Thoms v. Smith

Aрparently, question request defendant on this has not re- he a ceived the attention of representation had the Tenth Cir- his cuit. sprained ankle. neither the defendant Since local board nor March On transfer statement board acted induction a written within time refused regulations provided by limits fix reads as follows: to report time a for the to defendant for to inducted into Arm- “I refuse longer induction, any there is no author- ed of the United States Services ity in either board to fix a time and point. My reasons concern this place report for defendant to for induc- Vietnam, morality of our actions tion order to do him so. Conse- specifically contribution to the our quently, the order for re- defendant genocide there is a I feel there. also port for induction on March attending lack of individuals legal validity. without has no effect and processing system.” in the such comply The refusal of defendant provides for 32 C.F.R. 1632.2 support with this invalid order cannot a report postponement for of the time to criminal conviction for such refusal. induction, after the order for induction The finds the defendant is not issued, period for has been charged. guilty of the offense regulation days. This to exceed 120 judgment It is therefore ordered provides that the local shall issue board of dismissal of the information shall registrant to the whose induction forthwith enter. postponed, “Postponement of Induction (SSS 264)” copy Form and mail to the copy State Director file a in the

registrant’s Admittedly, file. the board comply mandatory

did not with re- quirement.

We are called here determine

what effect the failure of both the local and the comply board transfer board to THOMS, William P. on behalf of himself regulations origi- with these on has similarly and all those situated July 15, nal order for induction issued requiring and the order defendant SMITH, Prosecuting Allan Assistant At report induction on March torney of the Fourteenth Circuit Court Connecticut, the State of et al. Civ. No. 14246. The defendant contends that this fail- ure invalidates the order for induction Court, United District States July 15, 1969, issued proceed- and that D. Connecticut. ings of beginning the board on Febru- Nov. ary 1970, which resulted the order report the defendant for induction 19, 1970, legal March are without effect. defendant cites the follow- support authorities his contention. Lonidier, United States v. 427 F.2d 30 (9th 1970); Cir. United States Ste

vens, (9th 1971); 438 F.2d 628 Cir. Foster,

United States v. 439 F.2d 29 (9th 1971); Cir. v. Mun States sen, (9th 1971); 443 F.2d 1229 Cir.

Liese v. Local Board No. 440 F.2d (8th Cir. Judge, Smith, Joseph con- Circuit J. opinion. and filed

curred the result opin- filed

Clarie, J., dissented

ion. Fitzgerald, Counsel, Corp.

John M. Hartford, Conn., Vaughan, for Thomas Chief of Police. Clair, Steven H. St. Connecticut Civil Union, Hartford,

Liberties Conn., however, by 53-255,1 Harbaugh, Connec- Joseph Conn.Gen.Stats. рlaintiff; D. § flag” Union, Hart- makes “misuse West ticut Civil Liberties action, Breetz, Jr., By ford, Conn., Co- criminal offense. this class R. William brought pursuant Atty., to 42 operating Connecticut Civil Lib- U.S.C. § Union, Hartford, Conn., coun- U.S.C. Thoms seeks erties declaration the statute unconsti- sel. vague overly tutional because and broad. O’Marra, Shea, Jr., Thomas R. John F. injunction Because he seeks as well Conn., Manchester, Reardon for Chief against by its enforcement the defend- Kjellquist. Chief ants, three-judge district court was Counsel, Pelgrift, Corp. Robert Y. convened, 2281, 28 U.S.C. §§ Conn., Hartford, P. Wm. Chief West Rush. I. Haven, Jr., Muleahy, John F. Comity Conn., for P. Heffernan. Richard Young Judge, SMITH, invoked have Circuit Defendants Before 746, 37, Harris, CLARIE, District v. 401 U.S. S.Ct. er BLUMENFELD (1971), and com Judges. panions support their contention federal which a case is one the instant MEMORANDUM OF DECISION Those cases not entertain. court should Judge: BLUMENFELD, District propriety court of federal dealt with pending opposed state criminal he intervention Plaintiff to what Thoms expressly prosecutions. was The Court “prevailing values deems to be American governmental policies.” “about the circumstances He al- silent and/or leges express opposition federal courts act when there desire to prosecution pending defacing courts publicly peaceably state proceeding time the federal is be flag, displaying a at the American or dis- gun.” Younger Harris, chilled, supra, image torted His v. of it. desire is puts upon any indignity or 1. The defiles statute reads full: flags, standards, ensigns, or colors such “§ 53-255. Misuse of the standards, any flags, person “Any who, any whether of such ex- manner for puts ensigns private display, or colors or are hibition or to be or causes property, plаced any design, inscription, picture, shall not more than one be fined imprisoned name, advertisement, device, symbol, not more hundred dollars or both, word, character, any upon six or for each offense. mark or months notice Flags, standards, ensigns, flag, ensign standard, colors or or color property of or the service of the used States or the state of this state state, may any evidently ensign purporting have or United States or of to be words, inscriptions, actions, flags, standards, names either such colors or symbols placed ensigns any appends, marks or thereupon pursuant or in manner an- any flag, to law or authorized nexes or such affixes stand- regulations.” ard, any ensign, inscription, pic- color or device, ture, name, design, symbol, ad- Mackell, 66, v. 401 U.S. Samuels vertisement, word, mark, notice оr token (1971) Boyle ; 27 L.Ed.2d 68S S.Ct. displays or or exhibits or to be causes 75S, Landry, placed any flag, standard, or exhibited col- ; L.Ed.2d 696 Perez Ledes ensign or or the United States or ma, 401 U.S. 27 L.Ed.2d any standard, of this or (1971). evidently ensign purporting color or to be opin- Brennan, separate flags, standards, either of 3. Mr. Justice such colors or ensigns, any supra, put, Ledesma, which in in Perez v. manner ion attached, any joined inscrip- or 27 L.Ed.2d annexed affixed at by tion, design, device, symbol, name, Marshall, picture, White and indicated Justices advertisement, word, pendency prose- mark, or notice their view availability publicly misuses, mutilates, cution, token or and thus the of a state tramples upon forum, non- otherwise defaces to the reasons for central 749. Because S. 22 L.Ed. pending against prosecution there is no 2d 113 Young- represents, or the сlass Thoms he brings Plaintiff this suit in the con- inapplicable imposes er is no bar text of of the crim- active enforcement to our consideration of the merits.4 See inal recent arrests have statute. Several Vaughn, Anderson F.Supp. 101 prosecutions un- been made and initiated (D.Conn. May statute, by der the defendants pros- other law enforcement officials and II. Moreover, plaintiff ecutors. has inform- Justiciability particular ed these defendants of the controversy” satisfy flag” “case or “misuse of em- To he wishes to himself,5 requirement ploy express III the Con- of Article at- and has stitution, plaintiff tempted prior “show that there must in- to solicit from them a controversy, prosecutorial between dication their is a substantial stance interests, legal having parties respect expression. adversе with Three immediacy reality to respond and did of sufficient the defendants not declaratory letters; by plaintiff’s of a the issuance warrant two indicated Zwickler, judgment.” phone U. Golden v. their intent to enforce the stat- wrote, He at U.S. 103- intervention. tutional claims.” 401 U.S. at Ledesma, supra, at also 686: at 753. See Perez v. * * * (“Ledes- the time of the fed- “When at 401 U.S. at S.Ct. at hearing prosecution present eral ‍‌​​‌​‌‌‌‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌​‌‌‌​​‌​​​‌​‌‌‍there is state ma was free to his federal consti- * * * plaintiff to which the federal court tutional claims the [state] * * relegated *”). Brennan, for the assertion of his con- courts Mr. Justice defenses, primary opinion separate stitutional reason in his in Perez made refusing abundantly present intervention is absent. clear that it was the * * * plaintiff federalism [Considerations federal who must have the avail- controlling рrose- provided by pending are not when no state able state forum * * pending *,” prosecution. supra. cution is See footnote See later, Byrne Karalexis, and 91 S.Ct. at 695: v. proceeding pending “When no state is 27 L.Ed.2d 792 ap- prosecution against pending therefore and federal intervention is propriate, The Aran Camp provide “existent, the federal court must decide cannot an con requested opportunity of the of relief forms crete to secure vindication of granted.” should be [Thoms’] constitutional Perez claims.” (Footnote omitted). Ledesma, supra, (opinion S.Ct. at 695 of Mr. Justice Bren prosecution 4. Defendants make much of a nan). cannot, therefore, It serve as a challenged against one under invoking Younger basis for the doctrine of Camp. His lias been A’An conviction companions. and its by Appellate Division of affirmed the state Court and he has filed Circuit in Plaintiff stated a letter to several of petition for certification to the state the defendants: “I own a vest which Camp recently But ATan is nei Court. fashioned for me from an plaintiff plain by ther the nor a member of authentic 3’ I 5' American represents those tiff’s class. Plaintiff would like to be able wear this vest protest country’s with similar express whose desire to sentiments this intervention those sentiments the manner the internal affairs of the Indochinese by prosecu brutality is chilled threatened described countries and the incredible very perpetrated tion the statute. The fact of and violence that lias been Camp’s prosecution pre people A'an arrest and Indochina tire similarly being him cludes situated. in the United States name of freedоm prosecutions which the Court and self-determination.” 1 to the Exh. preclude Younger Complaint. held sufficient fed- Plaintiff’s counsel stated at pending hearing eral intervention were those in this court the vest against plaintiff plaintiff the federal himself. In- was not the misuse wishes deed, underlying an basis for the Court’s to make of the illustrative plaintiff variety ways decision was that the federal he wishes to ex- “affording present press had a forum himself violation the statute. opportunity to raise his consti- [him] rights latter, irreparable injury expressed doubt one of suf Of the ute. proposed justify plaintiff’s con- dimension ficient federal de about whether claratory arrest under relief. duct occasion his Perez Ledesma would See “ * ** statute; replied: the other [401 ** * it, go and, (separate opin if do ahead and Brennan)].” you’re iоn of the statute we’ll in violation of Mr. Justice An you up.” Vaughn, supra, F.Supp. lock derson v. at 103. circumstances these Under We adhere to that view. See also Parker this parties controversy between Morgan, (W.D. sufficiently immedi real and lawsuit N.C.1971). his justiciable. Plaintiff ate to be genuine in a substantial class have by con III. expressing views their terest unreasonable are not duct onstitutionality C Their assuming the statute.6 violates emphasis the start particular kind of ex It bears desire for upon the very plaintiff his attack real threat mounts pression chilled simply face, de prosecution these statute on of arrest applied pro- might challenged hypothetically statute. fendants under wearing un of his vest. With scribe interest affected arises Because posture, overbreadth amendment, that should be the in we case der first the unp defect, go inquiry vigilant the fatal our especially claimed as that it not being prosecutions is whether no There rotected.8 class, against plaintiff pending his reading statute [the] “there is judicial present forum there no other local law enforce- authorizes basic inter in the to these threat prosecute traditional ment officers * * * may similar situa be tested. In a ests activity Amendment First tion, recently this court commented: though] may the [even « * -x- * activity proscribe purport not en- the we are 0f view that the protection.” titled to constitutional ought plaintiffs vio- not be forced to Long Moratorium Island Vietnam affecting late their First Amend- a law Cahn, 344, Comm. F.2d 348 v. 437 rights subject ment themselves (2d 1970) omitted) (citations Cir. prosecution to criminal in order (hereafter Moratorium). Vietnam place judicial the issue before a forum. exposure to City Cincinnati, Forced criminal sanctions inAs Coates v. validity 611, 616, to test order the stat- U.S. utory (1971), limitations of First Amendment 218-219 controversy 6. here, Plaintiff however, submitted affidavits was removed represents. legislature members of class lie The when the enacted Public Act any particular not set law, affidavits do out 241 in the 1971 session. The new type pro- signed by May 21, of conduct which the affiants Governor pose engage, goes affidavit each does into effect on October 1 and is iden- except provision state that the affiant considers himself a tical 53-255 in its § plaintiff’s penalties It was member class. re- for harsher for violation. ported by hearing counsel at every Although plaintiff 8. not “who al represent variety a wide of desired leges chilling n a First Amendment effect expression modes of of which all are thereby shivers court has estab by deemed be in affiants violation controversy,” lished a case or National of the statute. Hershey, U.S.App. Student Ass’n ease, 7. The at issue (1969), in this Conn. 412 F.2d D.C. 53-255, 1, supra, alleging injury Gen.Stats. see footnote it is also true “suits repealed legislature chilling the state of a the form effect repeal readily justiciable comparable its 1969 session. The is to be ef- more Any mitigating fective October not so affected First suits with a Amend repeal might effect have had on the Id. ment interest.” at 1113. all, the United not lament that we do conduct associated with need “[w]e [plain- symbolic speech.” the details of the States have before us ** *. or- It is the tiff’s] gov- represents “Sometimes sets stand- on its face that dinance may represent ernment. Sometimes it agаinst ard conduct and warns government. Always opposition transgression. of- details of the represents America—in all its marvel- serve to validate fense could more Morgan, diversity.” ous Parker v. the details this ordinance than could supra, at 588. charged ordi- under an an offense symbolic speech unconditionally While does not suspending nance enjoy comprehensive first amend right speech.” assembly and free protection provided pure ment judging In whether Connecticut’s speech, Moratorium, supra, see Vietnam susceptible read- statute is misuse justi F.2d at restriction is proscribe which would constitution- only by Id.; fied a valid state interest. guided ally protected conduct, arewe see munity Indep. Tinker Des Moines Com Appeals’ Court recent decision Dist., supra, School Vietnam, Moratorium, supra, F.2d 21 L.Ed.2d In 344. The court in that case down struck O’Brien, States constitutionally face overbroad on its 1673, 1679, very similar New York desecra- (1968), validity held that the Court, Sitting tion statute. as a District regulation limiting symbolic speech statutorily panel expanded even as to a depends upon whether: case, purposes of three for of this we unquestionably holding bound power “it is within the constitutional * * * pertinent of that case insofar to ours. Government; fur- Rockefeller, Lewis v. 431 F.2d gov- important thers an or substantial (2d * * * Cir. interest; gov- ernmental ernmental interest is unrelated proposition, start We with the suppression * * expression; free of expressed and in as Vietnam Moratorium * the incidental restriction elsewhere, “many well types as usage that * * * alleged First flag Amendment flag freedoms alteration * * * greater than is essential to the po are a means of nonverbal furtherance of that interest.” 349, communication,” litical 437 F.2d at “symbolic as such are forms of 576, York, In Street v. New U.S. 394 speech” pro entitled to constitutional 591, 1354, 1365, 89 S.Ct. flag tection. The salute is a “form (1969), the Court listed the state in- Virginia utterance.” West State Bd. of might conceivably terests “which have Barnette, 632, Educ. by” been furthered a conviction under (1943). 87 L.Ed. 1628 flag New York’s defilement statute for disagree The communication of ideas or speech contemptuous which was ments spoken is not limited to or written flag: words. See Indep. Tinker v. Des Moines Community Dist., “(1) School deterring an appel- in U.S. interest (1969); vocally inciting lant from to others Stromberg California, acts;9 (2) commit unlawful an inter- preventing 75 L.Ed. 1117 in appellant With est tering from ut- court . Silver, Crosson v. inflammatory F. words so that Supp. (D.Ariz.1970), provoke “we would to retaliate others think it most, physically against self-evident thereby that if not him, caus- 9. The narrowly Court held punish that Street’s conviction not so drawn as “to justified by was not contemptuous this interest because those defiant words * first, * incitive, his words not were which amount incitement second, they were, even if the statute was 394 U.S. at 89 S.Ct. at 1365. (3) peace;10 Moratorium, Vietnam In of the breach the court held protecting interest the sensibilities the New York statute unconstitutional passers-by might prohibition flag who be shocked because of its uses by appellant’s Ameri- words about the state had no valid interest flag;11 (4) prohibiting. in as- can an interest Nebraska, Halter v. Cf. regardless

suring appellant, 51 L.Ed. 696 others, (1907).13 impact of his It words concluded that the last two proper respect of the our nation- in Street were in- showed for cited interests grounds prohibiting flаg al sufficient emblem.”12 proscribed use of the kind the stat- sym While the interests stake when ute, and that the statute not nar- speech bolic are neces is involved not rowly prohibit only drawn so as to those Silver, same, see sarily the Crosson flag uses of the which would collide with supra, the court the first two of the interests. Vietnam Moratorium adopted the inter statute, Street York’s, ests listed in those relevant Connecticut’s like New “prohibits pur language myriad New York statute even as clear prohibit ports non-speech flag,” Vietnam Moratori- to uses um, supra, flag. in ward the It characterized “any 437 F.2d at and of flag, standard, ensign” Street terests identified in “the color or not the “evidently interests which a could con purports” ceivably prohibits be the F.2d at Ac public misuse, serve.” 437 It O’Brien to test the without cordingly, applying every more. But constitutionality of the Connecticut misuse of even the American will proscribes incite insofar as forms onlookers commit unlawful acts symbolic analy provoke speech, confine our we others retaliate and there- peace. four cause sis interests involved a breach of the And like statute, set out Mr. Harlan for the New Justice York’s is not Connecticut’s narrowly Court in Street. regulate drawn so as to justify trary’ ‘right things did Street’s 10. Neither this interest and the to differ as to say existing order,’ cannot conviction because “we that touch the heart of the appellant’s encompass express pub- remarks were so inherent the freedom to inflammatory ly licly opinions within as to come one’s about our in- ‘fighting cluding opinions small class of ‘likely words’ which those which are defiant provokе average person contemptuous.” 394 U.S. at thereby retaliation, cause a breach peace.’ Chaplinsky Hamp of the v. New Halter, 13. In the a Court affirmed con shire, [62 315 U.S. advertising by printing for viction beer (1942),” 1031] 86 L.Ed. painting representation flag a the of they were, even if narrowly the “is not statute pro statute, on beer bottles. The which only punish drawn to words of flag, hibited the commercial use of the wras * * that character 394 U.S. at infringe any appellants’ held not to of rights, although constitutional it does not appear 1 ‍‌​​‌​‌‌‌‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌​‌‌‌​​‌​​​‌​‌‌‍ in The Court held this interest to of that claimed the statute weight support infringed rights conviction sufficient their first amendment of firmly expression. is settled that under “[i]t because free expression the our Constitution 14. New York’s statute is even broader may merely prohibited ideas not be be Connectiсut’s, principally in its definition the ideas are themselves offensive cause “flag.” However, of the term because the to some of their hearers.” Appeals Court Vietnam Moratorium 592, 89 S.Ct. at 1366. overly held the New York statute broad insuring involving prohibited state’s interest 12. As the insofar as it flag itself, respect flag, perceive for the the Court said: tiie we no basis for treating the constitution- “We have no doubt that this distinction between the stat- affecting ally guaranteed constitutionality ‘freedom to be intel- utes as * * * lectually diverse or even con- the first amendment. non- defilement ef- tion and section have those which will that conduct flag. The face, speech conduct toward Therefore, the Con- its on susceptible fects. Supreme affirmed Court read- States to a necticut is statute equally divided the conviction en- local law which would authorize L. prosecute first court. officers forcement (1971). Ed.2d 287 prohibition of activity in the amendment exists. which no state interest valid reject that these the contention We overbreadth, consequence “the statu- Radich, compel cases, particularly tous having legislature, tory when the result prohibi- uphold on Connecticut’s its face conduct, regulate power to certain irrespective flag tion of mutilation bluntly proscribe consti- First, strikes so as flag provisions misuse. on tutionally protected well.” conduct as reasonably be could Connecticut’s statute Buckson, Hodsdon v. prohibit defile- its verbal read on face to Note, generally (D.Del.1970). See flag. in itself would ment of the That Doc- The trine, Amendment Overbreadth First fatally overbroad render statutе Second, Harv.L.Rev. holding light of the in Street. opin- Radich without the affirmance of prohibition of Apart from broad no more than can read to ion mean flag usage, makes statute Connecticut prohibit pub- properly a that state mutilate, trample publicly it a crime (of non-speech flag lic defilement put upon defile or deface or otherwise variety) a breach threatens flag indignity upon a public peace. the fact from This follows ensign pur- evidently standard, color Radich the constitutional- attacked porting see to be the While we ity applied of the as statute analysis apply reason to different convicted, and he conduct for which was statute, part it is of the convenient Appeals’ York New Court separately treat because of еxpress lower court’s affirmance “the present precedent, created legitimate public in- conclusion that flag part by the fact misuse designed to terest which the statute subjects separate mutilation are “preservation pub- protect of the e. [i. sections of York desecra- New peace,” N. lic 308 N.Y.S.2d tion statute. by the vio- E.2d at threatened was 36] Moratorium Vietnam involved convicted.” lation of which defendant was flag misuse of New York’s stat section at 36. 308 N.Y.S.2d at Thus, 257 N.E.2d ute, which earlier noted substan presented conviction Radich’s tially parts the Con the same those essentially to the in the prohibiting necticut misuse. peace pure convic- form of breach of York, supra, 394 Street v. New tion. dealt with separate Third, section conviction under Moratorium and Vietnam together prohibiting York inter New delimit the state Street defilement, might conceivably mutilation and and reversed ests which serve premise justify impingement that conviction on the the statute’s pure speech ap activity. was based on first amendment No reason pears why York had no interest in restricti when a valid the interests involved ng.15 Radich, Finally, People flag there is mutilated different those is misused, 26 N. N.Y.2d 308 257 N.Y.S.2d at stake when it is Vietnam (Ct.App.1970), upheld a plainly E.2d 30 which Moratorium no leaves room weigh under York mutila- conviction the New in the other state interests balance 15. in Street on the Four Justices dissented have held it could be. See Hoff that ground States, (D.C. should have reached that Court man v. United 445 F.2d 226 question 1971) ; Ferguson, whether the defendant’s non- United States v. Cir. speech (burning flag) (N.D.Cal.1969). F.Supp. could 1111 302 constitutionally proscribed, be and should

1211 gоvern- g. flag pra, (e. an in the as 402 U.S. at interest 91 S.Ct. at 29 dissenting opinion property, ment see L.Ed.2d at it is void for over- Street, in Mr. Fortas 394 U.S. at Justice breadth. 572; 616-617, 1354, 22 89 L.Ed.2d S.Ct. We share the concern of compare Silver, supra, F. Crosson v. flag “disrespect Court that our is to 1087-1088). Supp. Vietnam Under at deplored less these vexed times Moratorium interest state’s periods history.” than in calmer our preventing others conduct which incites York, supra, Street at U.S. provokes commit unlawful acts surely 89 S.Ct. at And retaliation form of breach case is made more difficult “because the symbolic peace justify prohibition can Virginia involved is our own.” West involving speech Barnette, supra, State Bd. of Educ. v. Fourth, Connecticut mutilation at at 87 L. provisions, is prohibition, like the misuse Ed. 1628. narrowly those not drawn to outlaw “Nevertheless, apply we the limita- сommit acts which incite onlookers tions Constitution with no fear provoke re- unlawful acts others intellectually that freedom to be Fifth, peace. taliate in breach of the spiritually contrary or even diverse like- may while mutilation be more disintegrate organiza- will the social ly provoke those than some reactions tion.” Id. surely misuse, other forms it We have no reason to believe defend- inherently always provocative. not so ants will continue to enforce 53-255 although Sixth, the Su- we adhere to decision; according- of this notice preme admonition in United Court’s ly, injunction forbear we to enter an re- O’Brien, supra, States v. straining enforcing them from it. De- S.Ct. at judgment claratory may, however, enter ap- accept an cannot the view that “[w]e that Section 53-255 of the Connecticut parently variety can limitless of conduct General is unconstitutional Statutes person ‘speech’ be labeled whenever hereby declared void it makes because engaging in there- the conduct intends criminal which the Consti- under idea,” express think we also tution not be made crime. clear mutila- that certain acts ordered. So statute, tion, prohibited Connecticut’s regarded symbolic speech. must be SMITH, Judge J. Circuit JOSEPH See, Cowgill g., California, e. 396 U. (concurring result): in the S. L.Ed.2d I concur Were writ- result. we (Mr. concurring Harlan Justice rasa, on tabula I would hold appeal); the dismissal of the separable uphold it so far as Ferguson, supra, States v. attempts prevent physical abuse 1113; compare dissenting opinion Mr. pure speech. not But we Street, supra. Justice Black in sit here as a district court within 609-610, circuit, second decisions bound to follow long Appeals of our Court of so evident, Specifically, therefore, It stand. the determination Long Appeals Island prohibits of our Connecticut face Cahn, only flag incites Moratorium defilement Vietnam Committee v. which violence, (2d 1970), appeal which the affirmance of Radich F.2d 344 Cir. suggests may properly prohibited, pending, require seems to me to invali- statute, also conduct Mora Vietnam dation of the Connecticut distinguishable any constitutionally respect made torium cannot here is not pun York crime. Because from the “authorizes the relevant Long constitutionally protected ishment con down in Island Viet- of struck the duct,” Cincinnati, agree opinion City su- I so v. of nam case. with that Coates

1212 speech, question CLARIE, Judge protects (dissеnting): but I

far as it District hold of that so much the of soundness respectfully I ma dissent from the given ing, expands protection the which jority opinion. I find the Connecticut regarding propaganda pure speech statute, 53-255, as to be constitutional flag by York, 394 U. v. New the Street three-judge did the Circuit Court State 1354, 576, 572 22 L.Ed.2d 89 S. S.Ct. Appeals of in its decision unanimous activity (1969) non-speech in a man 609, Camp, State 6 v. Van Conn.Cir. the hold with ner which is inconsistent (1971) appellate 281 A.2d on 584 34, Nebraska, ing 205 U.S. of Halter v. by the certification was denied Connecti 419, (1907). I 696 51 L.Ed. 27 S.Ct. position sus cut Court. This that destruction defilement would hold by DeWulf, F. 323 tained Sutherland v. state, may flag itself, the national of (the Supp. (S.D.Ill.N.D.1971) 740 burn constitutionally prohibited, under both California, Cowgill flag); of the v. police power prevent state to of the 371, 613, 24 90 L.Ed.2d 396 S.Ct. U.S. public peace, of the and breaches wearing (the fash (1970) оf a vest 590 protect power its in the state flag); v. up Hoffman from a cut ioned adopted integrity of the terest (D.C.App. States, A.2d 567 United 256 symbol or statehood. See of nationhood resembling 1969) (wearing a shirt Justice Warren dissents Chief Waterman, flag); Iowa and State of v. Black, and Fortas Justices White 13, 1971, Iowa, 190 Sup.Ct. filed Oct. ‍‌​​‌​‌‌‌‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌​‌‌‌​​‌​​​‌​‌‌‍Radich, Street, People 26 N. v. see (wearing a 809 slit N.W.2d 114, 846, N.E.2d 308 257 Y.2d N.Y.S.2d Radich, also, People “poncho”); v. see per (Ct.App.1970) curiam 30 aff’d 846, N. 114, 257 26 308 N.Y.S.2d N.Y.2d 531, court, 401 equally divided U.S. an by an per curiam aff’d E.2d 30 (1971); 1217, 91 L.Ed.2d 287 S.Ct. 28 531, court, 91 equally 401 U.S. divided F.Supp. DeWulf, 740 v. 323 Sutherland (1971).1 L.Ed.2d 287 28 (S.D.Ill.N.D.1971); Iowa v. State legislature pas- its The Connecticut (Sup.Ct. Waterman, N.W.2d 809 190 sought protect and sage law of this 13, 1971). Iowa, October governmen- safeguard “substantial two op- should have courts (s),” prevention tal interest salvage por- portunity to sever public peace and breaches directed destruction of the statute tion na- integrity of this maintenance should or we or defilement of sovereignty, people symbol of tion’s aspects. “speech” heritage hold invalid ideals Breckenridge, U.S. 403 v. Cf. Griffin unrelated interests These cherish. 338 L.Ed.2d 29 expression free suppression of to the Mitchell, Oregon alleged (1971); v. first restriction the incidental (1970); 272 greater 27 L.Ed.2d 91 amendment freedoms 387, 61 S.Ct. Buck, 313 U.S. v. these Watson furtherance to the is essential (1941); v. See, Marsh L.Ed. 1416 85 governmental legitimate interests. L. Buck, 85 O’Brien, v. United States (1941). Ed. I therefore concur the result compel the decision

because we are bound law does The Connecticut Long Appeals personal Island contrary Court of or restrain interfere beliefs, the statute does it otherwise nor Vietnam strike down right uninhibited free and to a with written. 1970) ; (D.Arizona Hodsdon conсerning following cases See ; (D.Del.1970) F.Supp. Buckson, Parker statutes: desecration F.Supp. Ferguson, 302 (W.D.N.C. F.Supp. States Morgan, (N.D.Calif.1969). 1970) Silver, ; Crosson v. long supra expression It has of ideas. verbal S.Ct. at said with Virginia great persuasion: determined in West State been Barnette, Educ. 319 U.S. Bd. of accept “We cannot the view that an (1943), 1178, 87 L.Ed. 1628 63 S.Ct. apparently variety limitless of con- any statutory attempt that coercion ‘speech’ duct can be labeled whenever acceptance of compel the declaration or person engaging in the conduct in- contrary the con- a or idea belief thereby express tends an idea.” guarantees stitutional established If otherwise, the law were it would be an protected amendment. the first open disrupters, invitation to those who that no violencе to basic This statute does advocacy, in the name of would throw precept. proper application A 53- § judicial through brickbats onto the bench against physical limited acts the courthouse window ar- thereafter defile, contempt, or so as to cast gue that such conduct be tolerat- should mockery way make a it. It in no lim- ed, sym- because it intended was contemptuous the use defiant or designed speech, colorfully bolic flag, spoken directed words toward the forcefully depict contemptuous their re- right deny nor does or restrain the gard specific judicial toward a decision open public a free and criticism judicial process.2 or the entire principles for stands. suggests majority The this case The in Street v. New must be controlled the decision of this Yоrk, Long 394 U.S. Circuit Island Vietnam Mora- Cahn, torium Committee (1969), 437 F.2d 344 L.Ed.2d 572 to reach declined (2d 1970). there, It Cir. held question of whether or not a state the statute under which the contem- punish individual, publicly could for plated prosecution would ini- have been deliberately desecrating tiated was hence overbroad and violative as a dramatizing means of one’s dissatis- amendment, pro- of the first because it protest against faction and aas social symbolic expression scribed “in the ab- conditions Country. within our How- any (su- sence of valid state interest.” ever, the four Justices who did dissented pra 349). However, York comment on that issue and indicated distinguished pres- case can be from the constitutionally such pun- acts could ent one. The New York statute carried writing Warren, ished. Chief Justice a much definition broader of what con- majority O’Brien, “flag;3” United States stituted whereas the Con- argument might 2. “(A)ny flag, standard, color, The be made that com shield or particular political any representation, ensign, picture munication of a view or or point dramatically any substance, thereof, is most effected of either made of any represented substance, mutilation. But this is not sufficient or and of evidently be, any purporting to counter size, valid state interests. See ei Miller, of, flag, standard, color, United States v. F.2d 81 shield ther said (2d Cooper, ensign, -82 Cir. Cf. Kovacs v. the United States York, America, 93 L.Ed. 513 or of the state of New representation picture The Connecticut statute certain or a or a of either ly entirely thereof, does not have “the effect of which shall be shown preventing ‘speaker’ any reaching colors, stars, stripes, and the significant thereof, with audience whom he could which the number of either lawfully person same, seeing otherwise communicate.” 391 without delib 388-389, repre U.S. at 88 S.Ct. at believe the same to eration (Harlan, J., concurring). standard, flag, colors, shield sent tlie plaintiffs convey ensign here can their mes of the United of Ameri States sages many ways wearing other of New York.” ca or of 136(a) aas vest. the General Business Law of York, McKinney’s Consol.Laws, Now c. “flag” The New York statute defines include: 1214 narrowly “'(W)hen ‘speech’ to ‘nonspeech’ drawn and ele-

neeticut is comport It state interests. with valid ments the same course combined “flag” conduct, sufficiently important include: of defines governmental regulating interest standard, “(A)ny flag, color or en- nonspeech justify the in- element can sign the оr state of United States the cidental on First Amend- limitations any ensign flag or evi- of this state ment freedoms.” dently purporting such to be either of page page At it standards, ensigns flags, colors » * ** spoke further: regulation “(A) government is suffi- definition, The while somewhat overall ciently justified if it is the con- within clearly redundant, indicates 53-255 § Government; power stitutional of the and American is aimed at actual important if it furthers substan- ensigns flags flags or and those governmental interests; gov- tial if the obviously purport To such. which to be ernmental is unrelated interest authorizing pro- statute, read suppression expression; free and symbol scription type which of the alleged on if the incidental restriction Long Viet- concerned court Island First Amendment freedoms plain nam, to its lan- would “do violence greater fur- essential to the guage.” (supra of that interest.” therance “flag,” in statutory The definition sought The advanced state interests to be 53-255, under- with the is consistent § flag by the Connecticut misuse average lying purpose The law. satisfy this test. citizen, provoked vio- who would be prevent seeks to out- statute first resulting lent breach reaction with its of the breaks of violence and breaches peace, misuse of because of the dispar- peace provoked by physical flag, probability all American would in agement of the As the mis- to the react in an identical manner Nebraska, v. Court said Halter although flag, use of a banner “(I)t insults often occurred has purporting to a “real” American be war, to a the cause of have been technicality might con- fail some indignities upon it, put pres- in the and may constitution- form. Since the state it, revere have often ence of those who ally respect require its citizens punished been resented sometimes flag, physical integrity of the American 34, 41, spot.” U.S. use, regulate may reasonably its 419, 421, (1907). 51 L.Ed. 696 integrity will so to insure that vein, judge In a consti- similar three through effectively not emasculated be recently tutional court observed: the utilization of facsimiles. newspaper read the “One has “many said, The Second Circuit has past in the recent know types flag usage and alteration of * act is an mutilation ** * * * non are a means of likely re- elicit a which is violent communication,” (437 political F. verbal many sponse from who observe such . 349) 2d are forms and as such DeWulf, F. acts.” Sutherland v. “symbolic “(T)he speech.” First But Supp. at 745. Amendment not license individuals does hardly It can in- such an doubted ‍‌​​‌​‌‌‌‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌​‌‌‌​​‌​​​‌​‌‌‍that speak ‘whenever and however terest con- substantial within wherever, Adderley please.’ power stitutional the Government. Florida, 39, 48, Chaplinsky Hampshire, 315 DeWulf, Cf. 17 L.Ed.2d 149.” Sutherland L.Ed. (S.D.Ill.N.D.1971). F.Supp. 740, O’Brien, In supra, United States v. U.S. at Clearly 88 S.Ct. at the Su phase of the second Con- preme statute, proscribes Court held: necticut mutilation, defacement, disposed of; when, how, defilement and for what just purposes may is intended to avoid such used. foreclosing peace by See, g., 3; breaches flagrantly e. U.S.C. Stat. provocative per- c. conduct. So also 36 U.S.C. 172-177. A §§ phase may ownership the son of statute which forbids a ‘own’ but is word, any placing appending subject special respon- the of burdens and flag picture, design flag the should property, sibilities. A be in proscribe provocative sense; be construed to a it prоperty is burdened likely peculiar obligations the to cause a of breach with and restric- peace. Certainly, A medi- number of other tions. limitless as Halter Ne- public expression braska, supra, of dissemi- held, special ums exist to these con- it per nate ideas on arbitrary issues. Whether ditions are not se or be- by signs, images, placards, effigies, yond governmental is de- power under our signs, words, otherwise, all are essen- Constitution.” tially free and to one available who would Legal principles, which for two almost heard, have his seen and ideas dissemi- years sustaining hundred have aided in nated. respect universal civilian for our nation’s flag, should not Inextricably now be eroded the of under to the breach related guise protected symbolic mistaken peace of basis for the Connecticut speech. great respect misuse statute Americans, complete una- with almost

nimity, respect COMITY national and honor the Flag very likely to emblem. misuse is assumption ju- Because the of Court’s provoke many precisely violence because incompatible here risdiction with regard “fighting such citizens conduct as Supreme decisions of Court in Hampshire, Chaplinsky words.” v. New Younger Harris, 401 U.S. 91 S. L.Ed. S.Ct. Ct. 27 L.Ed.2d 669 respect 1031. This indicates the itself Mackell, Samuels v. 401 U.S. importance pre- of the state interest (1971), I also dis- serving physical integrity the na- of jurisdiction. sent on the of issue tional During litigation,4 there was this aptly As Justice so in his Fortas stated appeal litigant pending by a different York, supra, dissent in Street v. New Supreme rea- Connecticut Court U.S. at 1378: son Con- conviction the same “(T)he flag special per- kind of necticut dеsecration statute. sonalty. traditionally Its use is appeal first latter raised the same universally subject special arguments presented rules and amendment as were regulations. early As this plaintiffs parallel here. While this constitutionality Court affirmed the litigation state parties, did not involve same making a state statute it a crime to that the rationale is submitted representation use a Younger dispositive. A is nonetheless purposes States ing. for declaratory judgment advertis- Court this Nebraska, Halter v. the effect Connecticut infringes upon [27 unconstitutionally L.Ed. first 696] proscribe flag may Statutes effectively “stops” how the freedoms, amendment displayed; may lawfully adjudication very orderly how these handing appellate Prior to this Court’s clown of an intermediate court which opinions in this case but well аfter held the con- Connecticut cert, evidentiary hearing April Camp, stitutional. State Van Supreme Conn.Sup.Ct. denied, Aug. 18, 1971, Connecticut Court decided to deny petition certification A.2d 536. appel- pending claims same proceeding.5

late comity, consideration” The “vital 44, 91

Younger, U.S. at this is emasculated 27 L.Ed.2d court, with a federal where decision “great im- showing the kind of injury enunciated irreparable mediate” by Younger de- litigated, being very cides the issue suit, argument

time of the showing Supreme Court. Absent State injury, irreparable submitted comity considera- balance between tions articulated par- Younger notion that to be plaintiff entitled

ticular should be sub- judicial without forum heard jecting liability in or- to criminal himself so, fa- here der to do must struck allowing appellate court

vor of the state adjudicate pending constitutional

.to court interfer-

issues free from federal pur- ence. The statute has a valid

pose. law constitution- I find the would

al as written. STACY, Plaintiff,

Lester

The AETNA CASUALTY & SURETY COMPANY, Defendant.

No. EC 7161-S. Court,

United States District Mississippi, N. D. E. D.

Nov. injunction. (401 Mackell Samuels v. determined to that of an “practical ‍‌​​‌​‌‌‌‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​​‌‌​‌‌‌​​‌​​​‌​‌‌‍declaratory judg- effect” of a ordinarily “virtually ment identical”

Case Details

Case Name: Thoms v. Smith

Court Name: District Court, D. Connecticut

Date Published: Nov 9, 1971

Citation: 334 F. Supp. 1203

Docket Number: Civ. 14246

Court Abbreviation: D. Conn.