New York Law Review

Tag: Flag Desecration

  • People v. Keough, 29 N.Y.2d 272 (1971): Flag Desecration and Incitement to Violence

    People v. Keough, 29 N.Y.2d 272 (1971)

    The display of photographs that incorporate the flag of the United States, without evidence of incitement to violence or a breach of the peace, is insufficient to sustain a conviction under a statute prohibiting flag desecration.

    Summary

    Keough was convicted of violating New York’s General Business Law for displaying photographs that allegedly desecrated the U.S. flag. The Court of Appeals reversed the conviction, finding that the photographs, unlike the constructions in a prior case (People v. Radich), did not present a likelihood of inciting disorder or a breach of the peace. The court emphasized the absence of any evidence suggesting that the photographs incited violence or public disorder, thus distinguishing the case from situations where flag desecration posed a tangible threat to public safety. The ruling underscores the importance of demonstrating a direct link between the expressive act and the potential for imminent lawless action.

    Facts

    The defendant, Keough, was indicted for violating subdivisions (d) and (f) of section 136 of the General Business Law. The indictment stemmed solely from photographs displayed by Keough, which were alleged to have defied and cast contempt upon the flag of the United States. There was no evidence presented to suggest that the display of these photographs caused any actual disturbance or incited violence.

    Procedural History

    The County Court initially disallowed a demurrer to the indictment, relying on a comparison to the factual situation in People v. Radich. The Appellate Division affirmed this decision, finding that the display of photographs, similar to the constructions in Radich, threatened the legitimate public interest in preventing a breach of the peace and an outbreak of violence. The New York Court of Appeals then reviewed the Appellate Division’s order.

    Issue(s)

    Whether the display of photographs that incorporate the U.S. flag, without any evidence of incitement to violence or a breach of the peace, is sufficient to sustain a conviction under a statute prohibiting flag desecration.

    Holding

    No, because the photographs did not present a likelihood of incitement to disorder or a breach of the peace as required to justify a restriction on expressive conduct. There was no evidence the photographs incited violence or public disorder.

    Court’s Reasoning

    The Court of Appeals distinguished the case from People v. Radich, where the displayed constructions were deemed to have a “likelihood of incitement to disorder” and presented an opportunity for protest and counterprotest, leading to a potential for public disorder. The court emphasized that the photographs in Keough’s case lacked any comparable element that would suggest a similar risk of public disturbance. The court stated, “Clearly, however, there is nothing in the photographs, which concededly constituted the sole basis for the indictment before us, comparable in any substantial degree to the ‘constructions’ in Radich (26 Y 2d 114, 117, n. 1) and nothing, certainly, offering the ‘likelihood of incitement to disorder’ and by public exhibition affording an opportunity for protest and counterprotest with ‘consequent potential of public disorder’“, such as was found in Radich. Because the prosecution failed to demonstrate that the photographs created a tangible risk of inciting violence or public disorder, the court found the conviction unsustainable. The Court did not reach any constitutional issues, resolving the case on the specific facts presented.

  • People v. Radich, 26 N.Y.2d 114 (1970): Flag Desecration as Protected Artistic Expression

    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*.”

  • People v. Street, 20 N.Y.2d 231 (1967): Flag Burning and the Limits of Free Speech

    People v. Street, 20 N.Y.2d 231 (1967)

    A state statute prohibiting the public mutilation of the flag does not violate the First Amendment when applied to the act of flag burning as a form of protest, if the statute’s purpose is to prevent a breach of the peace.

    Summary

    The defendant, a World War II veteran, burned an American flag in public to protest the shooting of James Meredith, a civil rights leader. He was convicted under a New York law against publicly mutilating the flag. The New York Court of Appeals affirmed the conviction, holding that the statute was intended to prevent breaches of the peace and that the act of flag burning, in this instance, was akin to inciting violence. The court reasoned that while nonverbal expression is a form of speech, it is not afforded the same level of protection as pure speech, and the state can regulate conduct that threatens public order.

    Facts

    • On June 6, 1966, the defendant learned of the shooting of James Meredith.
    • The defendant burned a 48-star American flag on a street corner to protest the incident.
    • A small crowd gathered, and the defendant stated, “If they let that happen to Meredith we don’t need an American flag.”
    • The defendant was arrested and charged with violating New York Penal Law § 1425, subd. 16, par. d (public mutilation of the flag) and disorderly conduct.
    • He was acquitted on the disorderly conduct charge but convicted of flag mutilation and received a suspended sentence.

    Procedural History

    • The defendant was tried and convicted in a lower court for violating Penal Law § 1425, subd. 16, par. d.
    • The conviction was appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendant’s act of burning the American flag as a form of protest is protected speech under the First and Fourteenth Amendments, thereby invalidating his conviction under Penal Law § 1425, subd. 16, par. d.

    Holding

    No, because the state statute prohibiting public mutilation of the flag is designed to prevent breaches of the peace, and the act of flag burning in this context posed a threat to public order.

    Court’s Reasoning

    The court acknowledged that nonverbal expression can be a form of speech protected by the First Amendment but emphasized that this protection is not absolute. It stated that the State may proscribe conduct that threatens the peace, security, or well-being of its inhabitants. The court found that New York’s statute against flag mutilation was intended to prevent breaches of the peace, citing the potential for violence when the flag is treated contemptuously in public.

    The court distinguished between censoring an idea and promoting public safety: “[I]f the State can show that the prohibition of certain conduct is designed to promote the public health, safety or well-being, then, ‘the circumstance that such prohibition has an impact on speech or expression’ does not render the legislation violative of the First Amendment… providing, of course, that other channels of communication are open and available.”

    Furthermore, the court emphasized the long-standing nature of flag desecration laws, noting that such laws exist to discourage contemptuous treatment of the flag in public and prevent potential violence. The court likened the defendant’s act to shouting epithets at passersby, stating that it was an “act of incitement, literally and figuratively ‘incendiary’ and as fraught with danger to the public peace as if he had stood on the street corner shouting epithets at passing pedestrians.”

    The court stated, “[I]nsults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.”

    Therefore, the court concluded that the statute could be legitimately applied to curb the defendant’s activities in the interest of preventing violence and maintaining public order.