the Second Circuit pointed out, construing another subdivision of this statute and holding it invalid, while the court would try to avoid constitutional issues if it can, it just can’t go out of its way, and to do it as would be required in this case.

Now in fact here at the trial interestingly, appellee conceded that if the artwork here had been painting rather than sculpture, it would’ve been exempt from the statute.

Furthermore to our knowledge, the statute has never been applied to paintings, newspapers or periodicals despite the many, many examples of such use.

Now Your Honor, I would like to save some of my time for rebuttal and I will stop to this point.

Does the record show what triggered the issue as to the some in this case?

Richard G. Green:

No sir, the record shows only that the police officer had been on the Madison Avenue at 8:00 or 8:30 in the morning on the day before he had the summons and he saw the noose figure hanging in the window.

And he apparently got a summons the next day, he — I believe it was the next day.

I’m not sure of that, he went to the art gallery and served it.

There must have been a visit somewhere in between, because the — well no, the complaint later mentioned various things.

How long is the exhibition on?

Richard G. Green:

The exhibition was on for three weeks.

The summons was served after it had been on a little bit two weeks or slightly more than two weeks.

Harry A. Blackmun:

Mr. Green I have a question?

Richard G. Green:

I’m sorry.

Harry A. Blackmun:

Totally unimportant, I think historical error in your interesting collection in the appendix to the reply brief.

Richard G. Green:

Yes sir.

Harry A. Blackmun:

I think that the combination to Mr. Lincoln and Mr. Hamlin was not on the 64 campaign.

Richard G. Green:

Well, thank you very much for that.

I think you’re quite right sir [Laughter Attempt], thank you.

Michael R. Juviler:

Mr. Chief Justice —

Warren E. Burger:

Mr. Juviler?

Michael R. Juviler:

— and may it please the Court.

There was no seizure of the flag constructions and the proof of guilt was established primarily by photographs taken at the gallery.

These photographs are included in the original record and Mr. Seaver is been kind enough to obtain them here in the Court.

Michael R. Juviler:

I think it might be convenient if these are passed up to the Court because I’d like to refer to them, some of them during my oral argument.

The immediate question presented by this case is the extent to which the people while preserving the liberties that the flag stands for may also take steps to preserve the integrity of the flag as a national symbol of general use.

Whatever place this case finds in constitutional history, will probably be attributable however to a broader question and that is the difficult balancing between pure speech and symbolic conduct that has attracted the attention of this Court in several cases in recent years.

Because the statute here in question involves casting contempt by act and the trial court specifically found that the appellant’s constructions or the display of these constructions cast contempt by act.

Every state has a statute in some way of prescribing the acts which maybe addressed to the flag.

Congress recently has enacted a statute which in many ways is similar to the New York law.

Byron R. White:

Could I ask, was it essential or unavoidable for the trial court to hold that while these charges in the language of the statute namely mutilation or defilement or the casting contempt on this, he came down only on casting contempt?

Michael R. Juviler:

I would —

Byron R. White:

Was this also a mutilation?

Michael R. Juviler:

The defendant was charged with mutilation — with the general language of the subdivision (d) of the penal law.

The court found only that he cast contempt by act.

There was no evidence and indeed it was not the people’s theory that appellant himself mutilated the flag.

The evidence was that it was another person, the artist who had used the flag.

Byron R. White:

And so your answer is yes, so this is the only part of the statute this particular defendant could’ve been convicted?

Michael R. Juviler:

Yes.

Potter Stewart:

What was the defendant’s act?

Michael R. Juviler:

The act was the display of a physically altered actual flag, and the permission —

Potter Stewart:

Having them in his gallery, right?

Michael R. Juviler:

Yes and the —

Potter Stewart:

And displaying them to the public?

Michael R. Juviler:

The causing of this display and the permitting this display to continue including the day on which the summons was issued.

Potter Stewart:

You say that’s an act?

Michael R. Juviler:

An act as opposed to words.

Appellant was not prosecuted for anything that he said or indeed for any belief that he may have had.

We do not know in this record what appellant’s beliefs are, although he did testify as to his opinion as to the artist’s intention.

Thurgood Marshall:

Well suppose an artist made the statue of an American flag burning, would that be covered too?

Michael R. Juviler:

That would be an easier case I think to defend, and there is a case like that on its way to this Court from New York where a person in public burned the flag.

The way we analyze this —

Thurgood Marshall:

He made a statue of it?

Michael R. Juviler:

Yes, but the way we analyze this problem of its freedom of expression, there’s a continuum between conduct, pure conduct and pure speech words.

Michael R. Juviler:

If the state —

Thurgood Marshall:

Suppose he makes the statue of burning Uncle Sam?

Michael R. Juviler:

There would be no statute as — that I know of that would prevent that other some law dealing with fire regulations.

Thurgood Marshall:

Suppose this man kept this statue in his — the one involved here in this moment, does statute covers it?

Michael R. Juviler:

No, this law deals only —

Thurgood Marshall:

Suppose he sold it to somebody, would the statute cover?

Michael R. Juviler:

Not unless this act occurred in public — there was some public act.

Now in this case —

Thurgood Marshall:

Well, suppose he gave it to him on the street corner, would the statute apply, in broad daylight?

Michael R. Juviler:

I doubt — I don’t know.

I have to — would have to know the facts as to whether this was deem to cast contempt on the flag.

In this particular case, there’s no dispute that there was a public event.

Indeed, as one of —

Thurgood Marshall:

Then this has to be public then?

Michael R. Juviler:

Yes, this has to be public.

This cannot be — the statute does not apply to acts in private.

A person under this law and Congress’ law could burn the flag in his own home or to private party.

Thurgood Marshall:

One other thing.

When you study to this case, you find any reason why all the states passed these statutes before the federal government and got around to it?

Michael R. Juviler:

I think that historically, the impetus was the misuse of the flag in some political campaigns and commercial advertising after the Civil War.

Thurgood Marshall:

But it’s not the state flag, isn’t it?

Michael R. Juviler:

Yes.

Thurgood Marshall:

But the states are protected and Congress didn’t get around till the (Inaudible)

Michael R. Juviler:

Yes, the —

Thurgood Marshall:

Any reason for that?

Michael R. Juviler:

Historically, I don’t know what the reason is.

It may have been that Congress felt that the states were better equipped through local law enforcement to deal with this.

In Halter against Nebraska in 1907, this Court said that the state does have an interest, because the states derive their existence from the union and the flag represents that union.

Four members of this Court in dissent in the Street case appear to have accepted the state interest in this area and the recent congressional law specifically leaves to the states the power to make these regulations.

The ability of a state or federal government to regulate conduct that has expressive elements was recognized in the O’Brien case, the draft card burning case, and there are two main tests set forth in that case which we contend were fulfilled here to justify the state regulation.

Michael R. Juviler:

The first is that there be a sufficient governmental interest in regulating the conduct element.

And if this interest exists, an incidental affect on some expressive element maybe tolerated under the First Amendment.

And the second principle requirement is that the regulation not be directed to suppression of expression.

As we proceed to argue, both of these tests were satisfied by the New York law.

One governmental interest which is served by the New York law, the federal law and the laws in all of the other states is the preservation of the integrity of the flag as a viable national symbol for general use by all of the public.

As was said in dissent in the Street case, the flag is a special kind of personalty.

It is dedicated to a certain use by public action and as such, it is off limits for certain physical acts of destruction or contemptuous desecration in public, just as the walls of a federal building are off limits for the inscription of political or social commentary.

Appellant would dismiss this vital area of human experience, the symbolic area, the symbolic interest and yet, his case is based on his assertion of his own right to assert symbolic values as an exhibitor of art.

There seems to be no basis presented by appellant on which this Court can say.

And indeed, this Court has never suggested that there is no valid public interest in preserving this general symbolic use of the flag as a national symbol.

The more difficult question here is whether the New York law is unrelated to the suppression of free expression.

I’m talking now of the specific provision that is at issue here, the provision preventing casting contempt on the flag by an act, because contempt is in a sense expression and that expression is specifically the corpus of the crime that is defined by this statute, but this contempt is not a view on an issue.

The flag is neutral on political and social questions, and the statutes aimed at protecting the flag by the same token are also neutral in terms of expressing views of the type that are recognized as having value in the free marketplace of ideas.

The flag has its place at the head of a parade of hard hats and it has its place at the head of a procession of peace marchers, so that the legislation dealing with the flag takes no position on political questions.

The law does not say that you may not cast contempt on the Government.

Unlike the congressional enactment at issue in the Shack case, it does not say that you may not discredit the Armed Forces.

The Armed Forces are not — discrediting the Armed Forces is not a neutral position.

It is a very vital part of political controversy.

The fag is unique.

It is a kind of personalty that extends beyond the ownership of the particular actor, and it is a neutral personalty.

As the statute was applied in this particular case, there is another interest which is certainly as important as the interest in permitting free-floating abstract contempt by acts toward the flag.

And that is the interest in freedom of choice of the citizens as to whether they shall have in their community publicly displayed uses of the flag that are offensive to a large part of the community.

Your Honors will not that in people’s exhibit 1, a black and white photograph taken from the street facing the appellant’s gallery, one of these constructions hanging the flag in effigy by the neck like a corpse was exhibited for three weeks in a prominent position facing a major New York City thorough fair, Madison Avenue.

It is absurd to suggest that there is no evidence that this was visible to many persons passing on Madison Avenue.

And the question here is whether the ability to rent space in a prominent display position, gives the right to put in there any visual materials for any amount of time regardless of other means of presenting the same expression in manners which are less of an assault on the citizens.

The very basic right to be free from sights and tangible matter that we do not want was the language used recently by this Court in Rowan against Post Office; that involved privacy in the home, but there is privacy, some interest in privacy and freedom of choice in the public streets.

If this law is applied in such a context, there is no substantial question of the subject’s rights under the First Amendment.

The sidewalk speaker is not comparable to the renter of space, because the sidewalk speaker has really little alternative to present his discourse to the public, and he is not there generally for three weeks.

Presumably, if the speaker uses electronic equipment which broadcast his utterances loudly and raucously in the street and in the — into the homes in the neighborhood, there would be a right to regulate that, so long as the regulation is not directed to the ideas or the content in that sense of his utterances.

And we ask the Court not to say, not to create by a decision here another example of a captive audience.

Michael R. Juviler:

There are alternatives for expressing the views which appellant ascribed to the artist in this case.

Warren E. Burger:

Well, are you implying by that Mr. Juviler that if he didn’t have in the window, but had it only in his studio for sale, so that it would be observed only by people who sought out the studio, there would be no criminal act?

Michael R. Juviler:

It would be much harder to defend such a prosecution.

The statute as written would apply, I would say, and it has been so held in this case.

If the voluntary audience is still a public audience in terms of the interest that I’ve discussed in preserving the validity of the flag as a symbol, there is more to say for that interest if the flag is in a sense misused in the public street than it is in a private/public gallery.

But that is the facts that are — those are the facts presented by this record, and the trial court and the Court of Appeals specifically made clear that this display in the window was a separable and sufficient ground for finding a violation of this statute, even though they also said that the other constructions particularly the one using the actual flag as a penis inside the gallery also violated the statute and cast contempt by act.

Contrary to the appellant’s argument, there was evidence from appellant himself that that construction used part of the American flag, the actual American flag and there is other testimony that this was not a homemade flag.

This was an actual three-dimensional American flag.

The photographs themselves show that beyond any question.

Thurgood Marshall:

Well, in the defining of the statute, is there any difference to whether it’s an official flag or a homemade flag?

Michael R. Juviler:

I’m — by homemade, I mean something that is not of cloth banner but —

Thurgood Marshall:

But is there any difference between the 5 and 10-cents store American flag and a silver/gold tip?

Michael R. Juviler:

No, no difference, but what we have in this particular case is an actual American flag.

The relevancy of that —

Thurgood Marshall:

But supposing the 48 stars flag, would that be alright?

Michael R. Juviler:

Yes, that would violate the statute as it did in the Street case — as it could have done in the Street case.

Thurgood Marshall:

Well, how about a 13 star?

In demon, I get through, I might ask about the 53 state.

Michael R. Juviler:

Yes.

I suppose one has to say that if this is reasonably considered to be a contemporary American flag, the present symbol of Government in essence as a question of fact, then the statute could apply and if it does apply that it so held to apply by the state court as a question of fact, there is no First Amendment question.

Byron R. White:

What’s your position perhaps you’ve already stated it, on contempt to by speech, by words rather than by act?

The statute —

Michael R. Juviler:

The statute —

Byron R. White:

— surely covers that?

Michael R. Juviler:

— as written, it covers that, but in essence, that part of a statute has been written off as a result of this Court’s decision in the Street case.

Byron R. White:

And —

Michael R. Juviler:

And the Court of Appeals so held in this case.

Byron R. White:

And so if you deliver the same message by an act, namely if you cast contempt by an act, you say the statute is valid if you do it by an act rather than by words?

Michael R. Juviler:

Yes.

Because of this now settled distinction drawn by this Court between symbolic conduct that has conduct elements and pure speech on the one hand.

Byron R. White:

Then what is the state — what more interest does a state have in proscribing the message delivered by an act than the message delivered by words?

Michael R. Juviler:

It’s probably the — it might well be the same interest, but in the one sense dealing with words, that interest has been deemed to be subordinate to the First Amendment.

That hasn’t been the case as —

Byron R. White:

Well, why is that though?

The lower court, I mean your state court certainly stated another ground for this, didn’t they?

Michael R. Juviler:

Yes, that is the second major public interest, if that’s what Your Honor is referring to, the interest in preserving order and preventing a breach of the peace.

In the Street case that was argued in defense of the statute and the majority of this Court felt that on that record, there was insufficient evidence to justify that interest dealing with words when one comes to words.

And the Court of Appeals of New York as we here, are bound by the majority opinions in the Street case.

Potter Stewart:

Mr. Juviler, am I wrong in my understanding that the cases on which you rely distinguishing verbal communication from communication by act, all involve, all involve cases where the act itself, the conduct, could be made, could constitutionally be made illegal for some other reason?

That is let’s assume a fellow sets fire to the White House to express his views. Obviously, setting fire to the White House for various reasons can be made criminal, and that’s — even though he may say that’s symbolic speech.

Let’s say he blows off the nose of the Statue of Liberty, that’s destruction of public property and that can be made — that’s for various state interests or let’s say the O’Brien case because of the interest of the Selective Service System.

The — it could be made a criminal offense not to destroy a draft card even against the defense that this was symbolic speech.

All of those cases involved conduct which otherwise could be made illegal.

I don’t understand that this case involves any conduct whatsoever that could be made illegal.

The conduct as I understand it, is exhibiting something.

That’s the only act you talking about, isn’t it?

Michael R. Juviler:

Yes.

Our —

Potter Stewart:

What interest does the state have to prevent the exhibition of something as contrasted to prevent the verbal expression of something in this case?

Michael R. Juviler:

The two interests are the interest in preserving this national symbol when the display involves particularly the actual flag.

And secondly, the interest referred to by the Court of Appeals, and that is the interest in preserving order preventing disturbance through in effect fighting acts as opposed to fighting words.

Potter Stewart:

Well, what is the difference?

I mean in other words, I should think if those are valid, they would be equally valid against verbal expression casting contempt upon the flag, would they not?

Michael R. Juviler:

In terms of the fighting act, fighting word?

Potter Stewart:

In terms of either one of those purported justifications?

Michael R. Juviler:

Well, the court has — perhaps you’re right that the court has taken a tougher position.

Potter Stewart:

What get — just give me a case where —

Michael R. Juviler:

In the Street case for example when the majority of this Court felt that the conviction of Street may have rested on his utterances.

Potter Stewart:

Yes, on his expression.

Michael R. Juviler:

Yes.

Potter Stewart:

Rather than his mutilation —

Michael R. Juviler:

Burning.

Potter Stewart:

— mutilation or defacement or destruction of a flag.

Michael R. Juviler:

Yes.

Potter Stewart:

And in this case, there is no conviction for mutilating, defacing or destroying a flag?

Michael R. Juviler:

No.

Potter Stewart:

But merely for casting contempt upon it?

Michael R. Juviler:

Yes.

I presume if the manufacturing of these constructions had gone on in the window of the gallery, there would be a more direct observable application of this concept of conduct, but a display is conduct in a sense.

Potter Stewart:

That’s the only act as I understand your —

Michael R. Juviler:

Yes, a display can be conduct if the statute that deals with display is addressed to the non-speech elements of that conduct.

Now —

Potter Stewart:

Well, what is the non-speech element here?

Michael R. Juviler:

The use of the actual flag, a physical object.

There was a case that came to this Court in which no substantial federal question was found, and the appeal was dismissed.

In this —

Potter Stewart:

Caldwell or Cabell —

Michael R. Juviler:

In this — well, that’s one.

I’m talking of the Stover case that also arose in New York, where to protest taxes in a town, the defendant flew —

Potter Stewart:

Oh, hung up the dirty laundry.

Michael R. Juviler:

Some dirty laundry.

Potter Stewart:

Yes.

Michael R. Juviler:

Now, the Chief Judge Full, then Judge Full writing for the Court of Appeals found that there was a conduct element even though this was merely a display —

Potter Stewart:

Common law nuisance, but that, there was no such finding here, was there?

Michael R. Juviler:

Yes, indeed there was.

Potter Stewart:

What was the —

Michael R. Juviler:

By the majority, I would say the majority of the Court of Appeals and by the legislature itself made a finding that a public display of a physical flag that cast contempt on the flag is a nuisance in that sense.

It is an act.

It has a conduct element unrelated to the political or social views expressed.

Potter Stewart:

Well, that will be —

Michael R. Juviler:

That made — that can be regulated.

Potter Stewart:

The words of the statute in issue here as I understand it are those words that make it an offense to anyone — for anyone who shall publicly cast contempt on a flag by act, considering not displaying, nothing about a nuisance.

Michael R. Juviler:

Well, we have — the statute has been applied in this case to a display.

That has — that becomes the law of this case.

And I think the question now is not what the statute means in terms state law, but whether the First Amendment permits such an application of the statute.

Potter Stewart:

My only — I just wondered if you had any case where — in which a distinction was made between verbal communication and communication by conduct, where the conduct was not conduct of a kind, it could be proscribed?

Michael R. Juviler:

No.

I know of know such case.

But we say this is a case where the conduct can be proscribed.

Potter Stewart:

Simply because of what it communicates.

Michael R. Juviler:

Yes.

No.

Potter Stewart:

Is that what you’re saying?

Michael R. Juviler:

Not because of what it communicates in terms of views, but because it uses the flag, just as though one were to use the walls of this building for writhing a peace symbol —

Potter Stewart:

This defendant, this man is been convicted simply exhibited this — the sculpture, right?

Michael R. Juviler:

Yes.

Potter Stewart:

And that was his conduct?

Michael R. Juviler:

Right.

Potter Stewart:

That’s the only act to use the —

Michael R. Juviler:

That’s correct.

Potter Stewart:

— statutory word that you rely on?

Michael R. Juviler:

That’s correct.

Potter Stewart:

His exhibition of the sculpture, correct?

Michael R. Juviler:

He was not prosecuted for his beliefs for his verbal utterances.

Potter Stewart:

Nor for defacing a flag nor for mutilating a flag?

Michael R. Juviler:

No, no.

Warren E. Burger:

Do you rely to any extent or put it this way how much do you rely on the provocative nature of this act that might lead a group of soldiers home on leave to pick up some stones and throw it through the windows if they could throw that far?

Michael R. Juviler:

Yes, we do stand by the opinion of the Court of Appeals in that respect that under the circumstances of this display, there was a risk that a breach of the peace or disorder could occur.

There was no specific finding to that effect, quite frankly as appellant says in the trial court or in the appellate courts because the law as written does not require a tendency to breach the peace as an element.

But historically, that has been one of the motivating factors behind the enactment of these laws and in terms of applying this law and defending it in a federal court, if that interest can be presented on the record before the court, then the First Amendment issue recedes.

Warren E. Burger:

I suppose the analysis applied by the Court of Appeals of New York would be strengthened somewhat if there were evidence in this case that on seven particular days, the traffic was held up because a group of soldiers or others were demonstrating in the street throwing stones at the window, etcetera?

Michael R. Juviler:

Yes.

Warren E. Burger:

But we don’t have that here, do we?

Michael R. Juviler:

No.

I would — it may be that if this had happened somewhere else even in New York State, I’m told that by colleagues of mine from upstate, they can’t understand why there wasn’t such an outbreak.

Subsequent events in New York City involving displays of the flag bear out the provocative tendency of certain acts towards the flag and displays of the flag.

I don’t know whether appellant should prevail because the — because New Yorkers at least in this instance perhaps are more jaded than the average citizen in the United States.

There is a recent law review article which has a history of flag desecration and shows constantly over the years the provocative quality of certain displays which I think is inherent in the legislative purpose.

That is in volume 3 of the Indiana legal forum.

Warren E. Burger:

Your time is up now Mr. Juviler.

You will have five minutes left after lunch Mr. Green.

Richard G. Green:

Oh, thank you sir.

Warren E. Burger:

Mr. Green, you have five minutes left.

Richard G. Green:

Thank you.

Mr. Chief Justice and may it please the Court.

There was a mention in the argument of the appellee of the Stover case in New York, the rags on the clotheslines.

I would just like to point out to the Court that there, there was no question of a valid statutory purpose apart from communication.

What we had was a statute which forbade clotheslines in any yard abutting on a public street, and the statute was upheld under the general zoning and police powers of the state.

Here of course, the statute is addressed entirely to communication.

On the subject of provocation, there was a question asked about the possibility of soldiers throwing stones through the second floor window of this gallery.

Of course, there was no evidence at all here of any disorder or of any threat of disorder.

However, if there were, we would respectfully suggest to this Court that the state’s first duty in that case would be to attempt to quell the disorder that undifferentiated fear of potential disorder, this Court has repeatedly held can never justify the suppression of expression.

Now, appellee has concedes that one can be disrespectful of the Government, but he says that the flag is something different.

And in this regard, I should like to quote to the Court, S.I. Hayakawa, who was president of one of the California State Colleges and a renowned semanticists, speaking of the flag very recently, he sad, and I am quoting now “When a symbol becomes a fetish, then you make the semantic error of confusing the symbol with what it is supposed to symbolize.”

We submit Your Honors that the issue before this Court today really is a very direct one.

It is whether our flag originally designed to symbolize our heritage of freedom has now become a fetish as Mr. Hayakawa called it, whose worship can curb the very freedom that it is supposed to represent.

Warren E. Burger:

Thank you Mr. Green, thank you.

The case is submitted.