Street v. New York, 1969, Flag-burning and Freedom of Speech (Fighting Words)

MR. JUSTICE HARLAN delivered the opinion of the Court.

Appellant Street has been convicted in the New York courts of violating former 1425, subd. 16, par. d, of the New York Penal Law, which makes it a misdemeanor [p*578] "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]." [n1] He was given a suspended sentence. We must decide whether, in light of all the circumstances, that conviction denied to him rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254 , 269 , 271 , 271-277 (1964).

According to evidence given at trial, the events which led to the conviction were these. Appellant testified that, during the afternoon of June 6, 1966, he was listening to the radio in his Brooklyn apartment. He heard a news report that civil rights leader James Meredith had been shot by a sniper in Mississippi. Saying to himself, "They didn't protect him," appellant, himself a Negro, took from his drawer a neatly folded, 48-star American flag which he formerly had displayed on national holidays. Appellant left his apartment and carried the still-folded flag to the nearby intersection of St. James Place and Lafayette Avenue. Appellant stood on the northeast corner of the intersection, lit the flag with a match, and dropped the flag on the pavement when it began to burn.

Soon thereafter, a police officer halted his patrol car and found the burning flag. The officer testified that he then crossed to the northwest corner of the intersection, where he found appellant "talking out loud" to a small group of persons. The officer estimated that there were some 30 persons on the corner near the flag and five to 10 on the corner with appellant. The officer testified that as he approached within 10 or 15 feet of [p*579] appellant, he heard appellant say, "We don't need no damn flag," and that, when he asked appellant whether he had burned the flag, appellant replied: "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag." Appellant admitted making the latter response, but he denied that he said anything else, and asserted that he always had remained on the corner with the flag.

Later the same day, appellant was charged, by an information sworn to before a judge of the New York City Criminal Court, with having committed

the crime of Malicious Mischief in that [he] did willfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law, under the following circumstances: . . . [he] did willfully and unlawfully set fire to an American Flag and shout, "If they did that to Meredith, We don't need an American Flag."

Appellant was tried before another Criminal Court judge, sitting without a jury, and was convicted of malicious mischief in violation of 1425, subd. 16, par. & 2. [n2] He was subsequently given a suspended sentence. The Appellate Term, Second Department, affirmed without opinion. Leave was granted to appeal to the New York Court of Appeals, and, after plenary consideration, that court unanimously affirmed. 20 N.Y.2d 231, 229 N.E.2d 187 (1967). We noted probable jurisdiction. 392 U.S. 923 (1968). [n3] [p*580]

Street argues that his conviction was unconstitutional for three different reasons. First, he claims that 1425, subd. 16, par. d, is overbroad, both on its face and as applied, because the section makes it a crime "publicly [to] defy . . . or cast contempt upon [an American flag] by words. . . ." (Emphasis added.) Second, he contends that 1425, subd. 16, par. d, is vague and imprecise because it does not clearly define the conduct which it forbids. Third, he asserts that New York may not constitutionally [p*581] punish one who publicly destroys or damages an American flag as a means of protest, because such an act constitutes expression protected by the Fourteenth Amendment. We deem it unnecessary to consider the latter two arguments, for we hold that 1425, subd. 16, par. d, was unconstitutionally applied in appellant's case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. In taking this course, we resist the pulls to decide the constitutional issues involved in this case on a broader basis than the record before us imperatively requires.

Though our conclusion is a narrow one, it requires pursuit of four lines of inquiry: (1) whether the constitutionality of the "words" part of the statute was passed upon by the New York Court of Appeals; (2) whether, if appellant's conviction may have rested in whole or in part on his utterances and if the statute as thus applied is unconstitutional, these factors in themselves require reversal; (3) whether Street's words may, in fact, have counted independently in his conviction, and (4) whether the "words" provision of the statute, as presented by this case, is unconstitutional.


The New York Court of Appeals did not mention in its opinion the constitutionality of the "words" part of 1425, subd. 16, par. d. [n4] Hence, in order to vindicate our jurisdiction to deal with this particular issue, we must inquire whether that question was presented to the New York courts in such a manner that it was necessarily decided by the New York Court of Appeals when it affirmed [p*582] appellant's conviction. If the question was not so presented, then we have no power to consider it. See 28 U.S.C. 1257(2), 1257(3); Bailey v. Anderson, 326 U.S. 203, 206-207 (1945). Moreover, this Court has stated that, when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. See, e.g., Bailey v. Anderson, supra; Chicago, I. & L. R. Co. v. McGuire, 196 U.S. 128, 131-133 (1905).

In this case, any want of presentation by the appellant must have occurred at the trial level, for there appears to be no doubt that the issue of the constitutionality of the "words" part of the statute was raised in appellant's briefs in both the Appellate Term and the Court of Appeals, and the State does not suggest the contrary. In the trial court, appellant's counsel raised the constitutional issues by means of the following motion:

Before we plead to this case, I would like to make a motion to dismiss the information upon the ground it does not state facts to constitute a crime on the following grounds: the defendant was engaged in a constitutionally protected activity, to-wit, freedom of speech. The allegation simply says that the defendant did willfully and unlawfully set fire to an American flag, and did say: "If they did that to Meredith we don't need an American flag." Under the first amendment of the Constitution of the United States and under the New York State constitution on freedom of speech, they provide for protest in many forms, whether it be by burning a flag, demonstration or picketing. This is a form of demonstration and protest. [p*583]

The motion was denied. It was renewed at the end of the State's case and at the end of the trial, and on both occasions was again denied.

The issue whether a federal question was sufficiently and properly raised in the state courts is itself ultimately a federal question, as to which this Court is not bound by the decision of the state courts. [n5] However, it is not entirely clear whether, in such cases, the scope of our review is limited to determining whether the state court has "bypassed the federal right under forms of local procedure" or whether we should decide the matter "de novo for ourselves." Ellis v. Dixon, 349 U.S. 458, 463 (1955). In either event, we think appellant has met the burden of showing that the issue of the constitutionality of the "words" part of 1425, subd. 16, par. d, was adequately raised in the state trial court. The motion quoted above explicitly referred to appellant's words. Appellant's counsel termed appellant's overall activity a "demonstration" or "protest," terms which encompass words as well as conduct. Indeed, if appellant's intention was to protest alleged governmental inaction in connection with the shooting of James Meredith, his words were an essential element, for, without them, no one would have known the object of his protest.

To the extent that the matter is governed by New York law, we have found no New York statutes or decisions which require that an issue be raised in the trial court with greater specificity than occurred here. In fact, in People v. McLucas, 15 N.Y.2d 167, 172, 204 N.E.2d 846, 848 (1965), the New York Court of Appeals held that, when an appellant claims "deprivation of a fundamental [p*584] constitutional right" New York appellate courts may review the correctness of a jury charge even though the appellant failed to except to the charge in the trial court. The Court of Appeals reached this result despite the fact that 42a of the New York Code of Criminal Procedure then required that an exception be taken "expressly" if the issue of the correctness of a jury charge was to be preserved for appellate review. In the present case, the right asserted by appellant was surely "fundamental," and, under New York law, a less precise objection was required than to a Jury instruction. [n6]

Insofar as the question of sufficient presentation is one for our independent decision, the controlling principle was set forth in the leading case of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928):

There are various ways in which the validity of a state statute may be drawn in question on the ground that it is repugnant to the Constitution of the United States. No particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented.

(Footnote omitted.) We think this requirement was satisfied by appellant's previously quoted motion in the trial court and [p*585] his raising of the issue in the two appellate courts. [n7] We therefore conclude that the question is properly before us.