First Amendment Library
ADVANCED SEARCHCOWGILL v. CALIFORNIA, 396 U.S. 371 (1970)
- Argued:
- N/A
- Decided:
- January 19, 1970
- Decided by:
- Burger Court, 1969
- Action:
- Petition denied or appeal dismissed. Petitioning party did not receive a favorable disposition.
Advocates for Respondent
Advocates for Petitioner
Concurring Opinion
Dissenting Opinion
No opinions found
COWGILL
v.
CALIFORNIA.
Supreme Court of United States.
APPEAL FROM THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES.
Melville B. Nimmer and Laurence R. Sperber for appellant.
Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Evelle J. Younger for appellee.
PER CURIAM.
The motion to dismiss is granted and the appeal is dismissed.
MR. JUSTICE HARLAN, with whom MR. JUSTICE BRENNAN joins, concurring.
While I am of the view this appeal should be dismissed, I deem it appropriate to explain the basis for my conclusion since the issue tendered by appellant— whether symbolic expression by displaying a “mutilated” American flag is protected from punishment by the Fourteenth Amendment—is one that I cannot regard as insubstantial. See Street v. New York, 394 U. S. 576, 594 (1969).
The record before us is not in my judgment suitable for considering this broad question as it does not adequately flush the narrower and predicate issue of whether there is a recognizable communicative aspect to appellant’s conduct which appears to have consisted merely of wearing a vest fashioned out of a cut-up American flag. Such a question, not insubstantial of itself, has been pretermitted in the Court’s previous so-called *372 “symbolic speech” cases where the communicative content of the conduct was beyond dispute. See Tinker v. Des Moines School District, 393 U. S. 503 (1969); Gregory v. City of Chicago, 394 U. S. 111 (1969); Brown v. Louisiana, 383 U. S. 131 (1966); Bell v. Maryland, 378 U. S. 226 (1964); Garner v. Louisiana, 368 U. S. 157, 201 (concurring in judgment) (1961); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 632 (1943); see generally Note, Symbolic conduct, 68 Col. L. Rev. 1091 (1968). The Court has, as yet, not established a test for determining at what point conduct becomes so intertwined with expression that it becomes necessary to weigh the State’s interest in proscribing conduct against the constitutionally protected interest in freedom of expression.[*]
While appellant contends that his conduct conveyed a symbolic message, the stipulated statement of facts on which this case comes to us suggests that the issue was not, in the first instance, determined as a factual matter by the trial court. Further, there is no indication that appellant either presented evidence on this question at trial or urged any standard at trial for determining that issue. I would therefore dismiss this appeal based on the inadequacy of the record for deciding the question presented. Rescue Army v. Municipal Court, 331 U. S. 549 (1947); DeBacker v. Brainard, ante, p. 28.
MR. JUSTICE DOUGLAS is of the opinion that probable jurisdiction should be noted.
NOTES
[*] Chief Justice Warren, writing for the majority in United States v. O’Brien, 391 U. S. 367, 376 (1968), said: “We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech’ whenever the person engaging in the conduct intends thereby to express an idea.” The Court went on, however, to take judicial notice of the symbolic significance of draft-card burning which had become a recognized way of protesting the draft and American involvement in Vietnam.
ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, SR., et al., 562 U.S. 443 (2011)
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- Protests
DEBORAH MORSE, et al. v. JOSEPH FREDERICK, 551 U.S. 393 (2007)
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VIRGINIA v. BARRY ELTON BLACK, RICHARD J. ELLIOTT, AND JONATHAN O’MARA, 538 U.S. 343 (2003)
- Related Sub-Topic:
- Protests
PAUL SCHENCK AND DWIGHT SAUNDERS v. PRO-CHOICE NETWORK OF WESTERN NEW YORK et al., 519 U.S. 357 (1997)
- Related Sub-Topic:
- Protests
JOHN J. HURLEY AND SOUTH BOSTON ALLIED WAR VETERANS COUNCIL v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON, ETC., et al., 515 U.S. 557 (1995)
- Related Sub-Topic:
- Protests
R.A.V. v. CITY OF ST. PAUL, MINNESOTA, 505 U.S. 377 (1992)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
MICHAEL BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, et al. v. GLEN THEATRE, INC., et al., 501 U.S. 560 (1991)
- Related Sub-Topic:
- Symbolic Speech and Expressive Conduct
UNITED STATES v. SHAWN D. EICHMAN, DAVID GERALD BLALOCK AND SCOTT W. TYLER, 496 U.S. 310 (1990)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
FEDERAL TRADE COMMISSION v. SUPERIOR COURT TRIAL LAWYERS ASSOCIATION et al., 493 U.S. 411 (1990)
- Related Sub-Topic:
- Protests
TEXAS v. JOHNSON, 491 U.S. 397 (1989)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
CITY OF HOUSTON, TEXAS v. HILL, 482 U.S. 451 (1987)
- Related Sub-Topic:
- Protests
UNITED STATES v. ALBERTINI, 472 U.S. 675 (1985)
- Related Sub-Topic:
- Protests
CLARK, SECRETARY OF THE INTERIOR, et al. v. COMMUNITY FOR CREATIVE NON-VIOLENCE et al., 468 U.S. 288 (1984)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. CLAIBORNE HARDWARE CO. et al., 458 U.S. 886 (1982)
- Related Sub-Topic:
- Protests
SCHAD et al. v. BOROUGH OF MOUNT EPHRAIM, 452 U.S. 61 (1981)
- Related Sub-Topic:
- Symbolic Speech and Expressive Conduct
CAREY, STATE’S ATTORNEY OF COOK COUNTY v. BROWN et al., 447 U.S. 455 (1980)
- Related Sub-Topic:
- Protests
KELLEY, COMMISSIONER, SUFFOLK COUNTY POLICE DEPARTMENT v. JOHNSON, 425 U.S. 238 (1976)
- Related Sub-Topic:
- Symbolic Speech and Expressive Conduct
SPENCE v. WASHINGTON, 418 U.S. 405 (1974)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
SMITH, SHERIFF v. GOGUEN, 415 U.S. 566 (1974)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
LEWIS v. CITY OF NEW ORLEANS, 415 U.S. 130 (1974)
- Related Sub-Topic:
- Protests
NORWELL v. CITY OF CINCINNATI, 414 U.S. 14 (1973)
- Related Sub-Topic:
- Protests
PLUMMER v. CITY OF COLUMBUS, 414 U.S. 2 (1973)
- Related Sub-Topic:
- Protests
CALIFORNIA et al. v. LARUE et al., 409 U.S. 109 (1972)
- Lower Court Ruling:
- Overruled (in part)
- Related Sub-Topic:
- Symbolic Speech and Expressive Conduct
POLICE DEPARTMENT OF THE CITY OF CHICAGO et al. v. MOSLEY, 408 U.S. 92 (1972)
- Related Sub-Topic:
- Protests
GRAYNED v. CITY OF ROCKFORD, 408 U.S. 104 (1972)
- Related Sub-Topic:
- Protests
GOODING, WARDEN v. WILSON, 405 U.S. 518 (1972)
- Related Sub-Topic:
- Protests
COATES et al. v. CITY OF CINCINNATI, 402 U.S. 611 (1971)
- Related Sub-Topic:
- Protests
RADICH v. NEW YORK, 401 U.S. 531 (1971)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
SCHACHT v. UNITED STATES, 398 U.S. 58 (1970)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
BACHELLAR et al. v. MARYLAND, 397 U.S. 564 (1970)
- Related Sub-Topic:
- Protests
JONES v. STATE BOARD OF EDUCATION OF TENNESSEE et al., 397 U.S. 31 (1970)
- Related Sub-Topic:
- Protests
STREET v. NEW YORK, 394 U.S. 576 (1969)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
GREGORY et al. v. CITY OF CHICAGO, 394 U.S. 111 (1969)
- Related Sub-Topic:
- Protests
SHUTTLESWORTH v. CITY OF BIRMINGHAM, 394 U.S. 147 (1969)
- Related Sub-Topic:
- Protests
TINKER et al. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al., 393 U.S. 503 (1969)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
UNITED STATES v. O’BRIEN, 391 U.S. 367 (1968)
- Related Sub-Topics:
- Protests, Symbolic Speech and Expressive Conduct
ZWICKER et al. v. BOLL, DISTRICT ATTORNEY OF DANE COUNTY et al., 391 U.S. 353 (1968)
- Related Sub-Topic:
- Protests
CAMERON et al. v. JOHNSON, GOVERNOR OF MISSISSIPPI, et al., 390 U.S. 611 (1968)
- Related Sub-Topic:
- Protests
WALKER et al. v. CITY OF BIRMINGHAM, 388 U.S. 307 (1967)
- Related Sub-Topic:
- Protests
TURNER et al. v. NEW YORK, 386 U.S. 773 (1967)
- Related Sub-Topic:
- Protests
ADDERLEY et al. v. FLORIDA, 385 U.S. 39 (1966)
- Related Sub-Topic:
- Protests
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. OVERSTREET, 384 U.S. 118 (1966)
- Related Sub-Topic:
- Protests
BROWN et al. v. LOUISIANA, 383 U.S. 131 (1966)
- Related Sub-Topic:
- Protests
SHUTTLESWORTH v. CITY OF BIRMINGHAM, 382 U.S. 87 (1965)
- Related Sub-Topic:
- Protests
HENRY et al. v. CITY OF ROCK HILL, 376 U.S. 776 (1964)
- Related Sub-Topic:
- Protests
FIELDS et al. v. CITY OF FAIRFIELD., 375 U.S. 248 (1963)
- Related Sub-Topic:
- Protests
FIELDS et al. v. SOUTH CAROLINA, 372 U.S. 522 (1963)
- Related Sub-Topic:
- Protests
EDWARDS et al. v. SOUTH CAROLINA, 372 U.S. 229 (1963)
- Related Sub-Topic:
- Protests
HUGHES ET AL. v. SUPERIOR COURT OF CALIFORNIA FOR CONTRA COSTA COUNTY, 339 U.S. 460 (1950)
- Related Sub-Topic:
- Protests
KOVACS v. COOPER, JUDGE, 336 U.S. 77 (1949)
- Related Sub-Topic:
- Protests
WEST VIRGINIA STATE BOARD OF EDUCATION et al. v. BARNETTE et al., 319 U.S. 624 (1943)
- Related Sub-Topic:
- Cases on Campus
CARLSON v. CALIFORNIA, 310 U.S. 106 (1940)
- Related Sub-Topic:
- Protests
STROMBERG v. CALIFORNIA, 283 U.S. 359 (1931)
- Related Sub-Topic:
- Symbolic Speech and Expressive Conduct
HALTER v. NEBRASKA, 205 U.S. 34 (1907)
- Related Sub-Topic:
- Symbolic Speech and Expressive Conduct
Topics: Freedom of Assembly & Petition, Freedom of Speech & Expression, Protests, Symbolic Speech and Expressive Conduct
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