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Opinions & Commentaries

Nicholas Halter was charged with violating Nebraska's Act to Prevent and Punish the Desecration of the Flag of the United States after using a picture of an American flag to advertise his beer. He pleaded not guilty, claiming the statute was null and void under the Fourteenth Amendment for depriving them of the right to exercise an implied constitutional right. The Supreme Court held that no such privilege to use the American flag in an advertisement existed, and upheld Halter's conviction.

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Yetta Stromberg was convicted of a California statute that criminalized displaying a red flag in any public place “as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character.” The statute made the crime a felony. The trial court held that Stromberg should be convicted if Stromberg displayed the flag for any of the reasons specified in the statute. The California District Court of Appeals affirmed the conviction. Stromberg challenged the statute on Fourteenth Amendment grounds.

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Appellant, Sidney Street, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag which he owned to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or “publicly [to] defy . . . or cast contempt upon [any American flag] either by words or act.” The information charged appellant with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Appellant unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected "demonstration" or "protest." Appellant was tried before a judge without a jury and convicted.

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401 U.S. 531 (1971) RADICH v. NEW YORK. No. 169. Supreme Court of United States. Argued February 22, 1971 Decided March 24, 1971 APPEAL FROM THE COURT OF APPEALS OF NEW YORK. Richard G. Green argued the cause for appellant. With him on the briefs were Shirley Fingerhood and Melvin L. Wulf. Michael R. Juviler argued the cause for appellee. With him on the brief were Frank S. Hogan and William C. Donnino. John B. Hightower et al. filed a brief as amicus curiae urging reversal. Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, […]

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The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F. 2d 88 (1972), aff'g 343 F. Supp. 161 (Mass). We noted probable jurisdiction. 412 U. S. 905 (1973). We affirm on the vagueness *568 ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.

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418 U.S. 405 (1974) SPENCE v. WASHINGTON.   No. 72-1690. Supreme Court of United States.   Argued January 9, 1974. Decided June 25, 1974. APPEAL FROM SUPREME COURT OF WASHINGTON.Peter Greenfield argued the cause for appellant. With him on the briefs were Burt Neuborne, Melvin L. Wulf, and Joel M. Gora. James E. Warme argued the cause for appellee. With him on the brief was Christopher T. Bayley. PER CURIAM. Appellant displayed a United States flag, which he owned, out of the window of his apartment. Affixed to both surfaces of the flag was a large peace symbol fashioned of […]

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During the 1984 Republican National Convention, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.

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Congress passed the Flag Protection Act of 1989 after the Supreme Court overturned a Texas statute criminalizing the knowingly offensive destruction American flag in Texas v. Johnson. The Flag Protection Act criminalized "knowingly" mutilating, defacing, physically defiling, burning, or tampling upon an American flag. The Supreme Court found the Flag Protection Act to be unconstitutional. Although it did not contain a content-based limitation like the Texas statute did, the Government's interest in protecting the "physical integrity" of the flag in order to preserve its symbolism is related to the suppression of free expression and violates the First Amendment.

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