Earl Warren: Sydney Street Appellant versus New York. Mr. Goldstick.
David T. Goldstick: Good morning Mr. Chief Justice.
Earl Warren: Before you start, I should have said that the orders of the Court have been certified by the Chief Justice and filed with the Court below will not be announced thoroughly. You may proceed now Mr. Goldstick.
David T. Goldstick: Mr. Chief Justice and may it please the Court. This is an appeal from a conviction of the Criminal Court of the City of New York, where an appellant was convicted for malicious mischief. And that he be filed and cast contempt upon and burned an American flag in violation of Section 1425 (16) (d), of the New York State Penal Law. The charge was that he did willfully set fire to and burn the American flag and shout, “If they did that to James Meredith, We don't need and American Flag”. The judgment was unanimously affirmed by the appellant term of the Supreme Court of New York without decision, and in turn, the Judgment unanimously affirmed by the Court of Appeals, Judge Fuld rendering the opinion. The statute in question is set forth in page 5 of appellant's brief. I might, at the Halter say that we agreed completely with Justice Fuld when he states that the central issue in this case is whether or not the deliberate act of burning an American flag in public as a protest maybe punished as a crime. Parenthetically, we believed there was another issue that was raised then and that is raised here today, that assuming that New York State may punish such an act as a crime, may it do it under the statute in question. The facts are really undisputed, on June 6, 1966 at about 5:30 in the afternoon, Sidney Street was sitting in his apartment listening to the radio when he heard news broadcasts that James Meredith, while marching through Mississippi was shot. He went to his door to get an American Flag when down from his apartment to a street corner, put a piece of paper in the street folding the flag in one hand, properly fold it, put a match to it, and set it on fire. A police officer testified at the trial that he saw the smoke, came over to find out what had occurred, saw on the street corner a flag partially burned and folded lying on the ground, heard a man shouting, couldn't quite make out what he was saying. At the other street corner across the street, heard a man shout, “We don't need no damn flag!” Upon identify who the man was who it turned out to be the defendant. Asked him if it was his flag, the appellant said “Yes, it was my flag”, and said the words “If they did that to James Meredith, We don't need the American Flag”.
Earl Warren: Mr. Goldstick, Judge Fuld and his recital of the facts and his opinions for the Court of Appeals. It does have a little minor error in his factual recital does he not? When he says that your client told the small crowd which collected that quote “if they let that happen to Meredith, We don't need an American Flag”.
David T. Goldstick: Now, we don't know if factual error then and I'll tell why Mr. Justice, because they also testified that he came over after the burning and that he questioned the person street there at the corner. Now, I don't know whether when he questioned him loud enough for the crowd to have heard the question. I think we may assume that he did. Certainly, we may assume that the crowd did hear “We don't need no damn flag”, that's without question. The other words, with the records just doesn't clear Your Honor.
Earl Warren: I went to the record pretty carefully yesterday and I didn't see that there was anything to support the statement that you're client as he was burning the flag --
David T. Goldstick: Oh, that's quite so.
Earl Warren: It put it off, so he came told the small crowd that he collected --
David T. Goldstick: Oh that's quite so. The statement was made after the act of burning was done, quite so, quite so. Let me ask the Court if they will turn with me to page 5 of my brief so that we may examine the statute together and that I might point out what appellant's contentions are concerning the infirmities of the statute. I turned to the subdivision d, which it says, “Shall publicly mutilate the face, the file or defy, trample or cast contempt upon either by words or act.” At the outset, it becomes obvious that the insertion in the statute by words, as well as by acts, shows us that the statute on its phase restricts freedom of speech. Secondly, I would like to point out that the word “Cast Contempt Upon”, the words cast contempt upon, the word defile, the word defy, have speech meanings as well as act meanings. As a matter of fact, I find difficulty in seeing where the statute does not, on it's face, have an absolute restriction on the form of verbal speech that somebody may use towards the American flag and this is born out I might say in the District Attorney's brief where he so interprets the statute even in the Court of Appeals' decision. I asked the Court to turn with me for a moment to Judge Fuld's decision on page 8a of the record. About 12 lines from the bottom of the page, we see the observation by Chief Judge Fuld, subdivision 16 of section 1425 is designed to prevent the outbreak of such violence by discouraging contemptuous and insulting treatment of the flag and I infer from the words “treatment” that treatment certainly had contemptuous treatment of the flag maybe by word as well as by act. We find that the opinions of the Mr. Harry Brodbar General the State of New York, as cited in the District Mr. Harry Brodbar's brief, seem to indicate that the statute is prohibiting words as well as acts. In fact, it seems to go farther even then the Court of Appeals' decision. The Mr. Harry Brodbar General seems to feel that all disrespect of any kind shown to the flag is illegal under the statute. Now, the point that I'm trying to bring to this Court's attention is that this is not a fanciful observation. The convictions that we had in New York over the past two years have been really real besides streets conviction. We had a conviction in the Riddick's case that is waiting appeal to the New York Court of Appeals where an owner of an art store, a displayed in his arts store in the window, some 40 odd constructions of an artist's protest against the American flag and as Judge Bissell, observed in his descent, the artist is conveying by his pictures what you or I might be able to convey by words but this is the way he can convey it best. You'll notice in our reply brief, in our reply brief, we have a picture of a poster and I've noticed that Mr. Justice Stewart is taking a look at and I think maybe all of us could look at it together. At two weeks ago, a police officer was--had issued a summons for violation of the statute for showing an American flag in a bookstore window and replacing on the field where the stars are the doves of peace, and the signs of peace. Now the question has to be asked, alright what does have to do with this case. No question that streaked at something that isn't all speech, its act as well as speech and alright, suppose the statute goes too far but we should still be able to convict Street because unquestionably, New York has the power to outlaw this kind of conduct. It is our position Your Honors that even if this Court took that position which we would not agree at with but assumed for a moment that we agree that the State of New York could outlaw this type of conduct.
Abe Fortas: You know really, do you really argue that State of New York could not constitutionally outlaw the defacing of the flag by physical acts?
David T. Goldstick: I do not Mr. Justice Fortas. I do not take that position.
Abe Fortas: You don't take that position?
David T. Goldstick: I do not.
Abe Fortas: So, it's a speech element here that or the speech or so called “symbolic speech” about issue you here.
David T. Goldstick: It bothers me very much and it also bothers me that a statute on its face that is so restrictive goes far beyond the limited powers that Mr. Justice Fortas is referring to, and that even if we assume that it could do what Mr. Justice Fortas says, I quite agree with you and all likely we're going to probably could. It can't go as far as the statute and Mr. Street is in a position to attack the statute.
Potter Stewart: Now, Mr. Goldstick, I didn't quite understand, what position do you not take?
David T. Goldstick: I do have the position that the State of New York had not regulate conduct towards the flag. I'm saying that the State of New York may, under certain circumstances with a properly drawn statute narrowly construed for the purpose intended, prevent certain acts of flag desecration.
Potter Stewart: I didn't understand your brief to take that position.
David T. Goldstick: You know, last night I really struggled with this problem myself because I've been struggling with it for two years, and I must confess to Your Honor that I have been back and forth on the power of the state to regulate conduct towards the flag, and I have to take the position that in this case it makes no difference, whether or not we were to decide that the State of New York does have such power. I'm willing to concede for the purpose of this argument that it does have that power.
Potter Stewart: Just for this branch of your argument or your whole case?
David T. Goldstick: I'm willing to concede for the entire case that there is a limited amount of power that the State of New York has to regulate conduct, conduct towards the flag.
Byron R. White: I take it though you would say that power ends as just the moment that the conduct is communicative.
David T. Goldstick: Absolutely.
Byron R. White: Even though and it ends as soon as there is a claim that is communicative?
David T. Goldstick: Well, I would say first, we may not even have to reach that point because the statute on its face, obviously, restricts communicative acts. So that -- even if we have for example a statute like the Federal Government recently enacted which omits completely any reference to speech except, I might point out for the word “defile” which has an interpretation having speech connotation. Assume even that word was out, and we had a federal statute in question, which then have to reach the question there as to whether was constitutionally applied, but we can avoid that problem. Though, I'm prepare to speak on it because I think even if we have the federal statute of New York, that particular facts in this case would not allow a conviction. But assuming for a moment, that was the statute we had, I'm sorry. Assuming that we did not have the statute but we have the statute that we have, we don't reach the question because that's far beyond the federal statute. I might point out that the honorable Ramsey Clark and I realized it is not binding in this Court at any matter whatsoever, but he still made a very have observation to Congress when they were adapting their statute that the words as used in the New York statute deter and in the proposed statute before the Congress will very much like the New York statute. And freedom of speech --
Abe Fortas: Let me see if I follow you because your concession doesn't dispose in a matter for this Court, but I want to get your position clear. Suppose you had here a statute that said that, that should be statute of New York that said it should be unlawful for any person in public deliberately to set fire to and burn an American flag. That's all the statute said, I understand that's what Mr. Street did, and he was indicted for that, no speech element whatever. You do not take the position that that would be a violation of the United States Constitution.
David T. Goldstick: I do not.
Earl Warren: I'd like an addition to that. He uses some language, do you claim with that purged him?
David T. Goldstick: I'm sorry Mr. Chief Justice --
Earl Warren: But if an addition to burning the flag, he uses some language such as he does here? Do you think that purges him of burning the flag?
David T. Goldstick: That is the nub, isn't it?
Earl Warren: I beg your pardon.
David T. Goldstick: That is the nub of the problem isn't it, because that is exactly what we are saying. We are saying also that even under the circumstances, these circumstances Mr. Justice Fortas pointed out, that the act could then be coupled with other acts that in and up itself now brings it out of the simple due process problems of a criminal statute and close it with First Amendment problems. And I might point out --
Potter Stewart: Don't you think there'd be any First Amendment problem and the case put to you by Mr. Justice Fortas?
David T. Goldstick: Not necessarily. Not necessarily because on its face, there's no restriction of speech, but there may be as for example as apply, the person may be doing the burning and shouting that United States is not belong in that--
Potter Stewart: What if he has not saying anything?
David T. Goldstick: No words? Well, there is no --
Potter Stewart: Don't you think there's First Amendment problem?
David T. Goldstick: No, I don't see where the communication is. There has to be a communication in order for them to --
Potter Stewart: Don't you think that's a communication ended up itself?
David T. Goldstick: Not necessarily, if I filled myself with a couple of statute, I'm sorry.
Byron R. White: But it is. It doesn't say word --
Potter Stewart: That's right.
David T. Goldstick: Could it be. The answer to that would be if --
Byron R. White: You mean that we have instead of word here that same word with -- it is like you --
David T. Goldstick: If Street had not said a word -- not necessarily. I'm trying to get to the -- to the not necessary part. If the burning of the act, at the burning of the flag took on a secondary meaning, for example if this was a protest where people realized that the burning was for a purpose of protest. There was a communication, before Kleenex was on the market for example for number of years, the word Kleenex has no secondary meaning but it got a meaning because people got using it. The same thing with draft card burning, today when a fellow burns a draft card in public, we very well know what he was doing, it was usually that he was communicating a protest against the Vietnam War. Flag burning hasn't got that secondary meaning but I submit it may very well get to that point. But that isn't our problem at this time, I'm willing to concede right now that simply that -- simple act of burning the flag in New York, but not under the statute, would be --could be illegal because the statute goes far beyond that problem.
Abe Fortas: Yes, I might question which you've answered, I assumed that I postulated that the statute did not contain, did not contain any reference to verbal statements but the New York statute does since you pointed out?
David T. Goldstick: I agree with Mr. Chief --Mr. Justice --
Abe Fortas: I'm not indicating in the attitude of the --
David T. Goldstick: I understand. I might point out--
Abe Fortas: -- or in the language of the New York statute in this respect does and does not make a difference but you answer to my question was very carefully restrictive.
David T. Goldstick: Thank you. I might --
Hugo L. Black: May I ask you a connection with the precise argument you are now making. What do you say about this statement Giboney v. Empire Storage Company, but It has never been deem that abridgement of freedom of speech or prayers, to make a course of conduct illegal merely because its a conduct was in part initiated evidence, or carried out by means of language, either written, spoken or printed.
David T. Goldstick: Mr. Justice Black, I hope by the time I finish today, and after this Court has seriously considered the merits of this case that that statement would not be the law of this land.
Hugo L. Black: In other words, we'd have to overrule this.
David T. Goldstick: I'm not saying that because you don't even have to reach that question because we have a statute on its face that it breaches freedom of speech that you don't even have to reach that problem. What I am saying however --
Hugo L. Black: Why don't you have to reach it, if you say that the conduct itself did not violate the Constitution, but it does violate it because of the language use at the time?
David T. Goldstick: The reason Mr. Justice Black, I say we don't have to reach it is because, Street was convicted under a statute that is unconstitutional on it's face as being a obvious restriction on verbal speech, it says you can't use words and that he has a right I believe, to attack that statute and thereby attack his conviction even though New York may well have the right to outlaw exactly what he did. And I think Thornhill against Alabama is exactly that type of a situation. But to get back to your question Your Honor, I would like to feel that the issue here on an act as well as words is whether a communication was made and whether the communication was understood, because isn't that truly the problem of a freedom of speech case. The communication of an idea to the public and the receipt of that communication by the public, and this is the nub of the issue that Mr. Justice Black has referred to, and this is the nub of the other issue of this case which I freely admit does not have to be reached. But if reached; should be decided on drawing criteria for us to know when act and speech is speech and when act and speech is not speech, and therefore not entitle the First Amendment protection. If I might digress just for a moment --
Byron R. White: May I just ask you about it?
David T. Goldstick: Yes.
Byron R. White: I noticed that Judge Fuld's opinion doesn't deal with your argument which I gather as an argument of overbreadth that because the statute deals both with conduct and words this appellant has standing to attack constitutionally of the statute on its face. That's your argument isn't it?
David T. Goldstick: Yes it is.
Byron R. White: Now, why is it that Judge Fuld's opinion didn't deal with that?
David T. Goldstick: He dealt with it only on a footnote. I'll show you--
Byron R. White: Which footnote? I raise this because I gather the states going to content does at least in its brief that was not considered because you did not raise it.
David T. Goldstick: We did. And it was considered Your Honor, at page 4a of the decision, footnote 1. We raise the entire argument of overbreadth in vagueness in the Court of Appeals --
Byron R. White: But how bout the trial court?
David T. Goldstick: And well, at the trial court, I might point out that if you have an examination of the record. As I was making my motions, I was politely asked really to sit down. We never really got the finishing making our emotions, and not only was at the issue to discuss that the trial court, but it was also discussed at the Court of Appeals and dealt within that motion. But I might point out Mr. Justice White, that the overbreadth argument is a First Amendment argument, it's not a Fourteenth Amendment argument. We raise First Amendment question.
Byron R. White: So?
David T. Goldstick: I would -- it would be my understandings provided any issue on First Amendment infirmities raised and in any manner what so whether, whether be overbreadth or void on its face or improper application of the statute would still be a First Amendment objection and properly raised --
Byron R. White: Well, what would you say if we have -- we taught we had to read Judge Fuld's opinion as not twiddling of a question because as a matter of State Law your failure to raise a trial included any right to have it consider in the appellate courts. If we have to read it that way, then where do you stand?
David T. Goldstick: But I -- of course if you read it as if I did not raise it but it was raised that you see raised in my motion at the trial court I raised First Amendment objections I said the statute is void for First Amendment problems and Judge Fuld pass on First Amendment problems and there whole question of overbreadth is First Amendment not a vagueness or due process problem.
Byron R. White: What if the Court disagree with you on that and since said that you have to raise a little more precisely --
David T. Goldstick: I have no argument with Mr. Justice White if that is your decision certainly under the rules of this Court --
Byron R. White: It is First Amendment raises all issues under the First Amendment?
David T. Goldstick: I would believe so that it does.
Byron R. White: Do you have to – is that – do you have to rely on that?
David T. Goldstick: No, not to and this case? If I have raised First Amendment – as far as the overbreadth I would say, yes. But as far as the applications --
Byron R. White: As far as overbreadth is you have to rely on that position?
David T. Goldstick: Yes, I would.
Byron R. White: Did you think them as this is the rule of New York that – is it the general rule at to that the appellate court doesn't consider things is not – that their not believe in that one?
David T. Goldstick: Not so because the Court of Appeals are considered the vagueness question which was not raised at the Criminal Court level. The vagueness question though dispose of in a footnote was still considered. We have pointed out that the statute was vague because he never said what flag they were talking about. That was disposed of in a footnote and that was the total consideration given to the vagueness argument by Judge Fuld.
Byron R. White: Well, except there's something else that the fact is bothered me Mr. Goldstick and that reason I ask you about your answer to Justice Fortas question. Judge Fuld in Footnote 1, appearing on 4a of the appendix of this case, it seems to say before the highest Court in New York that this statute simply prohibits public mutilation of the flag and that's why the way he construes the statute. And of course, we have to take that construction as though the statute were written that way under we've excepted conventional doctrines in this Court.
David T. Goldstick: In due deference to Your Honors observation, I again refer back to page 8a of the opinion as to the construction and the statute and it seems to me that the language by discouraging contemptuous and insulting treatment of the flag in public is a construction given to this statute by Judge Fuld and I might--
Potter Stewart: What do you think for that first footnote means the last phrase in it, “That the provision was meant to apply to public mutilation of the American flag.”
David T. Goldstick: I can't answer that question.
Potter Stewart: Well, it means obviously its means something you and I would have to agree.
David T. Goldstick: Of course, it mean something but I think there's another – there's another answer to your question Your Honor and that is simply that the construction of the Court of Appeals was not available to the Criminal Court judge when he tried the case.
Byron R. White: Now, I suppose you could -- the whole of your function that page the --
David T. Goldstick: Page 13 a
Byron R. White: Oh, this is it, before we plead to this case I'd like to make a motion of dismiss, is that it?
David T. Goldstick: Yes, Your Honor. That is it.
Byron R. White: And what is it in that motion that you say, raises the overbreadth question?
David T. Goldstick: Simply the reference the First Amendment that day -- we were engage in the First Amendment activities.
Byron R. White: Under the First Amendment -- am I correct so this is the only reference is in it the First Amendment? Under the First Amendment of the Constitution United States and of the New York State Constitution famous speech, “they provide for protest in many forms whether it be by burning a flag, demonstration or picketing. This is a form of demonstration of protest, is that what raises your overbreadth?
David T. Goldstick: Absolutely, Your Honor and I might say we have had it in a --
Byron R. White: Well, I must say in the face of it Mr. Goldstick that reached to me something like an argument base on symbolic speech. There is conduct but the conduct as protection of the First Amendment as symbolic speech.
David T. Goldstick: I might add Your Honor that we also had it in a trial memorandum when we made the motion and the trial memorandum had a full point on overbreadth. I don't have that is in part of the record but it was certainly and I turn – I direct you to page 2 when I was very abruptly requested by the judge, “Sorry Mr. Goldstick no more emotions, lets sit down.” The issue was briefed and argued all the way up and I'm just saying that it wasn't fully treated by Judge Fuld, and just one other point that I would like to make, if I may, and that deals with the problem of this statute as applied. You'll notice in the record that Sidney Street was convicted -- was charge with both disorderly conduct and with breach of the peace. He was acquitted of disorderly conduct there is nothing in the record not a scintilla of proof that there was a breach of the peace occurred where that a breach of the peace was likely to occur. Now, Judge Fuld bases his decision on the right of New York under its police power to restrict acts that would cause a breach of the peace or likely to cause a breach of the peace. But its our contention Your Honors that there was no breach of the peace, no evidence of a likely breach of the peace, and the only way therefore Street could have been convicted under this theory that this is a statute of prevent the breach of the peace would have to be that there is something inherently dangerous in this type of conduct. And so that therefore the State of New York has a right to prevent conduct that is inherently dangerous.
Abe Fortas: I thought Chief Judge Fuld's opinion had to be read some what differently that is to say that, assuming that this is within the embed of the First Amendment the statute and prosecution here are within the embed of the First Amendment the conviction was never the less justified on the trial acclaimed present danger principle. That is to say that there was in the circumstances of the case a clear and present danger of public disorder and therefore according to Chief Judge Fuld, a -- it was not – the conduct was not protected by the First Amendment.
David T. Goldstick: Mr. Justice Fortas, this Court I recommend to your reading the record and of course under your power you have the right to review the record with regards to the finding of the Court of Appeals and I simply submit that Judge Fuld's observations are not supported by those--
Abe Fortas: I'm not unless I don't argue of that as my reading in your judgment is my reading of what Judge Fuld was saying incorrect. You've now advance to different theory which is Judge Fuld displaces on this read this as of disorderly conduct statute or breach of peace statute, and that reading at that way you arrive at this conclusion. My only question reading his opinion was that he was recognizing that there was a First Amendment problem engaged in this analysis for the purpose of demonstrating dissatisfaction in a way that the First Amendment did not protect this particular conduct.
David T. Goldstick: Well, his analysis if I understand it, would be on base upon the power of the state to make some regulations even though they may fly in the face of First Amendment problems and the issue then becomes where is the line drawn between what the state can do with regards to First Amendment problems. And I respectfully submit that if you do an analogy of a statute as a breach – if it comes under the breach of a power of the state to prevent public disorder, then the analogy must file -- follow what is that power when we come across a breach – when come across a freedom of a speech problem and the power has historically been. And as far as my reading of the cases in this Court has always been has there been a breach of a peace or will a breach of the peace likely occur and you will examine the record to see if it's there. That to me --
Byron R. White: Are we to lead everything that Chief Judge Fuld said against the background of its opening sentence in the opinion? We are called upon to decide whether the deliberate act of burning an American flag in public as a protest maybe punished as a crime.
David T. Goldstick: I can't answer that question, I don't know. Whether we should read the entire--
Byron R. White: We often it to so our opinion with a statement of the question hoping the opinion will then be read as bearing on as answering the question that so with which the opinion open. And that certainly reads as so he regarded the case, doesn't it as presenting simply a question of so-called symbolic speech?
David T. Goldstick: Oh, I see what the point of Your Honor and I seem to feel it that that maybe so but does not mean that the point was not properly raised or perhaps we -- perhaps just discarded. I can't answer what went down the minds of the judges in the Court Of Appeals, I cannot answer that. Thank you.
Potter Stewart: Mr. Goldstick.
David T. Goldstick: Yes.
Potter Stewart: You haven't' --I think I'm right to saying that you haven't mentioned in your brief or in your oral argument that the possibility of mootness in this case, do you think that's a problem?
David T. Goldstick: It was brief Your Honor in the -- in our appeal to this Court.
Potter Stewart: In your appeal --
David T. Goldstick: Yes.
Potter Stewart: -- but not in your brief on the matter.
David T. Goldstick: Yes, and it really is not moot from Mr. Street point of view because if this conviction is affirmed, we have a hearing waiting for us back before the New York City Transit Authority on this man's job. So, for Mr. Street's point of view this is far from a moot issue.
Potter Stewart: Although, he was given a suspended sentence and the period is now past --
David T. Goldstick: Yes.
Potter Stewart: -- I understand it during which he any other sentence could have privacy impose.
David T. Goldstick: That is quite true but I have a letter in my file from the Transit Authority they're holding up the hearing waiting the determination of this Court. Thank you very much Your Honor.
Harry Brodbar: Mr. Chief Justice --
Earl Warren: Mr. Brodbar.
Harry Brodbar: Mr. Chief Justice and may it please the Court. It is the states' contention that the appellant was convicted only for the act of burning, that any reference to language is mere suffrage. The officers set forth some language and his information his complaint but that language is language that's usually set forth by a police officer to indicate intent on the part of the participant in the crime. It is our feeling also the language used, “if they did this to Meredith, we don't need an American flag.” That language is not contentious. Certainly, the officer wouldn't have arrested him for merely making that statement. The record is clear that the officer came to the scene because he saw a flag burned. He then went over to some of the people a crowd and asked them, “who burned the flag?” He then went to the appellant and asked the appellant whether he burned the flag? And the appellant told him, ”if they did this to Meredith, we don't need an American flag.” The officer then went back to the scene, the opposite corner, attempted to stamp of the fire, pick up the flag, took it to police headquarters and marked it as part of an invoice. By inadvertence, the flag was never marked an evidence, although, I have it here with me. It is obvious then that the arrest was only for the burning of the American flag. There was another statement made by the appellant which the office had overheard, “we don't need no damn flag.” It is also significant that the officer did not make that part of his complaint that he ignored that statement against threatening the states position at the arrest for – was for the act. By -- in passing, I might say that even the word -- that the words “damn flag” might would be consider contemptuous under the case of Chaplinsky against New Hampshire, where the statement damn fuscous and then racketeer were held to be words which might insight to retaliation and the Court they unanimously affirmed the conviction. The appellant cannot find any solace in any argument that the appellant was convicted of under a general of verdict that was perhaps for the words, for the act or for both. It is obvious that he was arrested, tried, and convicted only for the act of burning the American flag, should Judge Fuld precipices the appeal of a unanimous court with the following, “We are called upon to determine whether the deliberate act of burning an American flag in public as a protest maybe punish as a crime."
Thurgood Marshall: Mr. Brodbar, how many people are there?
Harry Brodbar: 30 to 40 people, Your Honor.
Thurgood Marshall: Is it in the record?
Harry Brodbar: Yes. Yes, Mr. Justice Marshall.
Thurgood Marshall: Suppose it burned it at night and nobody there?
Harry Brodbar: Well, it would have to be the word public connotes say presence of people for that mean --
Thurgood Marshall: How many people?
Harry Brodbar: Enough people to start a riot. A reasonable amount of people perhaps, five people will be enough.
Thurgood Marshall: Well, I taught the definition of riot was three or more.
Harry Brodbar: Well, I would say that three or more people would have to be present. I would also say that 30 to 40 people is significant --
Thurgood Marshall: So, we really don't know. We really don't know what the statute means by public late, do we?
Harry Brodbar: Well, the statute does not defy a public. We must go back to the case law and that the world public signifies the presence of a reasonable number of persons which might give raise to the danger that the statute intends to prohibit.
Thurgood Marshall: Well, I could see a little difference myself between burning a flag on my front lawn and burning it in Yankee stadium, could you?
Harry Brodbar: No, I cannot.
Thurgood Marshall: You couldn't?
Harry Brodbar: Except that the chances for a disturbance might be greater in Yankee stadium but the disturbance is there nevertheless if near your lawn there are the persons present.
Thurgood Marshall: Suppose they're all friends?
Harry Brodbar: Friends may to retaliate in the burning of American flag.
Thurgood Marshall: Suppose they all agree with me.
Harry Brodbar: Pardon Your Honor?
Thurgood Marshall: Suppose they all agree with me, that the flag should be burned?
Harry Brodbar: Well, there is nothing need than the flag must be protected from people who agreed to burn a flag contemptuous.
Thurgood Marshall: Where is that in the statute?
Harry Brodbar: The statute does not say that but Halter against Nebraska, a case that was before this Court 1906, although, there the flag was used in advertising scheme.
Thurgood Marshall: But you don't really --
Harry Brodbar: First Mr. Justice Harlan, stated at that time.
Speaker: Is it the guy doing that --
Harry Brodbar: Pardon Your Honor?
Speaker: Am still on word public --
Harry Brodbar: There is nothing on the statute with regards to the word public. We must accept the dictionary meaning of the word public that in connotes say reasonable, sizable amount of persons who are present of a scene, and who might bring disturbance because of an act committed by a person. I think ever two persons present at a scene might justify the conviction of Mr. Street. If this Court should have wise judgment determine that the language defy by words is unconstitutional what I mean to say is this, in Chaplinsky against New Hampshire the Court did not go into a second portion of the statute. The first portion dealt with words and names, the second portion dealt with sounds and noises. The Court there did not go onto the second portion and convicted Chaplinsky for the use of names, epithets heard upon a -- persons in the area. It is our view that this Court although the appellant was sentenced for the act of desecration, it is our view and our hope that the Court also determines the validity of the expression words in the statute for if it does not then any postscription of physical acts will be dissipated because the path will be left open for desecration by words. It is significant also that Chief Judge Fuld discusses in his opinion many case dealing with symbolic expression and it does not go into any cases were pure language was used. It is also the states contention that the Court did not render any consistent verdict by dismissing the more general charge of disorderly conduct and holding him under the statute which specifically prohibited the act. Mr. Street could not be sentenced under two charges, section 1938 of the Code of Penal Law of the State of New York, prohibits that. The entire terror of the 12 revolves about the flag burning itself, at the time of the cross examination of the appellant at the time of the cross examination of the police officer there was nothing discussed about pure language, only the act was discusses. It is also significant that this case, the trial of this case took place six weeks after Miranda against Arizona and experienced counsel did not set up the Miranda rules as a bar language was have been elicited from the officer from the appellant at the time of his arrest.
Thurgood Marshall: But the language is in the charge specifically.
Harry Brodbar: Yes, it isn't a charge.
Thurgood Marshall: Why was it put in the charge?
Harry Brodbar: Because it is customary for officers to place in a compliant any language which inculpates an appellant.
Thurgood Marshall: Well, they only put part in it and put it all in?
Harry Brodbar: Well, the part was enough to indicate that the appellant intended to dishonor the flag of our nation.
Thurgood Marshall: But you have it in quotes.
Harry Brodbar: Yes, Your Honor.
Thurgood Marshall: It looks like it speech?
Harry Brodbar: But if you'll notice the second part -- the general paragraph preceding a language only discuss the act of burning the American flag. The language of the --
Abe Fortas: Excuse me.
Harry Brodbar: Yes.
Abe Fortas: Suppose this statute had said it should be a crime to burn the American flag in public or to mention the American flag in public from giving a ridiculous case to illustrate, to explore a point. Suppose that the information read and the officer testified that we found the defendant burning the flag and the defendant said, “This is an American flag.” And suppose he -- that the defendant where then convicted. Now, remember, I am talking here about the statute which prohibited mentioning the American flag in public.
Harry Brodbar: I would say that --
Abe Fortas: Is that a statute be constitutional?
Harry Brodbar: No, it would not be constitutional. It would be over broad because there is a federal statute which permits the dignified burning of the flag --
Abe Fortas: Now, how do you --
Harry Brodbar: And there was no way of knowing under the words of your statue Mr. Justice Fortas whether the man was doing it in dignified fashion or with contempt. Therefore, the statute over broad would result in obituary standards and prior restraining.
Abe Fortas: Well, you think that it has to be some contemptuous words upon the burning of the flag?
Harry Brodbar: No words at all unnecessary. It's the atmosphere of the contempt. His anger, the lack over this same smile.
Abe Fortas: But if you will burn, burn the flag publicly and don't say a word and you smile while you're doing it there. It can't be punished under the laws from New York but if you look angry why you can be?
Harry Brodbar: Well, Your Honor. One who honors a flag by burning it to the proper manner will certainly have an attitude --
Abe Fortas: No, I'm not talking about that, I'm talking about this kind of a situation. I'm talking about a statute of the State of New York.
Harry Brodbar: Under your statute, Your Honor. I would say to the statute would be barred because it should be some language in the statute which will indicate contempt.
Abe Fortas: Now, the point of to which I'm directing your attention. Let's forget about the contempt part even if you will assume that one way or the other whichever way you think necessary. But suppose I have the statute said that, “it shall be a crime, to burn an American flag or to mention it in public.” And here's appellant whose arrested for a burning an American flag and saying, "This is an American flag.” Now, with such a statute or on its face or as applied in a particular case in your judgment, they run a file of the First Amendment of the United States Constitution.
Harry Brodbar: Mr. Justice Fortas, I would say that if they were no Federal statute permitting respectful burning of the flag then that statute would be alright.
Abe Fortas: In the state of New York then may prohibit mentioning or discussing the American flag in public.
Harry Brodbar: Yes, it may if there is federal statute which permits respectful burning. But if there is a statute that permits it, then the state cannot with that legal language create a statute so over broad that anyone burning a flag, who might be doing get with respect could be arrested and convicted for it. The state is mine form of the fact and I'd made not enact any law which will unconstitutionally have abridge the freedom of speech and expression. Yet, not with standing the sacrosanct nature of First Amendment principles, a state may in the interest of peace and tranquility within its borders has any statute even though, it may have abridge freedom of speech. It will be for this honorable Court to determine whether the United States flag, the object of national parte, and patriotic adoration can be a subject of desecration merely because one wants to use it in a symbolic way to dramatize dissatisfaction with the conditions existing in our country. The need for such a statute was recognized by the First Amendment.
Abe Fortas: Well, for my point of view, I hope I should not just my point of view and I hope I'm not indulging myself only. And I can agree with that statement of this case. This is not a case of a simple burning of an American Flag. This is a case where the information included words and that included the words which maybe an objectionable discussion of the American Flag or objectionable reference. But it's not simply a case of burning of the American Flag, do you agree with that or not?
Harry Brodbar: Well, according to the complaint you are right Mr. Justice Fortas but Chief Judge Fuld did not go into that.
Abe Fortas: And that's what under the statute and you agreed to that the statute is not confined.
Harry Brodbar: The statute influenced either words or act.
Abe Fortas: Words or Act.
Harry Brodbar: Or act. But the --
Abe Fortas: But, we have to face here the situation which is not confined to the burning or desecration of the American flag but it is a situation which includes the very troublesome aspect of words speech.
Harry Brodbar: Mr. Justice Fortas, it is the states' contention of the statute is divisible that can't be separated, that the Appellant was convicted only for the act of desecration. Not with standing the fact the officer and his complaint set forth the words. We reiterated that the words was set forth only to indicate the intent, and if the words were mere surpassage that they were not necessary.
Byron R. White: What is the intent?
Harry Brodbar: The intent to -- has contempt upon the flag of our nation that was the intent.
Byron R. White: So, what is the significance of the act if you --
Harry Brodbar: No, the act -- the significance of the act became significant by the act itself by the -- his mannerisms by waving his hands in another corner living the flag in another place.
Byron R. White: But it is intact with the --
Harry Brodbar: It became clear.
Byron R. White: (Inaudible)
Harry Brodbar: No, it may become more clear. Let us say not clear. It became more clearer because how he said nothing is very demeanor, burning a flag, running to another corner, waving his arms in an agitated condition. Those words --
Abe Fortas: Maybe that's right but the statute certainly doesn't seem to be phrased in those terms the statute does not confine itself to the act of burning or desecrating the United States together with such words or rather conduct that's would indicate that this act is being done a contemptuous lay of the flag. Would you agree with that? The statute would talks about makes it a crime the use the words. Not merely fall as evidence of intent of the intent with which the action was done.
Harry Brodbar: I can agree with that Mr. Justice Fortas.
Abe Fortas: You do not.
Harry Brodbar: It is our opinion that the acts -- that the postscription of the statute is directed at physical acts of mutilation, defacing, defiling, trampling upon, and that also the statute post scribes the use of language which also defies or past contempt upon the flag. That the words past contempt is the -- are the keywords which direct the all of the other language that the language indicates dishonor something purposeful. A lively sense of shaming that's either one or the other or both in this particular case, there was only one thing that the Appellant had done burn the flag, his statement was not contemptuous. It was a statement if we -- if this could happen to Meredith we don't need the American flag. There was nothing contemptuous about that statement and that statement in the complaint, although, not contemptuous is set forth by the police officer or the indicated it intent. It was not necessary to have it in the complaint itself because the appellant's act was one of contempt, not only did he set fire to the flag according to my adversary he came down to the street and put a paper down on the ground. What was the purpose of the paper, the officer testified that there weren't no, was no paper. What could with the paper do if the appellant is burning a flag and drops a burning flag on the paper? It is more likely that the paper was there to induce great of burning, that was the purpose of the paper and that the flag was folded. The flag had been folded in his drawer, in his chest of drawers. He was a veteran. The testimony indicates that he put the flag on in every holiday. The flag was not folded because he showed respect. He came down into the street, laid the flag down, burn it, run to another corner, is that the conduct of a person who shows respect? When the American Legion has its ceremony once a year to burn American Flags, they don't run to other corners while they're burning the flags on one corner. They stay with the flag that is considered respect. These words were not even necessary of the complaint. They are mere surpassage.
Thurgood Marshall: Who prepared the complaint?
Harry Brodbar: The officer Your Honor, generally, the officer with the assistance of a clerk in the Court.
Thurgood Marshall: The policeman said that this was in violation of 1425, subsection16 (d), he put that language in there, the policeman?
Harry Brodbar: No, I can tell that from a little experience I've had in the criminal courts watching the clerks do their work. The jury -- the clerk will pick up the penal law of the State New York find the caption and make an entry, incidentally, Mr. Justice Marshall. This is about the first case from the history of our country where this statute was even used when Patrolman Copeland made his arrest, he did not know that he made the first arrest in the history to State of New York for public burning of the flag. Certainly, the Court was not what aware of that, he would not experience the statute of the language.
Thurgood Marshall: Well, that's why it's strange to me. The only thing I'm talking about, you say, the only reason these words in quote in this charge which is a legal charge on behalf of the State of New York was because the policeman insisted that it be in there. I want to find out whether it was the policeman, or the prosecutor, or the lawyer, or the Judge, or the magistrate, or who?
Harry Brodbar: It would not be the Judge, Your Honor because the Judge would not would --
Thurgood Marshall: Well, who?
Harry Brodbar: It would be the clerk and the officer.
Thurgood Marshall: You don't know?
Harry Brodbar: No. But I know from custom in New York Court that is the clerk and the officer who do it. Then the case comes before the Judge.
Thurgood Marshall: Well, when did the prosecutor get involved?
Harry Brodbar: When the case which its turn in the calendar, the Assistant District Attorney came into the case and tried the case as we say --
Thurgood Marshall: So, he had taken that language out?
Harry Brodbar: Did he do what, Your Honor?
Thurgood Marshall: Could he have taken the language out of that charge?
Harry Brodbar: He could have but he did not --
Thurgood Marshall: But he didn't?
Harry Brodbar: He did not Your Honor.
Thurgood Marshall: So, the State of New York insisted that this charge include both the act and the language that was the decision of the State of New York, am I right?
Harry Brodbar: Well, that's the effect of that but Your Honor, Mr. Justice Marshall, in every case when an office or even a book making case, or on a policy case an officer would set forth exculpatory statements. The mere fact that exculpatory statements are set forth is that mean that is part of a statute. The officer feels that it's better for this case to set forth language. It explains the intent, the man's rare --
Earl Warren: I suppose the manner in which the Court of Appeals decided that would have somebody to do with the state law concerning the complaint, would it not?
Harry Brodbar: Yes, Mr. Chief Justice.
Earl Warren: And the Chief Judge Fuld did say as it was pointed out by one of the other Justice, “We are called upon to decide whether the deliberate act, the burning in American flag in public as a protest may be punished to the crime.” And I suppose that if that -- if arrest of the text conforms to that I suppose that we can consider that's all there is in the case for us, is it not?
Harry Brodbar: Yes, Mr. Chief Justice. And the words deliberate are not only brought out by the conduct but also by the words set forth in the complaint. And I reiterate that the words were not necessary, that the facts indicate contemptuous treatment of the flag by Mr. Sidney Street, that there was no in advertence or accidental occurrence. This was planned that the people who's partly around him did not collect Your Honor because he did an In adverted Act.
Potter Stewart: I like then to hear Mr. Brodbar your submission upon the hypothesis that you are entirely right that we can disregard the reference in the statute to the word words and we can equally disregard the reference in the complaint to the quotation of what the defendant allegedly said. And that we're dealing here, therefore, simplicity with the question I suppose by Chief Judge Fuld in the very first paragraph of his opinion for the Court of Appeals simply with a state's statute that makes it a criminal offense to publicly burn an American flag.
Harry Brodbar: Yes, Mr. Justice Stewart.
Potter Stewart: And that because the claim is that with which Chief Judge Fuld had to deal for his Court that a state could not constitutionally make that a criminal offense.
Byron R. White: But while you're considering that -- did you suggest that or do you agree that the only way that you would know it is a protest in the words that were used.
Harry Brodbar: No, from his conduct.
Byron R. White: Okay.
Harry Brodbar: From his agitated condition, from his anger. One does not simply burn a flag with contend gently. There's an atmosphere, it is an emotional about an act like that when a mute -- a deaf mute can show contempt for the flag by burning it. Can we say that the deaf mute would not be a subject of the conviction? Because he cannot say what the language what he means. It's what he does and how he does it. That spells out the content for the flag that standing in this Courtroom.
Potter Stewart: Well, then since I -- perhaps you hadn't finish answering my Brother White's question.
Harry Brodbar: I did answer. I did complete.
Potter Stewart: I meant to add to my question, the very publicly burn an American Flag in public as a protest, that question that Chief Judge Fuld puts may that constitutionally be punished was a crime but it --
Harry Brodbar: Yes it may Mr. Justice Stewart.
Potter Stewart: Well, then why? Why? That's my question.
Harry Brodbar: Because it interferes with substantial state interest. Just as an O'Brien against United States, there was a substantial State interest, Government interest that a man had a draft card. There are substantial interests here.
Potter Stewart: What is the equivalent of interest here or the or the common law interest here?
Harry Brodbar: The interest here that Americans love their flag and anyone seeing a flag defiled will --
Potter Stewart: That's not comfortable. I don't believe Americans love their draft cards, isn't it.
Harry Brodbar: There was no -- a draft card does not have the significance of a flag. The flag has great meaning. If a flag has no meaning at all it means that every man who dies for this flag was not only dope by the flag but it made a mockery out of patriotism. That every man who lies on only cemetery died for something that was just a cloth, a piece of cloth, which had no meaning at all to them and now we say the flag has no meaning. It is like a -- it is greater than a draft card. We are inculcated with the spirit of a flag from early childhood. A card is nothing in reality. It does not send me to retaliation with one were to burn his draft card. I might be annoyed what the infantile conduct.
Potter Stewart: Well, I take it you've read the Court's opinion in O'Brien against the United States?
Harry Brodbar: Yes, I have Your Honor.
Potter Stewart: And I take it down that you seem that the many pages of that opinion were devoted to the showing of the public interest, the national interest in the possession by young man with their draft card.
Harry Brodbar: Yes, Mr. Justice Stewart.
Potter Stewart: What is the equivalent or --
Harry Brodbar: There is a national interest in the American flag.
Potter Stewart: First of all, you of course have to argue what the state interest is?
Harry Brodbar: The State interest is to protect the national symbol because the state is part of a nation. If a nation does not exist the state will not exist. In Halter against Nebraska the first Mr. Justice Harlan said to the state has the same interest, an interest to course respect not to mandate respect as a bond that but to prevent desecration.
Potter Stewart: That's the case of course was decided long before it had been held at the Fourteenth Amendment incorporates the First Amendment.
Harry Brodbar: Yes, Mr. Justice Stewart. But the case still has great significance today.
Abe Fortas: Mr. Brodbar, let us suppose that you had a case involved only words, words expressing the at most contempt in hatred for the American flag. Now, with those words standing alone fall within the condemnation of this statute.
Harry Brodbar: Yes, Your Honor.
Abe Fortas: Now, that's the nub of the trouble here. I agree with you that electro reading of this statute would catch words standing alone because subsection d of the statute makes up the crime public relate to defile or defy or -- let me take this. Let me withdraw that. Public relate to cast contempt upon the American flag by words.
Harry Brodbar: Well, Mr. Justice Fortas this is not --
Abe Fortas: Now, if that's what the statute says, doesn't it?
Harry Brodbar: Yes, Your Honor.
Abe Fortas: And our question as whether we can -- whether we are at liberty to ignore that in effect for purposes of this particular case.
Harry Brodbar: Mr. Justice Fortas, we maintain that the statute is divisible that this Court may ignore the language of the statute which speaks of words because the opponent was and I think before action --
Abe Fortas: All right, now, do you attempt to in the defense, suppose it's not divisible.
Harry Brodbar: I intend --
Abe Fortas: If you attempt to defend the constitutionality of a New York statute that said only that, “it shall be a crime to cast contempt upon the flag by words.”
Harry Brodbar: Yes, I do. I defend it because the words of contempt get the same result as the acts of contempt.
Abe Fortas: I see.
Harry Brodbar: Words are just the same words as we had, they're fighting words, they're the words that we had in Chaplinsky against New Hampshire, when a man's flag is degraded? Do we not degrade the man himself?
Abe Fortas: Well, then why do you --
Harry Brodbar: Do we not say you are a citizen of a country, are these not worth nothing?
Abe Fortas: Right. Why do you say then -- why do you argue then that the statute is divisible?
Harry Brodbar: Well, in the event that this Court should it in its wisdom feel that the words are unconstitutional, that we'd be blessed with some statute. That is the only purpose I say that.
Earl Warren: Do we have to read Judge Fuld's opinion as being broad enough to include what you say?
Harry Brodbar: Yes, Your Honor.
Earl Warren: Do you think it does go that far?
Harry Brodbar: Well, it appears that way, because Chief Judge Fuld makes the statement, “Subdivision 16 of Section 1425 is designed to prevent the outbreak of such violence by discouraging --
Earl Warren: Where is that?
Harry Brodbar: That is on page 8 a of the record. “It's designed to prevent the outbreak of such violence by discouraging contemptuous and insulting treatment of the flag in public.” It is our opinion and this was me a dictum -- victim in a case, but it shows the inherent feeling of Chief Judge Fuld speaking for the entire Court that even if this case had just words in it that the decision might be the same.
Earl Warren: This treatment necessarily include words?
Harry Brodbar: Yes, treatment is a broad term and includes conduct, it includes words, it's an attitude, it's a behavior.
Earl Warren: Can I say something, suppose there was no burning at all and I just say something contemptuous of the flag, is that treatment of the flag?
Harry Brodbar: Yes.
Earl Warren: In common parlance?
Harry Brodbar: Yes, Mr. Chief Justice Warren. Treatment of the flag, when one insults another he treats it wrongly, does he not? The word treatment is a general word. But I say if the Court was not concerned at the particular time of the decision with any words, but just with the act.
Earl Warren: Well, then why do you say that it includes words, if it wasn't considering anything but acts?
Harry Brodbar: I would say this was an observation made by Chief Judge Fuld by way of passing. He may have meant the act --
Earl Warren: You told me a moment ago that you thought it was broad enough his opinion was broad enough so that we would be obliged to include words as well as action.
Harry Brodbar: No.
Earl Warren: Conduct?
Harry Brodbar: Mr. Chief Justice Warren, the way Chief Judge Fuld starts the case, we are concerned with the act where he says thereafter is not part of this determination as he'd started out to say, where he said, “We are called upon to decide whether the deliberate act of burning.”
Earl Warren: Well, that's what I was trying to get at, but I understood you departed from that.
Harry Brodbar: No, I would say that the --
Earl Warren: In answering me and said that his opinion was broad enough to include language if there was no burning, and you say that the word treatment to show that.
Harry Brodbar: Well, my point is this that the Court was concerned primarily with the conduct. The Court was not considering the word itself, the language used by Judge Fuld later on is dictum that is the opinion I have. And it's also in my belief that if the defendant had been charged with words only and no act at all that the decision would have been the same. But the Court was concerned only with the act, it prefixes its opinion with the statement.
Hugo L. Black: Do you say that's your opinion that the decision would be the same?
Harry Brodbar: That is my respectful opinion, Your Honor.
Hugo L. Black: It's your opinion that that judge and those judges would sustain statute which did nothing in the world would make it unlawful from a man to speak of views about the flag, is that right?
Harry Brodbar: Well, speaking views about a flag may convey a message, what message is there in contempt?
Hugo L. Black: What are the -- there are language, the speech you have hear, speech mix with conduct? Why do you have to defend the idea that New York has power to make it a crime for man to speak and say something bad about the flag?
Harry Brodbar: No, I'm not saying that Mr. Justice Black, I am saying that criticizing the flag is one thing.
Hugo L. Black: But why, do you have to go that far in this case?
Harry Brodbar: No I don't Mr. Justice Black.
Hugo L. Black: Why do you get into it such factual --
Harry Brodbar: I am concerned with this Court's attitude with regards to words, and perhaps that this Court may decide that part of the statute is dead. I am here, not to defend my flag in quiet whispers, but to try to defend the entire statute and we've open the door to contempt by use of words should this Court find that the act is proper, the act is actionable, that is my purpose.
Hugo L. Black: Your view are judge is that if a man says something, make his speech about his views, he has committed a crime and that the First Amendment doesn't excuse him?
Harry Brodbar: No, I did not say that. He can express his views, but contempt, profanity, obscenity toward a flag is not a message.
Hugo L. Black: Well, is it not obscenity?
Harry Brodbar: Well, how else can one --
Hugo L. Black: Maybe it is, I've never know exactly?
Harry Brodbar: How else can one show contempt for the flag by way of words, except by the use of epithets, obscenity or profanity, and if he does it that way, what is the message he is conveying? Is he trying to change government? There is no message at all. He recognizes nothing good in America when he said that, he has consign America to the flames of obscurity, that is not the message. If he said that our country is not giving me the proper rights. That is a message that deserves respect under the First Amendment because at least the governmental self improvement, but to desecrate a flag by words, leaves no message. What is he trying to say, that our government is bad because of this? Because of that? He says nothing.
Hugo L. Black: Suppose he did say the Government was bad, that's the object to the First Amendment is to permit who is criticizing Government and its institution.
Harry Brodbar: But the statute does not cover criticism in ‘pure language, it covers contempt, defiance.
Hugo L. Black: Well, that's criticism.
Harry Brodbar: Criticism is a --
Hugo L. Black: I have an equal statute it prohibits two things, one is the conduct of burning a flag, that's what I understand with Judge Fuld. The other is it attempts to condemn a man from making a speech that is critical or as you say contemptuous of the Government.
Potter Stewart: Or the flag, of the flag.
Hugo L. Black: You mean as a Government's institution.
Harry Brodbar: But when he talks about the flag, he's not talking about. He is talking about its disaster, it's anarchy, it's chaos.
Potter Stewart: No, as I understand your statute, it would cover this kind of a statement, “I'm a very loyal American, as a matter of fact I think there's nothing wrong with our nation, I think it's just perfect.” But frankly, I think our flag is one of the homiest ugliest flags” --
Harry Brodbar: There is nothing wrong with that, when a parent says that my friend's daughter is prettier than mine, does she show less love for his daughter?
Potter Stewart: Oh no, now wouldn't your statute cover my hypothetical case?
Harry Brodbar: No, it would not.
Potter Stewart: Why not?
Harry Brodbar: Because that is not the contempt that is meant, our favorable criticism are not just point of view. Someone maybe partial to certain colors, that is not the contempt meant.
Potter Stewart: Oh, it talks about contempt upon the flag, not upon the country.
Harry Brodbar: Criticism is not contempt, if my adversary is shorter than I am -- I show no contempt by saying that. Mere criticism of a flag as to its color scheme or design is not contempt.
Potter Stewart: Very contemptuous of its color scheme.
Harry Brodbar: Well, if you were serious, I would still think it was not contempt.
Potter Stewart: I think you have to test the statute out by what it might cover don't you, when you have a constitutional question?
Harry Brodbar: Well, the point is the defendant was charged and convicted of the act of burning, so this talk about words might not be before this Court, but I hope it stays before the Court. Pardon me Mr. Justice Black?
Hugo L. Black: You insist on arguing in that length, and so that is your whole case.
Harry Brodbar: The whole case --
Hugo L. Black: In other words, contempt.
Harry Brodbar: The case deals with only the appellant's act of burning a flag, but it is our wish, the wish of the State of New York that this Court would determine the entire statute. And if it should hold that the words are in violation of the First Amendment, that the act be divisible, that the statute be divisible and that they be left for the State of New York to enforce desecration by act.
Hugo L. Black: Does it contain a Separability Clause?
Harry Brodbar: It does not but the logical reading of it, the federal statute just pass, does not have words, so it could stand alone, it could stand with just the act --
Hugo L. Black: I'm not talking about the federal statute, I'm meant about yours.
Harry Brodbar: There is no language in the statute which --
Hugo L. Black: Do they have in general rule as to what's construing thing as separable if there are two separable crimes in New York?
Harry Brodbar: No, but there is a strong presumption of constitutionality and there is also a presumption that every part of the statute fall that the rest may remain, unless it is impossible to keep the remaining part of the statute --
Hugo L. Black: Why would you say that's a presumption --
Harry Brodbar: The presumption of constitutionality is the strongest presumption. However, if the Court should feel that part of the statute is dead then there is also a presumption, the remaining part of the statute can stand, unless that it's impossible to consider itself.
Hugo L. Black: That's the law of New York?
Harry Brodbar: That is the law of the nation, the law of --
Hugo L. Black: I'm talking about New York.
Harry Brodbar: Yes, we have a construction statutes in New York to give these meaning to a statutes that if part of a statute is bad, the Court will try to uphold a balance, unless it is impossible for it to stand alone.
Earl Warren: Very well.
Harry Brodbar: Thank you.
David T. Goldstick: Just one point Mr. Chief Justice.
Earl Warren: No, I think you've finished your argument. You've take a few time.