Olesnyckyj, Nestor L.

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University of Kentucky

Kentucky Law JournalVolume 58 | Issue 2 Article 91969Constitutional Law--Freedom of Expression--Symbolic Free SpeechNestor L. OlesnyckyjUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Constitutional Law Commons, and the First Amendment CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationOlesnyckyj, Nestor L. (1969) "Constitutional Law--Freedom of Expression--Symbolic Free Speech," Kentucky Law Journal: Vol. 58 :Iss. 2 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol58/iss2/9KENTUCKY LAW JOURNALsociety's, is to improve or change the initial sentencing mechanism soits sentences are adequate.The individual's right to appeal is most effectively protected byimposing a ceiling on resentencing which would eliminate an undesir-able aspect of retrial-the threat of greater punishment.43 The Courtin Pearce unfortunately chose not to protect absolutely the defendant'sright to appeal.W. Stokes Harris, Jr.CoNsTTuToNAL LAw-FEEDOm oF ExpssmoN-Symmormc FamSPExcH.-On June 6, 1966, a Brooklyn patrolman approached a crowdof people standing around a black man burning a flag. The man,Sidney Street, was telling them, "If they let that happen to Meredith,we don't need an American flag." Street explained to the officer thatupon hearing the news that James Meredith had been shot, he setfire to his flag. The policeman arrested Street and charged him with"publicly mutilating the United States flag."' A New York courtconvicted him of malicious mischief and gave him a suspendedsentence. The New York Court of Appeals unanimously affirmed.2The Supreme Court of the United States noted jurisdiction.3 Held:Reversed. It was possible that Street might have been convictednot only for physically mutilating the flag, but also for defying itwith words, such words being constitutionally protected. Since theNew York statute did not separate the words from the act, the SupremeCourt declared the statute unconstitutional. Chief Justice Warren,43 This ceiling could easily be imposed by statute. Indeed, Justice Black deemsthis to be a legislative problem. 395 U.S. at 738. In most states, the permissibil-ity of harsher resentencing of successful appellants is strictly a judicial creationwithout statutory support. Two states, California and Virginia, forbid harsherresentencing as does the Uniform Code of Military Justice. 10 U.S.C. § 863 (b)(1964). The American Bar Associations Project on Minimum Standards forCriminal Justice has a draft which reads:Where prosecution is initiated or resumed against a defendant who hassuccessfully sought post conviction relief and a conviction is obtained,or where a sentence has been set aside as the result of a successful ap-plication for post conviction relief and the defendant is to be resentenced,the sentencing court should not be empowered to impose a more severepenalty than that originally imposed. ABA STANDARDs BELATING TO POSTCoNVIrcION REMMIES 96 (1967).1"Any person who... shall publicly mutilate, deface, defile or defy, trampleon, or cast contempt upon either by word or act [any flag] shall be deemed guiltyof a misdemeanor." N.Y. PENAL LAWS § 1425(16) (b) (McKinney 1944).In 1967, this statute was superceded by § 126 of the N.Y. GENERAL BusINEssLAw which defines the crime in similar language.2 People v. Street, 20 N.Y.2d 231, 229 N.E.2d 187, 282 N.Y.S.2d 491 (1967).8 Street v. City of New York, 392 U.S. 923 (1968).[Vol. 58CozmArsin a dissenting opinion, noted that the Court failed to answer thecrucial issue in the case; namely, whether flag-burning should beallowed as symbolic free speech. Street v. City of New York, 394U.S. 576 (1969).The free speech or free expression clause of the first amendmenthas an emotional, though relatively uniform history of interpretation.In the well known case of Schenk v. United States,4 the SupremeCourt set the fundamental base for free expression cases:The question in every case is whether the words used are used insuch circumstances and are of such a nature as to create a clearand present danger that they will bring about the substantivedangers that Congress has a right to prevent.5 [Emphasis added].Other than the "clear and present danger test," the Supreme Courthas since devised more limitations on free expression. These include"derisive, fighting words,"6 obscenity,7 libel,8 and the "advocacy ofoverthrow of government by force." To some extent, these curbs aremodifications of the clear and present danger test, but to a muchlarger extent, the decision of whether to allow a certain form ofexpression rests on a balancing of interests. The conflicting interestsin such cases are public safety and the "search for truth."'1 Thusexpression is not free, but tempered by its content and sometimesby the reaction which that content generates. 1 Another ramification4249 U.S. 47 (1919).5 Id. at 52.6 Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).7 Roth v. United States, 354 U.S. 476 (1957).8 Beauharnais v. Illinois, 343 U.S. 250 (1952).9 Stromberg v. California, 283 U.S. 859 (1931).10Z. CHAFEE, FnnE SPEEH IN TH= UN=SED STATES 31 (1954); Note, 18CLEv.-MAn. L. REv. 407 (1969).Cases which have applied the balancing test include Beauharnais v. Illinois,343 U.S. 250 (1952); American Communications Comm'n v. Douds, 339 U.S.382 (1950); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Similarstandards for allowing or forbidding certain modes of expression have been heldapplicable to the states through the due process clause of the fourteenth amend-ment. Cf. Bridges v. California, 314 U.S. 252 (1942); Stromberg v. California,283 U.S. 359 (1931); Whitney v. California, 274 U.S. 357 (1927).See generally D. Alfange, Draft Card Burning, 1968 Sup. CT. REv. 1 (1968);T. Emerson, Freedom of Expression in Wartime, 116 U. PA. L. REv. 975 (1968).Excellent short student writings may be found in 1969 UTAH L. REv. 118 (1969);20 MERCER L. REv. 505 (1969); 20 SYR. L. REv. 773 (1969). See also T.EmERsON, ToWARM A GENERAL THEoRY OF E FrST AmmrD~mr= (1907);M. FRNxuN, DNAivncs oF AmmcAN LAw (1968); A. WEsn, FRmNow (1964)."Feiner v. New York, 340 U.S. 315 (1951). See generally 16 Am. Jua. 2dConstitutional Law § 348, 672 (1964).All ideas having even the 'slightest redeeming social importance'-un-orthodox ideas, controversial ideas, even ideas hateful to the prevailingclimate of opinion, have the full protection of the constitutional guaran-(Continued on next page)19701KENTucKY LAW JOu6NALof the problem, more nearly related to the facts of the Street case,is the question of what happens when the protected speech is ac-companied by an act. Courts have allowed freedom to the words, buthave distinguished the act.'2Sometimes, however, one need not use words to "speak" Courtshave fabricated fictions of "symbolic speech," which now includeamong others: raising a red flag,13 refusing to salute the flag,14sit-ins,' 5 picketing,16 draft-card burning,17 and hanging offensive ma-terial from a clothesline.' 8 Such "symbolic speaking" is given pro-tection, although encompassing as it does action, it is more closelyscrutinized and less likely to be allowed. 19The Court's opinion in the present case implies that flag-burningis clearly criminal, with no advertence to whether it is symbolicspeech. The majority said there is a legitimate state interest inpreventing the burning of flags, without explaining what that interestis. It is true that every state has an anti-flag desecration statute,20and that the House of Representatives has recently passed a similarbill.2 ' Warren's dissent, on the other hand, clearly spelled out theissue which the court refused to face, and Justice Black to someextent agreed with him. The issue as Black saw it was that theconviction rested on flag-burning alone, while only Warren askedwhether it should be protected as symbolic speech.22It seems that the issue which the Chief Justice has named is theproper one, although one could disagree with his answer to it. Itappears that had the proper issue been examined under the tests(Footnote continued from preceding page)tees, unless they encroach upon the limited areas of most importantinterests. Indeed, advocacy of conduct proscribed by law is not ajustification for denying free speech where the advocacy falls short ofincitement and there is nothing to indicate that the advocacy would beimmediately acted on. Id.12United States v. O'Brien, 391 U.S. 367 (1968); Cantwell v. Connecticut,310 U. S. 296 (1940); Stromberg v. California, 283 U.S. 359 (1931). As is vividlyexemplified in the present case, courts will carefully examine the incriminatingstatutes to be certain that the speech is not forbidden along with the act.13 Stromberg v. California, 283 U.S. 859 (1931).14West Virginia Bd. of Educ. v. Barnette, 319 U.S. (1943).15 Garner v. Louisiana, 368 U.S. 157 (1961).16 Edwards v. South Carolina, 372 U.S. 229 (1963).17 United States v. O'Brien, 391 U.S. 367 (1968).18 People v. Stover, 12 N.Y.2d 462, 191 N.E.2d 272, 240 N.Y.S.2d 734 (1963).1 9 United States v. O'Brien, 391 U.S. 367 (1968). Draft card burning issymbolic speech, but is punishable because of the "legitimate" government interestin maintaining an orderly system of conscription.20 Note, Desecration of National Symbols as Political Expression, 66 MCEc L.REv. 1040 (1967).21 Hearings on H.R. 271 Before the Subcom. No. 4 of the House Comm. onthe Judiciary, 90th Cong., 1st Sess., ser. 14 (1967).22 Street v. City of New York, 894 U.S. 576, 591 (1969).[Vol. 58Cozmmanaspreviously enumerated, i.e. the "clear and present danger" test ofSchenk, the balancing of interests test of Beauharnais, Cantwell, andChaplinsky,23 or the "time, place and manner of expression" test ofCox v. New Hampshire,24 and, had the Court carefully consideredthe brilliantly written opinion of Justice Jackson in the celebrated"flag-salute" case of West Virginia State Board of Education v.Barnette,25 flag-burning would have been recognized as symbolicspeech and as such, permitted under every test.The evidence indicates that there was neither violence nor threatof it that summer day in Brooklyn. The onlookers stood by peace-fully. Street did not resist arrest. In Edwards v. South Carolina,26the Court specifically noted that fact in allowing peaceful picketingas "speech." Thus the test of "clear and present danger" appearsinapplicable, although the New York Court of Appeals quiteblatantly and erroneously characterized Street's act as:• . . an act of incitement, literally and figuratively 'incendiary'and as fraught with danger to the public peace as if he had stoodon the street comer shouting epithets at passing pedestrians.27This characterization of the facts seems open to severe criticism.A black man, aggrieved by the oppressive system which denies himequality, finds words inadequate to express his disgust at the politicalsystem which shrugs at assassination of those who advocate peacefulattainment of that equality, the Merediths, Kings and Kennedys.He, a veteran, takes his own flag, lays it on the street and burns it,solemnly declaring his rejection of the society represented by thesmoldering flag at his feet. What more symbolic, eloquent, yetpeaceful expression of dissent can there be?Let us proceed with the Court's own tests. Let us balance theinterests. Public safety against the search for truth, "law'n'order"versus protest, free expression versus respect for the flag. Why makeflag-burning a crime at all? What legitimate state interest is pro-tected by preventing the burning of a flag? The flag is nothing ifnot a symbol.Symbolism is a primitive, but effective way of communicatingideas. The use of an emblem or flag to symbolize some system...is a short cut from mind to mind. Causes and nations ... seek toknit the loyalty of their following to a flag or banner .... Symbols23 See note 10, supra, and accompanying text.24312 U.S. 569, 576 (1941).25319 U.S. 624 (1943).26372 U.S. 229 (1963).27 People v. Street, 20 N.Y.2d at 237, 229 N.E.2d at 193, 282 N.Y.S.2d at491 (1007).1970]KENTUcKY LAW JoV-ENALof state convey political ideas. . . . A person gets from a symbolthe meaning he puts into it, and what is one man's comfort andinspiration is another's jest and scorn. . . . Here it is the statethat employs a flag as a symbol of adherence to government aspresently organized.28These exerpts from Justice Jackson's opinion in Barnette underscorethe point that the flag or the preservation of it is not so sacrosanctan interest as to justify denying a constitutionally protected liberty.There is no mysticism in the American concept of the State or ofthe nature and origin of its authority.... Authority here is to becontrolled by public opinion, not public opinion by authority....If there is any fixed star in our constitutional constellation, it isthat no official, high or petty, can prescribe what shall be orthodoxin politics, nationalism, religion or other matters of opinion.29Hence, if one differs with the prevailing authority and tries toform a following to create an opinion against that authority, he mayspeak without fear.30 If one wishes to effectively express rejectionof the entire system, what better way to do it than to reject itssymbol-the flag. As Justice Douglas in his dissent in Adderly v.Florida1 noted, mere talk, petitions through regular "channels" andother "usuar' means of voicing dissent are so futile that other tacticsare needed. Justice Black, in his dissent in Beauharnais,32 stronglyurged that political protest, because of its valuable content, never bewholly excluded. The peaceful burning of a flag certainly voices aneffective political protest.If the State seeks to elicit patriotism by compulsory adherence toa symbol and to punish those who refuse, it will find that,Those who begin coercive elimination of dissent soon find them-selves exterminating dissenters. Compulsory unification of opinionachieves only the unanimity of the graveyard. 33Nestor L. OlesnyckyjCoNsTrunoNAL LAw-FRST AmENDMENT FREEDOM OF SPEECH ANDPREss-FEDERAL COMMUNICATEON COMMISSION's FAurNEss DocrnuEAND PimsoNAL ATTACK RuLE.-On November 27, 1964, Red LionBroadcasting Company [hereinafter Red Lion] carried on its Pennsyl-28 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33 (1943).29 Id. at 641-42.30 Beauharnais v. Illinois, 343 U.S. 250, 264-65 (1952).31385 U.S. 39, 49-51 (1966).32 343 U.S. 250 (1952).33 West Virginia State Bd. of Educ. v. Bamette, 319 U.S. 624, 641 (1943).(Vol. 58

Constitutional Law--Freedom of Expression--Symbolic Free Speech

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Constitutional Law--Freedom of Expression--Symbolic Free Speech

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