Appellee, for wearing a small United States flag sewn to the
seat of his trousers, was convicted of violating the provision of
the Massachusetts flag-misuse statute that subjects to criminal
liability anyone who "publicly . . . treats contemptuously the flag
of the United States. . . ." The Massachusetts Supreme Judicial
Court affirmed. The District Court in appellee's habeas corpus
action found the "treats contemptuously" phrase of the statute
unconstitutionally vague and overbroad. The Court of Appeals
affirmed.
Held:
The challenged statutory language, which had received no
narrowing state court interpretation, is void for vagueness under
the Due Process Clause of the Fourteenth Amendment, since, by
failing to draw reasonably clear lines between the kinds of
nonceremonial treatment of the flag that are criminal and those
that are not, it does not provide adequate warning of forbidden
conduct, and sets forth a standard so indefinite that police,
court, and jury are free to react to nothing more than their own
preferences for treatment of the flag. Pp.
415 U. S.
572-576,
415 U. S.
578.
2. By challenging in state courts the vagueness of the "treats
contemptuously" phrase as applied to him, appellee preserved his
due process claim for purposes of federal habeas corpus
jurisdiction,
Picard v. Connor, 404 U.
S. 270, since the challenged language is void for
vagueness as applied to appellee or to anyone else. A "hard-core"
violator concept has little meaning with regard to the challenged
language, because the phrase at issue is vague not in the sense of
requiring a person to conform his conduct to an imprecise but
comprehensible standard, but in the sense of not specifying any
ascertainable standard of conduct at all. Pp.
415 U. S.
576-578.
3. Even if, as appellant contends, the statute could be said to
deal only with "actual" flags of the United States, this would not
resolve the central vagueness deficiency of failing to define
contemptuous treatment. Pp.
415 U. S.
578-579.
Page 415 U. S. 567
4. That other words of the desecration and contempt portion of
the statute address more specific conduct (mutilation, trampling,
and defacing of the flag) does not assist appellant, since appellee
was tried solely under the "treats contemptuously" phrase, and the
highest state court in this case did not construe the challenged
phrase as taking color from more specific accompanying language.
Pp.
415 U. S.
579-50.
5. Regardless of whether restriction by that court of the scope
of the challenged phrase to intentional contempt may be held
against appellee, such an interpretation nevertheless does not
clarify what conduct constitutes contempt of the flag, whether
intentional or inadvertent. P.
415 U. S.
580.
471 F.2d 88, affirmed.
POWELL, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. WHITE, J.,
filed an opinion concurring in the judgment,
post, p.
415 U. S. 583.
BLACKMUN, J.,
post, p.
415 U. S. 590,
and REHNQUIST, J.,
post, p.
415 U. S. 591,
filed dissenting opinions, in which BURGER, C.J., joined.
MR. JUSTICE POWELL delivered the opinion of the Court.
The sheriff of Worcester County, Massachusetts, appeals from a
judgment of the United States Court of Appeals for the First
Circuit holding the contempt provision of the Massachusetts flag
misuse statute unconstitutionally vague and overbroad. 471 F.2d 88
(1972),
aff'g 343 F.
Supp. 161 (Mass). We noted probable jurisdiction. 412 U.S. 905
(1973). We affirm on the vagueness
Page 415 U. S. 568
ground. We do not reach the correctness of the holding below on
overbreadth or other First Amendment grounds.
I
The slender record in this case reveals little more than that
Goguen wore a small cloth version of the United States flag sewn to
the seat of his trousers. [
Footnote
1] The flag was approximately four by six inches, and was
displayed at the left rear of Goguen's blue jeans. On January 30,
1970, two police officers in Leominster, Massachusetts, saw Goguen
bedecked in that fashion. The first officer encountered Goguen
standing and talking with a group of persons on a public street.
The group apparently was not engaged in any demonstration or other
protest associated with Goguen's apparel. [
Footnote 2] No disruption of traffic or breach of the
peace occurred. When this officer approached Goguen to question him
about the flag, the other persons present laughed. Some time later,
the second officer observed Goguen in the same attire walking in
the downtown business district of Leominster.
The following day, the first officer swore out a complaint
against Goguen under the contempt provision of the Massachusetts
flag misuse statute. The relevant part of the statute then
read:
"Whoever publicly mutilates, tramples upon, defaces or treats
contemptuously the flag of the
Page 415 U. S. 569
United States . . . whether such flag is public or private
property . . . shall be punished by a fine of not less than ten nor
more than one hundred dollars or by imprisonment for not more than
one year, or both. . . . [
Footnote
3] "
Page 415 U. S. 570
Despite the first six words of the statute, Goguen was not
charged with any act of physical desecration. [
Footnote 4] As permitted by the disjunctive
structure of the portion of the statute dealing with desecration
and contempt, the officer charged specifically and only that Goguen
"did publicly treat contemptuously the flag of the United States. .
. ." [
Footnote 5]
After jury trial in the Worcester County Superior Court, Goguen
was found guilty. The court imposed a sentence of six months in the
Massachusetts House of Corrections. Goguen appealed to the
Massachusetts Supreme Judicial Court, which affirmed.
Commonwealth v. Goguen, ___ Mass. ___, 279 N.E.2d 666
(1972). That court rejected Goguen's vagueness argument with the
comment that, "[w]hatever the uncertainties in other circumstances,
we see no vagueness in the statute as applied here."
Id.
at ___, 279 N.E.2d at 667. The court cited no Massachusetts
precedents
Page 415 U. S. 571
interpreting the "treats contemptuously" phrase of the statute.
[
Footnote 6]
After Goguen began serving his sentence, he was granted bail and
then ordered released on a writ of habeas corpus by the United
States District Court for the District of Massachusetts.
343 F.
Supp. 161. The District Court found the flag contempt portion
of the Massachusetts statute impermissibly vague under the Due
Process Clause of the Fourteenth Amendment, as well as overbroad
under the First Amendment. In upholding Goguen's "void for
vagueness" contentions, the court concluded that the words "treats
contemptuously" did not provide a "readily ascertainable standard
of guilt."
Id. at 167. Especially in "these days when
flags are commonly displayed on hats, garments and vehicles . . .
," the words under which Goguen was convicted "leave conjectural,
in many instances, what conduct may subject the actor to criminal
prosecution."
Ibid. The court also found that the
statutory language at issue "may be said to encourage arbitrary and
erratic arrests and convictions."
Ibid.
The Court of Appeals, with one judge concurring, affirmed the
District Court on both First Amendment and vagueness grounds. 471
F.2d 88. With regard to the latter ground, the Court of Appeals
concluded that "resolution of [Goguen's "void for vagueness"]
challenge to the statute as applied to him necessarily adjudicates
the statute's facial constitutionality. . . ."
Id. at 94.
Treat
Page 415 U. S. 572
ing as-applied and on-the-face vagueness attacks as essentially
indistinguishable in light of the imprecision of the statutory
phrase at issue,
id. at 92, 94, the court found that the
language failed to provide adequate warning to anyone, contained
insufficient guidelines for law enforcement officials, and set
juries and courts at large.
Id. at 996. Senior Circuit
Judge Hamley, sitting by designation from the Ninth Circuit,
concurred solely in the "void for vagueness" holding.
Id.
at 105. Judge Hamley saw no need to reach the "far broader
constitutional ground" of First Amendment overbreadth relied on by
the majority, noting the "settled principle of appellate
adjudication that constitutional questions are not to be dealt with
unless this is necessary to dispose of the appeal."
Ibid.
II
We agree with the holdings of the District Court and the Court
of Appeals on the due process doctrine of vagueness. The settled
principles of that doctrine require no extensive restatement here.
[
Footnote 7] The doctrine
incorporates notions of fair notice or warning. [
Footnote 8] Moreover, it requires
Page 415 U. S. 573
legislatures to set reasonably clear guidelines for law
enforcement officials and triers of fact in order to prevent
"arbitrary and discriminatory enforcement." [
Footnote 9] Where a statute's literal scope,
unaided by a narrowing state court interpretation, is capable of
reaching expression sheltered by the First Amendment, the doctrine
demands a greater degree of specificity than in other contexts.
[
Footnote 10] The statutory
language at issue here, "publicly . . . treats contemptuously the
flag of the United States . . . ," has such scope,
e.g., Street
v. New York, 394 U. S. 576
(1969) (verbal flag contempt), and at the relevant time was without
the benefit of judicial clarification. [
Footnote 11]
Flag contempt statutes have been characterized as void for lack
of notice on the theory that "[w]hat is contemptuous to one man may
be a work of art to another." [
Footnote 12] Goguen's behavior can hardly be described as
art. Immaturity or "silly conduct" [
Footnote 13] probably comes closer to the mark. But we
see the force of the District Court's observation that the flag has
become
Page 415 U. S. 574
"an object of youth fashion and high camp. . . ." 343 F. Supp.
at 164. As both courts below noted, casual treatment of the flag in
many contexts has become a widespread contemporary phenomenon.
Id. at 164, 167; 471 F.2d at 96. Flag wearing in a day of
relaxed clothing styles may be simply for adornment or a ploy to
attract attention. It and many other current, careless uses of the
flag nevertheless constitute unceremonial treatment that many
people may view as contemptuous. Yet, in a time of widely varying
attitudes and tastes for displaying something as ubiquitous as the
United States flag or representations of it, it could hardly be the
purpose of the Massachusetts Legislature to make criminal every
informal use of the flag. The statutory language under which Goguen
was charged, however, fails to draw reasonably clear lines between
the kinds of nonceremonial treatment that are criminal and those
that are not. Due process requires that all "be informed as to what
the State commands or forbids,"
Lanzetta v. New Jersey,
306 U. S. 451,
306 U. S. 453
(1939), and that "men of common intelligence" not be forced to
guess at the meaning of the criminal law.
Connally v. General
Construction Co., 269 U. S. 385,
269 U. S. 391
(1926). Given today's tendencies to treat the flag unceremoniously,
those notice standards are not satisfied here.
We recognize that, in a noncommercial context behavior as a
general rule is not mapped out in advance on the basis of statutory
language. [
Footnote 14] In
such cases, perhaps the most meaningful aspect of the vagueness
doctrine is not actual notice, but the other principal element of
the doctrine -- the requirement that a legislature establish
minimal guidelines to govern law enforcement. It is in this regard
that the statutory language under scrutiny has its most notable
deficiencies.
Page 415 U. S. 575
In its terms, the language at issue is sufficiently unbounded to
prohibit, as the District Court noted, "any public deviation from
formal flag etiquette. . . ." 343 F. Supp. at 167. Unchanged
throughout its 70-year history, [
Footnote 15] the "treats contemptuously" phrase was also
devoid of a narrowing state court interpretation at the relevant
time in this case. [
Footnote
16] We are without authority to cure that defect. [
Footnote 17] Statutory language of
such a standardless sweep allows policemen, prosecutors, and juries
to pursue their personal predilections. Legislatures may not so
abdicate their responsibilities for setting the standards of the
criminal law.
E.g., Papachristou v. City of Jacksonville,
405 U. S. 156,
405 U. S.
165-169 (1972). In
Gregory v. City of Chicago,
394 U. S. 111,
394 U. S. 120
(1969), Mr. Justice Black, in a concurring opinion, voiced a
concern, which we share, against entrusting lawmaking "to the
moment-to-moment judgment of the policeman on his beat." The
aptness of his admonition is evident from appellant's candid
concession during oral argument before the Court of Appeals
regarding state enforcement standards for that portion of the
statute under which Goguen was convicted:
"[A]s counsel [for appellant] admitted, a war protestor
Page 415 U. S. 576
who, while attending a rally at which it begins to rain,
evidences his disrespect for the American flag by contemptuously
covering himself with it in order to avoid getting wet, would be
prosecuted under the Massachusetts statute. Yet a member of the
American Legion who, caught in the same rainstorm while returning
from an 'America -- Love It or Leave It' rally, similarly uses the
flag, but does so regrettably and without a contemptuous attitude,
would
not be prosecuted."
471 F.2d at 102 (emphasis in original). Where inherently vague
statutory language permits such selective law enforcement, there is
a denial of due process.
III
Appellant's arguments that the "treats contemptuously" phrase is
not impermissibly vague, or at least should not be so held in this
case, are unpersuasive. Appellant devotes a substantial portion of
his opening brief, as he did his oral argument, to the contention
that Goguen failed to preserve his present "void for vagueness"
claim for the purposes of federal habeas corpus jurisdiction.
Appellant concedes that the issue of "vagueness as applied" is
properly before the federal courts, [
Footnote 18] but contends that Goguen's only arguable
claim is that the statute is vague on its face. The latter claim,
appellant insists, was not presented to the state courts with the
requisite fair precision.
Picard v. Connor, 404 U.
S. 270 (1971). This "exhaustion of remedies" argument is
belatedly raised, [
Footnote
19] and it fails to take the full measure of
Page 415 U. S. 577
Goguen's efforts to mount a vagueness attack in the state
courts. [
Footnote 20] We do
not deal with the point at length, however, for we find the
relevant statutory language impermissibly vague as applied to
Goguen. Without doubt, the "substance" of this claim was "fairly
presented" to the state courts under the exhaustion standards of
Picard, supra at
404 U. S. 275,
404 U. S.
278.
Appellant's exhaustion of remedies argument is premised on the
notion that Goguen's behavior rendered him a hard-core violator as
to whom the statute was not vague, whatever its implications for
those engaged in different conduct. To be sure, there are statutes
that,
Page 415 U. S. 578
by their terms or as authoritatively construed, apply without
question to certain activities, but whose application to other
behavior is uncertain. The hard-core violator concept makes some
sense with regard to such statutes. The present statute, however,
is not in that category. This criminal provision is vague
"not in the sense that it requires a person to conform his
conduct to an imprecise but comprehensible normative standard, but
rather in the sense that no standard of conduct is specified at
all."
Coates v. City of Cincinnati, 402 U.
S. 611,
402 U. S. 614
(1971). Such a provision simply has no core. This absence of any
ascertainable standard for inclusion and exclusion is precisely
what offends the Due Process Clause. The deficiency is particularly
objectionable in view of the unfettered latitude thereby accorded
law enforcement officials and triers of fact. Until it is corrected
either by amendment or judicial construction, it affects all who
are prosecuted under the statutory language. In our opinion the
defect exists in this case. The language at issue is void for
vagueness as applied to Goguen because it subjected him to criminal
liability under a standard so indefinite that police, court, and
jury were free to react to nothing more than their own preferences
for treatment of the flag.
Turning from the exhaustion point to the merits of the vagueness
question presented, appellant argues that any notice difficulties
are ameliorated by the narrow subject matter of the statute,
viz., "actual" flags of the United States. [
Footnote 21] Appellant contends that this
"takes some of the vagueness away from the phrase,
treats
contemptuously. . . .'" [Footnote 22] Anyone who
"wants notice as to what conduct this statute proscribes . . .
immediately knows that it has something to do with flags and if
he
Page 415 U. S. 579
wants to stay clear of violating this statute, he just has to
stay clear of doing something to the United States flag. [
Footnote 23]"
Apart from the ambiguities presented by the concept of an
"actual" flag, [
Footnote 24]
we fail to see how this alleged particularity resolves the central
vagueness question -- the absence of any standard for defining
contemptuous treatment.
Appellant's remaining arguments are equally unavailing. It is
asserted that the first six words of the statute add specificity to
the "treats contemptuously" phrase, and that the Massachusetts
Supreme Judicial Court customarily construes general language to
take on color from more specific accompanying language. But it is
conceded that Goguen was convicted under the general phrase alone,
and that the highest state court did not rely on any "general to
specific" principle of statutory
Page 415 U. S. 580
interpretation in this case. [
Footnote 25] Appellant further argues that the Supreme
Judicial Court in Goguen's case has restricted the scope of the
statute to intentional contempt. [
Footnote 26] Aside from the problems presented by an
appellate court's limiting construction in the very case in which a
defendant has been tried under a previously unnarrowed statute,
[
Footnote 27] this holding
still does not clarify what conduct constitutes contempt, whether
intentional or inadvertent.
Finally, appellant argues that state law enforcement authorities
have shown themselves ready to interpret this penal statute
narrowly and that the statute, properly read, reaches only direct,
immediate contemptuous acts that "actually impinge upon the
physical integrity of the flag." [
Footnote 28] There is no support in the record for the
former point. [
Footnote 29]
Similarly, nothing in the state
Page 415 U. S. 581
court's opinion in this case or in any earlier opinion of that
court sustains the latter. In any event, Goguen was charged only
under the wholly open-ended language of publicly treating the flag
"contemptuously." There was no allegation of physical
desecration.
There are areas of human conduct where, by the nature of the
problems presented, legislatures simply cannot establish standards
with great precision. Control of the broad range of disorderly
conduct that may inhibit a policeman in the performance of his
official duties may be one such area, requiring as it does an
on-the-spot assessment of the need to keep order.
Cf. Colten v.
Kentucky, 407 U. S. 104
(1972). But there is no comparable reason for committing broad
discretion to law enforcement officials in the area of flag
contempt. Indeed, because display of the flag is so common and
takes so many forms, changing from one generation to another and
often difficult to distinguish in principle, a legislature should
define with some care the flag behavior it intends to outlaw.
Certainly nothing prevents a legislature from defining with
substantial specificity what
Page 415 U. S. 582
constitutes forbidden treatment of United States flags.
[
Footnote 30] The statutory
language at issue here fails to approach that goal, and is void for
vagueness. [
Footnote 31] The
judgment is affirmed. [
Footnote
32]
It is so ordered.
Page 415 U. S. 583
[
Footnote 1]
The record consists solely of the amended bill of exceptions
Goguen filed in the Massachusetts Supreme Judicial Court, the
opposing briefs before that court, the complaint under which Goguen
was prosecuted, and Goguen's federal habeas corpus petition. App.
1-36, 42-43. We do not have a trial transcript, although Goguen's
amended bill of exceptions briefly summarizes some of the testimony
given by witnesses for the prosecution at his state trial. Goguen
did not take the stand. Thus, we do not have of record his account
of what transpired at the time of his arrest or of his purpose in
wearing a flag on the seat of his trousers.
[
Footnote 2]
Tr. of Oral Arg. 5-6, 35-36.
[
Footnote 3]
Mass.Gen.Laws Ann., c. 264, § 5. Omitting several sentences
protecting the ceremonial activities of certain veterans' groups,
the statute read as follows at the time of Goguen's arrest and
conviction:
"§ 5. Flag; penalty for misuse"
"Whoever publicly mutilates, tramples upon, defaces or treats
contemptuously the flag of the United States or of Massachusetts,
whether such flag is public or private property, or whoever
displays such flag or any representation thereof upon which are
words, figures, advertisements or designs, or whoever causes or
permits such flag to be used in a parade as a receptacle for
depositing or collecting money or any other article or thing, or
whoever exposes to public view, manufactures, sells, exposes for
sale, gives away or has in possession for sale or to give away or
for use for any purpose, any article or substance, being an article
of merchandise or a receptacle of merchandise or articles upon
which is attached, through a wrapping or otherwise, engraved or
printed in any manner, a representation of the United States flag,
or whoever uses any representation of the arms or the great seal of
the commonwealth for any advertising or commercial purpose, shall
be punished by a fine of not less than ten nor more than one
hundred dollars or by imprisonment for not more than one year, or
both. Words, figures, advertisements or designs attached to, or
directly or indirectly connected with, such flag or any
representation thereof in such manner that such flag or its
representation is used to attract attention to or advertise such
words, figures, advertisements or designs, shall for the purposes
of this section be deemed to be upon such flag."
The statute is an amalgam of provisions dealing with flag
desecration and contempt (the first 26 words) and with commercial
misuse or other exploitation of flags of the State and National
Governments. This case concerns only the "treats contemptuously"
phrase of the statute, which has apparently been in the statute
since its enactment in 1899. 471 F.2d 88, 90 n. 2 (1972).
In 1971, subsequent to Goguen's prosecution, the desecration and
contempt portion of the statute was amended twice. On March 8,
1971, the legislature, per Stats.1971, c. 74, modified the first
sentence by inserting "burns or otherwise" between the terms
"publicly" and "mutilates," and, in addition, by increasing the
fine. Mass.Gen.Laws Ann., c. 264, § 5 (Supp. 1973). On August 12,
1971, per Stats.1971, c. 655, the legislature appended a new
sentence defining "the flag of the United States" phrase appearing
in the first sentence:
"For the purposes of this section, the term 'flag of the United
States' shall mean any flag which has been designated by Act or
Resolution of the Congress of the United States as the national
emblem, whether or not such designation is currently in force."
Ibid. The 1971 amendments are relevant to this case
only in the tangential sense that they indicate a recognition by
the legislature of the need to tighten up this imprecise
statute.
[
Footnote 4]
Perhaps this was because of the difficulty of the question
whether Goguen's conduct constituted physical desecration of the
flag.
Cf. 471 F.2d at 91 n. 4 ("[W]e are not so sure that
sewing a flag to a background clearly affects
physical
integrity'").
[
Footnote 5]
App. 4
[
Footnote 6]
Appellant correctly conceded at oral argument that Goguen's case
is the first recorded Massachusetts court reading of this language.
Tr. of Oral Arg. 17-18. Indeed, with the exception of one case at
the turn of the century involving one of the statute's commercial
misuse provisions,
Commonwealth v. R. I. Sherman Mfg. Co.,
189 Mass. 76, 75 N.E. 71 (1905), the entire statute has been
essentially devoid of state court interpretation.
[
Footnote 7]
The elements of the "void for vagueness" doctrine have been
developed in a large body of precedent from this Court. The cases
are categorized in,
e.g., Grayned v. City of Rockford,
408 U. S. 104,
408 U. S.
108-109 (1972).
See Note, The Void for
Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67
(1960).
[
Footnote 8]
E.g., Papachristou v. City of Jacksonville,
405 U. S. 156,
405 U. S. 162
(1972);
Lanzetta v. New Jersey, 306 U.
S. 451,
306 U. S. 453
(193) ("No one may be required at peril of life, liberty or
property to speculate as to the meaning of penal statutes. All are
entitled to be informed as to what the State commands or forbids")
(citations omitted);
Connally v. General Construction Co.,
269 U. S. 385,
269 U. S. 391
(1926) ("[A] statute which either forbids or requires the doing of
an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application,
violates the first essential of due process of law") (citations
omitted).
[
Footnote 9]
E.g., Grayned, supra at
408 U. S. 108;
United States v. Cohen Grocery Co., 255 U. S.
81,
255 U. S. 89
(1921) ("[T]o attempt to enforce the section would be the exact
equivalent of an effort to carry out a statute which in terms
merely penalized and punished all acts detrimental to the public
interest when unjust and unreasonable in the estimation of the
court and jury");
United States v. Reese, 92 U. S.
214,
92 U. S. 221
(1876) ("It would certainly be dangerous if the legislature could
set a net large enough to catch all possible offenders, and leave
it to the courts to step inside and say who could be rightfully
detained, and who should be set at large").
[
Footnote 10]
E.g., Grayned, supra, at
408 U. S. 109;
Smith v. California, 361 U. S. 147,
361 U. S. 151
(1959).
Compare the less stringent requirements of the
modern vagueness cases dealing with purely economic regulation.
E.g., United States v. National Dairy Products Corp.,
372 U. S. 29 (1963)
(Robinson-Patman Act).
[
Footnote 11]
See n 6,
supra.
[
Footnote 12]
Note, 66 Mich.L.Rev. 1040, 1056 (1968).
[
Footnote 13]
343 F.
Supp. 161, 166.
[
Footnote 14]
Note, 109 U.Pa.L.Rev.,
supra, n 7, at 82 n. 79.
[
Footnote 15]
See n 3,
supra.
[
Footnote 16]
See n 6,
supra. The contempt portion of the Massachusetts statute
seems to have lain fallow for almost its entire history. Apparently
there have been about a half dozen arrests under this part of the
statute in recent years, but none has produced a reported decision.
Tr. of Oral Arg. 2&-29. In 1968, a teenager in Lynn,
Massachusetts, was charged, apparently under the present statute,
with desecrating the United States flag by sewing pieces of it into
his trousers. New York Times, Sept. 1, 1968, p. 31, col. 1. The
teenager was ordered by a state district court to prepare and
deliver an essay on the flag. The court continued the case without
a finding, depriving it of any precedential value.
[
Footnote 17]
E.g., United States v. Thirty-seven Photographs,
402 U. S. 363,
402 U. S. 369
(1971).
[
Footnote 18]
Reply Brief for Appellant 4.
[
Footnote 19]
Goguen filed his federal habeas corpus petition subsequent to
Picard v. Connor, 404 U. S. 270
(1971). Yet it appears that appellant did not raise his present
exhaustion of remedies argument before the District Court. That
court commented specifically on this omission:
"No contention is now made that [Goguen] has not exhausted state
remedies, nor that the constitutional issues presented here were
not raised appropriately in state proceedings."
343 F. Supp. at 164.
[
Footnote 20]
Goguen filed in State Superior Court an unsuccessful motion to
dismiss the complaint in which he cited the Fourteenth Amendment
and alleged that the statute under which he was charged was
"impermissibly vague and incapable of fair and reasonable
interpretation by public officials." App. 1. This motion was also
before the Massachusetts Supreme Judicial Court, since it was
incorporated in Goguen's amended bill of exceptions.
Ibid.
In addition, Goguen's brief before that court raised vagueness
points and cited vagueness cases.
Id. at 19, 26-27, citing
Lanzetta v. New Jersey, 306 U. S. 451
(1939), and
Parker v. Morgan, 322 F.
Supp. 585 (WDNC 1971) (three-judge court) (North Carolina flag
contempt statute void for vagueness and overbreadth). Appellant is
correct in asserting that Goguen failed to compartmentalize in his
state court brief the due process doctrine of vagueness and First
Amendment concepts of overbreadth.
See App. 19-24. But
permitting a degree of leakage between those particular adjoining
compartments is understandable.
Cf. Note, The First
Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 871-875 (1970).
The highest state court's opinion, which dealt separately with
Goguen's First Amendment and vagueness claims,
Commonwealth v.
Goguen, ___ Mass. ___, 279 N.E.2d 666, 667 (1972), indicates
that that court was well aware that Goguen raised both sets of
arguments.
[
Footnote 21]
Brief for Appellant 17; Tr. of Oral Arg. 9.
[
Footnote 22]
Ibid.
[
Footnote 23]
Ibid.
[
Footnote 24]
At the time of Goguen's prosecution, the statute referred simply
to "the flag of the United States . . . ," without further
definition. That raises the obvious question whether Goguen's
miniature cloth flag constituted "the flag of the United States. .
. ." Goguen argued unsuccessfully before the state courts that the
statute applied only to flags that met "official standards" for
proportions, such as relation of height to width and the size of
stripes and the field of stars, and that the cloth he wore did not
meet those standards. Tr. of Oral Arg. 11-12, 226; App. 2. There
was no dispute that Goguen's adornment had the requisite number of
stars and stripes and colors. Tr. of Oral Arg. 11-12. The
Massachusetts Supreme Judicial Court found Goguen's cloth flag to
be covered by the statute, noting that "[t]he statute does not
require that the flag be
official,'" Commonwealth v.
Goguen, ___ Mass. at ___, 279 N.E.2d at 668. The lower federal
courts did not address this holding, nor do we. We note only that
the Massachusetts Legislature apparently sensed an ambiguity in
this respect, because, subsequent to Goguen's prosecution, it
amended the statute in an effort to define what it had meant by the
"flag of the United States." See n 3, supra.
[
Footnote 25]
Tr. of Oral Arg. 48
[
Footnote 26]
The Massachusetts court commented simply that "[t]he jury could
infer that the violation was intentional without reviewing any
words of the defendant."
Commonwealth v. Goguen, supra, at
___, 279 N.E.2d at 668. Thus, the court held that the jury could
infer intent merely from Goguen's conduct. This is apparently also
a holding that the jury must find contemptuous intent under the
statute, although the requirement amounts to very little, since it
is so easily satisfied. The court's reference to verbal
communication reflected Goguen's reliance on
Street v. New
York, 394 U. S. 576
(1969).
[
Footnote 27]
E.g., Ashton v. Kentucky, 384 U.
S. 195,
384 U. S. 198
(1966).
[
Footnote 28]
Brief for Appellant 22.
[
Footnote 29]
With regard to prosecutorial policies, appellant cites two
published opinions of the Massachusetts Attorney General. 4
Op.Atty.Gen. 470-473 (1915) (reproduced in Brief for Appellant 30);
Report of Atty. Gen., Pub. Doc. No. 12, p. 192 (1968) (reproduced
in Jurisdictional Statement App. 53). Appellant concedes that
neither deals with the contempt portion of the statute under which
Goguen was convicted. Thus, they are not in point here. They
provided guidance to no one on the relevant statutory language.
Nevertheless, appellant is correct that they show a tendency on the
part of the State Attorney General to read other portions of the
statute narrowly. At the same time, they reflect the lack of
precision recurring throughout the Massachusetts flag misuse
statute. The 1915 opinion noted that a literal reading of one
portion of the statute, prohibiting exhibition of engravings of the
flag on certain articles, would make it a criminal offense to
display the flag itself "in many of its cheaper and more common
forms." Brief for Appellant 31-32. The State Attorney General
concluded that this would be a "manifest absurdity."
Id.
at 32. The 1968 opinion advised that a flag representation painted
on a door was not "a flag of the United States" within the meaning
of the statute. Jurisdictional Statement App. 53-55. A contrary
interpretation would "raise serious questions under the First and
Fourteenth Amendments . . . ," given the requirement that behavior
made criminal must be "plainly prohibited by the language of the
statute."
Id. at 54.
[
Footnote 30]
The federal flag desecration statute, for example, reflects a
congressional purpose to do just that. In response to a warning by
the United States Attorney General that to use such unbounded terms
as "defies" or "casts contempt . . . either by word or act" is "to
risk invalidation" on vagueness grounds, S.Rep. No. 1287. 90th
Cong., 1st Sess., 5 (1968); H.R.Rep. No. 350, 90th Cong., 1st
Sess., 7 (1967), the bill which became the federal statute was
amended, 113 Cong.Rec. 16449, 16450 (1967), to reach only acts that
physically damage the flag. The desecration provision of the
statute, 18 U.S.C. § 700(a), declares:
"(a) Whoever knowingly casts contempt upon any flag of the
United States by publicly mutilating, defacing, defiling, burning,
or trampling upon it shall be fined not more than $1,000 or
imprisoned for not more than one year, or both."
The legislative history reveals a clear desire to reach only
defined physical acts of desecration. "The language of the bill
prohibits intentional, willful, not accidental or inadvertent,
public physical acts of desecration of the flag." H.R.Rep. No. 350,
supra, at 3; S.Rep. No. 1287,
supra, at 3. The
act has been so read by the lower federal courts, which have upheld
it against vagueness challenges.
United States v. Crosson,
462 F.2d 96 (CA9)
cert. denied, 409 U.S. 1064 (1972);
Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971
(1971),
cert. denied, 405 U.S. 969 (1972).
See Hoffman
v. United States, 144 U.S.App.D.C. 156, 445 F.2d 226
(1971).
[
Footnote 31]
We are aware, of course, of the universal adoption of flag
desecration or contempt statutes by the Federal and State
Governments.
See n
30,
supra. The statutes of the 50 States are synopsized in
Hearings on H.R. 271
et al., before Subcommittee No. 4 of
the House Committee on the Judiciary, 90th Cong., 1st Sess., ser.
4, pp. 324-346 (1967). Most of the state statutes are patterned
after the Uniform Flag Law of 1917, which in § 3 provides:
"No person shall publicly mutilate, deface, defile, defy,
trample upon, or by word or act cast contempt upon any such flag,
standard, color, ensign or shield."
Compare 9B Uniform Laws Ann. 52-53 (1966),
with Hearings on H.R. 271
et al., supra, at
321-346. Because it is stated in the disjunctive, this language,
like that, before us, makes possible criminal prosecution solely
for casting contempt upon the flag. But the validity of statutes
utilizing this language, insofar as the vagueness doctrine is
concerned, will depend as much on their judicial construction and
enforcement history as their literal terms.
[
Footnote 32]
We have not addressed Goguen's First Amendment arguments
because, having found the challenged statutory language void for
vagueness, there is no need to decide additional issues. Moreover,
the skeletal record in this case,
see n 1,
supra, affords a poor opportunity
for the careful consideration merited by the importance of the
First Amendment issues Goguen has raised.
MR. JUSTICE WHITE, concurring in the judgment.
It is a crime in Massachusetts if one mutilates, tramples,
defaces or "treats contemptuously" the flag of the United States.
Appellee Goguen was convicted of treating the flag contemptuously,
the evidence being that he wore a likeness of the flag on the seat
of his pants. The Court holds this portion of the statute too vague
to provide an ascertainable standard of guilt in any situation,
including this one. Although I concur in the judgment of affirmance
for other reasons, I cannot agree with this rationale. [
Footnote 2/1]
Page 415 U. S. 584
I
It is self-evident that there is a whole range of conduct that
anyone with at least a semblance of common sense would know is
contemptuous conduct and that would be covered by the statute if
directed at the flag. In these instances, there would be ample
notice to the actor and no room for undue discretion by enforcement
officers. There may be a variety of other conduct that might or
might not be claimed contemptuous by the State, but
unpredictability in those situations does not change the certainty
in others.
I am also confident that the statute was not vague with respect
to the conduct for which Goguen was arrested and convicted. It
should not be beyond the reasonable comprehension of anyone who
would conform his conduct to the law to realize that sewing a flag
on the seat of his pants is contemptuous of the flag. The
Page 415 U. S. 585
Supreme Judicial Court of Massachusetts, in affirming the
conviction, stated that the "jury could infer that the violation
was intentional. . . ." If he thus intended the very act which the
statute forbids, Goguen can hardly complain that he did not realize
his acts were in violation of the statute.
"[T]he requirement of a specific intent to do a prohibited act
may avoid those consequences to the accused which may otherwise
render a vague or indefinite statute invalid. . . . [W]here the
punishment imposed is only for an act knowingly done with the
purpose of doing that which the statute prohibits, the accused
cannot be said to suffer from lack of warning or knowledge that the
act which he does is a violation of law."
Screws v. United States, 325 U. S.
91,
325 U. S.
101-102 (1945).
If it be argued that the statute in this case merely requires an
intentional act, not a willful one in the sense of intending what
the statute forbids, then it must be recalled that appellee's major
argument is that wearing a flag patch on his trousers was conduct
that
"clearly expressed an idea, albeit unpopular or unpatriotic,
about the flag or about the country it symbolizes. . . . Goguen may
have meant to show that he believed that America was a fit place
only to sit on, or the proximity to that portion of his anatomy
might have had more vulgar connotations. Nonetheless, the strong
and forceful communication of ideas is unmistakable."
App. 13. Goguen was under no misapprehension as to what he was
doing and as to whether he was showing contempt for the flag of the
United States. As he acknowledges in his brief here, "it was
necessary for the jury to find that appellee conveyed a
contemptuous attitude in order to convict him." I cannot,
therefore, agree that the Massachusetts statute is vague as to
Goguen; and if not vague as to his conduct, it is irrelevant that
it may be vague in other contexts with respect to other
Page 415 U. S. 586
conduct. "In determining the sufficiency of the notice, a
statute must of necessity be examined in the light of the conduct
with which a defendant is charged."
United States v. National
Dairy Products Corp., 372 U. S. 29,
372 U. S. 33
(1963). Statutes are not "invalidated as vague simply because
difficulty is found in determining whether certain marginal
offenses fall within their language."
Id. at
372 U. S.
32.
The unavoidable inquiry, therefore, becomes whether the "treats
contemptuously" provision of the statute, as applied in this case,
is unconstitutional under the First Amendment. That Amendment, of
course, applies to speech, and not to conduct without substantial
communicative intent and impact. Even though particular conduct may
be expressive and is understood to be of this nature, it may be
prohibited if necessary to further a nonspeech interest of the
Government that is within the power of the Government to implement.
United States v. O'Brien, 391 U.
S. 367 (1968).
There is no doubt in my mind that it is well within the powers
of Congress to adopt and prescribe a national flag and to protect
the integrity of that flag. Congress may provide for the general
welfare, control interstate commerce, provide for the common
defense, and exercise any powers necessary and proper for those
ends. These powers, and the inherent attributes of sovereignty as
well, surely encompass the designation and protection of a flag. It
would be foolishness to suggest that the men who wrote the
Constitution thought they were violating it when they specified a
flag for the new Nation, Act of Jan. 13, 1794,.1 Stat. 341, c. 1,
just as they had for the Union under the Articles of Confederation.
8 Journals of the Continental Congress 464 (June 14, 1777). It is a
fact of history that flags have been associated with nations and
with government at all levels,
Page 415 U. S. 587
as well as with tribes and families. It is also a historical
fact that flags, including ours, have played an important and
useful role in human affairs. One need not explain fully a
phenomenon to recognize its existence and in this case to concede
that the flag is an important symbol of nationhood and unity,
created by the Nation and endowed with certain attributes.
Conceived in this light, I have no doubt about the validity of laws
designating and describing the flag and regulating its use,
display, and disposition. The United States has created its own
flag, as it may. The flag is a national property, and the Nation
may regulate those who would make, imitate, sell, possess, or use
it.
I would not question those statutes which proscribe mutilation,
defacement, or burning of the flag or which otherwise protect its
physical integrity, without regard to whether such conduct might
provoke violence. Neither would I find it beyond congressional
power, or that of state legislatures, to forbid attaching to or
putting on the flag any words, symbols, or advertisements.
[
Footnote 2/2] All of these
objects, whatever their nature, are foreign to the flag, change its
physical character, and interfere with its design and function.
There would seem to be little question about the power of Congress
to forbid the mutilation of the Lincoln Memorial or to prevent
overlaying it with words or other objects. The flag is itself a
monument, subject to similar protection.
II
I would affirm Goguen's conviction, therefore, had he been
convicted for mutilating, trampling upon, or defacing the flag, or
for using the flag as a billboard for
Page 415 U. S. 588
commercial advertisements or other displays. The Massachusetts
statute, however, does not stop with proscriptions against
defacement or attaching foreign objects to the flag. It also makes
it a crime if one "treats contemptuously" the flag of the United
States, and Goguen was convicted under this part of the statute. To
violate the statute in this respect, it is not enough that one
"treat" the flag; he must also treat it "contemptuously," which, in
ordinary understanding, is the expression of contempt for the flag.
In the case before us, as has been noted, the jury must have found
that Goguen not only wore the flag on the seat of his pants, but
also that the act -- and hence Goguen himself -- was contemptuous
of the flag. To convict on this basis is to convict not to protect
the physical integrity or to protect against acts interfering with
the proper use of the flag, but to punish for communicating ideas
about the flag unacceptable to the controlling majority in the
legislature. [
Footnote 2/3]
Page 415 U. S. 589
Neither the United States nor any State may require any
individual to salute or express favorable attitudes toward the
flag.
West Virginia Board of Education v. Barnette,
319 U. S. 624
(1943). It is also clear under our cases that disrespectful or
contemptuous spoken or written words about the flag may not be
punished consistently with the First Amendment.
Street v. New
York, 394 U. S. 576
(1969). Although neither written nor spoken, an act may be
sufficiently communicative to invoke the protection of the First
Amendment,
Tinker v. Des Moines Independent Community School
District, 393 U. S. 503
(1969), and may not be forbidden by law except when incidental to
preventing unprotected conduct or unless the communication is
itself among those that fall outside the protection of the First
Amendment. In
O'Brien, supra, the Court sustained a
conviction for draft card burning, although admittedly the burning
was itself expressive. There, destruction of draft cards, whether
communicative or not, was found to be inimical to important
governmental considerations. But the Court made clear that, if the
concern of the law was with the expression associated with the act,
the result would be otherwise:
"The case at bar is therefore unlike one where the alleged
governmental interest in regulating conduct
Page 415 U. S. 590
arises in some measure because the communication allegedly
integral to the conduct is itself thought to be harmful. In
Stromberg v. California, 283 U. S. 359 (1931), for
example, this Court struck down a statutory phrase which punished
people who expressed their 'opposition to organized government' by
displaying 'any flag, badge, banner, or device.' Since the statute
there was aimed at suppressing communication, it could not be
sustained as a regulation of noncommunicative conduct."
391 U.S. at
391 U. S. 382.
It would be difficult, therefore, to believe that the conviction in
O'Brien would have been sustained had the statute
proscribed only contemptuous burning of draft cards.
Any conviction under the "treats contemptuously" provision of
the Massachusetts statute would suffer from the same infirmity.
This is true of Goguen's conviction. And if it be said that the
conviction does not violate the First and Fourteenth Amendments
because Goguen communicated nothing at all by his conduct and did
not intend to do so, there would then be no evidentiary basis
whatsoever for convicting him of being "contemptuous" of the flag.
I concur in the Court's judgment.
[
Footnote 2/1]
There has been recurring litigation, with diverse results, over
the validity of flag use and flag desecration statutes.
Representative of the federal and state cases are the following:
Thoms v. Heffernan, 473 F.2d 478 (CA2 1973);
Long
Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (CA2
1970);
United States v. Crosson, 462 F.2d 96 (CA9),
cert. denied, 409 U.S. 1064 (1972);
Joyce v. United
States, 147 U.S.App.D.C. 128, 454 F.2d 971 (1971),
cert.
denied, 405 U.S. 969 (1972);
Deeds v.
Beto, 353 F.
Supp. 840 (ND Tex.1973);
Oldroyd v.
Kuller, 327 F.
Supp. 176 (NJ 1970),
rev'd, 461 F.2d 535 (CA3 1972),
abstention on remand, 352 F. Supp.
27,
aff'd, 412 U.S. 924 (1973);
Sutherland v.
DeWulf, 323 F.
Supp. 740 (SD Ill.1971);
Parker v.
Morgan, 322 F.
Supp. 585 (WDNC 1971);
Crosson v.
Silver, 319 F.
Supp. 1084 (Ariz.1970);
Hodsdon v.
Buckson, 310 F.
Supp. 528 (Del.1970),
rev'd on other grounds sub nom.
Hodsdon v. Stabler, 444 F.2d 533 (CA3 1971);
United States
v. Ferguson, 302 F.
Supp. 1111 (ND Cal.1969);
State v. Royal, 113 N.H.
224, 305 A.2d 676 (1973);
State v. Zimmelman, 62 N.J. 279,
301 A.2d
129 (1973);
State v. Spence, 81 Wash. 2d
788,
506 P.2d
293, probable jurisdiction noted, 414 U.S. 815 (1973) (
sub
judice);
City of Miami v. Wolfenberger, 265 So. 2d
732 (Fla.Dist.Ct.App. 1972);
State v. Mitchell, 32 Ohio
App.2d 16, 288 N.E.2d 216 (1972);
State v. Liska, 32 Ohio
App.2d 317, 291 N.E.2d 498 (1971);
State v. Van Camp, 6
Conn.Cir. 609, 281 A.2d 584 (1971);
State v.
Waterman, 190 N.W.2d 809
(Iowa 1971);
State v. Saulino, 29 Ohio Misc. 25, 277
N.E.2d 580 (1971);
Deeds v. State, 474
S.W.2d 718 (Crim.App. Tex.1971);
People v. Radich, 26
N.Y.2d 114, 257 N.E.2d 30 (1970),
aff'd by an equally divided
court, 401 U. S. 531,
rehearing denied, 402 U.S. 989 (1971);
People v.
Cowgill, 274 Cal. App. 2d 923, 78 Cal. Rptr. 853 (1969),
appeal dismissed, 396 U. S. 371
(1970);
Hinton v. State, 223 Ga. 174,
154 S.E.2d 246
(1967),
rev'd on other grounds sub nom. Anderson v.
Georgia, 390 U. S. 206
(1968).
[
Footnote 2/2]
For a treatment of statutes protective of the flag,
see
Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972
Wash.U.L.Q. 193.
[
Footnote 2/3]
Massachusetts has not construed its statute to eliminate the
communicative aspect of the proscribed conduct as a crucial element
of the violation. In
State v. Royal, 113 N.H. 224, 305
A.2d 676 (1973), the New Hampshire Supreme Court, noting, among
other things, that the State has a valid interest in the physical
integrity of the flag, rejected a facial attack on its flag
desecration statute, which made it a crime to publicly mutilate,
trample upon, defile, deface, or cast contempt upon the flag. The
court construed the statute to be "directed at acts upon the flag,
and not
at the expression of and mere belief in particular
ideas.'" Id. at 230, 305 A.2d at 680. The proscription
against casting contempt upon the flag was to be understood as a
general prohibition of acts of the same nature as the previously
forbidden acts of mutilation and defacement, not as a proscription
of the expression of ideas. Thus:
"Our statute is more narrowly drawn than some flag statutes. It
deals only with the flag itself or any 'flag or ensign evidently
purporting to be' the flag.
State v. Cline, [113 N.H.
245], 305 A.2d 673, decided this date. Also, as we construe it, our
statute prohibits only acts of mutilation and defilement inflicted
directly upon the flag itself and does not prohibit acts which are
directed at the flag without touching it. The statute enumerates
specific acts of flag desecration, namely 'mutilate, trample upon,
defile, deface,' all of which involve physical acts upon the flag.
The general term 'cast contempt' follows these enumerated specific
acts. We hold that the phrase 'or cast contempt by . . . acts,' as
used in RSA 573:4, is limited to physical abuse type of acts
similar to those previously enumerated in the statute. 2
Sutherland, Statutory Construction § 4909 (3d rev. ed. Horack
1943);
State v. Small, 99 N.H. 349, 111 A.2d 201 (1955);
State v. N.H. Gas & Electric Co., 86 N.H. 16, 163 A.
724 (1932)."
Id. at 227, 305 A.2d at 679.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins,
dissenting.
I agree with MR. JUSTICE WHITE in his conclusion that the
Massachusetts flag statute is not unconstitutionally vague. I
disagree with his conclusion that the words "treats contemptuously"
are necessarily directed at protected speech, and that Goguen's
conviction for his immature antic therefore cannot withstand
constitutional challenge.
Page 415 U. S. 591
I agree with MR. JUSTICE REHNQUIST when he concludes that the
First Amendment affords no shield to Goguen's conduct. I reach that
result, however, not on the ground that the Supreme Judicial Court
of Massachusetts "would read" the language of the Massachusetts
statute to require that "treats contemptuously" entails physical
contact with the flag and the protection of its physical integrity,
but on the ground that that court, by its unanimous rescript
opinion, has, in fact, already done exactly that. The court's
opinion states that Goguen
"was not prosecuted for being 'intellectually . . . diverse' or
for 'speech,' as in
Street v. New York, 394 U. S.
576,
394 U. S. 593-594. . .
."
Having rejected the vagueness challenge and concluded that
Goguen was not punished for speech, the Massachusetts court, in
upholding the conviction, has necessarily limited the scope of the
statute to protecting the physical integrity of the flag. The
requisite for "treating contemptuously" was found, and the court
concluded that punishment was not for speech -- a communicative
element. I therefore must conclude that Goguen's punishment was
constitutionally permissible for harming the physical integrity of
the flag by wearing it affixed to the seat of his pants. I accept
the Massachusetts court's opinion at what I regard as its face
value.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.
I agree with the concurring opinion of my Brother WHITE insofar
as he concludes that the Massachusetts law is not
unconstitutionally vague, but I do not agree with him that the law
under which appellee Goguen was convicted violates the First and
Fourteenth Amendments. The issue of the application of the First
Amendment to expressive conduct, or "symbolic speech," is
Page 415 U. S. 592
undoubtedly a difficult one, and in cases dealing with the
United States flag it has unfortunately been expounded only in
dissents and concurrences.
See Street v. New York,
394 U. S. 576,
394 U. S. 594
(1969) (Warren, C.J., dissenting),
394 U. S. 609
(Black, J., dissenting),
394 U. S. 610
(WHITE, J., dissenting),
394 U. S. 615
(Fortas, J., dissenting); and
Cowgill v. California,
396 U. S. 371
(1970) (Harlan, J., concurring). Nonetheless, since I disagree with
the Court's conclusion that the statute is unconstitutionally
vague, I must, unlike the Court, address appellant's First
Amendment contentions.
The question whether the State may regulate the display of the
flag in the circumstances shown by this record appears to be an
open one under our decisions.
Halter v. Nebraska,
205 U. S. 34
(1907);
Street v. New York, supra; Cowgill v. California,
supra, (Harlan, J., concurring);
People v. Radich, 26
N.Y.2d 114, 257 N.E.2d 30,
aff'd by an equally divided
Court, 401 U. S. 531
(1971).
What the Court rightly describes as "the slender record in this
case,"
ante at
415 U. S. 568,
shows only that Goguen wore a small cloth version of the United
States flag sewn to the seat of his blue jeans. When the first
police officer questioned him, he was standing with a group of
people on Main Street in Leominster, Massachusetts. The people with
him were laughing. When the second police officer saw him, he
was
"walking in the downtown business district of Leominster,
wearing a short coat, casual type pants and a miniature American
flag sewn on the left side of his pants."
Goguen did not testify, and there is nothing in the record
before us to indicate what he was attempting to communicate by his
conduct, or, indeed, whether he was attempting to communicate
anything at all. The record before us does not even conclusively
reveal whether Goguen sewed the flag on the
Page 415 U. S. 593
pants himself, or whether the pants were manufactured complete
with flag; his counsel here, however, who was also his trial
counsel, stated in oral argument that, of his own knowledge, the
pants were not manufactured with the flag on them. Finally, it does
not appear whether appellee said anything during his journey
through the streets of Leominster; his amended bill of exceptions
to the Supreme Judicial Court of Massachusetts made no mention of
any testimony indicating that he spoke at all.
Goguen was prosecuted under the Massachusetts statute set forth
in the opinion of the Court, and has asserted here not only a claim
of unconstitutional vagueness but a claim that the statute
infringes his right under the First and Fourteenth Amendments.
I
There is a good deal of doubt on this record that Goguen was
trying to communicate any particular idea, and, had he been
convicted under a statute which simply prohibited improper display
of the flag, I would be satisfied to conclude that his conduct in
wearing the flag on the seat of his pants did not come within even
the outermost limits of that sort of "expressive conduct" or
"symbolic speech" which is entitled to any First Amendment
protection. But Goguen was convicted of treating the flag
contemptuously by the act of wearing it where he did, and I have
difficulty seeing how Goguen could be found by a jury to have
treated the flag contemptuously by his act and still not to have
expressed any idea at all. There are, therefore, in my opinion, at
least marginal elements of "symbolic speech" in Goguen's conduct as
reflected by this record.
Many cases which could be said to involve conduct no less
expressive than Goguen's, however, have never been thought to
require analysis in First Amendment
Page 415 U. S. 594
terms because of the presence of other factors. One who burns
down the factory of a company whose products he dislikes can expect
his First Amendment defense to a consequent arson prosecution to be
given short shrift by the courts. The arson statute safeguards the
government's substantial interest in preventing the destruction of
property by means dangerous to human life, and an arsonist's motive
is quite irrelevant. The same fate would doubtless await the First
Amendment claim of one prosecuted for destruction of government
property after he defaced a speed limit sign in order to protest
the stated speed limit. Both the arsonist and the defacer of
traffic signs have infringed on the property interests of others,
whether of another individual or of the government. Yet Goguen,
unlike either, has so far as this record shows infringed on the
ordinary property rights of no one.
That Goguen owned the flag with which he adorned himself,
however, is not dispositive of the First Amendment issue. Just as
the government may not escape the reach of the First Amendment by
asserting that it acts only in a proprietary capacity with respect
to streets and parks to which it has title,
Hague v. CIO,
307 U. S. 496,
307 U. S.
514-516 (1939), a defendant such as Goguen may not
escape the reach of the police power of the State of Massachusetts
by asserting that his act affected only his own property. Indeed,
there are so many well established exceptions to the proposition
that one may do what he likes with his own property that it cannot
be said to have even the status of a general rule.
The very substantial authority of state and local governing
bodies to regulate the use of land, and thereby to limit the uses
available to the owner of the land, was established nearly a half
century ago in
Euclid v. Ambler Realty Co., 272 U.
S. 365 (1926). Land use regulations
Page 415 U. S. 595
in a residential zoning district typically do not merely exclude
malodorous and unsightly rendering plants; they often also prohibit
erection of buildings or monuments, including ones open to the
public, which might itself in an aesthetic sense involve
substantial elements of "expressive conduct." The performance of a
play may well constitute expressive conduct or "pure" speech, but a
landowner may not for that reason insist on the right to construct
and operate a theater in an area zoned for noncommercial uses. So
long as the zoning laws do not, under the guise of neutrality,
actually prohibit the expression of ideas because of their content,
they have not been thought open to challenge under the First
Amendment.
As may land, so may other kinds of property be subjected to
close regulation and control. A person with an ownership interest
in controlled drugs, or in firearms, cannot use them, sell them,
and transfer them in whatever manner he pleases. The copyright
laws, 17 U.S.C. § 1
et seq., limit what use the purchaser
of a copyrighted book may make of his acquisition. A company may be
restricted in what it advertises on its billboards,
Packer
Corp. v. Utah, 285 U. S. 105
(1932).
The statute which Goguen violated, however, does not purport to
protect the related interests of other property owners, neighbors,
or indeed any competing ownership interest in the same property;
the interest which it protects is that of the Government, and is
not a traditional property interest.
Even in this, however, laws regulating use of the flag are by no
means unique. A number of examples can be found of statutes enacted
by Congress which protect only a peculiarly governmental interest
in property otherwise privately owned. Title 18 U.S.C. § 504
prohibits the printing or publishing in actual size or in
actual
Page 415 U. S. 596
color of any United States postage or revenue stamp, or of any
obligation or security of the United States. It likewise prohibits
the importation of any plates for the purpose of such printing.
Title 18 U.S.C. § 331 prohibits the alteration of any Federal
Reserve note or national bank note, and 18 U.S.C. § 333 prohibits
the disfiguring or defacing of any national bank note or coin.
Title 18 U.S.C. § 702 prohibits the wearing of a military uniform,
any part of such uniform, or anything similar to a military uniform
or part thereof without proper authorization. Title 18 U.S.C. § 704
prohibits the unauthorized wearing of service medals. It is not
without significance that many of these statutes, though long on
the books, have never been Judicially construed or even
challenged.
My Brother WHITE says, however, that whatever may be said of
neutral statutes simply designed to protect a governmental interest
in private property, which in the case of the flag may be
characterized as an interest in preserving its physical integrity,
the Massachusetts statute here is not neutral. It punishes only
those who treat the flag contemptuously, imposing no penalty on
those who "treat" it otherwise, that is, those who impair its
physical integrity in some other way.
II
Leaving aside for the moment the nature of the governmental
interest in protecting the physical integrity of the flag, I cannot
accept the conclusion that the Massachusetts statute must be
invalidated for punishing only some conduct that impairs the flag's
physical integrity. It is true, as the Court observes, that we do
not have in so many words a "narrowing construction" of the statute
from the Supreme Judicial Court of Massachusetts. But the first of
this Court's decisions cited in the short
Page 415 U. S. 597
rescript opinion of the Supreme Judicial Court is
Halter v.
Nebraska, 205 U. S. 34
(1907), which upheld against constitutional attack a Nebraska
statute which forbade the use of the United States flag for
purpose's of advertising. We also have the benefit of an opinion of
the Attorney General of the Commonwealth of Massachusetts that the
statute under which Goguen was prosecuted, being penal, "
is not
to be enlarged beyond its plain import, and, as a general rule, is
strictly construed.'" Report of Atty.Gen., Pub.Doc. No. 12, pp.
192-193 (1968). With this guidance, and the further assistance of
the content of the entire statutory prohibition, I think the
Supreme Judicial Court would read the language "whoever publicly
mutilates, tramples upon, defaces, or treats contemptuously the
flag of the United States . . ." as carrying the clear implication
that the contemptuous treatment, like mutilation, trampling upon,
or defacing, must involve some actual physical contact with the
flag itself. Such a reading would exclude a merely derogatory
gesture performed at a distance from the flag, as well as purely
verbal disparagement of it. *
If the statute is thus limited to acts which affect the physical
integrity of the flag, the question remains whether the State has
sought only to punish those who impair the flag's physical
integrity for the purpose of disparaging it as a symbol, while
permitting impairment
Page 415 U. S. 598
of its physical integrity by those who do not seek to disparage
it as a symbol. If that were the case, holdings like
Schacht v.
United States, 398 U. S. 58
(1970), suggest that such a law would abridge the right of free
expression.
But Massachusetts metes out punishment to anyone who publicly
mutilates, tramples, or defaces the flag, regardless of his motive
or purpose. It also punishes the display of any "words, figures,
advertisements or designs" on the flag, or the use of a flag in a
parade as a receptacle for depositing or collecting money. Likewise
prohibited is the offering or selling of any article on which is
engraved a representation of the United States flag.
The variety of these prohibitions demonstrates that
Massachusetts has not merely prohibited impairment of the physical
integrity of the flag by those who would cast contempt upon it, but
equally by those who would seek to take advantage of its favorable
image in order to facilitate any commercial purpose, or those who
would seek to convey any message at all by means of imprinting
words or designs on the flag. These prohibitions are broad enough
that it can be fairly said that the Massachusetts statute is one
essentially designed to preserve the physical integrity of the
flag, and not merely to punish those who would infringe that
integrity for the purpose of disparaging the flag as a symbol.
While it is true that the statute does not appear to cover one who
simply wears a flag, unless his conduct for other reasons falls
within its prohibitions, the legislature is not required to address
every related matter in an area with one statute.
Katzenbach v.
Morgan, 384 U. S. 641,
384 U. S.
656-658 (1966). It may well be that the incidence of
such conduct at the time the statute was enacted was not thought to
warrant legislation in order to preserve the physical integrity of
the flag.
Page 415 U. S. 599
In
United States v. O'Brien, 391 U.
S. 367 (1968), the Court observed:
"We cannot accept the view that an apparently limitless variety
of conduct can be labeled 'speech' whenever the person engaging in
the conduct intends thereby to express an idea."
Id. at
391 U. S. 376.
Then, proceeding "on the assumption that the alleged communicative
element in O'Brien's conduct [was] sufficient to bring into play
the First Amendment," the Court held that a regulation of conduct
was sufficiently justified
"if it is within the constitutional power of the Government; if
it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest."
Id. at
391 U. S.
377.
While I have some doubt that the first enunciation of a group of
tests such as those established in
O'Brien sets them in
concrete for all time, it does seem to me that the Massachusetts
statute substantially complies with those tests. There can be no
question that a statute such as the Massachusetts one here is
"within" the constitutional power of a State to enact. Since the
statute, by this reading, punishes a variety of uses of the flag
which would impair its physical integrity, without regard to
presence or character of expressive conduct in connection with
those uses, I think the governmental interest is unrelated to the
suppression of free expression. The question of whether the
governmental interest is "substantial" is not easy to sever from
the question of whether the restriction is "no greater than is
essential to the furtherance of that interest," and I therefore
treat those
Page 415 U. S. 600
two aspects of the matter together. I believe that both of these
tests are met, and that the governmental interest is sufficient to
outweigh whatever collateral suppression of expressive conduct was
involved in the actions of Goguen. In so concluding, I find myself
in agreement not only with my Brother WHITE in this case, but with
those members of the Court referred to earlier in this opinion who
dissented from the Court's disposition in the case of
Street v.
New York, 394 U. S. 576
(1969).
My Brother WHITE alludes to the early legislation both of the
Continental Congress and of the Congress of the new Nation dealing
with the flags, and observes:
"One need not explain fully a phenomenon to recognize its
existence and in this case to concede that the flag is an important
symbol of nationhood and unity, created by the Nation and endowed
with certain attributes. Conceived in this light, I have no doubt
about the validity of laws designating and describing the flag and
regulating its use, display, and disposition."
I agree.
On September 17, 1787, as the last members of the Constitutional
Convention were signing the instrument, James Madison in his
"Notes" describes the occurrence of the following incident:
"Whilst the last members were signing it, Doctor Franklin,
looking towards the President's Chair, at the back of which a
rising sun happened to be painted, observed to a few members near
him that Painters had found it difficult to distinguish in their
art a rising from a setting sun. I have said he, often and often in
the course of the Session, and the vicissitudes of my hopes and
fears as to its issue, looked at that behind the President without
being able to tell whether it was rising or setting; but now, at
length, I have the happiness to know that it is a rising, and not a
setting, sun."
4 Writings of James Madison 482-483 (Hunt ed.1903).
Page 415 U. S. 601
Writing for this Court more than one hundred years later, Mr.
Justice Holmes made the familiar statement:
"[W]hen we are dealing with words that also are a constituent
act, like the Constitution of the United States, we must realize
that they have called into life a being the development of which
could not have been foreseen completely by the most gifted of its
begetters. It was enough for them to realize or to hope that they
had created an organism; it has taken a century and has cost their
successors much sweat and blood to prove that they created a
nation. The case before us must be considered in the light of our
whole experience, and not merely in that of what was said a hundred
years ago."
Missouri v. Holland, 252 U. S. 416,
252 U. S. 433
(1920). From its earliest days, the art and literature of our
country have assigned a special place to the flag of the United
States. It figures prominently in at least one of Charles Willson
Peale's portraits of George Washington, showing him as leader of
the forces of the 13 Colonies during the Revolutionary War. No one
who lived through the Second World War in this country can forget
the impact of the photographs of the members of the United States
Marine Corps raising the United States flag on the top of Mount
Suribachi on the Island of Iwo Jima, which is now commemorated in a
statue at the Iwo Jima Memorial adjoining Arlington National
Cemetery.
Ralph Waldo Emerson, writing 50 years after the battles of
Lexington and Concord, wrote:
By the rude bridge that arched the flood
Their flag to April's breeze unfurled
Here once the embattled farmers stood
And fired the shot heard 'round the world.
Page 415 U. S. 602
Oliver Wendell Holmes, Senior, celebrated the flag that had
flown on "Old Ironsides" during the War of 1812, and John Greenleaf
Whittier made Barbara Frietchie's devotion to the "silken scarf" in
the teeth of Stonewall Jackson's ominous threats the central theme
of his familiar poem. John Philip Sousa's "Stars and Stripes
Forever" and George M. Cohan's "It's a Grand Old Flag" are musical
celebrations of the flag familiar to adults and children like.
Francis Scott Key's "Star Spangled Banner" is the country's
national anthem.
While most of the artistic evocations of the flag occur in the
context of times of national struggle, and correspondingly greater
dependence on the flag as a symbol of national unity, the
importance of the flag is by no means limited to the field of
hostilities. The United States flag flies over every federal
courthouse in our Nation, and is prominently displayed in almost
every federal, state, or local public building throughout the land.
It is the one visible embodiment of the authority of the National
Government, through which the laws of the Nation and the guarantees
of the Constitution are enforced.
It is not empty rhetoric to say that the United States
Constitution, even the First and Fourteenth Amendments under which
Goguen seeks to upset his conviction, does not invariably, in the
world of practical affairs, enforce itself. Going back no further
than the memories of most of us presently alive, the United States
flag was carried by federal troops summoned by the President to
enforce decrees of federal courts in Little Rock, Arkansas, in
1957, and in Oxford, Mississippi, in 1962.
The significance of the flag, and the deep emotional feelings it
arouses in a large part of our citizenry, cannot be fully expressed
in the two dimensions of a lawyer's brief or of a judicial opinion.
But if the Government
Page 415 U. S. 603
may create private proprietary interests in written work and in
musical and theatrical performances by virtue of copyright laws, I
see no reason why it may not, for all of the reasons mentioned,
create a similar governmental interest in the flag by prohibiting
even those who have purchased the physical object from impairing
its physical integrity. For what they have purchased is not merely
cloth dyed red, white, and blue, but also the one visible
manifestation of two hundred years of nationhood -- a history
compiled by generations of our forebears and contributed to by
streams of immigrants from the four corners of the globe, which has
traveled a course since the time of this country's origin that
could not have been "foreseen . . . by the most gifted of its
begetters."
The permissible scope of government regulation of this unique
physical object cannot be adequately dealt with in terms of the law
of private property or by a highly abstract, scholastic
interpretation of the First Amendment. Massachusetts has not
prohibited Goguen from wearing a sign sewn to the seat of his pants
expressing in words his low opinion of the flag, of the country, or
anything else. It has prohibited him from wearing there a
particular symbol of extraordinary significance and content, for
which significance and content Goguen is in no wise responsible.
The flag of the United States is not just another "thing," and it
is not just another "idea"; it is not primarily an idea at all.
Here, Goguen was, so far as this record appears, quite free to
express verbally whatever views it was he was seeking to express by
wearing a flag sewn to his pants, on the streets of Leominster or
in any of its parks or commons where free speech and assembly were
customarily permitted. He was not compelled in any way to salute
the flag, pledge allegiance to it, or make any
Page 415 U. S. 604
affirmative gesture of support or respect for it such as would
contravene
West Virginia Board of Education v. Barnette,
319 U. S. 624
(1943). He was simply prohibited from impairing the physical
integrity of a unique national symbol which has been given content
by generations of his and our forebears, a symbol of which he had
acquired a copy. I believe Massachusetts had a right to enact this
prohibition.
* To the extent that counsel for appellant who argued the cause
in the Court of Appeals may have intimated a broader construction
in the colloquy in that court quoted in this Court's opinion,
ante at
415 U. S.
575-576, I would attach little weight to it. We have
previously said that we are
"loath to attach conclusive weight to the relatively spontaneous
responses of counsel to equally spontaneous questioning from the
Court during oral argument,"
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S. 170
(1972), and, if that be the case, surely even less weight should be
ascribed by us to a colloquy which took place in another court.