Street v. New York
1969 U.S. LEXIS 3189, 394 U.S. 576, 22 L. Ed. 2d 572 (1969)
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Rule of Law:
A conviction under a statute prohibiting desecration of the U.S. flag by words or acts must be set aside if it is impossible to determine from the record whether the conviction was based on the defendant's constitutionally protected speech or on their actions.
Facts:
- On June 6, 1966, after hearing a news report that civil rights activist James Meredith had been shot in Mississippi, Sidney Street, a Black man, was in his Brooklyn apartment.
- Saying to himself, "They didn’t protect him," Street took his own 48-star American flag from a drawer.
- He carried the folded flag to a nearby street intersection.
- At the intersection, Street used a match to set the flag on fire.
- As it burned, he dropped the flag onto the pavement.
- A police officer arrived and found Street talking to a small group of people near the burning flag.
- The officer heard Street say, "We don’t need no damn flag."
- When the officer asked if he had burned the flag, Street admitted it, stating, "If they let that happen to Meredith we don’t need an American flag."
Procedural Posture:
- Sidney Street was charged by information in the New York City Criminal Court with malicious mischief for violating New York Penal Law § 1425.
- The information alleged that Street willfully set fire to an American flag and shouted contemptuous words.
- At a bench trial, the judge of the New York City Criminal Court convicted Street of malicious mischief and gave him a suspended sentence.
- Street appealed the conviction to the Appellate Term, Second Department (an intermediate state appellate court), which affirmed without opinion. Street was the appellant.
- The New York Court of Appeals (the state's highest court) granted leave to appeal and unanimously affirmed the conviction. Street was the appellant.
- Street then appealed to the U.S. Supreme Court, which noted probable jurisdiction. Street is the appellant.
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Issue:
Does a state statute that criminalizes publicly casting contempt upon the American flag 'by words or act' violate the First Amendment's free speech protections when applied to convict a person under a general verdict, making it impossible to determine if the conviction was based on the act of burning the flag, the accompanying spoken words, or both?
Opinions:
Majority - Mr. Justice Harlan
Yes, the statute was unconstitutionally applied because it permitted the defendant to be punished for his spoken words, and it is impossible to determine whether the general verdict of guilt rested on his constitutionally protected speech. Citing the principle from Stromberg v. California, when a conviction under a general verdict could have rested on an unconstitutional ground, the conviction must be reversed. The information charging Street explicitly included his words, and the statute criminalized casting contempt upon the flag 'by words.' Because the trial judge did not specify the basis for the conviction, it may have rested in whole or in part on Street's words. The Court analyzed four potential governmental interests in punishing Street's words—preventing incitement, avoiding a breach of the peace, protecting public sensibilities, and ensuring respect for the flag—and concluded that none of them could constitutionally justify punishing his speech under these circumstances. The Court explicitly declined to decide the broader constitutional question of whether a person can be punished for the act of burning the flag as a form of protest.
Dissenting - Mr. Chief Justice Warren
No, the conviction should be upheld. The majority strained to apply the Stromberg principle and improperly avoided the central issue of the case: whether burning the American flag in public as a protest is a crime that can be constitutionally punished. A review of the trial record makes it clear that Street was convicted solely for the act of burning the flag, not for his words. The words were only introduced to show his intent to desecrate. By avoiding the main question, the Court fails its responsibility and encourages others to test the constitutionality of flag-desecration laws in the streets.
Dissenting - Mr. Justice Black
No, the conviction should be affirmed. The New York Court of Appeals correctly found that the conviction rested entirely on the act of publicly burning the American flag, not on any spoken words. The Federal Constitution does not prevent a state from making the deliberate burning of the American flag an offense. The words spoken were an 'integral part of conduct in violation of a valid criminal statute' and do not grant constitutional protection to the illegal act itself.
Dissenting - Mr. Justice White
No, the conviction should be upheld. It is a distortion of the record to infer that Street was convicted for his speech alone; he was most certainly convicted for burning the flag. Even if the conviction was for both speaking and burning, the established rule is that a general judgment is valid if any one of the charged acts is legally sufficient to support the conviction. The majority's reliance on Thomas v. Collins is misplaced and at odds with precedent. The Court should have reached the core issue and decided on the constitutionality of a conviction for flag burning.
Dissenting - Mr. Justice Fortas
No, the conviction should be upheld because states have the power to protect the flag from public acts of desecration. Action, even for protest, is not entitled to the same pervasive protection as pure speech. The flag is a special kind of property subject to regulation, and a prohibition against burning it on a public thoroughfare is a reasonable exercise of governmental power. Protest does not exonerate lawlessness, and the act of burning the flag as a protest is not constitutionally immunized from punishment.
Analysis:
This case is significant for applying the Stromberg principle—that a general verdict must be overturned if it could rest on an unconstitutional ground—to a single-count charge involving both speech and conduct. The Court's narrow holding allowed it to reverse the conviction on procedural grounds without deciding the contentious substantive issue of whether flag burning as a political protest is protected by the First Amendment. This decision reinforced the high constitutional protection afforded to political speech, even when contemptuous, and left the core flag-burning question unresolved for another two decades until Texas v. Johnson (1989). It serves as a classic example of judicial avoidance, where the Court resolves a case on the narrowest possible grounds.
