Smith v. Goguen – Oral Argument – November 12, 1973

Media for Smith v. Goguen

Audio Transcription for Opinion Announcement – March 25, 1974 in Smith v. Goguen
Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Warren E. Burger:

We will hear arguments next in 72-1254, Joseph Smith against Goguen.

Mr. Chase, you may proceed.

Charles E. Chase:

Mr. Chief Justice, and may it please the Court.

My name is Charles Chase and I’m an Assistant Attorney General for the Commonwealth of Massachusetts.

This time, I would like to with the leave of court reserve five minutes of my argument time for rebuttal.

Warren E. Burger:

That will take us just to about termination today.

Charles E. Chase:

Alright.

Your Honors, this an appeal from a decision of the First Circuit Court of Appeals in which that Court ruled that the Massachusetts Flag Statute was vague in violation of the Fourteenth Amendment and overly broad in violation of First Amendment.

The facts in this case are relatively simple.

On January 30, 1970, Valerie Goguen was seen on the Main Street Leominster Massachusetts with a small American flag approximately three by five inches or four by six inches sewn to the seat of his pants in the area of the left buttock.

A police officer saw him standing on the streets of Leominster and saw a crowd of people with him.

The police officer approached him and spoke to him about the flag.

Thereafter the police officer went to the Leominster District Court and swore out a complaint charging that Valerie Goguen did treat contemptuously the flag of the United States.

Mr. Goguen was tried in the Local District Court and found guilty by a judge.

He exercised his right for a trial de novo to Worcester Superior Court.

A trial was had before a jury and the jury returned a verdict of guilty.

Mr. Goguen was sentence to six months in the House of Correction.

Execution of this sentence was staid pending his appeal to the State Supreme Court.

In that appeal the Supreme Judicial Court of Massachusetts affirmed the conviction unanimously in a rescript opinion.

After that in February —

What does that mean, rescript opinion?

Charles E. Chase:

Your Honor, as it’s used in Massachusetts, I believe it’s equivalent to a per curiam opinion, a short brief opinion in which the issues are not discussed at length.

What section is State Leominster?

Charles E. Chase:

What section of the state?

Where is it located?

Charles E. Chase:

The flag statute Your Honor?

No, this Leominster, where is that town?

Charles E. Chase:

That is located approximately 30 or 40 miles northwest of Boston.

Small town?

Charles E. Chase:

Fairly small town.

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Charles E. Chase:

I would believe probably 30,000 or 40,000 people now.

Was the respondent or rather the appellee engaged in any sort of demonstration or anything such —

Charles E. Chase:

The record does not reflect that he was, Your Honor.

And so I’m afraid, nothing like that was going on, was it?

Charles E. Chase:

Not that we can gleam from the record.

He was just walking down the street.

He just decided that day to –-

Charles E. Chase:

The only thing the record –-

— actually the American flag sewn on or else it is sewn American flag on the pants he had, just to dress that way that day so far —

Charles E. Chase:

Apparently, Your Honor.

It’s unclear as to what exactly he was doing other than he was on the public streets of Leominster.

It does say, he was with a group of persons but it doesn’t even say whether he was a member of the group or just whether he was — there were other people standing there at the same time.

Charles E. Chase:

Your Honor I can not give any more than what it’s in that record at this moment.

You don’t know?

Thurgood Marshall:

How can we find out what was — is there any way we can find out what was going on?

Charles E. Chase:

Well, Your Honor, may I say that our office became involved when the federal habeas corpus petition was filed.

I believe my brother represented him at the Superior Court Jury Trial and possibly he could enlighten the Court.

Thurgood Marshall:

You mean there’s no record of any kind?

Charles E. Chase:

You have the entire record before, Your Honor, in the appendix.

By the way, it is just a seven-page.

It fills seven pages of the appendix that is the entire appellate record.

Thurgood Marshall:

That’s what I’m worried about.

That’s all we can get.

Charles E. Chase:

That’s all I know of Your Honor.

That’s all that the Federal Courts had when they decided this question.

On February 23, 1972, we filed this petition for writ of habeas corpus and in June of 1972 the District Court judge granted the writ saying or finding that Mr. Goguen’s constitutional rights have been violated according to the statute.

The First Circuit Court of Appeals affirmed the conviction or affirmed the granting of the writ, I’m sorry.

The first point I would press to this Court is the question of whether or not Mr. Goguen properly exhausted his available state remedies in this case.

By that I mean, was it proper for the First Circuit to reach a facial vagueness claim in this case in light of the record and briefs that were filed in the Supreme Judicial Court of Massachusetts.

If you study those briefs and tie them in with the short record it becomes quite clear that the question of whether or not this statute gives fair notice of the conduct it proscribes whether or not that question was raised on the SJC.

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Charles E. Chase:

It becomes clear that it wasn’t appellee in his brief to this court tells us that the essence of a Fourteenth Amendment vagueness claim is whether or not fair notice is given and yet if you look at the brief that was filed in the Supreme Judicial Court of Massachusetts, you will not see a single case cited for that proposition.

You will not see an argument developed along those lines.

I do not deny that in the area of First Amendment rights many times vagueness and overbreadth are closely connected and intertwined.

And yet, the question I think before this Court is whether or not it was permissible for the Supreme Judicial Court of Massachusetts to handle this case in the way it did relative to Fourteenth Amendment vagueness.

In other words, if you look at the SJ or the Supreme Judicial Court opinion, you will see that they said simply this, “Whatever the uncertainties in other situations, we find no vagueness in the statute as applied here.”

So the question becomes, should the First Circuit have reached a facial vagueness argument in light of what the Supreme Judicial Court said?

I think it’s a question of exhaustion in not standing because the Supreme Judicial Court never faced the question.

If the issue had impressed to them and they had said, no we find that this man has no standing to raise a facial vagueness argument then the First Circuit’s opinion would have been in line.

In other words, a discussion of standing to raise facial vagueness but the Supreme Judicial Court of Massachusetts never entertained an argument because one was never made to them.

Accordingly, we would urge this Court to find that the exhaustion of state remedies was violated when the First Circuit Court reached a facial vagueness claim.

Assuming though that the First Circuit Court could consider a facial vagueness claim properly, we submit that that issue was wrongly decided by the First Circuit Court.

We say that because of the following reasons.

This statute when you consider whether or not it is vague on its face has a very narrow subject matter.

It deals with the United States flags.

It’s not dealing with loitering or noise or annoyance, it’s dealing with flags.

Now, if a person is going to violate this statute he immediately knows if he wants notice as to what conduct this statute proscribes, he immediately knows that it has something to do with flags.

Now, if he wants to stay clear of violating this statute, he just has to stay clear of doing something to United States flag.

So the subject matter of this statute is uniquely narrow.

Now, we think that that takes some of vagueness away from the phrase “treats contemptuously” in the statute.

Thurgood Marshall:

Does that apply to paper flag bought from (Inaudible) store?

Charles E. Chase:

Your honor, we would say no, it applies —

Thurgood Marshall:

Why not?

Charles E. Chase:

— only to actual flags because the Massachusetts statute —

Thurgood Marshall:

Or what if, well, that’s good.

What is American flag?

Charles E. Chase:

The American flag is a cloth flag of certain dimensions.

There is an official dimension and there are other dimensions commercial flags that are put out to use in parades and what not that there are varying sizes to United States flag but it is a cloth flag that can be affixed to a pole — [Voice Overlap].

Excuse me, Your Honor?

Thurgood Marshall:

It doesn’t apply to a paper flag?

Charles E. Chase:

I would say no, Your Honor.

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Thurgood Marshall:

Well, then it is vague.

It’s automatically vague if I take a flag the paper flag and you know —

Charles E. Chase:

Well, Your Honor, I think, on a question of vagueness we have to look to see what the authorities in Massachusetts have said about this the statute since it was enacted in 1899.

Thurgood Marshall:

But suppose it was a hand-painted on the cloth with the 13 stripes and the 50 stars?

Hand-painted, would that be the American flag?

Charles E. Chase:

On cloth?

Thurgood Marshall:

Yes.

Charles E. Chase:

I would say that, what the average citizen would surmise or appreciate as a flag — if the average citizen would consider that the flag, it would be a flag.

Thurgood Marshall:

But suppose it has 11 stripes?

Charles E. Chase:

Well, the statute is directed at United States —

Thurgood Marshall:

Would that be the flag?

Charles E. Chase:

It’s directed at United States flag, Your Honor.

Thurgood Marshall:

Would that be a flag?

Charles E. Chase:

By definition —

Thurgood Marshall:

Would that be the “Flag of the United States?”

Charles E. Chase:

By definition it would not be because the flag of the United States has the appropriate number of stars and stripes.

Thurgood Marshall:

What kind of cloth does it have to be?

Charles E. Chase:

Doesn’t have to be any particular flag, Your Honor.

Thurgood Marshall:

But it couldn’t be paper?

Warren E. Burger:

Is there a dispute in this case is to whether this was a flag?

I missed if it were in the brief.

Charles E. Chase:

No, Your Honor, in the trial court, the only dispute was whether or not the flag had to be official by way of size whatever the official flag is four by six feet.

Warren E. Burger:

But it is not disputed that this had the requisite number of stars and stripes.

Charles E. Chase:

It was a miniature flag with the appropriate number of stars and stripes.

Yes, it is definitely Mr. Chase.

The vexillologist?

Charles E. Chase:

A flag expert.

Vexillologist?

What’s he?

Charles E. Chase:

Apparently, he’s some sort of an expert on flag, Your Honor.

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Well, what is his testimony about the origin of the flag and the difference and standards that this one didn’t conform to the official standard?

What was the significance?

Charles E. Chase:

Well, the defense at that time, Mr. Goguen said that if he was to be convicted under this statute, he had to have done something to an official flag and the definition of an official flag by presidential resolution or proclamation is a flag of a certain size.

It’s a number of feet, I believe its four by six feet and the judge at the trial court denied that instruction you would not —

Do you have many vexillologists in Massachusetts?

Charles E. Chase:

Your Honor, I wasn’t involved at that case, I never met the man and I don’t think I’ve ever met a vexillologist in my life.

I never heard of one of until a few minutes ago.

Charles E. Chase:

Besides the fact, that this statute deals with the unique narrow subject matter, namely flags.

We think it’s clear from the Supreme Judicial Court opinion that one must also show that the person that who is to be convicted under such a statute intended to violate the statute and we think that the question or the point, the necessity of having prove intent, again, narrows the reach of this statute.

Inadvertent or careless acts are not proscribed by the statutory language.

Again, when you talk about the vagueness of the statute, there are accepted principles of statutory interpretation and construction which easily apply to the words of the statute.

By the way, the first 26 words of the Massachusetts statute are directed toward flag desecration. The remainder of the statute talks about commercial uses.

A commercial misuse of the flag, and those first 26 words, the key desecration words goes something like this.

“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States is guilty of a misdemeanor.”

We urged upon the First Circuit Court, the principle that when specific in general words are associated with one another in a statute, the more general words take on the color or the specific or a meaning analogous to those of the specific words.

And what we urged upon the First Circuit Court was that the phrase “treats contemptuously” is directed at the same type of act that the first three desecration words in the statute are directed at, namely acts that physically dishonor the flag or affect the physical integrity of the flag.

Do you and then I suppose you further argued that the appellee’s actions in this case did so?

Charles E. Chase:

Yes, Your Honor.

Why now?

Charles E. Chase:

We say that the act of affixing a flag to that part of the anatomy physically dishonors the flag in the common estimation of people in this country.

Well, this flag was sewn on his trousers.

What if it had been sewn on his lapel?

Charles E. Chase:

Your Honor, it would not be proscribed under the language of the statute.

Because of the common usage of flags in this country, because of what an individual would read or would see from that specific act.

If I saw you with a flag on your lapel, I wouldn’t think you we’re trying to treat the United States flag contemptuously.

I don’t see many people wearing something on the seat of their pants though when they intend to give honor or respect to it.

Well, we see some pretty odd costumes these days?

Charles E. Chase:

Certainly, yes, Your Honor.

But suppose you affixed it to the rear bumper of your car?

Charles E. Chase:

Your Honor again, I think that’s a fairly neutral act.

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Charles E. Chase:

At least the way your usage in costume has developed in this country.

The whole history of this country, you see so many war movies where the military vehicles have flags affixed to them to designate their country or origin and then you see in this country, a number of vehicles with flag decals and whatnot.

It’s common accepted usage.

In that act, you don’t hear people jumping up and down and saying, well that act is pulling out the flag to dishonor.

It is a fairly neutral act.

You can’t tell by that specific conduct what exactly the person intended or who has affixed the flag to the bumper or to the rear window or decal and whatnot.

I’ve seen bathing suits in flag.

What about that?

Charles E. Chase:

Well, Your Honor, I have not seen any bathing suit with a flag but I would think that if an entire American flag was on bathing suit, if it was on the posterior side as the facts are in this case, then it would be proscribe by the wearing of the statute.

Warren E. Burger:

I suppose there are quite a number of contemptuous acts as the term you used that may go unprosecuted?

Charles E. Chase:

Well, Your Honor I am not sure.

Warren E. Burger:

All the acts which may be subject to a particular statute are not necessarily the subject of a prosecution?

Charles E. Chase:

That’s true Your Honor and of course I haven’t seen any instances in Massachusetts where people have worn flags on the seat of their pants.

Anything having to do with the flag at least in the Greater Boston area gets reported as this case was rightly reported.

The First Circuit seems to make the point that they think a lot of conduct that may or may not be proscribed by the statute has sort of gone by the boards because people have been arrested and then the prosecution wouldn’t be pressed and the people’s rights are being infringed upon.

To the best of my knowledge, that is just a fortuitous conclusion.

Any conduct involving the flag receives wide publicity and —

Thurgood Marshall:

Do you go for that that five block area around that (Inaudible) Hotel in Boston?

Charles E. Chase:

I have been there Your Honor many times, yes.

Thurgood Marshall:

Have you ever seen any flags sewn on seats of pants?

Charles E. Chase:

No, Your Honor, as a matter of fact my office is a (Inaudible) which is the area for speech giving in whatnot and I haven’t seen any flag desecration at all.

Thurgood Marshall:

I guess I was there at the wrong the time.

Mr. Chase, your argument, I think leads up to what you call in your brief a description of the statute as protecting only the physical integrity of the flag?

Charles E. Chase:

Yes, Your Honor.

Do you have any Massachusetts cases even in lower courts which so describe the statute?

Charles E. Chase:

Your Honor, no I cannot point to any other authority other than what is already have been presented to the Court.

I believe I’ve given all of it to the best of my knowledge.

I would make reference though to a certain opinions of the Attorney Generals of Massachusetts over the years which indicate that we’re dealing with flag legislation and the only thing that the statute directs itself to, are actual flags, not symbols or emblems that might look like the flag or whatnot.

Additionally, I would point out to the Court that the term flag in the Massachusetts’ statute means flags in contradistinction to many of the other statutes that the courts have dealt with over the past few years.

Many flag statutes defined the flag to mean not only the actual flag but stars and stripes and hats or emblems or symbols or whatnot even the Federal flag statute gives a very broad definition of the word flag and —

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Incidentally, I noticed that the rescript opinion seems so light primarily on federal cases and cases in this Court.

Aren’t there any decisions on just doing the statute [Voice Overlap]?

Charles E. Chase:

As far as I know, Your Honor.

This is the first case dealing with the flag desecration words in the statute that does has arrived at the Supreme Judicial Court of Massachusetts., the only case.

Well, I just noticed of its opinion doesn’t cite any Massachusetts cases.

Charles E. Chase:

This is the only case I’m aware of Your Honor.

Well, are there any prosecutions under this statute?

Charles E. Chase:

Your Honor, I’m aware of none other than this one.

I don’t know of my brother.

But you suggested earlier there are number of arrests for violation of it?

Charles E. Chase:

Your Honor, I didn’t mean to confuse you.

The First Circuit suggested that and I believe it’s sort of fortuitous because —

You don’t know of any arrests?

Charles E. Chase:

I’m unaware of any Your Honor.

The most recent interpretation of the statute prior to this opinion is the opinion of the Attorney General Richardson in 1968 dealing with a painting where there was a swatch sticker in the place of the stars.

That’s the one that you have appended to your brief?

Charles E. Chase:

To the jurisdictional state, yes, Your Honor.

Yes, Mr. Richardson so appended.

Charles E. Chase:

Yes, Your Honor.

The First Circuit also spoke about First Amendment overbreadth.

As I recall the panel of the First Circuit contained no Massachusetts judge.

Charles E. Chase:

That’s true, Your Honor.

I would point out to the Court that the District Court Judge was a Massachusetts’ judge.

He was just then appointed to the Federal District Court and since going up to the First Circuit Court of Appeals.

Who is that?

Judge Campbell?

Charles E. Chase:

That’s right, Your Honor, yes.

I would think that that matter should be kept in mind relative to the exhaustion point that we made initially.

It seems to me that although we didn’t press exhaustion before Judge Campbell, we presented him with the entire state court record with the understanding as usual when we defend federal habeas corpus petitions that he would look to that state court record to make sure that the man is being pressed before him had been raised and decided in the Supreme Judicial Court of Massachusetts.

I guess that would be right that Judges Coffin and McEntee at least had a long experience dealing with Massachusetts problems, haven’t they?

Audio Transcription for Oral Argument – November 13, 1973 in Smith v. Goguen

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Charles E. Chase:

Massachusetts what, Your Honor?

Problems?

Charles E. Chase:

They certainly have and —

Well, Judge Hamley was from the Ninth Circuit but I thought the Judges Coffin and McEntee are not strangers to Massachusetts’ law.

But you have pointed out there is no Massachusetts case that you know of?

Charles E. Chase:

This is the only case we know.

So, they have no particular familiarity with the flag statute?

Charles E. Chase:

That’s right, Your Honor and I think the point that should be borne in mind is that the First Circuit Court didn’t look to any of the rescript opinion of the Supreme Judicial Court.

None at all, they didn’t speak about intent, they didn’t speak about the narrow definition of flag.

I would just like to say a few words about the First Circuit’s conclusions on First Amendment overbreadth.

The First Circuit said in so many words that all flag conduct is closely akin to pure speech very close in the opinion of the First Circuit.

I think that many courts would disagree with this.

If you start from that starting point though that all flag conduct is closely akin to pure speech.

It’s very difficult to come up with a valid state reasons as to why this legislation is not directed towards the First Amendment in conduct under the First Amendment.

It seems to me though that from the citations in Massachusetts’ opinion, Massachusetts’ opinion recognized two interests namely, the very diffused meaning of the United States flag for all American citizens.

It can’t be constricted and equated to a promotion of patriotism and loyalty as the First Circuit said.

It’s much broader than that.

It includes that but it’s so much broader for all Americans, the flag means so much to — we constrict and restrict the meaning of the flag just to that I think does deserve as to what the flag means for Americans.

Number two, as the opinion of the Supreme Judicial Court showed, they cited Halter, they cited Chaplinsky and they cited Sutherland v. DeWulf.

All of these opinions go to the question of a preservation of the public peace.

Now, I know this Court has said say in Cohen versus California that an undifferentiated fear of a disturbance is not enough to restrict First Amendment rights.

But I think when you think about the flag and when you think about the various states that have passed legislation in this area, I think the determination they have made is that flag desecration is the type of conduct that per se is likely to incite a breach of the peace and I think that though there is no evidence in the record before you that an immediate breach of the peace was going to occur, I don’t think that goes to defeat this interest.

I think a legislature can make a valid determination that certain types of conduct are so offensive to normal community standards that they’re very likely to create a breach of the peace and that in the interest of the welfare of the community, certain types of conduct can be proscribed such as flag desecration.

Thank you.

Warren E. Burger:

We’ll let you begin the first thing in the morning at 10 o’clock counsel.