Smith v. Goguen – Oral Argument – November 13, 1973

Media for Smith v. Goguen

Audio Transcription for Opinion Announcement – March 25, 1974 in Smith v. Goguen
Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Warren E. Burger:

We will resume arguments in number 1254.

Mr. Chase.

Evan T. Lawson:

Mr. Chief Justice and may it please the Court.

My name is Evan Lawson and I represent the appellee in this case.

Warren E. Burger:

Excuse me Mr. Lawson, our order is on the order list sequence of yesterday.

Evan T. Lawson:

At the close of argument yesterday, I was considering some of the questions that the Court had asked my brother Mr. Chase.

I felt that they justified some immediate answers from me because I have more personal knowledge of the case than he does.

A question was raised as to what is a vexillologist.

A vexillologist is a flag historian.

The particular gentleman who was involved in this case, Mr. Whitney Smith is the Secretary-General of the International Federation of Vexillology and he has written the definitive book on the subject of flags and their history.

A best seller?

Evan T. Lawson:

I don’t think it’s a best seller but he did also write the section on flags in all of the encyclopedias which are published in this country.

His purpose in testifying was really twofold.

Number one, his testimony was directed to whether the flag involved in this case conformed to the official standards and although the record indicates that he testified that it did conform to the official standards.

That’s actually a misprint.

In fact, he testified that it did not conform to the official standards.

What is the size?

Evan T. Lawson:

Well, the proportions, there were no official standards regulating a given size, four by six, three by five.

That is not what’s denoted by an official flag.

The proportions however, the relation of the height to the width and the size in relative proportion of the stripes and the field with the stars go, are all regulated by a Federal Executive Order pursuant to statute, federal statute.

Under that order, you can have a flag of any size just long as the proportions are confirmed to the terms of the order.

Evan T. Lawson:

That’s correct.

That’s correct and this flag in this case did not conform to those proportions.

Secondly —

Well, do you say that forbids the state from making a criminal act that out of flag discretion as long as the State identifies the flag in —

Evan T. Lawson:

I am not saying that.

However, I think that the State should to avoid vagueness specify whether it is referring to, in fact the flag as defined officially or whether it’s referring to any representation that could look like a flag.

Some statutes and some states refer only to representations.

Other statutes do not indicate whether they apply to — strictly the flag or just the stars and stripes design and —

Of course in this case, we don’t know what the proportions were because it was either three by five or four by six and those are different —

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

That’s correct.

— proportions.

Evan T. Lawson:

However, at the trial — at the trial Mr. Smith testified that he was familiar with the type of flag that the defendant was supposed to have been wearing.

In other words, a small commercially produced cloth flag and he testified that those flags that he was a consultant to the firms which produce those flags and those flags do not conform to the Executive Order.

Did it appear whether Goguen himself sewed this flag —

Evan T. Lawson:

It did not appear.

— that is seen in his pants or was manufactured pants with a flag on it?

Evan T. Lawson:

The record was silent.

The pants were not, I can state from my own knowledge, manufactured that way but the record is silent as to whether he sewed them or not.

And in fact, that’s something that I wish to bring up at a later time but now that you have mentioned it.

My brother has argued rather strenuously that this statute applies to the physical integrity, protecting the physical integrity of the flag.

I think that making that argument really highlights the vagueness in this case because it seems to me, at least, that there is no possible justification for saying on the record in this case that this defendant affected the physical integrity of the flag by doing what he did which was merely displaying it.

If in fact you assume that he himself sewed it, there is a question as to whether he sewed it publicly.

There is no evidence of that which is also an element of the statute.

If we treat this as a continuing offense so that he’s sewing and then he’s displaying in some way constitutes a public sewing, even in that, by that stretch of the imagination, now the question of whether sewing something onto a larger piece of cloth, let’s say affects it’s physical integrity and is certainly, seriously open to question.

I would strongly argue that it does not further —

Mr. Lawson, does any part of your presentation here depend on what you described as this misprint in the record because I can imagine some problem?

I gather your opposition counsel wasn’t present at the trial and —

Evan T. Lawson:

That’s correct.

— oh, that there maybe some problems as to any sort of a stipulation or anything like that.

Evan T. Lawson:

I don’t think that anything that I have to say this morning really hinges on that misprint on the record. I’d only point out that my brief is — my brief in the state court is reproduced in the record and in that brief, there is a section dealing with the official flag.

I believe it’s page 25 of the appendix and in the brief we do refer to the testimony as saying that it did not conform to the official standards with this citation to the bill of exceptions.

Warren E. Burger:

Well, to the extent it’s important.

We must take the record as it comes here.

Evan T. Lawson:

I agree.

Warren E. Burger:

Thus, there are ways that you could have corrected that.

Evan T. Lawson:

I agree and I think that this is really a matter of very small importance to my argument.

Second question that was asked was whether there were any prosecutions in Massachusetts under the statue other than this one and my brother was not aware of any.

I’m personally aware of at least five.

I represented two other individuals who were prosecuted under the statute for displaying flags on various portions of their anatomy; a young woman who had her flag displayed on seat of her pants and a young man who had a flag displayed in a crouch area of his pants.

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

I further represented an individual who was charged with flag burning which is really distinguishable from this case and I am aware of a prosecution of an individual for displaying a flag upside down on a back of a jacket in Massachusetts.

I am also aware of another flag burning prosecution in Massachusetts.

So that this is by far not the only prosecution and they have actually been enough to raise some significance.

Has the respondent served any part of that six months sentence?

Evan T. Lawson:

He served about 13 or 14 days of that sentence.

And of course, one of the issues here is whether someone who does what this respondent did should be sentenced to six months in prison.

I mentioned this not merely to generate some sympathy for the respondent but also to point out that that in the area of First Amendment rights, there is the rubric of the chilling effect and certainly the widely publicized imprisonment or sentence in this case of six months is clearly a chilling effect to be had.

But those other prosecutions result in convictions and secondly, if so, is there any record of them in any printed court opinions?

Evan T. Lawson:

First of all, I can answer the second question first.

There is no record of them in any printed court opinions.

The girl who I represented who had a flag on the seat of her pants wrote an essay on what the flag means and received a lecture from the judge and had her case as a procedure in Massachusetts Court continuing without a finding.

She had a case continued for six months without a finding and after that it was dismissed.

The young man who was wearing a flag upside-down on his jacket was fined in the District Court and appealed that to Massachusetts Superior Court for jury trial and that case is still pending.

I don’t know the outcome of that case.

In one of the flag burning cases which as I say I think I am really not factually on point with this case.

The defendant who was a high school student was sentenced to I think three months in the Massachusetts District Court.

On appeal to the Superior Court, the Superior Court Judge agreed to continue her case without a finding provided that she would walk from Harvard Square, I think to downtown Boston carrying an American flag and she did that and that was how that case was disposed off.

So that some of these cases have been disposed off in non-criminal ways.

One case that I’m aware of, the District Court Judge which is the lowest court in Massachusetts ruled that the statute was unconstitutional.

But this was before the state court had ruled in the Goguen case and I presume that his ruling is not imported anywhere.

Tell me, what’s the significance as precedent in Massachusetts practice of a rescript opinion?

Evan T. Lawson:

It is as good precedent as any opinion.

As I say it’s closely akin to — as Mr. Chase said, closely akin to a per curiam opinion in this Court and this rescript is rather, at least in my experience, is rather strange rescript and that it says a little bit more than the ordinary rescript does.

But it says a lot less than of course an opinion which is carefully laid out.

Was that opinion rendered after in all argument?

Evan T. Lawson:

Yes, it was.

It was rendered after all argument and I might say now that my brother has said that we cannot raise the question of Fourteenth Amendment vagueness here because it wasn’t presented to the state court and asked you to conduct what appears to me to be an essay contest where you grade our briefs and determine whether they’re acceptable as good legal writing.

However, in his answer in the Federal District Court below, he admitted that we’d raised the issue and had he not admitted it, had he raised the question of the Fourteenth Amendment vagueness being exhausted in the state court.

I might have been in the position to introduce some testimony and some evidence on whether this matter was in fact discussed in oral argument.

Of course, that’s on the assumption that you raised before Judge Campbell in the District Court, the same things that the First Circuit ultimately went off.

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

That’s correct and I think that we did.

I think if you look at the petition, we raised both vagueness in the Fourteenth Amendment sense of lack of fair notice and we specifically used the phrase made it impossible for law enforcement officers to enforce the statute fairly and we also raised overbreadth in the First Amendment sense.

Mr. Lawson, you mentioned having tried a couple of flag burning cases, you said they were different factually, obviously they are.

If you had a flag burning case here this morning, would you be making the same arguments, one as to vagueness and two as to the First Amendment that you make in your briefs?

Evan T. Lawson:

Well, I don’t think I can make the flag burning argument as to vagueness because the statute does in fact specifically say that you may not burn a flag in Massachusetts.

I would be making the same overbreadth argument.

The difference would be in the analysis of the overbreadth argument from the point of view of what is this legitimate state interest if any in passing this kind of legislation.

Certainly, if this Court found a legitimate state interest in protecting the physical integrity of the flag, that interest would be served by statute prohibiting flag burning.

But would not be served by prosecution and conviction in the case at Bar where there was no conduct affecting the physical integrity of the flag.

You’re saying that maybe a different state interest in a flag burning case from that in this case?

Evan T. Lawson:

From that, that’s correct.

Form my point of view, there is no different interest.

I would urge upon the Court that the state has no interest in protecting flag per se.

However, I can see that cases should be litigated in the context in which they arise and that therefore either that this Court could say for example there maybe a state interest in protecting physical integrity but it’s necessary — it’s not necessary to decide that in this case.

But your view is that the state has no legitimate interest in protecting a flag from physical or other desecration in anyway whatsoever?

Evan T. Lawson:

That’s correct and as long as the point is, I will try to develop that argument.

I think that the question —

We’re assuming, we’re assuming during all of this that the flag is — not somebody, it doesn’t belong to somebody else.

Evan T. Lawson:

That’s correct.

It belongs to the individual himself.

Obviously, statute which prohibited burning or destroying someone else’s property —

A big property or somebody else’s property?

Evan T. Lawson:

It would be perfectly constitutional and that there will be no argument whatsoever that one could destroy public property or someone else’s property in the interest of free speech.

I think the analysis really begins with this Court’s decision in Broadrick.

In Broadrick which was discussing First Amendment standing.

The Court talked about how First Amendment protection becomes attenuated as the fact situation moves along that continuum from the spoken and printed word, to over a conduct which may be otherwise harmful.

At one end of a spectrum, you’d have a speech and at the other end of the spectrum, you’d had a political assassination.

Both of which are arguable communicative, the speech is clearly protected.

The political assassination is clearly unprotected. We argue that the conduct in this case is so closely akin to pure speech under prior decisions of this Court and under the Broadrick analysis that you don’t apply symbolic speech test such as the O’Brien test here.

You apply a direct spoken word test and my precedent for that would be for example in the Stromberg case displaying a red flag and the Tinker case wearing a black armband, in the Barnette case refusing to salute the flag.

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

All of those cases involved conduct which is otherwise totally harmless.

In the words of Barnette, no rights of any other individuals were infringed upon by the conduct of the appellee and therefore this case should be treated strictly as a free speech case and not as the case involving symbolic speech or conduct.

Even if you were to treat this as a symbolic speech case and apply the O’Brien test.

I would urge that this statute and the facts in this case both on their face and as applied to this appellee fail the O’Brien test miserably and one area of O’Brien test which was the track that I was on was the question of whether there is a legitimate state interest in protecting the physical integrity of the flag.

I can think of but three state interests which you could postulate in protecting the physical integrity of the flag.

One would be to protect against breaches of the peace.

Clearly this statute is not narrowly drawn enough to do that and secondly, it’s very clear that on the facts of this case, there was no breach of the peace eminent or otherwise.

A second state interest might be to protect —

The facts of this case such as we have them in a very fragmentary and skimpy way?

Evan T. Lawson:

Yes.

I agree to —

When he indicates that he was with the group, was there some sort of demonstration or another?

Evan T. Lawson:

I think I can amplify on that.

There was no general demonstration.

There was a normal group of people on the street and when the policeman began questioning Goguen who was talking to this group of people.

The people in the group started laughing.

But this was not a demonstration by anyone other than Goguen.

We contend however that this very clearly was a demonstration of one.

And that Goguen himself was expressing opinion.

Was this so called group, just the strangers who are ordinarily on the street or where they —

Evan T. Lawson:

Well, and that — I think I can amplify in —

— self-appointed group?

Evan T. Lawson:

I think I can amplify in the record and say that Goguen got out, left his house, walked down town and met some friends of his standing around the street corner and basically that was the group that was involved in this case.

But the fact of the matter is that Goguen is still engaging an expressive conduct here.

What was going on, when the officer?

Evan T. Lawson:

Well, when the officer arrived Goguen was standing talking to a group of people.

That is just the casual conversation?

Evan T. Lawson:

As far as I know that it was just a casual conversation.

And that this is something akin to the situation where one of us might place a political bumper sticker on our car for the purpose of expressing some political —

And this wasn’t in the context of the Vietnam War protesters, something like that?

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

Not in the context, not in the limited factual context of the group.

However in the context of the times, one can certainly infer that this was at the height of the protest movement.

Well, are we to suppose that the officer then simply took exception to the fact that the flag was on the seat of the pants?

Evan T. Lawson:

No.

I think not only did the officer take exception to the fact that the flag was on the seat of Goguen’s pants but Goguen obviously conveyed to the officer a powerful feeling of contempt for the flag and in fact, in the facts of this case, there is necessarily a finding by the jury in order to convict Goguen that he was expressing contempt for the flag.

Merely by wearing it or because of something he was saying?

Evan T. Lawson:

By the way he was displaying.

I see.

Evan T. Lawson:

Now this is very much —

Thurgood Marshall:

Well, what was he trying to express?

Evan T. Lawson:

Well, I don’t think that I can precisely define what he was trying to express.

Thurgood Marshall:

Well, certainly there is nothing the record.

Evan T. Lawson:

There is nothing in the record.

That’s correct and there was a good reason for that at the time which doesn’t appear in the record.

Did he testify?

Evan T. Lawson:

He did not testify on my advice.

In any event, what he was trying to express cannot be precisely defined.

I will grant you however —

Thurgood Marshall:

(Inaudible) and there is nothing in the record to show it.

I don’t think you can show it.

Evan T. Lawson:

Well, I think I can show it from what he did.

First of all there is a finding on the part of the jury that he expressed contempt for the flag and this Court had said in Street, that that kind of an expression is constitutionally protected.

Precise expression has never been prerequisite for First Amendment protection.

I would for example refer you to the Papish case which was decided by this Court in March.

In the Papish case, the defendant was displaying a cartoon which showed — and among other things, she was displaying a cartoon which showed the police officer raping the Statue of Liberty.

Thurgood Marshall:

But I thought in the Street case we had a whole record of a full trial?

Evan T. Lawson:

I don’t believe you had a record of the full trial but you certainly had the words of Street which we use in that case.

That’s right —

Evan T. Lawson:

That’s true but what I’m urging upon you is that when you communicate not through words but through the use of symbols.

A black armband for example can be ambiguous.

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

A red flag can be ambiguous.

Warren E. Burger:

But there is no statute about black armbands, is there?

Evan T. Lawson:

No but in the Tinker case, there was a school regulation forbidding the display for black armband.

In the Stromberg case, there was a statute forbidding the display of a red flag and in the Goguen case there was statute forbidding the display of contemptuous feelings about the flag.

So that in each case, there is a proscription, an official proscription against the particular symbolic form of expression which the actor is trying to use.

Are you saying that in the Tinker case, there was a specific school regulation against the wearing of armband?

Evan T. Lawson:

I don’t believe that it was a specific school regulation against the wearing of armbands, it was a specific school regulation against engaging in certain kinds of conduct which was deemed to be harmful and the school authorities then interpreted the wearing of the black armbands as being harmful.

Well, apparently I misunderstood your former statement.

Evan T. Lawson:

I apologize if I misstated it.

In the Papish case, this cartoon which shows the police officer raping the Statue of Liberty could certainly be subjected to varied interpretations.

It could mean for example, it could be anti-police.

It could be anti-law enforcement generally.

It could be anti-America and the fact that the cartoon is susceptible of many interpretations did not, in the Papish case relieve it of constitutional protection.

Similarly, I’d urge that varied forms of display of the flag which express contempt.

Similarly are protected even though you can’t precisely define what the particular actor is saying.

A classic example is poetry.

If each of us read a poem, we might derive a different meaning from the words of the poem.

In that sense, the poem is as ambiguous as Goguen’s conduct here but no one would argue that that a poem isn’t constitutionally protected or words to a song.

I’d like to get back to the State’s interest in prosecuting Goguen.

Before you do, you’ve talked a couple of times about the Papish case.

Evan T. Lawson:

It’s not cited in our brief.

And I’m not familiar with it, do you have a citation?

Evan T. Lawson:

Yes, I do.

It was decided in March of 1973.

I have a citation to the Supreme Court reported which is —

Part of Branzburg?

Evan T. Lawson:

Excuse me?

It wasn’t with Branzburg?

Evan T. Lawson:

I don’t think [Voice Overlap].

I don’t think you meant that Missouri, do you?

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

This is Papish versus Board of Curators of Missouri and its 93 Supreme Court 1197.

Papish v. who?

Evan T. Lawson:

The Board of Curators of the University if Missouri.

1197?

Evan T. Lawson:

That’s correct.

And it came from — by the District Court?

The three-judge District Court?

Evan T. Lawson:

Yes, it did.

It was a — well it came from the Court of Appeals.

It was a case involving an expulsion and suit brought to reinstate.

Do you have the Court of Appeals citation?

Evan T. Lawson:

464 Fed. 2d 136.

Thank you.

Evan T. Lawson:

The state interest which I would like to discuss is —

1993 Supreme Court 1197.

Evan T. Lawson:

— is the States interest in protecting the flag in and off itself as some sort of a symbol.

Besides the fact that that the symbolic significance of the flag has been recognized certainly by this Court in Halter and in Barnette, the Court also has recognized that the state has no interest.

The Government has no interest in protecting that symbolic significance from use by citizens.

Barnette expressly I think said that.

Street certainly said that.

Chief Judge Lumbard in the Cahn case also examined a hypothetical state interest in protecting the flag as a symbol and found that there was no state interest and of course Judge Coffin in this case arrived at a similar result.

Which was Judge Lumbard’s case?

Evan T. Lawson:

Long Island Moratorium — in Long Island Vietnam Moratorium Committee versus Cahn.

Now in arriving at that result —

Are the proceedings of the trial at large here the evidence, the transcript to the testimony?

Evan T. Lawson:

There is no transcript to testimony because none was presented to the Supreme Judicial Court of Massachusetts.

In Massachusetts this appeal was pursuant to a bill of exceptions which set forth a summary of the testimony.

Are there proceedings in the Supreme Judicial Court here?

Evan T. Lawson:

There are no proceedings.

I mean any record? Is there record involved?

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

There is no record of the proceedings.

They have only the opinion of the Court, the rescript opinion of the Court.

So the District Court here didn’t have that record before it?

Evan T. Lawson:

It had no record before of what it transpired, either in the Supreme Judicial Court or in the State Superior Court where the jury trial took place.

William H. Rehnquist:

But the Supreme Judicial Court of Massachusetts only had a bill of exceptions.

Evan T. Lawson:

That’s correct.

William H. Rehnquist:

It didn’t have a more complete record than the District Court.

Evan T. Lawson:

That’s correct.

It had nothing — it had nothing more than the bill of exceptions.

Well, the bill of exceptions is summarized the testimony though.

Evan T. Lawson:

That’s correct.

And the District Court didn’t have that report.

Evan T. Lawson:

Yes.

It didn’t have the bill of exceptions report.

That’s what I want, that’s what I asked.

Is the bill of exceptions filed here?

Evan T. Lawson:

Yes.

The bill of exceptions is a part of the appendix here and was before the United States District Court in this case and the Court of Appeals for that matter.

I see my time is almost up.

One thing that I would suggest to you is that if there is an interest in protecting the flag in and of itself.

That interest is subjected to almost limitless extension.

If you’re going to protect the flag, why not protect the State Seal as well or the Federal Seal?

Why not protect the National Anthem as in fact Michigan has a statute which prohibits playing the national anthem or — and other than the normal notes or the prescribed notes.

Warren E. Burger:

There are some statutes prohibiting I think the use of the certain seals for commercial purposes for example, would you regard that an impingement of First Amendment?

Evan T. Lawson:

No.

we don’t — I don’t quarrel with that at all in slight.

Warren E. Burger:

Is that because it’s a commercial, a restraint on commercial use?

Evan T. Lawson:

Well, I would say that that is the reason.

I think the rationale behind that reason is that they could — there is a finding that it’s harmful to have this symbol used for commercial purposes.

Warren E. Burger:

But you think that’s all right?

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Evan T. Lawson:

I think that that’s all right and I think under the rational or under the Broadrick analysis for example, there is no problem in differentiating between the two because as in here and Broadrick and Street and Stromberg and Tinker.

The conduct is harmless.

It’s passive.

It doesn’t impinge on the rights of anyone else.

When you’re talking about using the flag or using the state seal for commercial purposes or using it perhaps reproducing it for purposes of counterfeiting or something of that sort then the conduct moves from the area of being harmless into the area of being harmful and state does have an interest certainly in regulating harmful conduct even if they’re arguably speech elements involved.

Warren E. Burger:

Well, that and what you’re telling us really is there is no harm in wearing the flag on the seat of your (Inaudible) but there is harm in having seal of the United States used in a commercial enterprise.

Let’s say on a pawnshop —

Evan T. Lawson:

That’s correct and the reason which the —

Warren E. Burger:

— start selling girly magazines?

Evan T. Lawson:

That is correct and I think the reason for it, is that a passerby seeing the state seal could be misled for example on to thinking that that whatever the product was, was federally approved or federally sanctioned and then that would be — could be harmful.

Warren E. Burger:

Well, that’s the only harm you see in it.

It isn’t the matter of the contempt development?

Evan T. Lawson:

No, I don’t see.

I don’t think that from the point of view —

Warren E. Burger:

For denigration.

There is no denigration factor in your mind in that analysis?

Evan T. Lawson:

No, there is none.

I would agree with that.

I don’t think that consistent with the First Amendment and consistent with the history of this country that one can say that that is constitutionally permissible to punish denigration.

The whole idea, a flag desecration implies that there is some — there is some mistake or sacred power connected with the flag and historically of course, it was only at the turn of this century that there was any legislation at all passed regulating conduct relating to the flag.

England in a thousand years of history has never regulated conduct concerning its flag.

So that our tradition, our democratic tradition I think shies away from that.

Thank you.

Warren E. Burger:

Thank you, Mr. Lawson.

You have few minutes left Mr. Chase.

Do you have anything further?

Charles E. Chase:

Yes, Your Honor.

May it please the Court.

I would just like to address myself to a few points brought out by my brother during his argument.

One point he made was the question of whether or not the activity involved in this case amounts to an attack on the physical integrity of the flag and it takes exception with that phrase physical integrity.

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Why?

Charles E. Chase:

That is the phrase I basically used in my brief but it is not a sacrosanct phrase, it doesn’t exhaust the state interest.

I would just cite this Court to the opinion of Hoffman versus United States 445 Fed. 2d 226 where they spoke about conduct that physically dishonors the flag and I think probably that that phrase physically dishonor is more the aspect of this particular case.

There was a dishonoring of the flag and it was a physical dishonoring of the flag because of affixing of the flag to the posterior anatomy of this particular individual.

Well, General Chase just so I can declare — tell me if I’m wrong.

As I understood, the provisions of Section 5, under which Mr. Goguen was convicted, were these, whoever publicly treats contemptuously the flag of the United States, wasn’t that it?

Charles E. Chase:

Yes, Your Honor.

Not physically dishonor or physically?

Charles E. Chase:

Well, Your Honor we would urge the —

That was a statutory language?

Charles E. Chase:

And that was the phrasing in the complaint.

Yes, Your Honor.

Treat contemptuously.

Publicly treats contemptuously the flag of the United States.

Charles E. Chase:

We would as a — yes, they urge upon this Court.

We accepted principle of statutory interpretation which is one been recognized in Massachusetts that when specific words and more general words are associated with each other in a statute.

The more general words take on the color and connotation of the more specific and are in that sense.

We streak it to the meaning of the more specific words.

You are in Supreme Court didn’t rely on that, did it?

Charles E. Chase:

No, Your Honor but that is an accepted principle of statutory construction in Massachusetts and there are four or five cases in our brief showing that principle in operation.

I cannot deny that they didn’t mention that principle but I think it’s clear that the phrase “treats contemptuously” is directed at acts of the same type, the same nature namely acts —

Such as mutilate, trample upon, defaces.

Charles E. Chase:

Yes, Your Honor.

I believe all three of those first phrases are directed towards physical acts, acts that affect the physical integrity of the flag.

My brother also made mention of the fact that the sentence in this case would have a chilling effect upon First Amendment rights.

But a chilling effect on what?

The conviction here hasn’t outlawed the use of the flag in any manner of means.

It has said that facts that desecrate the flag will be punished but there are many other acts that protesters, if they want to use the flag, they can use the flag and also it’s a demonstration.

They are just supposed to not desecrate that flag.

They can speak all man of violating contemptuous opinions about it as the Supreme Judicial Court noted in this rescript opinion.

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Charles E. Chase:

It cited the Street opinion and said he was not prosecuted for words.

It took note that words no matter how contemptuous about the flag are not prosecutable.

But the physical desecration, what you say the statute is complying to has to be a desecration that publicly cast contempt on the flag, doesn’t it?

Charles E. Chase:

Yes, Your Honor.

So that he is still — it’s still involved in the statute is a communication process?

Charles E. Chase:

Well, Your Honor —

Communication process, the desecration has to be contemptuous of the flag, is that right?

Charles E. Chase:

Yes, Your Honor but as I point out in my brief, there were certain acts of which the conduct is so egregious saying you do not have to go into any surrounding circumstances at all for man of common intelligence to agree that this —

In this case, did the instruction of the jury in this case say that the defendant had that, the jury has to find that defendant intended to cast —

Charles E. Chase:

I believe it did Your Honor —

They have intended to cast contempt on the flag.

Charles E. Chase:

They had to find an intent on the part of the defendant to treat the flag contemptuously.

And at the end that he did it?

Charles E. Chase:

Yes, Your Honor.

That’s my understanding of the rescript opinion and my understanding of the rescript is that the Supreme Judicial Court will require the prosecution to prove intent and any —

You just don’t have it and you don’t have an urge, no extent record of the instruction of this case?

Charles E. Chase:

No, Your Honor, you have the entire record before you including the briefs that were presented to the Supreme Judicial Court.

Well, I notice that apparently the defendant files certain request for instructions including at least three and four were denied so something less that the defendant requested I gather.

Charles E. Chase:

You may have what was before the Supreme Judicial Court Your Honor.

I’m not entirely sure of everything that was before the Massachusetts Trial Court.

William H. Rehnquist:

What rule does the Supreme Judicial Court of Massachusetts follow where you appeal on the bill of exceptions?

Are you permitted to challenge the giving or refusal to give an instruction?

Charles E. Chase:

Anything that is contained in the bill of exceptions.

Anything that the defendant saves for argument on appeal.

In other words, I believe my brother did say the fact that two instructions were refused at the trial but I believe he said those to be argued before the Supreme Court.

William H. Rehnquist:

But how can the Supreme Judicial Court of Massachusetts pass on that without knowing what other instructions were given because frequently a trial judge’s refusal to give an instruction may be based on the fact he thinks, it’s covered in another instruction.

Charles E. Chase:

Well, Your Honor, I don’t know but the only thing I can say is this.

That the Supreme Judicial Court is bound by the bill of exceptions, they cannot go beyond that and it is up to the parties in the court below to make sure that everything is relevant, it gets into the amended bill of exceptions or bill of exceptions.

Warren E. Burger:

And that would mean that the prosecution in this case would have had burden of showing what instructions were given if they were resting on the proposition that the rejected instructions were redundant as Mr. Justice Rehnquist suggested.

Charles E. Chase:

Yes, Your Honor but —

Audio Transcription for Oral Argument – November 12, 1973 in Smith v. Goguen

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Warren E. Burger:

Are you sure you want to answer yes to that?

If you have got an appellant that’s trying to show the instruction was erroneously refused.

Might it not be up to him to show not only the instruction was refused but that it was not covered by other instructions?

Charles E. Chase:

Well, Your Honor I would just say this, for my knowledge of how Court Appeals are taken in Massachusetts that the losing party has the burden of putting the material in the record that is going up on the bill of exceptions.

The prosecution has no burden to compile that bill of exceptions.

The losing party does and then they get together and confer with the trial judge and there is an agreement as to whether or not everything in the bill of exceptions should be there.

And it’s generally worked out by agreement with the trial judge in both sides but it’s the losing party who has the initial burden of going forward to compile the bill of exceptions.

I see that my time is up.

I want to thank the Court.

Warren E. Burger:

Just one more question, General Chase.

I might take it that your argument is in part at least that whatever communication was involved here in the acts of the respondent, it was communication by conduct?

Charles E. Chase:

Certainly, Your Honor.

That is the basis of my argument.

I think it seems there is quite clear that whatever communication was involved could have come through much more clearly with some words which would not have been prosecuted.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.