78 Cal. Rptr. 853 | Cal. App. Dep’t Super. Ct. | 1969
Defendant was convicted of violating subdivision (d) of section 614 of the Military and Veterans Code which makes it a misdemeanor to publicly mutilate, deface, defile or trample upon a flag of the United States. Defendant admitted that he caused a flag of the United States to he cut and sewn into a vest and wore that vest on the public streets. It is not necessary to determine whether the mutilation stopped with the cutting and sewing in private or whether the entire act of cutting, sewing and wearing were so intertwined as to be one act, at least part of which was done publicly. In any event, we feel the evidence amply supports the implied finding of the trial court that defendant’s acts defiled
Appellant strongly contends that as applied to his actions, section 614, subdivision (d) is unconstitutional.
We face this contention bearing in mind a. very recent admonition of our California Supreme Court: “Such deliberate acts of the Legislature[
If section 614, subdivision (d) is violated by the use of words solely, then it is overly broad and cannot be enforced.
The California statute does not contain the provision " cast contempt upon either by words or act” found in the New York statute.
We recognize that acts other than pure speech may be methods of expression of ideas which warrant the protection of the First Amendment. (In re Giannini (1968) 69 Cal.2d 563 [72 Cal.Rptr. 655, 446 P.2d 535].) However, we, like Chief Justice Warren speaking for the court in United, States v. O’Brien (1968) 391 U.S. 367, 376 [20 L.Ed.2d 672, 679, 88 S.Ct. 1673] “cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby
That legitimate state interest in protection of the flag was early recognized in Halter v. Nebraska (1906) 205 U.S. 34 [51 L.Ed. 696, 27 S.Ct. 419]. As stated by Justice Harlan in that case, “it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.” Halter v. Nebraska, 205 U.S. at p. 41 [51 L.Ed. at p. 701, 27 S.Ct. 419]. The state has a legitimate interest in preventing breaches of the peace. The fact that in this case no breach occurred is immaterial. Another time a disturbance may well have resulted from defendant’s actions. The state may legitimately control such activities in the interest of preventing violence and maintaining public order. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568 [86 L.Ed. 1031, 62 S.Ct. 766].)
We have previously indicated this holding in People v. Hornfleld (1968) Cr.A. 7782 and the only other states which have faced this problem have come up with the same answer we have here expressed. (State v. Schlueter (1941) 127 N.J.L. 496 [23 A.2d 249]; Hinton v. State (1967) 223 Ga. 174 [154 S.E.2d 246, 249]
Vasey, J., and Wong, J., concurred.
Webster’s New International Dictionary, (2d ed.) defines “defile” as “to corrupt the purity or perfection of; to debase.”
We are here faced with not only the deliberate act of our own. Legislature but with similar acts adopted by the legislatures of the other 49 states and by the Congress of the United States. Every state and the United States Congress has passed flag desecration acts in one form or another. See Chief Justice Warren dissenting in Street v. New York (1969) 394 U.S. 576, 594 [22 L.Ed.2d 572, 586, 89 S.Ct. 1354], The thought of overturning such uniform legislative pronouncements except in case of a clear, compelling and unmistakable constitutional mandate should cause any court to pause. (See Halter v. Nebraska, 205 U.S. 34, 40 [51 L.Ed. 696, 700, 27 S.Ct. 419].)
N.Y. Penal Law section 1425, subdivision (16) (d) (1909) in force when Street was decided. Superseded by General Business Law section 136d.
Reversed on other grounds in' Anderson v. Georgia (1968) 390 U.S. 206 [19 L.Ed.2d 1039, 88 S.Ct. 902].