Street v. New York
Decided on Apr. 21, 1969; 394 US 576


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Free Speech, flag burning

B. Legal Question Presented:

Does 1425, subd. 16, par. d, of New York Penal Law, as applied to appellant, violate his constitutional right to free expression?

II. CASE SUMMARY:

A. Background:

"Appellant, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag which he owned to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or 'publicly [to] defy... or cast contempt upon [any American flag] either by words or act.'

The information charged appellant with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Appellant unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected 'demonstration' or 'protest.'

Appellant was tried before a judge without a jury and convicted. The arresting officer testified that at the time of arrest appellant was standing on a corner speaking to a small and not unruly group, which did not block the street or sidewalk; on the opposite corner was the burning flag; appellant told the group: 'We don't need no damn flag,' and said to the officer, 'If they let that happen to Meredith, we don't need an American flag.'

Appellant also challenged the constitutionality of the 'words' part of the statute in the Appellate Term and in the New York Court of Appeals, both of which affirmed his conviction, the latter court upholding the constitutionality of the statute without alluding to the 'words' part.

On appeal the Supreme Court reversed.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
David T. Goldstick argued the cause for appellant. With him on the briefs were Albert H. Blumenthal, Osmond K. Fraenkel, Alan H. Levine, and Melvin L. Wulf. Harry Brodbar argued the cause for appellee. With him on the brief was Elliott Golden.

Briefs of amici curiae urging affirmance were filed by Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Brenda Soloff, Assistant Attorney General, for the Attorney General of New York, and by Peter Megargee Brown for the United States Flag Foundation, Inc.

IV. THE SUPREME COURT'S DECISION:

"The application of 1425, subd. 16, par. d, to appellant was violative of rights of free expression assured against state infringement by the Fourteenth Amendment, because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag.

The record here is insufficient to eliminate the possibility that appellant's words were the sole basis of his conviction or that he was convicted for both his words and his deed.

Appellant's conviction under 1425, subd. 16, par. d, for speaking as he did could not be constitutionally justified on the basis that the words he uttered (1) constituted incitement to others to commit unlawful acts; (2) were so inflammatory as to provoke violent retaliation by others; (3) were (apart from the content of the ideas they conveyed) likely to shock passers-by; or (4), in the light of Board of Educ. v. Barnette, 319 U.S. 624 (1943), constituted failure by the appellant to manifest the respect which every citizen must show the flag."

The Supreme Court reversed the judgment of the New York Court of Appeals.

Justice Vote: 5 Pro vs. 4 Con

  • Harlan, J. Pro (Wrote majority opinion)
  • Stewart, T.  Pro  (Joined majority opinion)
  • Marshall, T.  Pro (Joined majority opinion)
  • Burger, W.  Pro (Joined majority opinion)
  • Brennan, W.  Pro (Joined majority opinion)
  • Warren, E. Con (Wrote dissenting opinion)
  • White, B. Con (Wrote dissenting opinion)
  • Black, H. Con (Wrote dissenting opinion)
  • Fortas, A. Con (Wrote dissenting opinion)
  • V. A WIN OR LOSS FOR THE ACLU?

    The ACLU, as counsel of record, urged reversal of the judgment of the New York Court of Appeals; the Supreme Court reversed the lower court's ruling in a 5-4 vote, giving the ACLU an apparent win.