Joyce v. United States, 454 F.2d 971 (D.C. Cir. 1971)

MacKINNON, Circuit Judge:

Following the Declaration of Independence the Continental Congress, finding the Nation in need of a national flag to symbolize its unity and independence,

on June 14, 1777 adopted the following resolution:

There is a legend that George Washington, who with Betsy Ross is generally credited with participating in the formulation of the design of the flag, said of its colors:

Other famous citizens of the United States have described the place of the Stars and Stripes in our national life. Justice Holmes in a history of Chief Justice Marshall said:

The United States Supreme Court in Halter v. Nebraska, 205 U.S. 34, 43, 27 S.Ct. 419, 422, 51 L.Ed. 696 (1907) in an opinion by Justice Harlan said:

In a Flag Day speech President Woodrow Wilson expressed his sentiments concerning the American flag as follows :

His tribute indicated his deep feeling for our Nation, its history and the principles which had motivated its actions.

Probably the most moving description of what the American Flag symbolizes to

us as a nation was expressed, not by one who was native-born, but by the Honorable Franklin K. Lane, who was born a Canadian citizen in one of its maritime provinces and became a citizen of the United States through his father’s naturalization. On Flag Day, 1914, before the employees of the Department of Interior in Washington, D. C., Lane, then Secretary of the Interior, delivered his famous oration on “Makers of the Flag.” He envisioned the flag as the embodiment of the nation’s past accomplishments and its future hopes. He saw all Americans as the “makers of the flag”:

While he had not known tyranny in the land of his birth, the ennobling thoughts he expressed about the flag are also shared by many millions of our foreign-born citizens who appreciate its myriad blessings from dire personal experience. It may well be that our naturalized citizens are more truly appreciative of the benefits of citizenship under our flag than some of our native-born who do not properly evaluate the worth of their American heritage.

Throughout our history as a nation the flag has been our symbol in many wars, foreign and domestic. It has proudly led our troops in battle and reverently draped the caskets of those who fell. It has signified our national presence on battleships, airplanes, school houses and army forts, and been raised triumphantly in battle on far distant mountain peaks. It was planted on the moon by the Apollo 15 astronauts and one of them, Colonel James B. Irwin, U. S. Air Force, in his historic speech to a Joint Session of Congress on September 9, 1971 said:

117 Cong.Rec.H 8225 (daily ed. Sept. 9, 1971). Even today brave submariners carry it on silent patrol in those dangerous depths beneath the world’s seas where with their atomic might they daily preserve the liberty of the free world. It flies over the Nation’s Capitol, the Supreme Court, at all our national cemeteries throughout the world and at our Tomb of the Unknown Soldier in Arlington National Cemetery.

Wherever it flies it signifies the presence of the United States of America. To the oppressed and downtrodden of many lands, who yearn for the liberty and freedom of conscience and opportunity that this Nation offers, it is a shining beacon of hope. Today millions of our citizens look upon it with reverence and refer to it affectionately as Old Glory.

However, there are a few who are not appreciative of the blessings it represents, who are intolerant of the finest representative government in the world and who seek to abuse and desecrate the flag because it is our nation’s symbol. To prohibit such misuse of the flag every state legislature has enacted laws making flag desecration a criminal offense. On July 5, 1968, Congress enacted a similar statute:

In doing so Congress was motivated by the same attitudes toward the flag as are held by millions of our citizens and which were so well articulated by President Wilson, Justice Holmes, the Honorable Franklin K. Lane, the Supreme Court and by many others.

I

By an Information filed in the Court of General Sessions for the District of Columbia appellant Joyce was charged with violating this statute as follows:

The allegation of the foregoing acts in the conjunctive is the proper way to allege several acts constituting a single offense committed in violation of a single statute. To charge the offense in the disjunctive (as it appears in the strict language of the statute), that the accused did one thing “or” the other, would make the indictment bad for uncertainty, so it is necessary to connect them with the conjunctive “and” before evidence can be admitted as to more than one act. Then a conviction follows if the testimony shows the accused to be guilty of any one of the acts charged.6 This

favors the accused for he will be charged with only one offense and a judgment on a general verdict of guilty upon that count will bar further prosecution on all matters alleged therein.

The Events of Inauguration Day On Inauguration Day 1969, at about 11:10 A.M. at the corner of 15th Street and Pennsylvania Avenue, N.W. in the District of Columbia, on the route for the Inaugural Parade a short block from the White House grounds, appellant Joyce was standing on the street corner with two women at the rear of a crowd “where everybody was passing by.” Many hundreds were standing “five, six, seven . . . deep along the parade route on both sides of the street,” (Tr. 29) and there were people all up and down the parade route. The crowd was rowdy, loud and boisterous and were shouting obscenities at the police and National Guard units that were present.

At the aforesaid time and place Joyce was seen by Detective Manning, who was only three or four feet away from him, to tear an American flag (3" x 5") off a small flag staff he was carrying, throw the staff to the ground and then tear the flag with his hands. Detective Manning testified as follows:

Later testimony indicated that Joyce “ripped” the flag from the staff (Tr. 43, 44). The trial court had the benefit of an in-court demonstration by Detec-

ti ve Manning as to how Joyce tore the flag (“Just like this,” Tr. 41, 43) and how he tied it to his finger (Tr. 32). Manning further testified that he did not hear Joyce say anything then or later (Tr. 34, 44). Affirmative speech is thus not involved. According to Manning’s testimony, the flag was not torn when it was taken off the flag staff, but was torn afterward (Tr. 30, 32). There was likewise no evidence that the flag was torn accidentally or inadvertently, but only that it was purposely torn. There is physical corroboration of this fact by the torn flag which was admitted in evidence, since the tear is parallel to the stripes and the tear begins at that border of the flag which is at the other end away from the blue union where a flag is customarily attached to a staff. The length of the tear was slightly less' than half way across the flag. The location of the start of the tear and its length thus indicates that the tear did not result when the flag was torn or ripped from its staff.

There was no testimony that appellant tore the flag in order to make it easier to tie the flag to his finger or that the tear was in any way used in doing so.7 What testimony there is indicates that after Joyce tore the flag “he folded it longways with the stars up” and then tied it to his index finger. By folding it longways and tying it in that manner (folded) he rendered the tear useless to aid the tying. Experiment convinces that the tear could only be used for tying if the flag were not folded when it was tied, i. e., so that the finger would be placed in the crotch of the tear and the two ends used as opposing strands to form the beginning of a knot. There was thus no testimony that the act of tearing the flag was necessary, or was in fact used, to convey the claimed message of “peace.”

Joyce took the stand, testified in his own behalf and was evasive as to his reason for tearing the flag. His only response to Detective Manning’s testimony that he observed him tear the flag was, “I don’t recall the ripping of the flag, but I recall everything else.” He said he did remember that the flag had originally been on a short staff; and admitted, in effect, that his acts were not spontaneous or the result of being carried away momentarily, that he had a predetermined intention to appear down at the parade route in order to demonstrate, express some idea, communicate

an idea with the flag (Tr. 84).8 He gave no explanation whatsoever, much less a satisfactory explanation, for his act of tearing the flag and left it for the judge to draw the permissible inference from all the circumstances that Joyce intended by tearing the flag to indicate his contempt for it.

Joyce did describe his display of the flag while wrapped around his right index finger, which was spread away from the adjoining finger to indicate a V sign, as follows:

By raising my hand in the V sign over my head I was attempting to communicate an idea of peace for both Americans and Vietnamese and the flag was symbolizing the Americans.

This explanation was equivocal in that it failed to describe why it was necessary to have a torn flag to convey this “peace” message and it failed to give any reason for the prior act of tearing (mutilating) the flag, which was the offense for which Detective Manning arrested Joyce.

We also note that Joyce testified that his acts with respect to the flag were intended to convey some message. We find his prior act of tearing the flag (before he used it in the V sign) to be sufficient proof of the offense that he thereby knowingly cast contempt upon the flag by publicly mutilating and defacing it.9 There is no question that his act of tearing the flag was committed publicly. In fact, it could hardly have been more public, having been done openly in the view of Officer Manning (who observed it) and in the midst of a large crowd "where everybody was passing by,”10 and hence had an opportunity to observe the acts in question. That the act was committed in a public place, in public view, before members of the public in such manner that the public could have observed the act (and Officer Manning did), is sufficient to satisfy the requirement that the act be committed “publicly.” There is also sufficient proof of a public mutilation. The mutilation was proved by the tearing.11

When all this is added to the unexplained tearing which marred, injured, and disfigured the flag, it was reasonable to conclude that Joyce intended thereby publicly to show his disrespect and scorn for the flag and that he esteemed it to be low and worthless. That is the normal inference from an act of intentionally tearing an article. It is the conclusion that reasonable people reach countless times a day in the activities of ordinary life when they see a person rip something apart, throw part of it to the ground and tear the remainder.

In passing on this matter we recognize that the court may have found that the contempt was partially proved by the demonstrated manner in which Joyce ripped the flag from its staff, threw the staff to the ground and then tore the flag itself. The testimony was not that Joyce separated the flag from the staff and dropped the staff to the ground and then slit the flag. Rather, the testimony indicates acts of more force from which the normal inference would be that the perpetrator intended to express contempt for the article itself. And the force and manner exhibited could have been more accurately portrayed to the court by demonstration. The trial judge who found Joyce guilty did have the benefit of Manning’s reenactment in which he demonstrated the manner in which Joyce performed these acts.

When we pass on the sufficiency of the evidence to support that finding we do not weigh it, but must take the view most favorable to the Government and determine the question of law whether there is substantial evidence, direct or circumstantial, which, together with reasonable inferences that may be drawn therefrom, is legally capable of allowing the trier of fact to be persuaded of guilt.12 If the evidence so viewed is such that reasonable minds might differ, then the question becomes one of fact for the trier and not one of law to be determined by the court.13 This rule is equally applicable where the case is tried to the judge without a jury14

We conclude from a detailed examination of the entire record that there was substantial competent evidence from which reasonable minds might differ as to the guilt of the accused and hence the decision was for the trier of fact. The court was fully justified on the record here in finding that Joyce publicly mutilated and defaced15 the flag and knowingly cast contempt16 upon it. That it

was only a little flag makes no difference. The statute protects “any flag of the United States.” A little American flag is entitled to the same protection as a large one.

Having found that the statute was violated by the physical act of tearing the flag under the attendant circumstances, we do not rely upon the waving of the flag attached to the finger in a V-type gesture in what is alleged to be a “peace” sign as an integral part of the offense. We consider such evidence in its entirety but find nothing in it to explain or excuse the prior misconduct. The judge who conducted the pretrial hearing on the motion to dismiss considered that making the V sign was also contemptuous because it linked the American flag with support for the Viet Cong enemies of our country.17 So considered, it may have been, but the statute here charged to have been violated proscribes only contempt by a public mutilation, defacing, defiling, burning or trampling. All these prohibited acts constitute conduct involving some physical act directly touching the flag and which are physically destructive of the flag. The subsequent act by Joyce of giving the V sign with the flag attached is not an act specifically proscribed by the statute and is only relevant to the extent that it may have indicated Joyce’s intent when he tore the flag.18 In this connection Joyce’s failure to explain how the mutilation of the flag had any relation whatever to the claimed message of “peace” is a circumstance upon which the court could, together with all the other circumstances, reach a conclusion that his prior act was intentionally contemptuous. We accordingly rest our decision upon the physical act of publicly tearing the flag under the attendant circumstances, the demonstration in court by the officer of the manner in which such act was performed19 and the normal inference from the act of tearing as described and demonstrated, i. e., that the person thereby indicated his disrespect and contempt for the article torn. On that basis we find the evidence to be sufficient to support the verdict.

II

Appellant contends that the statute,20 first, is unconstitutionally vague, second,

is overbroad, and third, that it abridges the First Amendment’s guarantee of freedom of speech.

In support of his contention that the statute is unconstitutionally vague appellant points to the requirement of the due process clause of the Fifth Amendment that criminal statutes must provide predictable indicia of guilt so that individuals will have fair notice of the conduct proscribed, Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and that the standard of clarity is high where First Amendment rights are involved, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Building on these guiding principles, with which we agree, appellant then contends that “the essential vice of the statute here under review is its proscription of only those physical acts which intentionally cast ‘contempt’ upon the flag.”21 In so doing, he makes the point that it is communicative conduct that is proscribed. We will discuss that specific point elsewhere, but appellant’s argument in this connection does point up what we believe is a commendable feature of the act, i. e., that it is narrowly drawn to proscribe only those physical acts which may be considered to indicate an intention to cast “contempt” upon the flag.

It is clear that Congress in the statute intended the word “contempt” to be given its ordinary meaning.22 As such, the word is not imprecise or vague. It means “despise,” “to hold in low esteem,” “disrespect,” “disgrace,” “scorn,” and “shame,”23 and as so interpreted it would not leave the public uncertain as to what conduct is prohibited. Likewise the words “mutilating, defacing, defiling, burning or trampling” are ordinary words intended to convey their common dictionary meanings.24

Congress has thus enacted a “precise, narrowly drawn regulatory statute which proscribes certain specific behavior. . It prohibits a particular type of conduct . . ..” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487 (1965); cf. Edwards v. South Carolina, 372 U.S. 229, 236, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). A person of ordinary intelligence from merely reading the statute could easily understand that conduct which involved tearing the flag, such as Joyce engaged in, was prohibited thereby. While stricter than average standards of permissible vagueness may be applied to statutes having a potentially inhibiting effect upon speech,25 subject to this additional requirement, statutes are not required to be drafted with engineering accuracy but only so as to give fair notice to the average man of common intelligence that specific conduct is proscribed.26 We find that the statute clearly meets this test. Appellant’s brief inquires whether the statute would

seek to punish those who would mock the design of the flag, or its color combination or shape ? Or is the statute directed at those who would criticize the intrinsic value of the flag as a national symbol? Is the mutilation of the flag to demonstrate disagreement with national policies a “contemptuous” mutilation, or is the choice of the flag as the object destined for mutilation merely the use of a convenient symbol to express ideas other than that of disdain for the flag itself?

The answer to all such questions exists in the language of the statute which by its plain terms indicates it is not concerned with prohibiting the communication of any particular idea but only with how the flag is used in so doing. If the circumstances in which the flag is used include the commission in public of one of the acts proscribed by the statute which physically damage the flag so that one can conclude from all the circumstances beyond a reasonable doubt that the perpetrator knowingly cast contempt upon the flag, then such use is prohibited regardless of the ultimate message intended to be communicated. For example, one who said he was attempting only to “mock” the flag, yet who did so by publicly throwing manure upon it, obviously thereby would defile the flag and would violate the statute without regard to his ultimate message. The same could be said of one who attempts to convey a claimed message of “peace” by tearing, burning, manure, etc. It is.not the ultimate message of peace that is prohibited but solely the acts which physically damage the flag and thereby can be found to knowingly cast contempt upon it. In addition, since this is a federal act that is to be applied by officers under direct federal control, the federal courts can be assured that the narrow construction we place upon the act will be used in its enforcement and citizens will not be required to go through a lengthy sequence of state court litigation before a proper interpretation is secured.

Appellant also contends that the statute invites irrational and selee-

tive patterns of enforcement and is therefore unconstitutional. What is required before a statute will be stricken down on such a claim aimed solely at its facial features is for the act to possess some feature, such as a reasonably imprecise or ambiguous standard, that invites irrational or selective patterns of enforcement, Cox v. Louisiana, supra. We do not consider the statute here to be deficient by such test, but rather find that Congress has narrowly defined the conduct proscribed and restricted its application to certain precise acts which would physically damage the flag and be normally indicative of an intent to cast “contempt” upon the flag. Of course, a public official vested with a prosecu-torial judgment, or a grand jury, may decline or refuse to prosecute any offense, even though it appears to many to be a clear violation of the statute. Such refusal to prosecute may'be proper or improper, but there is nothing about the exercise of such power that makes the statute unconstitutional unless selective or discriminatory enforcement of the act can be justified by the ambiguous or excessively broad language of the statute. However, since we are not here concerned with an imprecise statute and there is no evidence of actual discriminatory or selective enforcement, appellant’s argument on this point must fail.

The next contention by appellant is that the statute is “overbroad,” i. e., that it “sweeps expansively into the area of protected rights where ‘the threat of sanctions may deter their [protected rights] exercise almost as potently as the actual application of the sanctions’ themselves. N. A. A. C. P. v. Button, 371 U.S. 415, 433 [83 S.Ct. 328, 9 L. Ed.2d 405] (1963).” In support of this contention it is asserted that “the deterrent effect which the . . . statute exerts upon the exercise of free speech by virtue of the authority it provides for the arrest of those exercising free speech suffices to render the statute unconstitutional.”

In reality, appellant's contentions in this regard are based on his overly-broad reading of a narrowly-drawn statute. As pointed nut elsewhere in this opinion, the statute limits itself to proscribed conduct and does not trespass in the area of speech per se.27 Since conduct alone is proscribed, the statute is not made overly broad by the possibility that the conduct it prohibits frequently may be accompanied by speech, for

[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.

Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834 (1949).

To the extent that appellant’s argument is based on his belief that the statute superficially authorizes arrests for protected activity, we again reiterate that conduct alone is proscribed by the Act’s plain terms. That conduct is not described in terms so formless that we are faced with a “statute . which readily lends itself to harsh and discriminatory enforcement by . officials.” Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940). Compare, e. g., Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). See generally Note, The First Amendment Over breadth Doctrine, 83

Harv.L.Rev. 844, 856-858 (1970). We take it as axiomatic that the statute does not justify arrests for activity which it does not prohibit. Moreover, we can only assume that the Act will be reasonably enforced according to its terms, for use of a contrary assumption as a basis for constitutional analysis would render invalid every criminal statute.

Since the statute defines the proscribed conduct with acceptable precision and since, in the absence of any evidence to the contrary, we are bound to assume that those charged with its enforcement will do so according to its plain terms, appellant’s attack must fail. To be sure, situations may arise in which there is some difficulty in determining whether specific activity is, or could constitutionally be, within the sweep of the Act’s prohibitions. The fact that marginal situations are bound to exist, however, does not serve to make the Act unconstitutional.28

The gist of appellant’s argument seems to be that the First Amendment guarantees everyone freedom to desecrate the flag if, in so doing, he intends to convey some idea. As applied here, his argument is that he is protected in his contemptuous tearing of the flag because he was attempting to convey an idea.29 We deny that the First Amendment goes that far. Mr. Joyce was free to make any speech he desired but the knowing public contemptuous mutilation of the flag is prohibited by the statute and, in our view, it is not overbroad in that respect.

Finally, we consider whether the Flag Desecration Statute as enacted by Congress abridges the freedom-of-speech guarantee of the First Amendment.30 Before turning to that problem, however, we consider briefly the nature of the power utilized by Congress when it enacted the statute here at issue.

At the outset, we recognize that Congress possesses only certain powers enumerated in the Constitution and that document does not contain any specific grant of power to adopt a national flag or to regulate conduct with respect to it. However, we conclude that the power to enact such legislation is an incident of sovereignty which inheres in the Government of the United States of America as a nation and which the Constitution recognizes and implements. Such legislative power is thus conferred by that broad specific grant to Congress “to make all Laws which shall be necessary and proper for carrying into Execution . all Powers vested by this Constitution in the Government of the United States . . ..”31

With respect to these implied powers which emanate from the framework of our Government and the “necessary and proper” clause, Chief Justice Marshall declared that they embrace “all [legislative] means which are appropriate” to carry out the “legitimate” ends of the Constitution unless forbidden by the “letter and spirit of the constitution.”32 Also, since we are here concerned with the application of the statute within the District of Columbia, it should be noted that, in addition to its implied powers. Congress has all the power of a local and national legislature to legislate for the District.33 Though neither power permits a violation of the First Amendment, both are sufficiently broad to authorize Congress to legislate with regard to a national flag.34

In considering whether the statute is valid under the First Amendment, we first note that it is not directed at speech, but solely at specified conduct.35 That this is the aim of the Act is made plain both by its terms and by the Senate Report which accompanied it to the floor of that chamber:

terances are not proscribed. Specific examples of prohibited conduct under the bill would include casting contempt upon the flag by burning or tearing it and by spitting upon or otherwise dirtying it. There is nothing uncertain or vague about the terms used in the bill.36

Moreover, neither the charge against appellant nor the evidence introduced at trial dealt with any oral statement made by him in connection with the offense.

We are not, therefore, concerned with pure speech or with any combination of pure speech and conduct. Compare Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969). The question thus becomes whether the statute deals with matters so intertwined with speech that it cannot constitutionally stand. Cf. Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590 (1970) (Harlan, J., concurring).

While recognizing that the First Amendment’s protections apply to certain non-verbal conduct of a communicative nature37 we also recognize that it is now clear that the communication of ideas by conduct is not guaranteed the same degree of protection ac-X corded communication by pure speech.38 The difference in treatment afforded speech as distinguished from physical acts is, in part, a recognition of the fact that there are certain fundamental differences between the two. Speech is the traditional instrument of peaceful persuasion, the means traditionally used to convert people to a different point of view and, as such, is the very lifeblood of any free democracy. Untrammeled freedom of speech is particularly essential in a republican form of government, such as ours, where there is a need to inform vast multitudes of citizens on the most complex problems which confront their national representatives. It has been said that

Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949). Indeed, the freedom of speech guaranteed by the First Amendment is crucial to the continuation of our form of government.

Physical acts, however, differ from pure speech. While speech invites discussion, counter-speech and eventual agreement, public acts often have a certain finality about them which is frequently so conclusory and provocative as to be destructive of that rational discourse which we consider to be so essential to the continuing vitality of the Nation. Of -course, speech can also be provocative but it provokes a response in kind rather than those which tend to fill

the marketplace of ideas with the sound of thudding fists.

For these and other reasons, the adjudicated cases interpreting the First Amendment have held that certain public conduct is subject to regulation even though it is related to expression.39 In Cox v. Louisiana, supra, 379 U.S. at 555, 85 S.Ct. at 464, for example, the Supreme Court stated:

More recently, in United States v. O’Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968), Chief Justice Warren remarked:

We thus consider the constitutionality of the statute under the standards applicable to those laws which prohibit specific acts, including acts constituting communicative conduct, and not by the standards applicable to those laws which are directed at speech per se. To meet the test of these cases, we hold that the United States does have a substantial, genuine and important interest in protecting the flag from public desecration.41 This interest is a reflection of the interest which the people of the United States have manifested, through their representatives, in having a symbol to represent them as a nation; for the power of the Government to further the people’s interest by designating the flag as the Nation’s symbol also implies the power to protect it against public acts which physically damage and degrade it.42

From early on, the place of symbols in the functioning of nations has been recognized. For example, Justice Harlan, in Halter v. Nebraska, 205 U.S. 34, 41, 27 S.Ct. 419, 421, 51 L.Ed. 696 (1907), stated:

In addition, we are not faced with a statute in which Congress has made criminal the peaceful expression' of unpopular views. Compare Edwards v. South Carolina, supra, 372 U.S. at 237, 83 S.Ct. 680. Rather the statute proscribes certain distinctive acts whether they are associated with any particular expression of views which may be popular or unpopular with any group or individual. Distinguishable, then, are cases such as Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) and Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 510-511, 89 S.Ct. 733, 21 L.Ed. 2d 731 (1969) where purported regulation of conduct was in reality little more than an attempt to suppress a particular communication protected by the First Amendment. See also Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970).

Dissenting in Street v. New York, supra, 394 U.S. at 616-617, 89 S.Ct. at 1378, Justice Fortas referred to the flag as “a special kind of personalty. property, in a sense; but property burdened with peculiar obligations and restrictions.”43 Because of the unique status of the flag as the visi

ble embodiment of the Nation, Congress has the power, at the very least, to prevent those who own it from knowingly and publicly utilizing it so as to cast contempt upon it in a host of ways in which similar pieces of cloth not impregnated with the Nation’s emblem might be used. Prohibition of such uses is a reasonable method of protecting the Nation’s symbol and places only the smallest, if any, obstacle in the path of free discourse. As stated in the Senate Report on the bill:

Since the Act is not aimed at the suppression of speech, and since it imposes only the smallest restraints on “communication,” the fact that those who utilize the flag in a prohibited manner do so with the purpose of conveying a particular idea is irrelevant. Giboney v. Empire Storage & Ice Co., supra. As was stated in the recent case of Parker v. Morgan, 322 F.Supp. 585, 590 (D.N.C. 1971):

We conclude, therefore, that the statute is constitutional as enacted and as applied. Accordingly, the judgment is Affirmed.

FAHY, Senior Circuit Judge (concurring in part, dissenting from affirmance) :

I agree that the federal statute, providing for fine or imprisonment or both, for “[wjhoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it,” is constitutional in its subparagraph (a).1

See Hoffman v. United States, 144 U.S. App.D.C. 156, 157, 445 F.2d 226, 228-229 (1971). I also join in the court’s opinion in its outline of the history of our flag, the tributes to it, and the place it should occupy in our affection and respect. As to affirmance of appellant’s conviction, however, I respectfully dissent, for the reason that there was lack of sufficient evidence that his conduct was accompanied by a knowing easting of contempt upon the flag.

The flag was about 4 by 6 inches in size. Appellant had come to the Avenue for the Inaugural Parade, accompanied by a young lady and joined by another. They were standing on the sidewalk, at the rear of a crowd, five, six or seven people deep. Some of the people near appellant were shouting and protesting. The atmosphere was emotional. Appellant responded to the excitement in his own way. He silently undertook to use the flag as part of a V sign. In doing so he created no disturbance whatever.

When he was asked at trial what idea he intended to convey by his actions with the flag, he replied:

When pressed on cross-examination why he found it advisable at the particular time, in order to communicate this idea of peace, to take the flag from its post, put it on his finger, and raise his arm above his head, he responded:

The subject being further pursued, he responded:

If this testimony is accepted — and I do not know why it should not be accepted, for his conduct is not inconsistent with it — appellant did not knowingly cast contempt upon the flag by a public mutilation of it. When appellant removed the flag from the rod and made the slit, the officer said he did not then arrest him, indicative to some degree that thus far there had been no knowingly contemptuous mutilation.2 The slit having been made to enable the flag to be tied to his finger for the V sign,3 I have a serious problem in find

ing that in making the V sign in this manner to symbolize peace and America, appellant knowingly cast contempt upon the flag by mutilating it.

The opinion of the court seems not to consider appellant’s making of the V sign in determining whether he knowingly cast contempt upon the flag. Such an approach ignores the circumstantial character of proof which was relied on in determining whether appellant’s conduct amounted to contempt of the flag. Appellant’s conduct must be considered as a whole. When so considered, together with his explanations, it seems clear that if the trial court could find that appellant’s conduct was contemptuous of something, his undisclosed contempt was not directed toward the flag, as it must be to come within the statute.4

The statute also requires for conviction that a person “knowingly” cast contempt upon the flag by one of several enumerated acts. Unless the word “knowingly” is surplusage, an assumption I cannot make, it requires not only that a court find that appellant cast contempt on the flag, but also that it find that appellant himself was aware he was casting such contempt on the flag by his acts.5 There can be little doubt, it seems to me, that appellant was not aware he might be casting contempt upon the flag.

It is questionable, finally, whether appellant’s tearing of the flag should be said to have been a “public” mutilation. When appellant made the slit he was holding the flag between his waist and shoulders. - In addition, Detective Manning testified that he did not know and could not say whether anybody was looking at appellant when he made the tear. See Street v. New York, 394 U.S. 576, 599, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) (Warren, C. J., dissenting); id. at 589 n. 10, 89 S.Ct. 1354 (opinion of Court).

For the reasons stated I would reverse appellant’s conviction. The line that must be drawn in cases of this sort is sometimes difficult. When it is remembered, however, that the statute was intended to be construed narrowly to avoid possible conflict with freedoms protected by the First Amendment, see Hoffman v. United States, supra, appellant’s conduct ought not be placed on the criminal side of the line, as if justified by proof beyond a reasonable doubt of the essential elements of the crime.

I respectfully dissent from affirmance of the conviction.