Street v. New York

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1969 US Supreme Court flag-burning case

1969 United States Supreme Court case

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**Street v. New York **

Street v. New York, 394 U.S. 576 (1969), was a United States Supreme Court case in which the Court held that a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any 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

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The Constitution provides that all Americans have the right to free speech ; specifically, the First Amendment 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

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After hearing a news report of the attempted murder of James Meredith , 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."

He was arrested, and a document was prepared that charged him with

the crime of Malicious Mischief in that [he] did willfully and unlawfully defile, cast contempt upon and burn an American Flag, in violation of 1425-16-D of the Penal Law , under the following circumstances: . . . [he] did 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 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 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.

• 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

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Before reaching the constitutional questions, the Supreme Court first considered whether it had jurisdiction or not. According to precedent , when hearing an appeal on _certiorari _ from the highest court of a state , the United States Supreme Court 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." 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:

1. an interest in deterring appellant from vocally inciting others to commit unlawful acts;
2. 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;
3. an interest in protecting the sensibilities of passers-by who might be shocked by appellant's words about the American flag, and
4. 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 .

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. ... [I]t is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses ... was invalid, it cannot [p586] be 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

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Chief Justice Earl Warren's dissent

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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 constitu

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