SMITH, SHERIFF v. GOGUEN
No. 72-1254
Supreme Court of the United States
Argued November 12-13, 1973—Decided March 25, 1974
415 U.S. 566
Charles E. Chase, Assistant Attorney General of Massachusetts, argued the cause for appellant. With him on the briefs were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and David A. Mills, Assistant Attorneys General, and William T. Buckley.
Evan T. Lawson argued the cause for appellee. With him on the brief were Matthew Feinberg and Burt Neuborne.
MR. JUSTICE POWELL delivered the opinion of the Court.
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 vague-
I
The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers.1 The flag was approximately four by six inches and was displayed at the left rear of Goguen‘s blue jeans. On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen‘s apparel.2 No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominster.
The following day the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag-misuse statute. The relevant part of the statute then read:
“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the
United States . . . , whether such flag is public or private property . . . , shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . .”3
Despite the first six words of the statute, Goguen was not charged with any act of physical desecration.4 As permitted by the disjunctive structure of the portion of the statute dealing with desecration and contempt, the officer charged specifically and only that Goguen “did publicly treat contemptuously the flag of the United States . . . .”5
After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, — Mass. —, 279 N. E. 2d 666 (1972). That court rejected Goguen‘s vagueness argument with the comment that “[w]hatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here.” Id., at —, 279 N. E. 2d, at 667. The court cited no Massachusetts precedents
After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. 343 F. Supp. 161. The District Court found the flag-contempt portion of the Massachusetts statute impermissibly vague under the Due Process Clause of the Fourteenth Amendment as well as overbroad under the First Amendment. In upholding Goguen‘s void-for-vagueness contentions, the court concluded that the words “treats contemptuously” did not provide a “readily ascertainable standard of guilt.” Id., at 167. Especially in “these days when flags are commonly displayed on hats, garments and vehicles . . . ,” the words under which Goguen was convicted “leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution.” Ibid. The court also found that the statutory language at issue “may be said to encourage arbitrary and erratic arrests and convictions.” Ibid.
The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amendment and vagueness grounds. 471 F. 2d 88. With regard to the latter ground, the Court of Appeals concluded that “resolution of [Goguen‘s void-for-vagueness] challenge to the statute as applied to him necessarily adjudicates the statute‘s facial constitutionality . . . .” Id., at 94. Treat-
II
We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here.7 The doctrine incorporates notions of fair notice or warning.8 Moreover, it requires
Flag contempt statutes have been characterized as void for lack of notice on the theory that “[w]hat is contemptuous to one man may be a work of art to another.”12 Goguen‘s behavior can hardly be described as art. Immaturity or “silly conduct”13 probably comes closer to the mark. But we see the force of the District Court‘s observation that the flag has become
We recognize that in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language.14 In such cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement. It is in this regard that the statutory language under scrutiny has its most notable deficiencies.
“[A]s counsel [for appellant] admitted, a war pro-
testor who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an ‘America—Love It or Leave It’ rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.” 471 F. 2d, at 102 (emphasis in original).
Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.
III
Appellant‘s arguments that the “treats contemptuously” phrase is not impermissibly vague, or at least should not be so held in this case, are unpersuasive. Appellant devotes a substantial portion of his opening brief, as he did his oral argument, to the contention that Goguen failed to preserve his present void-for-vagueness claim for the purposes of federal habeas corpus jurisdiction. Appellant concedes that the issue of “vagueness as applied” is properly before the federal courts,18 but contends that Goguen‘s only arguable claim is that the statute is vague on its face. The latter claim, appellant insists, was not presented to the state courts with the requisite fair precision. Picard v. Connor, 404 U. S. 270 (1971). This exhaustion-of-remedies argument is belatedly raised,19 and it fails to take the full measure of
Appellant‘s exhaustion-of-remedies argument is premised on the notion that Goguen‘s behavior rendered him a hard-core violator as to whom the statute was not vague, whatever its implications for those engaged in different conduct. To be sure, there are statutes that
Turning from the exhaustion point to the merits of the vagueness question presented, appellant argues that any notice difficulties are ameliorated by the narrow subject matter of the statute, viz., “actual” flags of the United States.21 Appellant contends that this “takes some of the vagueness away from the phrase, ‘treats contemptuously . . . .‘”22 Anyone who “wants notice as to what conduct this statute proscribes . . . , immediately knows that it has something to do with flags and if he
Appellant‘s remaining arguments are equally unavailing. It is asserted that the first six words of the statute add specificity to the “treats contemptuously” phrase, and that the Massachusetts Supreme Judicial Court customarily construes general language to take on color from more specific accompanying language. But it is conceded that Goguen was convicted under the general phrase alone, and that the highest state court did not rely on any general-to-specific principle of statutory
Finally, appellant argues that state law enforcement authorities have shown themselves ready to interpret this penal statute narrowly and that the statute, properly read, reaches only direct, immediate contemptuous acts that “actually impinge upon the physical integrity of the flag . . . .”28 There is no support in the record for the former point.29 Similarly, nothing in the state
There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order. Cf. Colten v. Kentucky, 407 U. S. 104 (1972). But there is no comparable reason for committing broad discretion to law enforcement officials in the area of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing from one generation to another and often difficult to distinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw. Certainly nothing prevents a legislature from defining with substantial specificity what
It is so ordered.
MR. JUSTICE WHITE, concurring in the judgment.
It is a crime in Massachusetts if one mutilates, tramples, defaces or “treats contemptuously” the flag of the United States. Appellee Goguen was convicted of treating the flag contemptuously, the evidence being that he wore a likeness of the flag on the seat of his pants. The Court holds this portion of the statute too vague to provide an ascertainable standard of guilt in any situation, including this one. Although I concur in the judgment of affirmance for other reasons, I cannot agree with this rationale.1
It is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is contemptuous conduct and that would be covered by the statute if directed at the flag. In these instances, there would be ample notice to the actor and no room for undue discretion by enforcement officers. There may be a variety of other conduct that might or might not be claimed contemptuous by the State, but unpredictability in those situations does not change the certainty in others.
I am also confident that the statute was not vague with respect to the conduct for which Goguen was arrested and convicted. It should not be beyond the reasonable comprehension of anyone who would conform his conduct to the law to realize that sewing a flag on the seat of his pants is contemptuous of the flag. The
If it be argued that the statute in this case merely requires an intentional act, not a willful one in the sense of intending what the statute forbids, then it must be recalled that appellee‘s major argument is that wearing a flag patch on his trousers was conduct that “clearly expressed an idea, albeit unpopular or unpatriotic, about the flag or about the country it symbolizes . . . . Goguen may have meant to show that he believed that America was a fit place only to sit on, or the proximity to that portion of his anatomy might have had more vulgar connotations. Nonetheless, the strong and forceful communication of ideas is unmistakable.” App. 13. Goguen was under no misapprehension as to what he was doing and as to whether he was showing contempt for the flag of the United States. As he acknowledges in his brief here, “it was necessary for the jury to find that appellee conveyed a contemptuous attitude in order to convict him.” I cannot, therefore, agree that the Massachusetts statute is vague as to Goguen; and if not vague as to his conduct, it is irrelevant that it may be vague in other contexts with respect to other
conduct. “In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.” United States v. National Dairy Products Corp., 372 U. S. 29, 33 (1963). Statutes are not “invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.” Id., at 32.
The unavoidable inquiry, therefore, becomes whether the “treats contemptuously” provision of the statute, as applied in this case, is unconstitutional under the
There is no doubt in my mind that it is well within the powers of Congress to adopt and prescribe a national flag and to protect the integrity of that flag. Congress may provide for the general welfare, control interstate commerce, provide for the common defense, and exercise any powers necessary and proper for those ends. These powers, and the inherent attributes of sovereignty as well, surely encompass the designation and protection of a flag. It would be foolishness to suggest that the men who wrote the Constitution thought they were violating it when they specified a flag for the new Nation,
I would not question those statutes which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical integrity, without regard to whether such conduct might provoke violence. Neither would I find it beyond congressional power, or that of state legislatures, to forbid attaching to or putting on the flag any words, symbols, or advertisements.2 All of these objects, whatever their nature, are foreign to the flag, change its physical character, and interfere with its design and function. There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is itself a monument, subject to similar protection.
II
I would affirm Goguen‘s conviction, therefore, had he been convicted for mutilating, trampling upon, or defacing the flag, or for using the flag as a billboard for
Neither the United States nor any State may require any individual to salute or express favorable attitudes toward the flag. West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). It is also clear under our cases that disrespectful or contemptuous spoken or written words about the flag may not be punished consistently with the
“The case at bar is therefore unlike one where the alleged governmental interest in regulating con-
duct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U. S. 359 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their ‘opposition to organized government’ by displaying ‘any flag, badge, banner, or device.’ Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct.” 391 U. S., at 382.
It would be difficult, therefore, to believe that the conviction in O‘Brien would have been sustained had the statute proscribed only contemptuous burning of draft cards.
Any conviction under the “treats contemptuously” provision of the Massachusetts statute would suffer from the same infirmity. This is true of Goguen‘s conviction. And if it be said that the conviction does not violate the
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.
I agree with MR. JUSTICE WHITE in his conclusion that the Massachusetts flag statute is not unconstitutionally vague. I disagree with his conclusion that the words “treats contemptuously” are necessarily directed at protected speech and that Goguen‘s conviction for his immature antic therefore cannot withstand constitutional challenge.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
I agree with the concurring opinion of my Brother WHITE insofar as he concludes that the Massachusetts law is not unconstitutionally vague, but I do not agree with him that the law under which appellee Goguen was convicted violates the
The question whether the State may regulate the display of the flag in the circumstances shown by this record appears to be an open one under our decisions. Halter v. Nebraska, 205 U. S. 34 (1907); Street v. New York, supra; Cowgill v. California, supra (Harlan, J., concurring); People v. Radich, 26 N. Y. 2d 114, 257 N. E. 2d 30, aff‘d by an equally divided Court, 401 U. S. 531 (1971).
What the Court rightly describes as “the slender record in this case,” ante, at 568, shows only that Goguen wore a small cloth version of the United States flag sewn to the seat of his blue jeans. When the first police officer questioned him, he was standing with a group of people on Main Street in Leominster, Massachusetts. The people with him were laughing. When the second police officer saw him, he was “walking in the downtown business district of Leominster, wearing a short coat, casual type pants and a miniature American flag sewn on the left side of his pants.” Goguen did not testify, and there is nothing in the record before us to indicate what he was attempting to communicate by his conduct, or, indeed, whether he was attempting to communicate anything at all. The record before us does not even conclusively reveal whether Goguen sewed the flag on the
Goguen was prosecuted under the Massachusetts statute set forth in the opinion of the Court, and has asserted here not only a claim of unconstitutional vagueness but a claim that the statute infringes his right under the
I
There is a good deal of doubt on this record that Goguen was trying to communicate any particular idea, and had he been convicted under a statute which simply prohibited improper display of the flag I would be satisfied to conclude that his conduct in wearing the flag on the seat of his pants did not come within even the outermost limits of that sort of “expressive conduct” or “symbolic speech” which is entitled to any
Many cases which could be said to involve conduct no less expressive than Goguen‘s, however, have never been thought to require analysis in
That Goguen owned the flag with which he adorned himself, however, is not dispositive of the
The very substantial authority of state and local governing bodies to regulate the use of land, and thereby to limit the uses available to the owner of the land, was established nearly a half century ago in Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). Land-use regulations
As may land, so may other kinds of property be subjected to close regulation and control. A person with an ownership interest in controlled drugs, or in firearms, cannot use them, sell them, and transfer them in whatever manner he pleases. The copyright laws,
The statute which Goguen violated, however, does not purport to protect the related interests of other property owners, neighbors, or indeed any competing ownership interest in the same property; the interest which it protects is that of the Government, and is not a traditional property interest.
Even in this, however, laws regulating use of the flag are by no means unique. A number of examples can be found of statutes enacted by Congress which protect only a peculiarly governmental interest in property otherwise privately owned.
My Brother WHITE says, however, that whatever may be said of neutral statutes simply designed to protect a governmental interest in private property, which in the case of the flag may be characterized as an interest in preserving its physical integrity, the Massachusetts statute here is not neutral. It punishes only those who treat the flag contemptuously, imposing no penalty on those who “treat” it otherwise, that is, those who impair its physical integrity in some other way.
II
Leaving aside for the moment the nature of the governmental interest in protecting the physical integrity of the flag, I cannot accept the conclusion that the Massachusetts statute must be invalidated for punishing only some conduct that impairs the flag‘s physical integrity. It is true, as the Court observes, that we do not have in so many words a “narrowing construction” of the statute from the Supreme Judicial Court of Massachusetts. But the first of this Court‘s decisions cited in the short
If the statute is thus limited to acts which affect the physical integrity of the flag, the question remains whether the State has sought only to punish those who impair the flag‘s physical integrity for the purpose of disparaging it as a symbol, while permitting impairment
But Massachusetts metes out punishment to anyone who publicly mutilates, tramples, or defaces the flag, regardless of his motive or purpose. It also punishes the display of any “words, figures, advertisements or designs” on the flag, or the use of a flag in a parade as a receptacle for depositing or collecting money. Likewise prohibited is the offering or selling of any article on which is engraved a representation of the United States flag.
The variety of these prohibitions demonstrates that Massachusetts has not merely prohibited impairment of the physical integrity of the flag by those who would cast contempt upon it, but equally by those who would seek to take advantage of its favorable image in order to facilitate any commercial purpose, or those who would seek to convey any message at all by means of imprinting words or designs on the flag. These prohibitions are broad enough that it can be fairly said that the Massachusetts statute is one essentially designed to preserve the physical integrity of the flag, and not merely to punish those who would infringe that integrity for the purpose of disparaging the flag as a symbol. While it is true that the statute does not appear to cover one who simply wears a flag, unless his conduct for other reasons falls within its prohibitions, the legislature is not required to address every related matter in an area with one statute. Katzenbach v. Morgan, 384 U. S. 641, 656-658 (1966). It may well be that the incidence of such conduct at the time the statute was enacted was not thought to warrant legislation in order to preserve the physical integrity of the flag.
“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.” Id., at 376.
Then, proceeding “on the assumption that the alleged communicative element in O‘Brien‘s conduct [was] sufficient to bring into play the
“if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id., at 377.
While I have some doubt that the first enunciation of a group of tests such as those established in O‘Brien sets them in concrete for all time, it does seem to me that the Massachusetts statute substantially complies with those tests. There can be no question that a statute such as the Massachusetts one here is “within” the constitutional power of a State to enact. Since the statute by this reading punishes a variety of uses of the flag which would impair its physical integrity, without regard to presence or character of expressive conduct in connection with those uses, I think the governmental interest is unrelated to the suppression of free expression. The question of whether the governmental interest is “substantial” is not easy to sever from the question of whether the restriction is “no greater than is essential to the furtherance of that interest,” and I therefore treat those
My Brother WHITE alludes to the early legislation both of the Continental Congress and of the Congress of the new Nation dealing with the flags, and observes: “One need not explain fully a phenomenon to recognize its existence and in this case to concede that the flag is an important symbol of nationhood and unity, created by the Nation and endowed with certain attributes. Conceived in this light, I have no doubt about the validity of laws designating and describing the flag and regulating its use, display, and disposition.” I agree.
On September 17, 1787, as the last members of the Constitutional Convention were signing the instrument, James Madison in his “Notes” describes the occurrence of the following incident:
“Whilst the last members were signing it Doctor Franklin looking towards the President‘s Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun. I have said he, often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting: But now at length I have the happiness to know that it is a rising and not a setting sun.” 4 Writings of James Madison 482-483 (Hunt ed. 1903).
“[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Missouri v. Holland, 252 U. S. 416, 433 (1920).
From its earliest days, the art and literature of our country have assigned a special place to the flag of the United States. It figures prominently in at least one of Charles Willson Peale‘s portraits of George Washington, showing him as leader of the forces of the 13 Colonies during the Revolutionary War. No one who lived through the Second World War in this country can forget the impact of the photographs of the members of the United States Marine Corps raising the United States flag on the top of Mount Suribachi on the Island of Iwo Jima, which is now commemorated in a statue at the Iwo Jima Memorial adjoining Arlington National Cemetery.
Ralph Waldo Emerson, writing 50 years after the battles of Lexington and Concord, wrote:
“By the rude bridge that arched the flood
Their flag to April‘s breeze unfurled
Here once the embattled farmers stood
And fired the shot heard ‘round the world.”
While most of the artistic evocations of the flag occur in the context of times of national struggle, and correspondingly greater dependence on the flag as a symbol of national unity, the importance of the flag is by no means limited to the field of hostilities. The United States flag flies over every federal courthouse in our Nation, and is prominently displayed in almost every federal, state, or local public building throughout the land. It is the one visible embodiment of the authority of the National Government, through which the laws of the Nation and the guarantees of the Constitution are enforced.
It is not empty rhetoric to say that the United States Constitution, even the
The significance of the flag, and the deep emotional feelings it arouses in a large part of our citizenry, cannot be fully expressed in the two dimensions of a lawyer‘s brief or of a judicial opinion. But if the Government
The permissible scope of government regulation of this unique physical object cannot be adequately dealt with in terms of the law of private property or by a highly abstract, scholastic interpretation of the
Here Goguen was, so far as this record appears, quite free to express verbally whatever views it was he was seeking to express by wearing a flag sewn to his pants, on the streets of Leominster or in any of its parks or commons where free speech and assembly were customarily permitted. He was not compelled in any way to salute the flag, pledge allegiance to it, or make any
Notes
Ҥ 5. Flag; penalty for misuse
“Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States or of Massachusetts, whether such flag is public or private property, or whoever displays such flag or any representation thereof upon which are words, figures, advertisements or designs, or whoever causes or permits such flag to be used in a parade as a receptacle for depositing or collecting money or any other article or thing, or whoever exposes to public view, manufactures, sells, exposes for sale, gives away or has in possession for sale or to give away or for use for any purpose, any article or substance, being an article of merchandise or a receptacle of merchandise or articles upon which is attached, through a wrapping or otherwise, engraved or printed in any manner, a representation of the United States flag, or whoever uses any representation of the arms or the great seal of the commonwealth for any advertising or commercial purpose, shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. Words, figures, advertisements or designs attached to, or directly or indirectly connected with, such flag or any representation thereof in such manner that such flag or its representation is used to attract attention to or advertise such words, figures, advertisements or designs, shall for the purposes of this section be deemed to be upon such flag.”
The statute is an amalgam of provisions dealing with flag desecration and contempt (the first 26 words) and with commercial misuse or other exploitation of flags of the State and National Governments. This case concerns only the “treats contemptuously” phrase of the statute, which has apparently been in the statute since its enactment in 1899. 471 F. 2d 88, 90 n. 2 (1972).
In 1971, subsequent to Goguen‘s prosecution, the desecration and contempt portion of the statute was amended twice. On March 8,
Massachusetts has not construed its statute to eliminate the communicative aspect of the proscribed conduct as a crucial element of the violation. In State v. Royal, 113 N. H. 224, 305 A. 2d 676 (1973), the New Hampshire Supreme Court, noting among other things that the State has a valid interest in the physical integrity of the flag, rejected a facial attack on its flag desecration statute, which made it a crime to publicly mutilate, trample upon, defile, deface, or cast contempt upon the flag. The court construed the statute to be “directed at acts upon the flag and not ‘at the expression of and mere belief in particular ideas.‘” Id., at 230, 305 A. 2d, at 680. The proscription against casting contempt upon the flag was to be understood as a general prohibition of acts of the same nature as the previously forbidden acts of mutilation and defacement, not as a proscription of the expression of ideas. Thus:
“Our statute is more narrowly drawn than some flag statutes. It deals only with the flag itself or any ‘flag or ensign evidently purporting to be’ the flag. State v. Cline, [113 N. H. 245], 305 A. 2d 673, decided this date. Also, as we construe it, our statute prohibits only acts of mutilation and defilement inflicted directly upon the flag
“(a) Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.”
The legislative history reveals a clear desire to reach only defined physical acts of desecration. “The language of the bill prohibits intentional, willful, not accidental or inadvertent public physical acts of desecration of the flag.” H. R. Rep. No. 350, supra, at 3; S. Rep. No. 1287, supra, at 3. The act has been so read by the lower federal courts, which have upheld it against vagueness challenges. United States v. Crosson, 462 F. 2d 96 (CA9) cert. denied, 409 U. S. 1064 (1972); Joyce v. United States, 147 U. S. App. D. C. 128, 454 F. 2d 971 (1971), cert. denied, 405 U. S. 969 (1972). See Hoffman v. United States, 144 U. S. App. D. C. 156, 445 F. 2d 226 (1971).
“No person shall publicly mutilate, deface, defile, defy, trample
Compare 9B Uniform Laws Ann. 52-53 (1966), with Hearings on H. R. 271 et al., supra, at 321-346. Because it is stated in the disjunctive, this language, like that before us, makes possible criminal prosecution solely for casting contempt upon the flag. But the validity of statutes utilizing this language, insofar as the vagueness doctrine is concerned, will depend as much on their judicial construction and enforcement history as their literal terms.