Street v. New York
Encyclopedia
In Street v. New York, 394 U.S. 576
(1969), the United States Supreme 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
).
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 government
s 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."
, 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
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:
, 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, "[t]he 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:
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.
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 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
was of the opinion that laws against flag-burning are constitutional, and that therefore the defendant's conviction should have been affirmed.
, 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.. 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.
strongly chastised the court for failing to reach the core question of whether a state may prohibit the burning of the flag:
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."
agreed with Chief Justice Warren
'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
, 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.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1969), the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Flag of the United States
The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
. 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
Texas v. Johnson
Texas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
and United States v. Eichman
United States v. Eichman
United States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
).
Background
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 government
State government
A state government is the government of a subnational entity in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or be subject to the direct control of the federal government...
s 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 MeredithJames Meredith
James H. Meredith is an American civil rights movement figure, a writer, and a political adviser. In 1962, he was the first African American student admitted to the segregated University of Mississippi, an event that was a flashpoint in the American civil rights movement. Motivated by President...
, 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
Bench trial
A bench trial is a trial held before a judge sitting without a jury. The term is chiefly used in common law jurisdictions to describe exceptions from jury trial, as most other legal systems do not use juries to any great extent....
was held, he was convicted, and his conviction was upheld on appeal both by the intermediate appellate court
New York Supreme Court, Appellate Division
The Supreme Court of the State of New York, Appellate Division is the intermediate appellate court in New York State. The Appellate Division is composed of four departments .*The First Department covers the Bronx The Supreme Court of the State of New York, Appellate Division is the intermediate...
and by the New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
. The United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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 statuteState lawIn the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...
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 FlagFlag of the United StatesThe national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
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 precedentPrecedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
, when hearing an appeal on certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
from the highest court of a state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
, the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
will only pass judgment on the constitutionality of a state law
State law
In the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...
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, "[t]he State never announced that it was relying exclusively upon the burning." For these reasons, Justice Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
, 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
Flag of the United States
The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
.
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.
Chief Justice Earl Warren's dissent
Chief Justice Earl WarrenEarl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
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 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
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
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 BlackHugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
, 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.. 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 WhiteByron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
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 FortasAbe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
agreed with Chief Justice Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
'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
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
, 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.
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 desecrationFlag desecrationFlag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
- Texas v. JohnsonTexas v. JohnsonTexas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
- Flag Protection ActFlag Protection ActReacting to protests during the Vietnam War era, the United States 90th Congress enacted Public Law 90-381 , later codified as 18 U.S.C. 700, et. seq., and better known as the Flag Protection Act of 1968. It was an expansion to nationwide applicability of a 1947 law previously restricted only to...
- United States v. EichmanUnited States v. EichmanUnited States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
- Flag Desecration AmendmentFlag Desecration AmendmentThe Flag Desecration Amendment, often referred to as the flag burning amendment, is a controversial proposed constitutional amendment to the United States Constitution that would allow the United States Congress to statutorily prohibit expression of political views through the physical desecration...
- Texas v. Johnson
- List of United States Supreme Court cases, volume 394
- List of United States Supreme Court cases
- List of United States Supreme Court cases by the Warren Court