''Street v. New York'', 394 U.S. 576 (1969), was a
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case in which the Court held that a New York state law making it a crime "publicly
omutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act
ny flag of the United States was, in part, unconstitutional because it prohibited speech against the
flag. The Court left for a later day the question of whether it is constitutional or unconstitutional to prohibit, without reference to the utterance of words, the burning of the flag (see ''
Texas v. Johnson'' and ''
United States v. Eichman'').
Background
The
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
provides that all Americans have the right to
free speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
; specifically, the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
This prohibition has been interpreted by the courts as applying to the entire
federal government, but is not unlimited.
The First Amendment protection of free speech is made binding on the
state governments by way of the Fourteenth Amendment, which states that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Facts and procedural history
After hearing a news report of the attempted murder of
James Meredith
James Howard Meredith (born June 25, 1933) is an American civil rights activist, writer, political adviser, and Air Force veteran who became, in 1962, the first African-American student admitted to the racially segregated University of Missi ...
, the defendant, Sidney Street, took a
48-star U.S. flag and burned it. Upon being questioned by police, he said, "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag."
[''Street v. New York'', 394 U.S. at 579 (1969)]
He was arrested, and a document was prepared that charged him with
the crime of Malicious Mischief in that edid willfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law ...
, under the following circumstances: . . . edid willfully and unlawfully set fire to an American Flag and shout, "If they did that to Meredith, We don't need an American Flag."
A
bench trial
A bench trial is a trial by judge, as opposed to a trial by jury. The term applies most appropriately to any administrative hearing in relation to a summary offense to distinguish the type of trial. Many legal systems (Roman, Islamic) use bench ...
was held, he was convicted, and his conviction was upheld on appeal both by the
intermediate appellate court and by the
New York Court of Appeals. The
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
considered the following questions:
* Did the defendant give the state courts an adequate opportunity to decide "the constitutionality of the 'words' part of the statute"? The United States Supreme Court will not consider the question of whether a
state statute is unconstitutional unless the question is first raised in state court.
[See '' Bailey v. Anderson'', 326 U.S. 203, 206–207 (1945).]
* Given that the defendant also
burned the flag, did the defendant's words independently contribute to his conviction?
* Is the prohibition on uttering words in contempt of the
Flag actually unconstitutional?
* If this prohibition is actually unconstitutional, would that require reversal of the defendant's conviction?
The decision of the Court
Before reaching the constitutional questions, the Supreme Court first considered whether it had jurisdiction or not. According to
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, when hearing an appeal on ''
certiorari'' from the highest court of a
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
, the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
will only pass judgment on the constitutionality of a
state law if the question was first raised in state court.
Relying on ''New York ex rel. Bryant v. Zimmerman'', 278 U.S. 63, 67 (1928), ''cf. People v. McLucas'', 15 N.Y.2d 167, 172, 204 N.E.2d 846, 848 (1965), the Supreme Court held that it did in fact have jurisdiction.
The majority opinion of the Court considered that the State both mentioned the defendant's utterance, "If they did that to Meredith, We don't need an American Flag," in the charging document, and elicited testimony regarding this utterance at trial. Furthermore, "the State never announced that it was relying exclusively upon the burning."
[''Street v. New York'', 394 U.S. at 590 (1969).] For these reasons, Justice
Harlan, writing for the majority, determined that it was not possible "to eliminate the possibility either that appellant's words were the sole basis of his conviction or that appellant was convicted for both his words and his deed."
To determine whether the prohibition of "words" in contempt of the American flag was constitutional or not, the majority examined four legitimate public interests that putatively were protected by the law being challenged:
#an interest in deterring appellant from vocally inciting others to commit unlawful acts;
#an interest in preventing appellant from uttering words so inflammatory that they would provoke others to retaliate physically against him, thereby causing a breach of the peace;
#an interest in protecting the sensibilities of passers-by who might be shocked by appellant's words about the American flag, and
#an interest in assuring that appellant, regardless of the impact of his words upon others, showed proper respect for our national emblem.
The Court found that all four of these interests, considered together, are not sufficient to justify any law prohibiting the utterance of "words" against the
U.S. flag
The national flag of the United States of America, often referred to as the ''American flag'' or the ''U.S. flag'', consists of thirteen equal horizontal stripes of red (top and bottom) alternating with white, with a blue rectangle in the ca ...
.
Finally, quoting ''Stromberg v. California'', 283 U.S. at 367–368, the Court held that "The verdict against the appellant was a general one. It did not specify the ground upon which it rested. ...
is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses ... was invalid, it cannot
586be determined upon this record that the appellant was not convicted under that clause. ... It follows that ... the conviction cannot be upheld." That is, when a defendant is convicted of violating a law only part of which is unconstitutional, and the
trial record does not sufficiently demonstrate that he was convicted solely of violating that part of the law that is ''constitutional'', then the Court will reverse the conviction. Thus, the case was remanded to the state courts of New York for further proceedings.
Dissenting opinions
Chief Justice Earl Warren's dissent
Chief Justice
Earl Warren strongly criticized the majority's narrow reliance on the question of whether a prohibition on "words" uttered against the flag is constitutional or not. In deciding the case on such a narrow ground, the majority "declined to meet and resolve the basic question presented in the case.". This is not to say that he dissents from "the general rule that this Court should not treat broad constitutional questions when narrow ones will suffice to dispose of the litigation," but rather, neither the prosecution nor the defense based their arguments on the question of whether it is constitutional or unconstitutional to prohibit the utterance of "words" against the flag. Instead, both sides argued vigorously regarding whether the Constitution allows states to prohibit the ''burning'' of the flag. Furthermore, Chief Justice Warren's reading of the
trial transcript was that the burning was the central issue of the case, the defense
theory of the case being that the defendant "burned the flag ''in a dignified manner''," (emphasis added); thus, in his opinion, the narrow focus on the "words" uttered by the defendant and prohibited by the state law was simply not in accord with the facts of the case. However,
Warren
A warren is a network of wild rodent or lagomorph, typically rabbit burrows. Domestic warrens are artificial, enclosed establishment of animal husbandry dedicated to the raising of rabbits for meat and fur. The term evolved from the medieval A ...
was of the opinion that laws against flag-burning are ''constitutional,'' and that therefore the defendant's conviction should have been affirmed.
Justice Hugo Black's dissent
Justice
Black
Black is a color which results from the absence or complete absorption of visible light. It is an achromatic color, without hue, like white and grey. It is often used symbolically or figuratively to represent darkness. Black and white ...
, in a brief but vigorous dissent, wrote that "I agree with the excellent opinion written by Chief Judge Fuld for a unanimous Court of Appeals, upholding the New York statute which this Court now holds unconstitutional as applied.". The New York law prohibited the burning of the U.S. flag, and the State proved beyond a reasonable doubt that the defendant burned the U.S. flag, and the utterances of the defendant were, in Black's view, irrelevant.
If the New York law in fact prohibited "words" against the flag, Black wrote, the law would unquestionably be unconstitutional – so blatantly unconstitutional, in fact, that there would be no need for the Court to balance any purported legitimate state interests against the defendant's freedom of speech.
[''Street v. New York'', 394 U.S. at 610 (1969).] However, because Justice Black was satisfied that the defendant was convicted solely of burning the flag, and because burning the flag is "an integral part of conduct in violation of a valid criminal statute," he would affirm the defendant's conviction.
Justice Byron White's dissent
Justice
White
White is the lightest color and is achromatic (having no hue). It is the color of objects such as snow, chalk, and milk, and is the opposite of black. White objects fully reflect and scatter all the visible wavelengths of light. White o ...
strongly chastised the court for failing to reach the core question of whether a state may prohibit the burning of the flag:
The Court has spun an intricate, technical web but I fear it has ensnared itself in its own remorseless logic and arrived at a result having no support in the facts of the case or the governing law.
In his dissent, he says that "is a distortion of the record" for the majority of the Court to have relied on the defendant's putative conviction for uttering words against the flag, as if "the trial court convicted him for speech alone, and acquitted him of flag burning." He then cites a string of decisions in support of the proposition that if a defendant is convicted of one crime as a result of his commission of two putatively illegal acts (burning the flag and speaking against the flag), and the conviction was invalid as to one act (speaking against the flag), this does ''not'' invalidate the conviction of the other act (burning the flag), and suggests that even if the conviction be reversed it should be remanded for resentencing only.
However, Judge White did not go so far as to say that flag-burning is not constitutionally protected; rather, he wrote that "without the benefit of the majority's thinking if it were to find flag burning protected by the First Amendment, I would sustain such a conviction."
Justice Abe Fortas' dissent
Justice
Fortas agreed with Chief Justice
Warren
A warren is a network of wild rodent or lagomorph, typically rabbit burrows. Domestic warrens are artificial, enclosed establishment of animal husbandry dedicated to the raising of rabbits for meat and fur. The term evolved from the medieval A ...
's dissent, but added a brief additional explanation of why he thought that it would be constitutional to ban flag-burning. First, he argued, if the flag were nothing more than an ordinary item of property, the state could prohibit its burning merely as an exercise of its authority to protect the public safety. The flag's status as a special emblem of
nationality
Nationality is a legal identification of a person in international law, establishing the person as a subject, a ''national'', of a sovereign state. It affords the state jurisdiction over the person and affords the person the protection of the ...
, however, entitles it to additional protections, some of which have been upheld by the Court in the past. In summary, "Protest does not exonerate lawlessness"; thus, the state can prohibit the burning of any item in public, and the nature of the flag entitles it to more protection under the law, rather than less.
[''Street v. New York'', 394 U.S. at 617 (1969).]
Conclusion
Subsequent history
Further developments
The ''Street'' court did not consider whether a prohibition on burning the flag, without also prohibiting words against the flag, would be constitutional or unconstitutional. This question would remain open until 1989, when in ''
Texas v. Johnson'', 491 U.S. 397, the Court invalidated a flag-burning statute.
See also
*
Flag desecration
Flag desecration is the desecration of a flag, violation of flag protocol, or various acts that intentionally destroy, damage, or mutilate a flag in public. In the case of a national flag, such action is often intended to make a political poin ...
**''
Texas v. Johnson''
**
Flag Protection Act
**''
United States v. Eichman''
**
Flag Desecration Amendment
The Flag Desecration Amendment (often referred to as the Flag-Burning Amendment) is a proposed addition to the Constitution of the United States that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical " ...
*
List of United States Supreme Court cases, volume 394
*
List of United States Supreme Court cases
This page serves as an index of lists of United States Supreme Court cases. The United States Supreme Court is the highest federal court of the United States.
By Chief Justice
Court historians and other legal scholars consider each Chief J ...
*
Notes
References
External links
*
''Street v. New York''archive at First Amendment Center
The Declaration of Independence and the Constitution of the United States, with amendmentsAmendments to the Constitution of the United States
{{US1stAmendment, speech, state=expanded
United States Supreme Court cases
United States Supreme Court cases of the Warren Court
United States Free Speech Clause case law
1969 in United States case law
Flag controversies in the United States
American Civil Liberties Union litigation