People v. Radich, 26 N.Y.2d 114 (1970)

The artistic use of the American flag as a medium for protest, displayed in a private art gallery, is a form of expression protected by the First Amendment and cannot be criminalized absent a direct threat to public order.

Summary

Radich, an art gallery owner, was convicted of violating a New York law against flag desecration for displaying sculptures incorporating the American flag in a manner protesting the Vietnam War. The New York Court of Appeals affirmed the conviction, but Chief Judge Fuld dissented, arguing that the display of artwork in a gallery setting, absent a clear threat to public order, is protected speech under the First Amendment. The dissent emphasized that the prosecution was censoring the political message conveyed through the art, rather than punishing an act posing a tangible danger. This case highlights the tension between laws protecting the flag and the constitutional right to freedom of expression through art.

Facts

Radich owned an art gallery in New York City.

He displayed sculptures by artist Marc Morrel that incorporated American flags to protest the Vietnam War.

The sculptures were displayed in the gallery and offered for sale.

Radich was charged with violating Section 1425(16) of the former New York Penal Law, which prohibited defiling or casting contempt upon the flag.

Procedural History

Radich was convicted at trial.

The Art News Editor of the *New York Times* testified that the sculptures were works of art, specifically “protest art”.

Radich appealed his conviction.

The New York Court of Appeals affirmed the conviction. Chief Judge Fuld dissented.

Issue(s)

Whether the display of artwork incorporating the American flag in a private art gallery, as a form of political protest, constitutes protected speech under the First Amendment, or whether it can be criminalized under a state law prohibiting flag desecration.

Holding

No, because absent a showing that the public health, safety, or well-being of the community is threatened, the state may not suppress symbolic speech or conduct having a clearly communicative aspect, no matter how obnoxious it may be to the prevailing views of the majority.

Court’s Reasoning

Chief Judge Fuld, in dissent, argued that the majority erred by not adequately considering the First Amendment implications of the prosecution. He emphasized that the constitutional guarantee of free speech covers the substance, rather than the form, of communication. The dissent distinguished the case from *People v. Street*, where a public flag burning posed a direct threat to public order. Here, the sculptures were displayed in the quiet environment of an art gallery. Fuld stated, “In our modern age, the medium is very often the message, and the State may not legitimately punish that which would be constitutionally protected if spoken or drawn, simply because the idea has been expressed, instead, through the medium of sculpture.”

The dissent further noted that the law had an exemption for displaying the flag in an “ornamental picture,” suggesting the prosecution targeted the political message, rather than the use of the flag itself. “It is quite true that one’s political motives may not be relied upon to justify participation in an activity which is otherwise illegal. But it is equally true that an activity which is otherwise innocent may not be treated as criminal solely because of its political content.”

Fuld also highlighted the chilling effect of the prosecution on free expression, citing *Smith v. California*. He concluded that displaying the sculptures in an art gallery did not pose the type of threat to public order necessary to render such an act criminal, viewing the prosecution as “political censorship falling far outside our holding in *People v. Street*.”