I dissent from the reversal of this judgment not only because the Court in my opinion has strained to bring this trial within Stromberg v. California, 283 U.S. 359 [p*595] (1931), but, more particularly, because it has declined to meet and resolve the basic question presented in the case. That question has been variously stated by the New York Court of Appeals and the parties. The court below employed the following statement of the question:
We are called upon to decide whether the deliberate act of burning an American flag in public as a "protest" may be punished as a crime. [n1]
Appellant tells us that the issue presented is:
May New York State constitutionally impose penal sanctions upon an individual charged with destroying or damaging an American flag in an attempt to dramatize his concern with social conditions existing in the country? [n2]
New York's statement of the issue is identical:
May the State of New York constitutionally impose penal sanctions upon one who is charged with publicly and deliberately desecrating an American flag as a means of dramatizing his dissatisfaction with social conditions existing within our Country? [n3]
Any distinctions between the above questions are without a significant difference. The parties obviously believe that the constitutionality of flag desecration statutes is before the Court. The question posed by the Court of Appeals is the most succinct. Chief Judge Fuld, writing for a unanimous Court of Appeals, answered the question squarely; we should do likewise if we are to meet our responsibility. But the Court specifically refuses to decide this issue. Instead, it searches microscopically for the opportunity to decide the case on the [p*596] peripheral Stromberg ground, holding that it is impossible to determine the basis for appellant's conviction. In my opinion a reading of the short trial record leaves no doubt that appellant was convicted solely for burning the American flag.
From the beginning to the end of the proceedings below the parties placed only two matters in issue: (1) is burning the flag protected symbolic speech and (2) did appellant burn the flag for the purpose of casting contempt upon it or did he burn it in a dignified manner? [n4] The information alleged that
Sidney Street did commit the crime of Malicious Mischief in that the defendant 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: on the aforesaid date, place and time, the defendant 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."
Although the Court stresses the mention of appellant's words in the information as indicative that he was convicted for uttering these words, the trial proceedings demonstrate that the words were employed only to show appellant's purpose in burning the flag.
At the outset of the trial appellant's counsel moved to dismiss the information, clearly revealing the theory of appellant's defense that flag burning is constitutionally protected and that appellant burned the flag in a dignified manner.
Mr. Goldstick [appellant's counsel]: Before we plead to this case, I would like to make a motion to dismiss the information upon the ground it does not [p*597] 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.
Court: You say burning the flag is a form of demonstration?
Mr. Goldstick: Yes.
Court: Motion denied.
Mr. Goldstick: Also, there is a Federal statute which provides for burning the flag. I refer Your Honor --
Court, interposing: So does Section 1425 provide for the lawful disposition of a flag,