STREET v. NEW YORK
Argued: October 21, 1968 Decided: April 21, 1969
Appellant, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag which he owned to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or "publicly [to] defy . . . or cast contempt upon [any American flag] either by words or act." The information charged appellant with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Appellant unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected "demonstration" or "protest." Appellant was tried before a judge without a jury and convicted. The arresting officer testified that at the time of arrest appellant was standing on a corner speaking to a small and not unruly group, which did not block the street or sidewalk; on the opposite corner was the burning flag; appellant told the group: "We don't need no damn flag," and said to the officer, "If they let that happen to Meredith, we don't need an American flag." Appellant also challenged the constitutionality of the "words" part of the statute in the Appellate Term and in the New York Court of Appeals, both of which affirmed his conviction, the latter court upholding the constitutionality of the statute without alluding to the "words" part.
1. Appellant has met the burden of showing that the federal question of constitutionality of the "words" part of the statute was adequately raised in the state courts, by appellant's motion to dismiss in the trial court and his briefs in the appellate courts. Pp. 581-585.
2. The application of 1425, subd. 16, par. d, to appellant was violative of rights of free expression assured against state infringement by the Fourteenth Amendment, because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. Pp. 581, 585-594. [394 U.S. 576, 577]
(a) Appellant's conviction must be set aside if it could have been based solely upon his words, or upon both his words and his act, and if a conviction on such a basis would be unconstitutional. Stromberg v. California, 283 U.S. 359 (1931); Thomas v. Collins, 323 U.S. 516 (1945). Pp. 585-588.
(b) The record here is insufficient to eliminate the possibility that appellant's words were the sole basis of his conviction or that he was convicted for both his words and his deed. Pp. 588-590.
(c) Appellant's conviction under 1425, subd. 16, par. d, for speaking as he did could not be constitutionally justified on the basis that the words he uttered (1) constituted incitement to others to commit unlawful acts; (2) were so inflammatory as to provoke violent retaliation by others; (3) were (apart from the content of the ideas they conveyed) likely to shock passers-by; or (4), in the light of Board of Educ. v. Barnette, 319 U.S. 624(1943), constituted failure by the appellant to manifest the respect which every citizen must show the flag. Pp. 590-593.
20 N. Y. 2d 231, 229 N. E. 2d 187, reversed and remanded.
MR. JUSTICE HARLAN delivered the opinion of the Court.