Valarie Goguen v. Joseph Smith, Sheriff of Worcester County

(5th 1972); Co., Ins. Cir. 460 F.2d (5th Campbell Green, 112 F.2d 1940).

Cir. part, part

Affirmed vacated

remanded. GOGUEN, Petitioner-Appellee,

Valarie

Joseph SMITH, Sheriff Worcester County, Respondent-Appellant.

No. 72-1204. Appeals,

United States First Circuit. Sept.

Heard

Decided Dec. Mass., Lawson, Boston, T. Evan Mass., Malm, Boston, C. Michael

whom appellee. brief, for onwas Judge, COFFIN, Mc- Chief Before Judge, ENTEE, and HAMLEY* Circuit Judge. Circuit Senior Judge. COFFIN, Chief Appellee months was sentenced six having in the House of Correction after jury in a Massachu been convicted Superior “publicly for setts Court1 [ing] contemptuously treat States”, in violation of ch. 264 The treat Mass.Gen.Laws 5.2§ contemptuous ment found consisted of appellee appearing in dis the business Leominster, displaying a trict of small to his cloth American sewn blue covering jeans his left but on the area police questioned When a officer tock. appellee appellee, persons with whom standing Appellee were amused. day was arrested the after this incident. The Massachusetts Judicial Court affirmed the conviction in a re- Goguen, script opinion, Commonwealthv. 1972 Mass.Adv.Sh. finding 279 N.E.2d appellee, might un whatever be circumstances, certainties applied” neither facial nor “as re speech. Appel straint freedom petitioned lee then for a writ habeas corpus court, in the district federal finding issued the writ after vague, statute was violation both Amendment, Fourteenth over broad, in violation of the First Amend Goguen Smith, ment. Chase, Atty. Gen., E. Asst. Charles (D.Mass.1972). The Commonwealth Gen., Quinn; Atty. with whom Robert H. appeals. Gen., Irwin, Jr., Atty. Asst. John J. brief, Chief, Division, were on Commonwealth first contends Criminal questions appellant. facial * Circuit, sitting by designa- the Ninth . . . shall Of United States punished by a than ten tion. fine of not less nor more than one hundred dollars or prior 1. A trial a Massachusetts Dis- before imprisonment year, than not more finding judge trict Court resulted in ” or both . one-year jail guilty imposition of a statute, first enacted in re- This appellee Thereupon, sentence. exercised operative mained the same insofar as its right jury his novo trial. de concerned, until “desecration words” are publicly mutilates, tramples here at issue time after the events some “Whoever place. upon, contemptuously the took defaces or treats cause, as to the and overbreadth should be consid First Amendment chal- lenge overbreadth, ered, placing principal .of reliance on the we confront prescription question which Mr. well-known abstinence Justice Harlan noted Raines, 17, 21, “pretermitted” cases, been had United States U.S. clearer e., wearing symbolic 519, 522, i. whether Cowgill application speech. California, to whom “[one] ’be is constitutional will not (1970) (concurring opinion). heard to attack the statute on the We shall might ground impliedly by examining also be order our first appellee’s applying persons or taken as to other non-First Amendment attack application vagueness may other situations in on the statute’s facial might unconstitutional,” properly considered, by pro- Col and on and then Kentucky, ceeding ten v. merits of that attack. Secondly, ap- L.Ed.2d We shall then assess whether it is against propriate specifically vague subject defends the the a statute to charge pointing by test, the First Amendment ness out that overbreadth design” statutory “spell continue with inquiries the detailed words out re- by quired physi So, conduct that affects the such test. while “describe the subject integrity of matter of this case cal of a the United is seat-of- the-pants, analysis Finally, the Commonwealth cannot States”. be. supports against its law the overbreadth Vagueness in a Non-First by statutory Amendment arguing attack being Context words”, aimed at “desecration integri “protecting physical approach We first this case on the as- that, ty” speech-oriented; not but are sumption that there are no First engag appellee be assumed have been problems inhering in the ing symbolic speech, the Common appellee’s or in statute conduct. The furthering gov wealth was a substantial question becomes, threshold then wheth- interest, power, ernment within unre its expression, appellee’s proscrip- er conduct and the suppression lated to of and tions of the statute such it is greater no than essential to further that appropriate for a court to consider his interest, meeting requirements thus challenge, facial his addition to alle- O’Brien, States 391 U.S. gation vague applied that the law is as to him. The Commonwealth assumes vagueness ap- there nowas pellee, as did the Judicial While the facts in this case are premise Court. The unarticulated simple, legal clear and issues are that, may whether not complex. concepts This is so because capable applications of unconstitutional vagueness and overbreadth are frater situations, in other is not as to nal, twins, having affinity not identical one who sews a seat of his separate purposes; but identities and pants.4 preliminary question, because the “When may complain ”, requires Assuming, however, ? a differ clearly concept; ent appellee’s conduct, as to each and be- covers involving vague- accept Raines was not a case Even if we were to the Common- ness, interpretation but rather an wealth’s overbreadth in its attack brief allegedly proscribes sense that the statute was the conduct affect- susceptible applica- ing physical integrity flag”, unconstitutional “the of a persons. Many tions to third that, limited, of the cases were to assume it could similarly validly cited in applied, Raines were overbreadth we are not so sure that cases, though sewing clearly background least United States v. to a af- Wurzbach, “physical integrity.” fects (1930) clearly vague- L.Ed. 508 refers to ness claims. inextricably up a court tied whether with an invalid we must determine complaint one, Dorchy Kansas, the stat appellee’s hear facially because unconstitutional 68 L.Ed. ute is their —in such not know whether circumstances the con- others would broad challenge may proposed con stitutional conduct would constitute be mounted.7 Raines, exceptions depend- temptuous read these treatment. Before as not fortuity considered impressive of cases series historic that a solely already looking vagueness by subjected attacks statute has been examining holdings depending upon statute without text of the by conduct,5 probability holdings in cases of such invited the offender’s some clearly volving wording covered From the conduct statute. stating gen Raines, to cite while failure Raines statute.6 plead un erally person facial to which we referred and cases foregoing eonstitutionality light con statute that is the thrust of a exceptions, him, none we think the sense as to noted two stitutional although recognized a size- is that if the the doctrine party’s nature these cases prin exceptions dissimilar from to its broad conduct is not so list of able sought exceptions proscribed ciple. are rele to be behavior Two these inquiry statute, present interpretation since their such that an vant to our distinguishing supports at facial his behavior from that of instant rationale already provide Thus, would a statute has others more certain tack. where large potential in a to unconstitutional notice offenders would declared been light applications, and seem in its intended also unwarranted number legislative appears to all not intended to cover that it determination was remaining void-for-vague- activities, for few then valid in the stand as might ap challenge which it court rule to ness allows a to tuitous situations constitutionality of ply, & Miners’ stat- Merchants’ the facial Butts v. 126, Standing Sedler, Transportation Co., 33 S. to Assert 230 U.S. ute. See R. (1913); 964, or where in 1422 Constitutional Jus Tertii The Su- Ct. L.Ed. 57 pro 599, preme Court, declared Yale L.J. 608 a state court has valid 71 (1962). application statute vision Grocery Co., here, L. in- v. Cohen but States State statute see discussion 5. United 298, 81, speech ; L.Ed. 65 516 would 41 S.Ct. or where freedom of 255 U.S. fra Connally ; others, (1921) v. General Construc to Smith Cali- be inhibited as v. 126, 215, Co., 385, fornia, 147, 151, 46 70 80 269 U.S. S.Ct. 361 S.Ct. tion U.S. Dairy (1959) (1926) ; ; Frink Ala- v. 4 Thornhill v. 322 Cline L.Ed. 88, 736, Co., 445, 681, bama, S.Ct. 71 L.Ed. 60 310 S.Ct. 274 U.S. 47 U.S. Jersey, (1927) ; (1940), v. New a situation we 1146 Lanzetta L.Ed. 1093 84 451, here, 618, but L.Ed. not see dis- 59 83 888 assumed does exist 306 S.Ct. U.S. ; George, (1939) ; where the con- De 341 Court did Jordan v. U.S. cussion infra ; par- 223, 703, rights persons tlie of third not 95 L.Ed. 886 sider impair- litigation Spector, that were v. 72 343 U.S. ties United States thereby (1952). persons ef- had no because these S.Ct. 96 L.Ed. 863 ed preserve way them- those fective Supervisors, v. Board of Medical Czarra Alabama, v. A. A. C. selves. N. P. (1905), (cited App.D.C. 449, 459-460, 2 L.Ed. U.S. Lanzetta, 3) ; v. see n. Screws United Jackson, (1958) ; v. Barrows 2d 1488 States, 89 L. U.S. S.Ct. 1031, 97 L.Ed. Refining Champlin (1944) ; Co. Ed. 1495 where, infra; (1953), but see discussion Commission, Corporation 286 U.S. v. litigation, a a result of the as (1932). L.Ed. 1062 S.Ct. necessarily revised would exceptions intelligible give consequently 7. The are “in the rarest other fail to would prohibited, warning where the Court determines cases” the conduct Congress Reese, 219- would have wanted 92 U.S. States do of its it could all to stand applications, 23 L.Ed. 563 inapplicable clearly similarly are confirmed this view re- reached the of a facial merits challenge ordinance, cent decisions of Court.8 anti-noise find- Jacksonville, vague. Papachristou City it not to

In was al- attack though lowed even the defendants admit- S.Ct. parties ted that numerous who had ordinance was uncertain applied prosecuted city apparent their vagrancy conduct. been under a punished the conduct prevailed in each of ordinance contentions their precisely these vagueness. type three cases was law void for activity sought Among permitted challenge which the statute those punish.9 Assuming statute was ordinance on its face was a defendant applied charged “disorderly Papachristou, who had been recognized Court must have it could resisting arrest with violence”. conduct — interpreted provide not be Similarly, so as to more in Colten the Court enter- potential certain void-for-vagueness notice offend- tained claim ers and against “disorderly hence there was no reason to ab- a state conduct —re- ruling stain from a on the fusing disperse” clearly claim fa- unconstitutionality. cial In Although Colten and to the offender. Grayned, it was rejected, specifical- clear failure claim was the Court particular find as to ly agreed vio- with the state court determi- Colten v. nation that ficulty City sire to ^[374] at 378.” obey Rockford, understanding Commonwealth, the law was since Colten, supra statute will have no dif- “ ‘citizens who de- 467 S.W.2d facially Grayned un- lenge cerned would amount small number of Court.10 lators with which the hence it made no tional light doubts as to facial bill pressed health in all but in the void-for-vagueness peripheral sense to case before the constitutionality Court clean constitu- cases, perpetuate perhaps was con- chal- Although 8. we focus these throe re case, 10. A somewhat anomalous cases, similarly cent others corroborate Dairy Corp., States v. National Products Seagram Sons, our decision. In & 594, Inc. 29, 372 U.S. 83 S.Ct. 9 L.Ed.2d 561 Hostetter, 35, 1254,16 384 U.S. 86 S.Ct. L. adopt approach seems to an out (1966) approval Ed.2d 336 [cited with in analyzed. of line with the cases wo have LaRue, 109, California v. 409 U.S. 93 S. prohibiting A act federal “un sales at 390, 5], Ct. 34 L.Ed.2d 342 reasonably n. prices” low was attacked as challenge involving vagueness ato state void on its face. The Court’s statements law, liquor the court was unconcerned contradictory, explained seem self unless specific applications with of the law the the context of the case. “It is true parties and stated that “our concern vague that a statute attacked must ( constitutionality . is with lie initially face,’ be examined ‘on it but of [the on its readily statute] Id. face”. 384 does not follow that a discernible 41, U.S. at 86 always S.Ct. at 1259. See also dividing drawn, line can with 62, Vuitch, United States v. falling neatly 402 U.S. statutes categories into of the two 1294, (1971) solely 28 L.Ed.2d 601 : of ‘valid’ or ‘invalid’ on Oswald, Gesicki v. 336 371 the basis of such an Id. examination.” at (S.D.N.Y.1971), aff’d, 83 at S.Ct. 597. The Court then stated ; (1972) 92 vagueness S.Ct. that it would “consider the at City Euclid, but solely Palmer v. of U.S. 402 tack cf. relation to whether the stat (1971). sufficiently L.Ed.2d ute warned [the offenders] ” . Id. at Af 598. 9. The examining past applications Court did not rest its decisions ter of exception conduct, these cases on the Haines allow act the violators’ the Court difference, void-for-vagueness prohibi attacks on noted the between an economic affecting rights, tions regulation case like one before it and fact, rejected allegations n. 7. it First Amendment cases. It concluded Grayned “|w|e permitted laws Colten and in are thus to consid fringed any right assembly speech. warning provided by or er the statute] [the only in terms of the statute ‘on its vagueness appellee’s proceed to address Appellee’s case conduct argument. wearing

confronting an us consisted pants. flag of his seat on the American other from kinds little different are It is There well-established sought to contemptuous alleged application conduct underlying principles First, per eh. § Mass.Gen.Laws covered doctrine. process ill-defined haps within is located due the essence specifically Amendment, men ground between is middle the Fourteenth clause of or defac persons mutilation like activities “are entitled tioned the rule that all ex like unmentioned behavior com ing, state as to be informed what making ob or hibiting Papachristou, fist a clenched su or forbids.” mands gestures. not see how pra, doWe at 843. scene interpreted cov as to requirement could is This fundamental place who appellee others and exclude criminal en er under a “conviction conjunc flag positions, give adequate in odd actment which does not symbols, gestures, deprecatory charged pro is notice that the conduct tion display slogans, merely process.” or who hibited violative due acting speaking Wright Georgia, that which out while might many consider S.Ct. Americans Additionally, may appear the statute’s We realize that words which obnoxious.11 vague, are, the Massachu first too make clear blush when exam words length legislature context, con intend to ined at their did often setts comport requirement to those who found to with the fine maltreaters mutilate, upon, they give adequate trample or deface notice. Jordan 231-232, separately George, v. De meant cover (1951) contemptuous treatment. L.Ed. types n. 15. ap Many apparently resolution of these statutes conclude that therefore pellee’s ap challenge statute as made more definite for reasons clas adjudicates Connally, necessarily supra, sified 269 U.S. at plied himto constitutionality, 46 S.Ct. at and other facial statute’s Bunch, light See Misc. conduct also in the State Ohio face’ but Ops.2d 354, applied.” N.E.2d 831 Id. at 83 S. Ohio pointed (using ground) ; out Three dissenters at 600. blanket Ct. Dairy (Ct. inconsistency Sinniger, National State v. between 486 P.2d 1303 Grocery. App., Or.1971) (using We cannot believe and Cohen as car seat long cover) ; Lorenc, of cases overruled line Commonwealth v. 220 Pa. Dairy, by especially Super. 64, (1971) (flying silentio .9K& National A.2d Grayned, Papachristou, flag and C'olten since Communist above States supra, permit- People flag) ; Verch, in n. and the cases cited v. 63 Misc.2d (1970) (painting no where there was ted facial attacks N.Y.S.2d flag). mention a brownish-red United States Such Rather, they arguably minuscule. where were cases illustrate fact that sur- say applications Dairy prising National that a stand- read of such a statute are merely imagination. ard such as “unreasonableness” not in the realm of sphere activity economic cannot be abstract, “[T]hey employed phrases scrutinized in refer- but some 12. words setting having special a ence to factual must be made. a technical or mean- Apparently Dairy ing, enough in National the facts well to enable those known many correctly apply them, were like to which Rob- others within their reach to omitted], and inson-Patman hence a [cites Act or well-settled common- meaning, notwithstanding furnished some an for examination law basis element degree of the terms of that law. The case can in the definition as to which es- effect, holding, might differ, omitted], or, therefore be taken as timates [cites by broadly Act is stated Robinson-Patman not void Mr. Chief Justice Grocery flaw. as a constitutional White United States Cohen 81, 92, 298, 301, Co., [41 G.W.L.Rev. 255 U.S. S.Ct. Cf. 516,] ‘that, found 65 L.Ed. for reasons any examples in er. Yet While the stated none of these actions cases.13 they interpreted exhaustive, contemp- do could be as “treats those cases are not sharp tuously”. persons provide a contrast case Since with the Leominster’s none of district us in which these factors business views of before meaning contemptuous give certainty present to what constitutes treat- differing Instead, flag law ment of from those of we have a statute. Cambridge’s persons Square, doing Harvard of an which forbids “the act important give in- it is that the statute terms so that men of common all telligence necessarily persons guess definite notice of what acts must are at prohibited. meaning applica- differ to its supra Connolly, tion.” 269 U.S. at Secondly, it is also without contradic 46 lying principle at 127. This violates the under- tion that law authorities enforcement “no man be shall given guidelines must sufficient as to criminally responsible held for conduct prohibited they offenses if are to act reasonably which he could under- properly, often in emo situations where proscribed.” stand United States high quick tions are and a evaluation of Harriss, 612, 617, v. 808, necessary the circumstances is to effec (1954); 98 L.Ed. Lanzet- tuate constitutional “Lawmak arrests. supra ta, entrusted [must] to the [be] found, properly The district court judgment po moment-to-moment example, that it not clear ex- “to what Gregory City liceman his beat.” prohibit[s] public tent [the statute] Chicago, 111, 120, flag etiquette.” deviation from formal 946, 951, (Black, Goguen Smith, supra F.Supp. at J., concurring). The statute before us good fails attempt to aid even a faith it, making possibilities especially enforce us of deviation which fearful legal problems forecasting a “zealous pose effort to dis [officers] charge during duty [by] establish[ing] their waving flag a a a numerous: pol- standard of foreign their speech own to be used or domestic as a critical of possible making basis to render icy; holding flag face while a [statute] a climaxing supra contemptuous gesture; Grocery, a execution”. Cohen or a flag; speech crumpling spitting U.S. at S.Ct. at a 300. Additional ly, generalized we must note the direction of a dis- safe —at tance, distance; wrap- “crime” here lends at an unsafe itself kinds of con ping temporary oneself; displaying when around confrontations “those against background, punished convicted surround- for no more derogatory condemnatory vindicating police ed than thority.” Papachristou, affronts au symbols slogans; sewing larger patriotic Moreover, banner, to a 92 S.Ct. at 846. jacket of veteran, “unfettered bemedalled to a discretion [which places Boy leader, [city] sleeve of a in the hands of statute] Scout or even to motorcyclist’s the back of police”, windbreak- id. at provide line-drawing result either from text of the continue to statutes with re subjects they gard special types laws, involved or the with which to of state Roth dealt, States, v. standard of some sort af- was United 354 U.S. 77 S.Ct. ” Cline, supra, (1957). forded.’ Lastly, See 1 also L.Ed .2d 274 U.S. regulatory governing S.Ct. statutes business ac provide greater leeway legisla tivities for Additionally, may part Dairy, the statute tive selection of words. National supplies certainty supra; Boyce Lines, a wider scheme which Motor Inc. v. United States, prohibitions, to its individual 342 U.S. United 96 L. S.Ct. Spector, (1952) ; v. States 343 U.S. 72 S.Ct. Ed. States v. Petrillo, (1952) ; 96 L.Ed. or rare 67 S.Ct. L. cases, judicial precedent may history (1947). Ed. judge power supervisory give who prosecutors, ade- and its failure to given certain a standard quate never no more the offense notice of possibly un- when to decide he should numerous called even raised alleged charges against applications of- dismiss because of dismissing dropping practice fender. cases situations, charges trial. before those compared present cannot be case opportunity frequently be little there will person sees to the where who situation rights im- to vindicate constitutional illegally crossing a thousands of others detentions, illegal paired by arrests and punishment escape street seeks to even records which seem follow wrong. In that commission of a similar throughout most innocent their lives. crossing well-defined situation there are signs signals, Thirdly, effort we believe cross-walks which give persons adequate exact “would be the all enforce this law notice carry they equivalent out a effort commit an offense. of an are about merely penalized totally terms Instead have the different sit- statute which we charged punished all acts detrimental uation those with viola- where unjust us, public unrea when tion of interest before after hav- hundreds, ing unpunished perhaps estimation of court and in the seen sonable Grocery, jury.” thousands, 255 U.S. of citizens with Cohen American flags recent parts at 300. With the sewn to various of their ju clothes, flying frayed decisions that state condition formed of automobiles, ries in trials from antennas of radio persons, advertising windows, less than twelve Williams used as in store Florida, expected 399 U.S. to know that their similar unanimity sewing and that actions —such as conviction, required pants is not for a Johnson seat of one’s constitute —could Louisiana, contemptuous 406 U.S. treatment. (1972), Apodaca v. Ore that, conclude because We gon, 1628, 32 L. gives contemptuously” suffi “treats no danger greater Ed.2d warning prospective offenders cient morality poli personal views of law, law of the affords reach may in tics notions or other whimsical guide for no clear evaluation enforcers guise provid jury in the fect verdicts judge actions, nor neither and offers vague utterly phrase certainty to an jury any inclu sufficient standards for contemptuously”. like Thus “treats exclusion, imper sion and the statute is unconstitutionality claim of facial missibly vague. vagueness arguably possesses a some compelling what rationale more for ad The First Amendment and Overbreadth judication by than there when courts safeguard unanimity aof far, approached Thus we have jury. twelve-man assumption this case with the argu- accept First Amendment is If the Commonwealth’s not involved. is, undergoes discussion, ment, for the sake considerable change employed “treats we the definition terms from feeling assessing challenge. contemptuously” Our includes “the regards inquiry that which is es- contains an added dimension —a judicial mean, protect But teemed or worthless”. mandate the favored vile uneasy compelling expression most status of would feel and asso subjected York, ju- to what ciation. to be Kunz New defendants might “mean, vile, ries deem or worth- L.Ed. ap- less”, phrase differently, too seem To there is a words which ply greater have, to offenders of ch. and Mass.Gen.Laws solicitude that courts 264, helped any ought fear-inducing have, is not to 5. The matter about §

97 by very which, discussing analysis any Before of law effect broad-gauged poten- scope, us this a led conclusion constitutes we note light against many in who would sanction con tial constitutional many area, express Thornhill, supra, stellation in this themselves.’ So seek to 736, themselves with 310 at have concerned cases U.S. S.Ct. Coates open-ended City anticipatory 611, Cincinnati, 616, kind of and v. of U.S. 1686, (1971), that a self-defeat- threat of retaliation jargon crept jurispru- Gooding v. ing Wilson, 518, has into 405 U.S. 520- brief, easy, 521, terminology S.Ct. dence —a 31 L.Ed.2d 408 (1972), quickly ap- supra Grayned, too common it is all 408 U.S. at settings by plied complex spared any a S.Ct. factual we are “chilling inquiry ability effect”. extensive reference into casual danger smothering so-called “hard is core” rubric violator to mount analysis reality. challenge an overbreadth to a statute which involves itself with First Amend the Massachusetts We have viewed rights. ment The issue is not appellee pun- under statute standing,14 for such violators have suf and have determined that it cuts a ished injury fered sufficient to motivate beyond the individual defend- far swath strong presentation against constitution sought penal- ant whose conduct is ality adversary in an context. Whether double-edged ized. is a sword of appellee not, is therefore, “hard core” or only menacing not Damocles the exercise we challenge think his overbreadth must freedoms, of constitutional but also serv- be addressed on the merits. ing any adjudications future obstruct regard unknown, Since innumerable the overbreadth tech nique powerful may, weapon is a which, individuals who because of improperly used, forego statute, the breadth of the princi assert- contravene ples ing separation pow their federalism or under fear ers, prosecution punishment. applied by it should gingerly fed- Although Coates, past Gooding in the ourselves Gotten. Justice Coates, quoted permitting White’s referred to dissent the issue of over- Good ing, referring propo breadth attacks in Raines non-First Amendment involving Reddy “standing”, sition that certain “will areas as violators not be “permitted (1st States, heard to attack the statute” F.2d Cir. 1968), denied, to raise its cert. or unconstitutional 393 U.S. 89 S. ap others, may reh’g overbreadth” as Ct. 21 L.Ed.2d 778 reflecting propriately thought denied, 22 L. U.S. upon policy- Supreme the conclusions in which the Ed.2d we note generated analysis overbreadth would cases in the First Amendment area have resulted as to the nature of particular indicate that when a claim of overbreadth person is not statutes involved and made convicted under requirements question, proper for what constitutional “standing”. properly deciding “In called consists is more short, whether the over- standing party’s yields technique assert over- breadth the on conclusion dependent the same merits should be as to breadth whether the statute is the stat whether factors which determine on its face. For court to “standing” its face find invalidated on lack of ute should be because it deter Note, “susceptible not.” The First Amendment Over mines that is Doctrine, application protected expression”, 83 Harv.L.Rev. breadth Note, Gooding, (1971). supra, The Void But cf. Supreme Vagueness in the Doctrine confuse merits of Court, very question 100-101 claim “standing”. with the U.Pa.L.Rev. different though Thus, Sedler, supra. (1960) ; Cohen, R. Flast the stand (1968) ; to use Court chose Grayned, 88 S.C. 20 L.Ed.2d 947 Younger Harris, 37, 42, label 91 S. sig it sur fact Ct. It is conceptual “standing” without barrier nificant mounted difficulty the word majorities view. used reinforces our either the or minorities support is no self-limit There evidence think several We eral courts. imposed by ing the Commonwealth’s as principles assertions should be interpretation the context of Mass.Gen.Laws ch. courts themselves. corpus proceeding a to find have been unable § federal habeas authoritative Massachusetts state court not should state criminal statute Attorney opinion ruling or General bear its face on ruled unconstitutional directly interpretation on the (1) affected the area unless overbroad question.15 phrase large here in Since “we proportion of by includes authoritatively jurisdiction activities, (2) pos to con lack First Amendment legislation”, v. strue state United States potential substantial for a sesses Thirty-Seven Photographs, 402 U.S. applications, impermissible number 1400, 1405, 369-370, 91 S.Ct. exci (3) effective and immediate (1971), Gooding, supra appli impermissible statute’s sion of the Grayned, 91 S.Ct. contin not without cations is foreseeable do we must interruptions U.S. at 92 S.Ct. Amendment of First ued nothing give than these words more Note, Amendment The First freedoms. meaning ordinary dictionary Doctrine, supra their Overbreadth quotes. con If “treats tripartite the state itself test com that this We think temptuously” by “circumscribed” proper is ports resolution with the conflicting policies well state-supplied “the act of definition of of federal frequently feeling contemning, despising; pro ism, and the role of the courts regards is es rights, that which is with which of constitutional tection disdain, worthless; mean, teemed vile supported current derision, contumely”, Button, scorn rulings. A. A. C. P. N. Dictionary 328, 9 Webster’s New International L.Ed. 1952), ed., (Unabridged, Coates; Gooding; 2d then so (1963); Col 2d 405 Analysis is definition that the ten; Grayned. broad this bounda- of the Massa ry encompasses complete provided under these us statute before chusetts range of freedoms. It requires First Amendment it is standards conclusion subjects punishment for individuals to as overbroad. unconstitutional feelings clearly protected and words— step first is this to ex activities, Street First amine whether this desecration law York, New in affects area of interests which acts, well as —as proportion of cludes a substantial automatically pro- without which are not Amendment activities. The Common tection, Moines Tinker Des School its contends that statute does not wealth District, a “clear nexus with [F]irst (1969); O’Brien. rights”. supports It [A]mendment argument regard claiming in this distinguishing It is clear that the fea- phrase contemptuously” that the “treats ture of this statute is that it makes protecting physical limited in just ill defined acts but tegrity flag, consequent rather acts to the the United ly punishes only acts which It this States. distinction which contemptuous constitute treatment and majority clothes the acts with unprotected by the First Amend First Amendment interests. From time Counsel, argument, at oral al ment. immemorial, leged sewing that it act of appellee’s symbol onto seat of trousers “[T]he [has been] punished contemptuous power, which was nation’s emblem —the truest, treatment. freedom in its best sense. statutory legisla- arguments 15. We note wealth’s recon- Massachusetts presence ture is well aware of the ef- struction here are best addressed to its statute, just recently legislature, having fect of own courts or its amended it 1971. Thus Common- federal court.

99 extravagant say pacity objectify response.” is not to all to excite or signifies country gov- primary symbol, of likely the is Id. lovers Such recognized resting speaks it, on the ernment the consent of all see who regulated by law; governed; liberty placed positions, it is when odd con- against joined protection symbols words, the of weak with or or made against strong; security ges- grimaces, speech, the exercise butt arbitrary power; and absolute tures. We do not have determine safety against generally point for free institutions at what that which is of- foreign aggression.” pure Halter Ne- ten called conduct becomes akin to 34, 419, braska, speech.16 object pure 205 But U.S. when the ais (1907). symbol, Halter, flag L.Ed. such 51 696 as the cross, David, crescent, Star Joyce U.S.App. States, v. United 147 swastika, sickle, and hammer (1971), 454 D.C. F.2d 975-976 flag Stromberg California, red 283 denied, cert. 75 1117 L.Ed. Judge Mac Tinker, any or black armband in history Kinnon’s exhaustive regard activity individualized with to it symbolizes led him to conclude that purely logistical activity outside of the independence, unity our nation’s and and maintaining storing is bound convey message fealty or revul- “[throughout history our as a nation “closely pure speech”. sion and is akin symbol many our has been Id. 393 U.S. at 89 S.Ct. 733. foreign wars, and domestic. signified presence national It has Judge agree We have to airplanes, battleships, houses school on Walsh is self-evident “[I]t army . . Wherever forts all, most, if not conduct associated with signifies presence it flies it symbolic the United is States States of America.” speech. normally Such conduct is en therefore that without doubt gaged express in with the intent to some meaning very special has a —a idea. Further such conduct is invaria meaning historically associated with — bly communicating successful support government of our form Silver, idea.” Crosson v. majestic presence. its If it did not (D.Ariz.1970). also See speak by symbol itself as a of the Unit- Long Island Vietnam Moratorium Com America, any ed States we doubt that Cahn, (2d mittee v. 437 F.2d sought protect state would 1970); Buckson, Cir. Hodsdon v. F. message physical from verbal abuse. Supp. 528, (D.Del.1970); Thoms v. objects neutral, Smith, F.Supp. 1203, (D.Conn. When more utilitarian 1971). as draft cards are involved in con- We think that the statute reach duct, degree large courts have to decide when such es to conduct of which symbolic speech. conduct becomes “the communicative content Symbol, semantically, beyond Cowgill dispute”. O’Brien. stems was v. Cali meaning fornia, from a Greek word “token” or “sign”, (1970) (Harlan, J., Webster’s Third International L.Ed.2d Dictionary, Unabridged (G concurring). Although message at 2316. & Mass., Co., Springfield, C Merriam often seem somewhat “inarticu 1966.) important specifically, late”, More as it did the Massachusetts Su ease, symbol preme and, add, capa for the instant con- Judicial Court we act, object ranging interpretations, stitute “an sound or material ble of various having significance humor, political cultural and the ca- from misdirected Denno, Henckin, Mary Drawing L. Foreword : Beth Takes On Tinker the Con- Cf. Lines, (1968) ; School, 82 Harv.L.Rev. stitution 38 Ford.L.Rev. Note, ; 68 Columbia L.Rev. the criticism, think is more process tionally unconstitutional 1686 chusetts law parent danger” whatever the reaction decide such conduct falls must utilize the O’Brien cifically, the Gooding, supra power Having furthers governmental “[1] governmental potential rejection flag, Amendment activities. it clear that (Burger, many whether it applied being engaged in,17 of the the revulsion determined that is within kinds of presents an “actual and for substantial important only “strained 405 it C. applications. More interest Government; interest; symbolic substantial number additionally possesses under the communication U.S. at J., if national of observers conduct may be constitu- society’s dissenting), test, in order to is unrelated to proportion and speech 533, ^[3] the Massa- heading of substantial fealty, involving ^[2] remote”, values, if might is the that, if spe- ap- of of trict with the federal courts which have and interest constitutional before them to courts Justices, separately as self stated that a state people” by requiring dominant view the patriotism In earlier Ct. flag, Halter, supra Ct. at 1679.18 the furtherance is no O’Brien, supra First, ^[4] 419, particular purpose. Certainly alleged court symbol this suppression and if the incidental have and more the state greater question, times the and found, the First Amendment freedoms taken a similar attitude.21 of for other reasons.20 State love flag of preservation unity 391 U.S. at constitutional,19 contends, than recently 205 of free dissenting whether desecration statutes majority country on national the state respect “may this is the essential and the dis at expression; of been they restriction 377, encourage least four among interest.” Court 42, of the for has Street, or un found lower faced 88 S. ideas 27 pre flag its an it S. situation, apparently Indeed, recognized does not 17. this seems to be apply test, Joyce, 976, supra, the O’Brien instead treats but 454 F.2d at where the pure speech only evidencing if were the statute as court described conduct as California, Tinker; non-appreciation blessings v. involved. Cohen 15, 18, 29 L.Ed.2d represents, 91 403 U.S. S.Ct. intolerance Thornhill; (1971). representative Shut- government also 284 See finest Birmingham, City world, 394 feelings v. tlesworth note which we are 162 contemptuous. necessarily We it dif- find Nevertheless, description we have ficult to reconcile this with realization O’Brien with the test court’s conclusion that examining standards meet those the statute cannot which it not affect was did constitutionality, uncon- is a mar- First Amendment ginally. more than fortiori affecting pure if viewed as stitutional speech. parties case 18. We note States, 144 constitutionality Joyce; v. United 19. Hoffman liave treated statute’s ; (1971) U.S.App.D.C. compliance F.2d 226 445 in terms of F.Supp. Ferguson, 302 v. court United States O’Brien standards and the district (N.D.Cal.1969) ; v. De- application Sutherland 1111 based its decision on the (S.D.Ill.1971). Wulf, However, those standards. O’Brien concerned with situation where Morgan, F. Hodsdon; v. Parker “ ‘speech’ ‘nonspeech’ elements Supp. (W.D.N.C.1971). conduct”, in the same course of combined Waterman, 190 N.W.2d O’Brien, supra State 391 U.S. Radich, (Iowa 1971) ; People 26 N.Y. far in have thus 1678. What we said N.E.2d 2d 308 N.Y.S.2d 5 § dicates that ch. Mass.Gen.Laws equally Su divided speech aff’d containing affects not conduct preme Court, “silent, elements, non-speech also ; People v. Cow passive expression opinion” L.Ed.2d with the 28 gill, Cal.Rptr. Cal.App.2d “sym 274 appeal be viewed as which should not dismissed, speech”, be treated but rather should bolic ” (1970) ; ‘pure speech’ State “closely L.Ed.2d as akin because App.2d Kasnett, 283 N.E. signifi “political Ohio controversial County 1972). (Ct. App., symbols. Athens 2d 636 Tinker. In that cance” of the noted flag, including that there a valid opinions state interest those which are punishing contemptuous.” Street, acts desecration dis- defiant grace flag. 394 U.S. at 89 S.Ct. at 1366. While disrespect be that for the previously found grounds can constitute for non-criminal phrase contemptuously” “treats is so sanctions, promotion we think that so as words and include feel loyalty patriotism may not constitu- ings, acts, clearly as well thus trans tionally justification impo- furnish a gressing constitutionality the bounds of penalties. sition If verbal application in the former determined proscribed abuse cannot application Street. Yet when the encourage respect an effort for our constituting contemptuous also to an act symbol, national then we fail to under- flag, treatment of the there is arises an physical stand how abuse which is vis- explicitly by open sue left Mr. Justice ually communicative, archetype the situ- majority opinion in Harlan’s Street ation which the Massachusetts Cowgill. his in concurrence think reaches, similarly can be forbidden on Virginia that West of Board Education grounds. these nationalistic Barnette, 319 provides 87 L.Ed. 1628 a still any “If there is fixed star in our con- solid for it rationale the conclusion that constellation, stitutional it is that no power is not the within official, high prescribe petty, or can prescribe penalties a state to criminal what shall politics, be in orthodox na- proper respect for to to show failure tionalism, religion, or other matters of flag by wards our or Fac words acts. opinion by or force citizens confess tually, course, Barnette can be distin word or act their faith Bar- therein.” guished punishment because involved nette, supra 319 U.S. at affirmatively ges for in failure to act at 1366.22 flag symbol support ture of for the as a We do not in stand alone this conclu unity. of national Here we are con may politically unpopular, sion which be compe cerned with the constitutional required but is in our nevertheless view by tence of a state forbid by finding our Constitution. In the penalties gestures non-adherence, dis flag New York state desecration law un approval contempt the or basis overbroad, Judge constitutional as Chief promoting patriotism. applica Yet the accepts Lumbard Mr. Justice Harlan’s bility of Barnette rationale in this the analysis implications of Barnette adoption by situation is illustrated in Street and his dismissal “the proposition for Street the the con “ ensuring proper state’s interest re stitutionally protected be ‘freedom to spect integrity flag.” for intellectually . diverse or even supra 349-350; Cahn, 437 F.2d Cros ‘right contrary,’ and the to differ toas 1087-1088; son, F.Supp. things that touch the heart the exist- Thoms, supra at 1210- ing order,’ encompass ex- the freedom 1211.23 We therefore are satisfied that publicly press opinions about our one’s adhering in view of Barnette. In to the analysis 22. We find do not be principles espoused in Barnette we are conflict with decision Court’s challenge following what the sound- we believe There, Halter. Supreme er, certainly recent, more by mounted desecration for consideration state schemes Court flag sym- advertiser who had utilized patriotism. promoting sought bring bol on beer bottles. pro- general offensive conduct within has also ruled liberties, thus our tection afforded to pro- legitimate has interest “a state no problem expressly within did not treat tecting religions any dis- all views from of First framework prior justify to them” sufficient tasteful analysis. Wilson, Burstyn or under overbreadth restraints. judg- event, L.Ed. in our doubt there serious vitality of Halter ment as the continued pression. stat- sought punished by our Yet activity to be colloquy oral ute and Justice with counsel Mr. falls within this statute argument “opin if Mas- make it clear in Street concern Harlan’s sought contemptuous” sachusetts desecration law defiant ions by justified by promotion patriot- expressed added], they to ism, loyalty [emphasis nationalism, acts, cannot be can or communicative words punished being, is, engender by point do attempt re so as it directed in an expression blank at the of and mere be- flag.24 spect particular lief in ideas. Identical acts however, Obviously, state sufficiently committed to the —one prohibiting interest does have a valid contempt, and the to constitute scornful to com incite others will .conduct which requi- of that other done in the absence retaliatory provoke acts mit unlawful different- attitude —would be treated site amounting to a breach i actions Thus, ly counsel the statute. under just as quite possible that peace. It is admitted, protester who, while at- a war be speech threshold pure cross a begins tending rally at which safeguarded yond to be it ceases rain, disrespect evidences his Amendment, Chaplinsky v. contemptuously cover- American ing 568, 62 S.Ct. Hampshire, 315 U.S. New to avoid himself with it order L.Ed. wet, getting prosecuted under would be con we are symbolic speech with which Yet a mem- the Massachusetts statute. reject any suggestion though cerned, we Legion who, caught ber of the American 988-989 supra F.2d at Joyce, in returning while in the same rainstorm flag desecration that all acts n. or It” Leave from an “America—Love “fighting analogous the use to are flag, rally, similarly does so the but uses words”.25 contemptuous regrettably and without prosecuted. attitude, not be would Second, having that determined the thus in skele- power When statute is bared constitutional is the within infirmity form, tal its can punish the state ^desecration attempt adhere the be seen to not to presents threat immediate which some punish act, an but rather to an effort peace, there can be no of the breach isolate chastise an attitude said stat the Massachusetts doubt that broad contemptuous. mind It is an evil impor be or that ute furthers substantial penalized, sought is Similarly, which to be government we interest. tant im- rather the an what state considers Commonwealth must that the concede regards pure mind, one our which in assertion that were correct scorn, or of disdain with an attitude constitutionally promote national could Hodsdon, supra F.Supp. at through penalties, then ism Tinker, “officially approved”. strongly cannot supra fur statute’s in terrorem effect at 733. analy However, the that interest. thers here. not end under does sis O’Brien importantly, principles which Most state, attempted in- we have however Third, governmental interest al- adequately, in reflected Schacht are leged by must be un- the Commonwealth States, suppression ex- United of free related to suppression of Circuit, we, the statute is related to and the 24. Even if the Second expression, (2) fail just free it would in error in are cited courts in- in that under the fourth standard drawing from Barnette Street imposed important restriction teaching cidental state there is no particular physical protecting freedoms in- interest greater flag, than is essential tegrity would be decision of the our interest. subsequent furtherance of that discussion As our unaffected. compelled indicates, to hold would be Infra, at 103-104. fail an would that such interest either O’Brien standard under the third greater There incidental these burdens no confronted than Court was is essential to the furtherance of military O’Brien, supra man who vi- conviction had those interests. allowing olated federal Yet S.Ct. 1673. our wearing Army off-duty an uniform re- Massachusetts statute has productions heavy in theatrical which did vealed those are burdens Army. direct, incidental, “tend discredit” the rather than and are proscription justified attempt consequently was extreme neces- more than reaching non-expression- sary prevent classify peace. it as breaches allegedly unprotected by upon particular al conduct The statute focuses at- Yet, belief, First Amendment. Mr. Justice titude content than rather responded argument by pro- expression Harlan to that the form of of which stating that the defendant’s conviction vides the foundation for the offense. respect, it suffers from se- a more only if “can be sustained he can rious constitutional flaw than the flat

punished speaking against out ban on certain words which con- Army country role of the demned Cohen v. California. punishment Clearly Vietnam. for this reason would be an unconstitutional Moreover, we believe that abridgement speech. freedom narrowly not so in drawn “so toas The final clause statute] [this prohibition only clude within its those praise leaves Americans free types per desecration which se per the war Vietnam but can send likely to cause breaches of prison like [the sons defendant] peace.” Crosson, it, opposing cannot survive coun think that the Massachusetts try has the First Amendment.” scope most law is broad “[a]t Schacht, supra 63, 90 S.Ct. at 1559. reflects an ‘undifferentiated fear apprehension of is disturbance [which] punishing Like the statute the wear- enough right the to to overcome military if to uniform it tends [supra Tinker, expression.’ freedom military, discredit the Massachusetts 733, 21 [293 [89 U.S. at] 503] statute, to desecration the extent 731];" Cohen California, L.Ed.2d su pro- that it evidenced state interest pra at at As 91 S.Ct. 1787. U.S. moting nationalism, directly to is related punishes such, symbolic speech expression. suppression of free Like “peacefully constitute no more than regulation Tinker, the school it seeks expressing unpopular Cox v. views”. prohibit “expression particular Louisiana, 379 U.S. 85 S.Ct. opinion”. at Id. 393 U.S. 89 S.Ct. The Massachu Since, however, al- apparently setts courts no made effort leged additionally concerned with delineate the bounds this desecration peace, find breaches of the that we properly ap law so toas more confine its sufficiently second motive is unrelated plication to situations where disorder is suppression of First Amendment fact, Rescript Opinion imminent. In rights satisfy so element as the third Court, Judicial Common of the test. O’Brien Goguen, wealth v. 1972 Mass.Adv.Sh. 279 N.E.2d does no more than fourth, now We address concludes that it is not “on its last, step analysis. or as face in the O’Brien Since right to him experience a restraint pro has demonstrated the ” speech of freedom of . priety As imposing some restrictions reads, it now that statute suffi rights lacks exercise First Amendment “safeguards against impairment cient government where substantial interests liberty expression] that stake, when the York, [of are at Feiner New public order is not threatened.” Hods L.Ed. importance don, supra F.Supp. 535; Thoms, it is of utmost at integrity 1210; Crosson, physical F.Supp. supra acts which affect at accepted flag. Instead, part, we of the supra F.Supp. at purposes of protected the state’s contention form eliminate a statute would Thirty- by bound we are by improperly focus this case. Yet of communication supra Photographs, U.S. at content, ing upon on the Seven rather than 1400, Gooding, supra 369-370, more which would its occurrence locus of likely give at breaches concern Grayned, supra us at peace. teaches Cohen California authoritatively con- that we cannot the content “flat ban” on that a message legislation, do nor we strue state should within the is not impose. realize state courts have power here where the so of a state attitude, adopted nothing” be an “all or be drawn that fine distinctions of, supra, Cahn, as F.2d 348. This at the content tween constitutes what in, symbolic federal not a case like Street where a opposed method used excising could, by a few realm of speech. nebulous court Yet in the words, precise constitu- symbolic speech in the is truth draw lines there certainty the in- mes medium is the tional as eliminate “the statement that sage” terpretation provision suppress of the statute medium is Crosson, supra message, convict- under which defendant censor supra 1088; per Thoms, 334 F. rules of First Amend- ed. Such se at supra 1210; Hodsdon, privilege. F. Note, The First Amend- Supp. ment at Doctrine, supra 533-534, especially where it is ment Supp. Overbreadth conveyed passive appropriate being through form there because were Tinker, expression. the defendant the Court felt might convicted Street have been 89 S.Ct. 733. casting “by words”, contempt, limiting construction If some easily those from the could excise words foreseea- statute were desecration reversing thereby statute, that defend- might ble, to find unconsti- decline ant’s The case before us is conviction. we felt overbroad tutional deleting quite different not suf- would phrase contemptuously” from “treats However, we have in the interim. fer 5, we would Mass.Gen.Laws ch. § the Massachu- no reason believe completely frustrate subvert law. so limit courts would setts intention evidenced Commonwealth’s presented were claims Constitutional Clearly, Com- those terms. every rejected appellee level of argument, it does monwealth stated proceedings. “our Since the state court flag, punish not wish to all acts indi- must take account federalism” only contemptuous ones. Yet al- rights in its balanc- and liberties vidual ing leaving statute, the face it ter of this interests, of state and federal mutilates, publicly read tram- “Whoever clearly requires now without we act that ples upon, defaces [or] time, long waiting, anoth- perhaps for flag” legislating state, for the would be ruling on the statute’s court er state contempt the element of common because constitutionality. illimita- The advance every would offense under statute this which of criminal sanction ble threat Additionally, this is not be removed. poses to constitu- desecration law Sullivan, like case New York Times rights tionally-protected of others who L.Ed.2d similarly forego be can those States, or Roth v. timely only by decision. our eliminated L.Ed.2d previously that where statute dealt mentioned We have specific subject that the interpret matter such would have us the state immediately seize phrase could con- Court “treats such that statute (cid:127) could be thought constitutional factors temptuously” to refer few be judicial question in to the court should consider built While statute. vagueness libel, activity in a non-First-Amendment in the areas of slander context, that, obscenity context and this is now considered traditional portion ap- drawing of the Massachusetts in terms lines rescue stat- vague. plied impermissibly areas, here These utes in those action here dispositive determinations of this are would be more difficult and desira- less they appeal require for a since that dis- Note, ble federal court. The First granting the Doctrine, trict court order be Amendment su- writ Overbreadth pra at affirmed. 897-910. being so, express This I no view con- Therefore, having found that cerning the alternative far broader Mass.Gen.Laws ch. § affects ground constitutional affirmance large proportion area which includes a majority opinion, namely stated activities; of First Amendment that, of First con- view Amendment possesses potential for a substantial siderations, the Massachusetts statute is impermissible number applications; void There is a settled overbreadth. and that is not foreseeable appellate adjudication principle of statute’s applications unconstitutional questions immediately effectively could be ex necessary to dealt with this is unless cised without interruptions continued appeal. Moreover, dispose as the freedoms, First Amendment we conclude out, majority points over- since the the statute must fall as overbroad. weapon technique powerful breadth is a Lastly, it remains to be said that if which, used, improperly contra- is valid that the statute un- separa- principles vene of federalism or constitutionally impairs First Amend- powers, “it tion of should rights, vagueness ment its vice of is all gingerly prefer I federal courts.” long the more serious. A line of SuT my reserve own determinations preme Court cases the First Amend- case in delicate constitutional area for a proposition ment area stand for the must such determinations “The vice of unconstitutional made. aggravated where, here, further question operates to inhib- it the exercise of individual freedoms af- firmatively protected by the Constitu- Cramp

tion.” v. Board of In- Public struction, L.Ed.2d We therefore note statute, having Massachusetts vague, been determined America, UNITED STATES rights being substantially Appellee, by it, affected falls within this line of Gooding; Coates; cases. Interstate Stanley RISCHARD, Appellant. G. Circuit, Dallas, Inc. v. No. 72-1374. (1968); Key- Appeals, United States Court Regents, ishian v. Board of Eighth Circuit. Submitted Nov. (1967); Cox, supra 379 U.S. at S.Ct. 453. Decided Jan. Affirmed. HAMLEY, Judge (concur- Circuit

ring) : majority

I opinion concur

the extent it determines

Case Details

Case Name: Valarie Goguen v. Joseph Smith, Sheriff of Worcester County

Court Name: Court of Appeals for the First Circuit

Date Published: Dec 14, 1972

Citation: 471 F.2d 88

Docket Number: 72-1204

Court Abbreviation: 1st Cir.