
    The People of the State of New York, Plaintiff, v. Stephen Radich, Defendant.
    Criminal Court of the City of New York, New York County,
    May 5, 1967.
    
      
      Frank S. Hogan, District Attorney (Jerry Slater of counsel), for plaintiff. Richard G. Green and Shirley Fingerhood for defendant.
   Frederick L. Strong, J.

The defendant, an art dealer, publicly exhibited for sale at his gallery from December 13, 1966 to January 17, 1967 13 three-dimensional objects called “constructions.” One of these objects (People’s Exhibit 2) was in the display window and consisted of an American flag stuffed and shaped in a form suggesting a human body hanging from a yellow noose around its neck. Among the 12 other “ constructions ” inside the gallery was one (People’s Exhibits 3 and- 4) in the form of a large cross with a bishop’s mitre on the headpiece, the arms wrapped in ecclesiastical flags and an erect penis wrapped in an American flag protruding from the vertical standard. Other “ constructions,” all making use of the flag stuffed in various shapes, are described in the complaint herein and portrayed in the photographic exhibits.

This prosecution is brought under paragraphs d and f of subdivision 16 of section 1425 of the Penal Law of the State of New York, originally enacted in 1903, which provide as follows:

“16. Any person, who * * #
“ d. Shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act, or * * *
“ f. Shall publicly carry or display any emblem, placard or flag which casts contempt, either by word or act, upon the flag of the United States of America, * * *
Shall be deemed guilty of a misdemeanor * * *
‘ ‘ The' words flag, standard, color, shield or ensign, as used in this subdivision or section, shall include any flag, standard, color, shield or ensign, or any picture or representation, of either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color, shield or ensign, of the United States of America, or of the state of New York, or a picture or a representation of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the person seeing the same, without deliberation may believe the same to represent the flag, colors, standard, shield or ensign of the United States of America, or of the state of New York.
“ This subdivision shall not apply to any act expressly permitted by the statutes of the United States of America, or by the United States army and navy regulations, nor shall it be construed to apply to a certificate, diploma, warrant, or commission of appointment to office, ornamental picture, article of jewelry, stationery for use in private correspondence, or newspaper or periodical, on any of which shall be printed, painted or placed, said flag, standard, color, shield or ensign disconnected and apart from any advertisement. ’ ’

The defendant moves after trial to dismiss the complaint on the ground that the facts as established do not constitute a violation of the statute and further that, in any case, the statute is unconstitutional for denial to the defendant of free speech, equal protection of the laws, and, because of vagueness, due process of law. Factually, the defendant contends that the 1 constructions ’ ’ are a form of sculpture of a kind known as ‘1 protest art ” and that no contempt for the flag was intended either by the artist or by himself. With particular reference to the cross-form, he claims that it expresses opposition by the artist to what he considers church-condoned American aggressive warfare in Vietnam as symbolized by the flag-wrapped phallus.

We hold that these so-called “ constructions ” constitute a contemptuous use of the flag of the United States and that the defendant by exhibiting them to the public cast contempt upon it in violation of paragraph d of the statute under which this proceeding was instituted. It will not do for the defendant to say that paragraph d by itself does not contain an object. Subdivision 16 must be read as a whole, and it is clear that the intended object is contained in the next paragraph, lettered “ e,” in the words any such flag, standard, color, shield or ensign ”. We do not find paragraph f to be applicable to the facts presented here.

We further hold that these so-called “ constructions ” are not within the protection of the exclusionary paragraph of the statute. Sculpture,” if such these objects be, is not expressly exempted, and we see no valid basis for construing an implied exemption for it on the ground urged by the defendant that, “ pictures ” being expressly excepted, the omission of “ sculpture ” was a legislative inadvertence. In any case, it is important to note that only pictures termed ornamental ” are exempted, and we are not prepared to find that the subjects of this prosecution are “ ornamental ” even by contemporary community standards. It seems clear to us that the legislative intent was to protect from prosecution the printed, painted, or affixed use of the American flag solely for ornamental, as distinguished from advertising, purposes. There is nothing in the statutory language to indicate that the Legislature was concerned with the application of the First Amendment. As to these “ constructions,” it is, therefore, in our opinion of no consequence whether or not the word “ pictures ” in the exclusionary paragraph be deemed to embrace sculptures.

Obviously this case raises constitutional questions of fundamental importance. As a trial court, we must especially recognize the presumption supporting the validity of duly enacted legislation. The People having no right of appeal from an acquittal, we should not strike down this statute in the absence of a clear and overwhelming showing that it violates one or another of the guarantees set forth in the Bill of Rights. We fail to find such a decisive showing of unconstitutionality.

We do not find the statute here to constitute class legislation clearly in violation of the equal protection clause of the Fourteenth Amendment. As we have pointed out above, the section does not discriminate between pictures generally and sculpture generally. Only “ornamental” pictures are excepted. The Legislature did not intend to say that pictures desecrating the flag would be exempted as a basis for prosecution and that similar sculpture would not be so protected. Any contemptuous use of the flag comes within the purview of the statute, whether two-dimensional or three-dimensional. We find in this statute no arbitrary discriminatory classification.

We cannot find that the freedom of speech guarantee of the First Amendment includes a license to desecrate the flag. It is inconceivable to us that the authors of the Bill of Rights could have intended that the protection of the First Amendment could or should be stretched so far. The language of the Circuit Court of Appeals in United States v. Miller (367 F. 2d 72, 79) (cert. den.), a draft card burning prosecution, is apropos. The court there said: ‘1 sincere motivation or the labeling of even non-violent conduct as symbolic does not necessarily transform that conduct into speech protected by the First Amendment.”

In the exercise of its police power, a State may restrict acts which pose an “immediate threat to public safety, peace, or order ” (Cantwell v. Connecticut, 310 U. S. 296, 308). In Halter v. Nebraska (205 U. S. 34, 41) the Supreme Court, in upholding a statute similar to that involved here as applied to the use of the flag in advertising, said: ‘1 From the earliest periods in the history of the human race, banners, standards and ensigns have been adopted as symbols of the power and history of the peoples who bore them. * * * Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.” It seems to us that the prohibited use of the flag in advertising is less of a desecration and therefore less of a threat to public order than the use and exhibition of it in the so-called “ constructions ” here involved.

The United States Supreme Court decisions, cited by the defendant, in West Virginia v. Barnette (319 U. S. 624), Stromberg v. California (283 U. S. 359) and Terminiello v. Chicago (337 U. S. 1) (cf. Feiner v. New York, 340 U. S. 315), arose from such different facts and statutes that we do not find them determinative of the issue here involved. In any case, we do not presume to make a final determination as to “ where the individual’s freedom ends and the State’s power begins.” The Supreme Court has said that our system places that duty upon it (Thomas v. Collins, 323 U. S. 516, 529).

In our opinion the language of the statute involved here is not so vague as to violate the due process clause of the Fourteenth Amendment. It seems to us clear enough to apprise any person of ordinary intelligence as to what it permits and what it prohibits. If he wishes to approach the brink of what is proscribed, he necessarily gambles on an adverse finding by the court. Since we find the statute to constitute ‘ ‘ malum prohibitum,” no criminal intent to violate it is prerequisite to conviction. (People v. Boxer, 24 N. Y. S. 2d 628, 632.)

Holding, as we do, that the act of the defendant in publicly exhibiting these so-called “ constructions ” cast contempt upon the flag of the United States and that no exception in the statute here involved exempted it and, further, that the statute as here applied does not clearly violate any constitutional provision, we find him guilty of the charge against him as set forth in paragraph d of subdivision 16 of section 1425 of the Penal Law of the State of Nbav York.

Amos S. Basel, J.

(dissenting). Defendant Badicli is charged with a misdemeanor by reason of exhibiting and offering for sale in his art gallery a form of sculpture called! ‘ constructions ” designed of American flags in forms described in the majority opinion. Defendant’s gallery is Avell established in the Nbav York art Avorld. The exhibition was reviewed by art critics including the critic for The New York Times and was treated as a serious artistic offering. The works complained of, when displayed, were accompanied by a musical background of taped anti-war songs. The sound must be considered part of the exhibit. Modern artists often use additional media to accompany their visual creations to express their ideas more completely and to create a total effect. It is in the context of the anti-war theme, the statement the artist attempts to make must be judged. Defendant describes his efforts as “ protest art.” The creator of this' work specifically protests America’s participation and leadership in the Vietnam war.

There are many Americans in opposition to the war, who reverence the flag and to whom, ‘1 it signifies government resting on the consent of the governed, liberty regulated by law, the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.” (Halter v. Nebraska, 205 U. S. 34, 43.) These loyal dissenters vehemently, honestly and passionately oppose United States intervention in Vietnam. They have devised varied means to express their opposition. This group argues, and many are veterans who fought to protect the flag, that the flag is being placed in contempt by our “ aggression ” and persistence in this war. They protest that the image of the American flag as a symbol of freedom to lovers of liberty and a shining object to the oppressed is cast in contempt.

This is the message the artist seeks to convey, in the work defendant exhibited. We may quarrel with his theme, disagree with his method, condemn his goal. We cannot dispute his right to express dissent even though the means be loathsome to us. ‘ Laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men,” (Board of Educ. v. Barnette, 319 U. S. 624, 644.) We can also nót ignore the fact that large groups of Americans agree with his dissent, as witness the recent march of 100,000 upon the U. N. Freedom to differ is not limited to the things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” (Board of Educ. v. Barnette, supra, p. 642.)

It is not the dissent for which defendant is prosecuted, we are told, it is the method that is condemned. It is the fact that the artist whose work defendant exhibits has chosen as his means of expression, to define the flag by hanging it in effigy, draping it in chains, shaping it as a phallus on a cross, this opposition may no longer be characterized as free expression, it is contemptuous conduct. The sculptor cannot declare his dissent in this form, it is argued, because it violates and shames the symbol of our land and is thus a crime as defined in section 1425 of the Penal Law (subd. 16, pars, d and f).

Defendant contends artist is not showing contempt for the flag. He supports what it symbolizes, liberty, equality, freedom, but he protests by means of these £t constructions ” that those virtues have been abandoned by United States conduct in Vietnam. The ideals the flag represents, he argues, are enchained, its inspiration publicly hangs in shame before the world, and the church and State are jointly to be charged as violators of the innocent. He makes that protest visible, it takes sculptural form.

It is essential that legislation which is criminal in character be clearly drawn and precise so that those enforcing it will know its meaning and those subject to it can clearly regulate their conduct. If such legislation has a tendency to impair or impede free speech it must be judged ultra carefully. (Winters v. New York, 333 U. S. 507, 509; Stromberg v. California, 283 U. S. 359; Herndon v. Lowry, 301 U. S. 242.) As Judge Learned Hand said in Masses Pub. Co. v. Patten (244 F. 535, 540): “Assuming that the power to repress such opinion [hostile criticism] may rest in Congress in the throes of a struggle for the very existence of the state, its exercise is so contrary to the use and wont of our people that only the clearest expression of such a power justifies the conclusion it was intended.” Section 1425 (subd. 16, par. d) reads in full: “ Shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act ”. It does not describe the object of this condemnation. Although a reading of the full statute (all of subdivision 16 of section 1425 might suggest it was a flag that was the Legislature’s concern, paragraph d of subdivision 16 does not say so and it is the only paragraph in subdivision 16 of section 1425 which omits the word ‘£ flag. ’ ’ It would be novel criminal law to convict anyone under such a statute, to read the word flag into it in order to obtain a conviction is in my view clearly unconstitutional.

The prosecution and the question is thus narrowed and confined to the validity of paragraph f of subdivision 16 “shall publicly carry or display any emblem, placard or flag which casts contempt, either by word or act, upon the flag of the United States of America ’

Who shall be the judge of what word or act is contemptuous? Which act, what words constitute contempt?

‘1 The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement. The crime ‘ must be defined with appropriate definiteness.’ Cantwell v. Connecticut, 310 U. S. 296; Pierce v. United States, 314 U. S. 306, 311. There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of an enactment ’’.

(Winters v. New York, 333 U. S. 507, 515. United States v. Cohen Grocery Co., 255 U. S. 81.)

In Herndon v. Lowry (supra, pp. 263-264) the Supreme Court said: “ The statute, as construed and applied, amounts merely; to a dragnet which may enmesh anyone who agitates for a change of government if a jury can be persuaded that he ought to have foreseen his words would have some effect in the future conduct of others. No reasonably ascertainable standard of guilt is prescribed. So vague and indeterminate are the boundaries thus set to the freedom of speech and assembly that the law necessarily violates the guarantees of liberty embodied in the Fourteenth Amendment. ’’ (See, also, People v. Bookcase, Inc., 14 N Y 2d 409; People v. Kahan, 15 N Y 2d 311.)

The statute in the instant case is drawn so broadly and is so vague that any words or any acts to which someone in authority takes offense, can' be deemed criminal. “The constitutionality of a statute governing publications is to be tested by what can be done under it and not by the particular violation which is charged with having occurred.” (People v. Bookcase, Inc., supra, p. 418; italics added.) The 100,000 who marched upon the U.N. are critical of the uses to which the flag is being put in Vietnam, as are Senator Fulbright, Senator Hatfield and thousands of others. Are they guilty of a crime if they say the flag has been placed in chains by United States conduct? No one would seriously argue they be jailed for expressing verbally or in writing what the artist here makes visual. I agree with defendant’s art expert that the artist’s talent is limited, his symbolism obvious, cliche and lacking in imagination. I acknowledge he has chosen a means of expression in extreme poor taste and shabby in form. But is he to be punished for his lack of maimers and his vulgarity when his intention is a serious condemnation of our present foreign policy? Who is to judge under this statute if what he did is unlawful? If those who marched in opposition are his judges, it is doubtful they will find his conduct contemptuous. If those who hurled insults at the parade were on his jury, they would almost certainly find him guilty. “A person gets from a symbol the meaning he puts into it ”. (Board of Educ. v. Barnette, 319 U. S. 624, 632-633, supra.) “It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.” (United States v. Cohen Grocery Co., 255 U. S. 81, 89, supra.) The Legislature has established standards so vague, indefinite, imprecise and subjective, the statute under discussion should be held unconstitutional. As Chief Justice Hughes said in Stromberg v. California (283 U. S. 359, 369, supra): “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means * * * is a fundamental principle of our constitutional system. A statute which upon its face * * # is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.”

Halter v. Nebraska (205 U. S. 34, supra) relied upon by the People and the majority opinion and followed in People v. Picking (288 N. Y. 644) is distinguishable. In a recent case involving disrespect for the flag, in Federal District Court, although the court did not take jurisdiction for procedural reasons, it said: “ The substantive constitutional issues are not insubstantial. This view can scarcely bo altered by Halter which was decided several years before the protections of the First Amendment were held firmly applicable to the states through the Fourteenth Amendment. However, the argument that the statute is unconstitutional for vagueness was notably absent in the Halter case.” (Dunncombe v. State of New York, U. S. Dist. Ct., S. D., N. Y., Civ. 1085, April 11, 1967, Bryan, J.) Halter also passed only on the advertising provisions of section 1425. These are more carefully drawn than section 1425 (subd. 16, pars, d, f) and are more detailed and not vague. Halter is further distinguished by the fact that advertising is not yet protected by the First Amendment.

The other argument advanced by defendant, that the statute intends to exempt all forms of expression as protected by the First Amendment and that all sculpture as well as all painting is included in the descriptive term in the statute, “ ornamental painting,” does not require discussion in view of the opinion here expressed as to the unconstitutionality of the statute.

The motion to dismiss should have been granted and the defendant found not guilty. I dissent from the majority view.

Comerford, J., concurs with Strong, J.; Basel, J., dissents in opinion.  