Smith v. Goguen

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 72-1254 Argued: November 12-13, 1973 --- Decided: March 25, 1974
MR. JUSTICE POWELL delivered the opinion of the Court.

The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag misuse statute unconstitutionally vague and overbroad. 471 F.2d 88 (1972), aff'g 343 F.Supp. 161 (Mass). We noted probable jurisdiction. 412 U.S. 905 (1973). We affirm on the vagueness [p568] ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.

I

The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers. [n1] The flag was approximately four by six inches, and was displayed at the left rear of Goguen's blue jeans. On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen's apparel. [n2] No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominster.

The following day, the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag misuse statute. The relevant part of the statute then read:

Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the [p569] United States . . . whether such flag is public or private property . . . shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . . [n3] [p570]

Despite the first six words of the statute, Goguen was not charged with any act of physical desecration. [n4] As permitted by the disjunctive structure of the portion of the statute dealing with desecration and contempt, the officer charged specifically and only that Goguen "did publicly treat contemptuously the flag of the United States. . . ." [n5]

After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court-imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, ___ Mass. ___, 279 N.E.2d 666 (1972). That court rejected Goguen's vagueness argument with the comment that, "[w]hatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here." Id. at ___, 279 N.E.2d at 667. The court cited no Massachusetts precedents [p571] interpreting the "treats contemptuously" phrase of the statute. [n6]

After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. 343 F.Supp. 161. The District Court found the flag contempt portion of the Massachusetts statute impermissibly vague under the Due Process Clause of the Fourteenth Amendment, as well as overbroad under the First Amendment. In upholding Goguen's "void for vagueness" contentions, the court concluded that the words "treats contemptuously" did not provide a "readily ascertainable standard of guilt." Id. at 167. Especially in "these days when flags are commonly displayed on hats, garments and vehicles . . . ," the words under which Goguen was convicted "leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution." Ibid. The court also found that the statutory language at issue "may be said to encourage arbitrary and erratic arrests and convictions." Ibid.

The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amendment and vagueness grounds. 471 F.2d 88. With regard to the latter ground, the Court of Appeals concluded that "resolution of [Goguen's "void for vagueness"] challenge to the statute as applied to him necessarily adjudicates the statute's facial constitutionality. . . ." Id. at 94. Treat [p572] ing as-applied and on-the-face vagueness attacks as essentially indistinguishable in light of the imprecision of the statutory phrase at issue, id. at 92, 94, the court found that the language failed to provide adequate warning to anyone, contained insufficient guidelines for law enforcement officials, and set juries and courts at large. Id. at 996. Senior Circuit Judge Hamley, sitting by designation from the Ninth Circuit, concurred solely in the "void for vagueness" holding. Id. at 105. Judge Hamley saw no need to reach the "far broader constitutional ground" of First Amendment overbreadth relied on by the majority, noting the "settled principle of appellate adjudication that constitutional questions are not to be dealt with unless this is necessary to dispose of the appeal." Ibid.

II

We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. [n7] The doctrine incorporates notions of fair notice or warning. [n8] Moreover, it requires [p573] legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent "arbitrary and discriminatory enforcement." [n9] Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts. [n10] The statutory language at issue here, "publicly . . . treats contemptuously the flag of the United States . . . ," has such scope, e.g., Street v. New York, 394 U.S. 576 (1969) (verbal flag contempt), and at the relevant time was without the benefit of judicial clarification. [n11]

Flag contempt statutes have been characterized as void for lack of notice on the theory that "[w]hat is contemptuous to one man may be a work of art to another." [n12] Goguen's behavior can hardly be described as art. Immaturity or "silly conduct" [n13] probably comes closer to the mark. But we see the force of the District Court's observation that the flag has become [p574] "an object of youth fashion and high camp. . . ." 343 F.Supp. at 164. As both courts below noted, casual treatment of the flag in many contexts has become a widespread contemporary phenomenon. Id. at 164, 167; 471 F.2d at 96. Flag wearing in a day of relaxed clothing styles may be simply for adornment or a ploy to attract attention. It and many other current, careless uses of the flag nevertheless constitute unceremonial treatment that many people may view as contemptuous. Yet, in a time of widely varying attitudes and tastes for displaying something as ubiquitous as the United States flag or representations of it, it could hardly be the purpose of the Massachusetts Legislature to make criminal every informal use of the flag. The statutory language under which Goguen was charged, however, fails to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not. Due process requires that all "be informed as to what the State commands or forbids," Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939), and that "men of common intelligence" not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Given today's tendencies to treat the flag unceremoniously, those notice standards are not satisfied here.

We recognize that, in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language. [n14] In such cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine -- the requirement that a legislature establish minimal guidelines to govern law enforcement. It is in this regard that the statutory language under scrutiny has its most notable deficiencies. [p575]

In its terms, the language at issue is sufficiently unbounded to prohibit, as the District Court noted, "any public deviation from formal flag etiquette. . . ." 343 F.Supp. at 167. Unchanged throughout its 70-year history, [n15] the "treats contemptuously" phrase was also devoid of a narrowing state court interpretation at the relevant time in this case. [n16] We are without authority to cure that defect. [n17] Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U.S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking "to the moment-to-moment judgment of the policeman on his beat." The aptness of his admonition is evident from appellant's candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:

[A]s counsel [for appellant] admitted, a war protestor [p576] who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an "America -- Love It or Leave It" rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted.

471 F.2d at 102 (emphasis in original). Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.

III

Appellant's arguments that the "treats contemptuously" phrase is not impermissibly vague, or at least should not be so held in this case, are unpersuasive. Appellant devotes a substantial portion of his opening brief, as he did his oral argument, to the contention that Goguen failed to preserve his present "void for vagueness" claim for the purposes of federal habeas corpus jurisdiction. Appellant concedes that the issue of "vagueness as applied" is properly before the federal courts, [n18] but contends that Goguen's only arguable claim is that the statute is vague on its face. The latter claim, appellant insists, was not presented to the state courts with the requisite fair precision. Picard v. Connor, 404 U.S. 270 (1971). This "exhaustion of remedies" argument is belatedly raised, [n19] and it fails to take the full measure of [p577] Goguen's efforts to mount a vagueness attack in the state courts. [n20] We do not deal with the point at length, however, for we find the relevant statutory language impermissibly vague as applied to Goguen. Without doubt, the "substance" of this claim was "fairly presented" to the state courts under the exhaustion standards of Picard, supra at 275, 278.

Appellant's exhaustion of remedies argument is premised on the notion that Goguen's behavior rendered him a hard-core violator as to whom the statute was not vague, whatever its implications for those engaged in different conduct. To be sure, there are statutes that, [p578] by their terms or as authoritatively construed, apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes. The present statute, however, is not in that category. This criminal provision is vague

not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.

Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Such a provision simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause. The deficiency is particularly objectionable in view of the unfettered latitude thereby accorded law enforcement officials and triers of fact. Until it is corrected either by amendment or judicial construction, it affects all who are prosecuted under the statutory language. In our opinion the defect exists in this case. The language at issue is void for vagueness as applied to Goguen because it subjected him to criminal liability under a standard so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.

Turning from the exhaustion point to the merits of the vagueness question presented, appellant argues that any notice difficulties are ameliorated by the narrow subject matter of the statute, viz., "actual" flags of the United States. [n21] Appellant contends that this "takes some of the vagueness away from the phrase, ‘treats contemptuously. . . .'" [n22] Anyone who

wants notice as to what conduct this statute proscribes . . . immediately knows that it has something to do with flags and if he [p579] wants to stay clear of violating this statute, he just has to stay clear of doing something to the United States flag. [n23]

Apart from the ambiguities presented by the concept of an "actual" flag, [n24] we fail to see how this alleged particularity resolves the central vagueness question -- the absence of any standard for defining contemptuous treatment.

Appellant's remaining arguments are equally unavailing. It is asserted that the first six words of the statute add specificity to the "treats contemptuously" phrase, and that the Massachusetts Supreme Judicial Court customarily construes general language to take on color from more specific accompanying language. But it is conceded that Goguen was convicted under the general phrase alone, and that the highest state court did not rely on any "general to specific" principle of statutory [p580] interpretation ill this case. [n25] Appellant further argues that the Supreme Judicial Court in Goguen's case has restricted the scope of the statute to intentional contempt. [n26] Aside from the problems presented by an appellate court's limiting construction in the very case in which a defendant has been tried under a previously unnarrowed statute, [n27] this holding still does not clarify what conduct constitutes contempt, whether intentional or inadvertent.

Finally, appellant argues that state law enforcement authorities have shown themselves ready to interpret this penal statute narrowly and that the statute, properly read, reaches only direct, immediate contemptuous acts that "actually impinge upon the physical integrity of the flag." [n28] There is no support in the record for the former point. [n29] Similarly, nothing in the state [p581] court's opinion in this case or in any earlier opinion of that court sustains the latter. In any event, Goguen was charged only under the wholly open-ended language of publicly treating the flag "contemptuously." There was no allegation of physical desecration.

There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order. Cf. Colten v. Kentucky, 407 U.S. 104 (1972). But there is no comparable reason for committing broad discretion to law enforcement officials in the area of flag contempt. Indeed, because display of the flag is so common and takes so many forms, changing from one generation to another and often difficult to distinguish in principle, a legislature should define with some care the flag behavior it intends to outlaw. Certainly nothing prevents a legislature from defining with substantial specificity what [p582] constitutes forbidden treatment of United States flags. [n30] The statutory language at issue here fails to approach that goal, and is void for vagueness. [n31] The judgment is affirmed. [n32]

It is so ordered. [p583]

1. The record consists solely of the amended bill of exceptions Goguen filed in the Massachusetts Supreme Judicial Court, the opposing briefs before that court, the complaint under which Goguen was prosecuted, and Goguen's federal habeas corpus petition. App. 1-36, 42-43. We do not have a trial transcript, although Goguen's amended bill of exceptions briefly summarizes some of the testimony given by witnesses for the prosecution at his state trial. Goguen did not take the stand. Thus, we do not have of record his account of what transpired at the time of his arrest or of his purpose in wearing a flag on the seat of his trousers.

2. Tr. of Oral Arg. 5-6, 35-36.

3. Mass.Gen.Laws Ann., c. 264, § 5. Omitting several sentences protecting the ceremonial activities of certain veterans' groups, the statute read as follows at the time of Goguen's arrest and conviction:

§ 5. Flag; penalty for misuse

Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States or of Massachusetts, whether such flag is public or private property, or whoever displays such flag or any representation thereof upon which are words, figures, advertisements or designs, or whoever causes or permits such flag to be used in a parade as a receptacle for depositing or collecting money or any other article or thing, or whoever exposes to public view, manufactures, sells, exposes for sale, gives away or has in possession for sale or to give away or for use for any purpose, any article or substance, being an article of merchandise or a receptacle of merchandise or articles upon which is attached, through a wrapping or otherwise, engraved or printed in any manner, a representation of the United States flag, or whoever uses any representation of the arms or the great seal of the commonwealth for any advertising or commercial purpose, shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. Words, figures, advertisements or designs attached to, or directly or indirectly connected with, such flag or any representation thereof in such manner that such flag or its representation is used to attract attention to or advertise such words, figures, advertisements or designs, shall for the purposes of this section be deemed to be upon such flag.

The statute is an amalgam of provisions dealing with flag desecration and contempt (the first 26 words) and with commercial misuse or other exploitation of flags of the State and National Governments. This case concerns only the "treats contemptuously" phrase of the statute, which has apparently been in the statute since its enactment in 1899. 471 F.2d 88, 90 n. 2 (1972).

In 1971, subsequent to Goguen's prosecution, the desecration and contempt portion of the statute was amended twice. On March 8, 1971, the legislature, per Stats.1971, c. 74, modified the first sentence by inserting "burns or otherwise" between the terms "publicly" and "mutilates," and, in addition, by increasing the fine. Mass.Gen.Laws Ann., c. 264, § 5 (Supp. 1973). On August 12, 1971, per Stats.1971, c. 655, the legislature appended a new sentence defining "the flag of the United States" phrase appearing in the first sentence:

For the purposes of this section, the term "flag of the United States" shall mean any flag which has been designated by Act or Resolution of the Congress of the United States as the national emblem, whether or not such designation is currently in force.

Ibid. The 1971 amendments are relevant to this case only in the tangential sense that they indicate a recognition by the legislature of the need to tighten up this imprecise statute.

4. Perhaps this was because of the difficulty of the question whether Goguen's conduct constituted physical desecration of the flag. Cf. 471 F.2d at 91 n. 4 ("[W]e are not so sure that sewing a flag to a background clearly affects ‘physical integrity'").

5. App. 4

6. Appellant correctly conceded at oral argument that Goguen's case is the first recorded Massachusetts court reading of this language. Tr. of Oral Arg. 17-18. Indeed, with the exception of one case at the turn of the century involving one of the statute's commercial misuse provisions, Commonwealth v. R. I. Sherman Mfg. Co., 189 Mass. 76, 75 N.E. 71 (1905), the entire statute has been essentially devoid of state court interpretation.

7. The elements of the "void for vagueness" doctrine have been developed in a large body of precedent from this Court. The cases are categorized in, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). See Note, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).

8. E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 453 (193) ("No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids") (citations omitted); Connally v. General Construction Co., 269 U.S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law") (citations omitted).

9. E.g., Grayned, supra at 108; United States v. Cohen Grocery Co., 255 U.S. 81, 89 (1921) ("[T]o attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury"); United States v. Reese, 92 U.S. 214, 221 (1876) ("It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large").

10. E.g., Grayned, supra, at 109; Smith v. California, 361 U.S. 147, 151 (1959). Compare the less stringent requirements of the modern vagueness cases dealing with purely economic regulation. E.g., United States v. National Dairy Products Corp., 372 U.S. 29 (1963) (Robinson-Patman Act).

11. See n. 6, supra.

12. Note, 66 Mich.L.Rev. 1040, 1056 (1968).

13. 343 F.Supp. 161, 166.

14. Note, 109 U.Pa.L.Rev., supra, n. 7, at 82 n. 79.

15. See n. 3, supra.

16. See n. 6, supra. The contempt portion of the Massachusetts statute seems to have lain fallow for almost its entire history. Apparently there have been about a half dozen arrests under this part of the statute in recent years, but none has produced a reported decision. Tr. of Oral Arg. 2&-29. In 1968, a teenager in Lynn, Massachusetts, was charged, apparently under the present statute, with desecrating the United States flag by sewing pieces of it into his trousers. New York Times, Sept. 1, 1968, p. 31, col. 1. The teenager was ordered by a state district court to prepare and deliver an essay on the flag. The court continued the case without a finding, depriving it of any precedential value.

17. E.g., United States v. Thirty-seven Photographs, 402 U.S. 363, 369 (1971).

18. Reply Brief for Appellant 4.

19. Goguen filed his federal habeas corpus petition subsequent to Picard v. Connor, 404 U.S. 270 (1971). Yet it appears that appellant did not raise his present exhaustion of remedies argument before the District Court. That court commented specifically on this omission:

No contention is now made that [Goguen] has not exhausted state remedies, nor that the constitutional issues presented here were not raised appropriately in state proceedings.

343 F.Supp. at 164.

20. Goguen filed in State Superior Court an unsuccessful motion to dismiss the complaint in which he cited the Fourteenth Amendment and alleged that the statute under which he was charged was "impermissibly vague and incapable of fair and reasonable interpretation by public officials." App. 1. This motion was also before the Massachusetts Supreme Judicial Court, since it was incorporated in Goguen's amended bill of exceptions. Ibid. In addition, Goguen's brief before that court raised vagueness points and cited vagueness cases. Id. at 19, 26-27, citing Lanzetta v. New Jersey, 306 U.S. 451 (1939), and Parker v. Morgan, 322 F.Supp. 585 (WDNC 1971) (three-judge court) (North Carolina flag contempt statute void for vagueness and overbreadth). Appellant is correct in asserting that Goguen failed to compartmentalize in his state court brief the due process doctrine of vagueness and First Amendment concepts of overbreadth. See App. 19-24. But permitting a degree of leakage between those particular adjoining compartments is understandable. Cf. Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 871-875 (1970). The highest state court's opinion, which dealt separately with Goguen's First Amendment and vagueness claims, Commonwealth v. Goguen, ___ Mass. ___, 279 N.E.2d 666, 667 (1972), indicates that that court was well aware that Goguen raised both sets of arguments.

21. Brief for Appellant 17; Tr. of Oral Arg. 9.

22. Ibid.

23. Ibid.

24. At the time of Goguen's prosecution, the statute referred simply to "the flag of the United States . . . ," without further definition. That raises the obvious question whether Goguen's miniature cloth flag constituted "the flag of the United States. . . ." Goguen argued unsuccessfully before the state courts that the statute applied only to flags that met "official standards" for proportions, such as relation of height to width and the size of stripes and the field of stars, and that the cloth he wore did not meet those standards. Tr. of Oral Arg. 11-12, 226; App. 2. There was no dispute that Goguen's adornment had the requisite number of stars and stripes and colors. Tr. of Oral Arg. 11-12. The Massachusetts Supreme Judicial Court found Goguen's cloth flag to be covered by the statute, noting that "[t]he statute does not require that the flag be ‘official,'" Commonwealth v. Goguen, ___ Mass. at ___, 279 N.E.2d at 668. The lower federal courts did not address this holding, nor do we. We note only that the Massachusetts Legislature apparently sensed an ambiguity in this respect, because, subsequent to Goguen's prosecution, it amended the statute in an effort to define what it had meant by the "flag of the United States." See n. 3, supra.

25. Tr. of Oral Arg. 48

26. The Massachusetts court commented simply that "[t]he jury could infer that the violation was intentional without reviewing any words of the defendant." Commonwealth v. Goguen, supra, at ___, 279 N.E.2d at 668. Thus, the court held that the jury could infer intent merely from Goguen's conduct. This is apparently also a holding that the jury must find contemptuous intent under the statute, although the requirement amounts to very little, since it is so easily satisfied. The court's reference to verbal communication reflected Goguen's reliance on Street v. New York, 394 U.S. 576 (1969).

27. E.g., Ashton v. Kentucky, 384 U.S. 195, 198 (1966).

28. Brief for Appellant 22.

29. With regard to prosecutorial policies, appellant cites two published opinions of the Massachusetts Attorney General. 4 Op.Atty.Gen. 470-473 (1915) (reproduced in Brief for Appellant 30); Report of Atty. Gen., Pub. Doc. No. 12, p. 192 (1968) (reproduced in Jurisdictional Statement App. 53). Appellant concedes that neither deals with the contempt portion of the statute under which Goguen was convicted. Thus, they are not in point here. They provided guidance to no one on the relevant statutory language. Nevertheless, appellant is correct that they show a tendency on the part of the State Attorney General to read other portions of the statute narrowly. At the same time, they reflect the lack of precision recurring throughout the Massachusetts flag misuse statute. The 1915 opinion noted that a literal reading of one portion of the statute, prohibiting exhibition of engravings of the flag on certain articles, would make it a criminal offense to display the flag itself "in many of its cheaper and more common forms." Brief for Appellant 31-32. The State Attorney General concluded that this would be a "manifest absurdity." Id. at 32. The 1968 opinion advised that a flag representation painted on a door was not "a flag of the United States" within the meaning of the statute. Jurisdictional Statement App. 53-55. A contrary interpretation would "raise serious questions under the First and Fourteenth Amendments . . . ," given the requirement that behavior made criminal must be "plainly prohibited by the language of the statute." Id. at 54.

30. The federal flag desecration statute, for example, reflects a congressional purpose to do just that. In response to a warning by the United States Attorney General that to use such unbounded terms as "defies" or "casts contempt . . . either by word or act" is "to risk invalidation" on vagueness grounds, S.Rep. No. 1287. 90th Cong., 1st Sess., 5 (1968); H.R.Rep. No. 350, 90th Cong., 1st Sess., 7 (1967), the bill which became the federal statute was amended, 113 Cong.Rec. 16449, 16450 (1967), to reach only acts that physically damage the flag. The desecration provision of the statute, 18 U.S.C. § 700(a), declares:

(a) Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

The legislative history reveals a clear desire to reach only defined physical acts of desecration. "The language of the bill prohibits intentional, willful, not accidental or inadvertent, public physical acts of desecration of the flag." H.R.Rep. No. 350, supra, at 3; S.Rep. No. 1287, supra, at 3. The act has been so read by the lower federal courts, which have upheld it against vagueness challenges. United States v. Crosson, 462 F.2d 96 (CA9) cert. denied, 409 U.S. 1064 (1972); Joyce v. United States, 147 U.S.App.D.C. 128, 454 F.2d 971 (1971), cert. denied, 405 U.S. 969 (1972). See Hoffman v. United States, 144 U.S.App.D.C. 156, 445 F.2d 226 (1971).

31. We are aware, of course, of the universal adoption of flag desecration or contempt statutes by the Federal and State Governments. See n. 30, supra. The statutes of the 50 States are synopsized in Hearings on H.R. 271 et al., before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., ser. 4, pp. 324-346 (1967). Most of the state statutes are patterned after the Uniform Flag Law of 1917, which in § 3 provides:

No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield.

Compare 9B Uniform Laws Ann. 52-53 (1966), with Hearings on H.R. 271 et al., supra, at 321-346. Because it is stated in the disjunctive, this language, like that, before us, makes possible criminal prosecution solely for casting contempt upon the flag. But the validity of statutes utilizing this language, insofar as the vagueness doctrine is concerned, will depend as much on their judicial construction and enforcement history as their literal terms.

32. We have not addressed Goguen's First Amendment arguments because, having found the challenged statutory language void for vagueness, there is no need to decide additional issues. Moreover, the skeletal record in this case, see n. 1, supra, affords a poor opportunity for the careful consideration merited by the importance of the First Amendment issues Goguen has raised.
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