On January 30, 1970, two police officers in Lomminster, Massachusetts, saw a man named Goguen wearing more or less strange of pants. On the left hip of his jeans, he had sewn a picture of the Stars and Stripes, the flag of the United States of America, about 10 centimeters wide by 15 centimeters long. The officer saw him talking to a group of people in a busy part of the city center, but it was clear that he was not holding a rally, nor was he attracting attention or blocking traffic. When the officer went to ask Gergen what the flag on his pants was about, he got a lot of laughs from the people there.
The next day, the officers sued Gergen in court under a Massachusetts law that prohibits "the destruction, trampling, defacing, and contemptuous misuse of the flag of the United States. The state law provides that publicly destroying, trampling, defacing, and contemptuously misusing the flag, whether it is public or private property, is punishable by a fine of $10 to $100 or by imprisonment for up to one year.
The officers did not charge Geoghegan with "destroying, trampling or defacing the flag," and in fact Geoghegan did not "destroy, trample or deface" the flag, but rather charged Geoghegan with "contemptuous misuse of the flag." Is sewing the flag on the buttocks of your pants "contemptuous misuse of the flag"?
A trial was held in Worcester County Superior Court, and a jury found Gergen guilty. The court sentenced Gergen to six months in prison. Gergen appealed to the Massachusetts Supreme Criminal Court, and the state's highest court upheld the conviction. When Geoghegan began serving his sentence, he filed a petition for a writ of habeas corpus in the federal district court for the District of Massachusetts, that is, a request for federal court review of the judgment in the case. As a result, the federal district court held that the "contemptuous misuse of the flag" provision of the Massachusetts law was too vague under the "due process" doctrine of the Fourteenth Amendment to the Constitution and that the law was so broad as to be contrary to the First Amendment to the Constitution * * *. of the First Amendment to the Constitution.
The officers appealed to the Commonwealth Court of Appeals. The appeals court agreed with the district court's ruling that Massachusetts state law did not provide sufficient standards and criteria for what exactly constitutes "contemptuous misuse of the flag. The language of the state law did not give sufficient warning to the public, did not give law enforcement officers sufficiently clear boundaries to enforce the law, and did not give courts and juries a clear standard for sentencing. This law with its overly vague language cannot stand and should be repealed.
In 1974, the case was finally appealed to the federal Supreme Court. It became known as Smith v. Goguen.
I. The Supreme Court Decision
The Federal Supreme Court ruled six to three in favor of Goguen, with **Justice Lewis F. Powell delivering the opinion on behalf of the Court.
As a rule, the Supreme Court ruling begins by affirming that the federal Supreme Court has jurisdiction to review and decide the case. The Supreme Court agreed with the district court and the Court of Appeals that the state law was "too vague." Mr. Powell * * * stated that the principle that the language of a law cannot be vague is unquestioned because it is so closely related to the "fairness" of the law and the disciplinary significance of the administration of justice. The Due Process Clause of the Fourteenth Amendment requires the legislature to provide law enforcement officials and the public with sufficiently clear standards of judgment when enacting legislation, to provide a clear line of demarcation between what is lawful and what is unlawful, and to avoid subjective, arbitrary, and discriminatory judgments on the part of law enforcement officials. In this case, the Massachusetts law of "openly and contemptuously treating the flag of the United States" is too vague to provide a clear judicial judgment in this case.
Justice Powell said in his opinion that as early as 1968, the Supreme Court of the Commonwealth had noted that "what may seem contemptuous to some may be an art to others." In this case, he said, what Gergen did may not have been "art," and may have been a childish "bungling," but the federal district court was right: the flag has become a decorative fad among young people, and is used casually on a variety of occasions in a variety of ways. The casual use of the flag for decoration on a variety of occasions has become widespread. Americans often adorn their hats and t-shirts with the flag. Adorning the flag on casual clothing may be out of respect and admiration for the flag, or it may just be to attract attention. It is also common to place a small flag when selling hot dogs or ice cream, for example. Massachusetts law doesn't always seem to want to make any of these behaviors illegal. But today's proliferation of random flag decorations may seem, to some conservative stereotypes, to be a sign of contempt for the flag. **Officials point out that the law can't force ordinary people to guess what exactly the law means. The phrase "openly contemptuous use of the flag" is asking the public and law enforcement to guess. If embellishing a hat with the flag is not "contemptuous" and embellishing pants is "contemptuous", where is the line? The law does not express this line, and such a "too vague" law imposes on the people the burden of guessing what is legal and what is illegal, which can only make the people at a loss; at the same time, such a law which lacks a standard of judgment allows the police, the prosecutor and the jury to make judgments in accordance with their own value preferences, and in accordance with their own good and bad feelings towards specific people and specific occasions. occasions to make judgments. Such laws, which do not guarantee consistency or equal treatment for all, clearly violate the 14th Amendment's principle of "due process," and are therefore unconstitutional.
Officer Powell acknowledged that in some areas of human behavior, it is difficult for a government legislature to make detailed and precise rules about what is legal and what is illegal, and that it is up to the public, law enforcement officials and the courts to make judgments on the basis of the specific circumstances of the time. For example, in order to maintain order at a large-scale * * * rally, law enforcement officers must sometimes make judgments about what * * * people are allowed to do and what they are not allowed to do, in addition to relying on pre-established laws and policies. But the law of "contemptuous misuse of the flag" is not such a special case, and the law does not leave it up to law enforcement officers to determine whether a person is "contemptuous of the flag"; rather, it should be clearly defined in advance, so that law enforcement officers have something to go on. The use of the national flag for ceremonial purposes and the use of the national flag for decoration are so common nowadays, and the fashions are changing all the time, and there are so many colorful forms, that it is impossible for the Government to outlaw them all at once. This is all the more reason for the law to make a clear statement as to what exactly is illegal. If the language of the law is not capable of making such a statement, it cannot be used to penalize. Judge Powell** declared the Massachusetts law on "contemptuous misuse of the flag" invalid because it was "too vague."
Opinion of ***Justice White
Among the ***justices who voted to concur in the Supreme Court's decision was ***Justice Byron R. White. He agreed with Mr. Powell's ruling that the Massachusetts state law of "contempt of the flag" was unconstitutional and invalid; however, he disagreed with the reasoning of Mr. Powell's ruling. So, as a concurring **Justice**, he issued his personal opinion. That personal opinion is interesting.
Justice White said the Supreme Court ruled that the Massachusetts law was unconstitutional because the language was vague and lacked a clear standard of judgment, and that while he agreed that the law should be invalidated, he didn't think it was because it was "too vague." He said that there are a range of behaviors that one can self-evidently judge, based on common sense, to be contemptuous. When it comes to the flag, it may also be clear that some behaviors are "disparaging uses" prohibited by state law and do not require ad hoc guesswork on the part of law enforcement officials. Just because state law may not specify whether all conduct is "contemptuous of the flag" does not mean that all conduct cannot be judged. In this case, anyone should be able to determine that sewing a flag onto the buttocks of one's pants is an act of "contempt" for the flag that is covered by the state law definition of "contemptuous misuse of the flag." In upholding Gergen's conviction, the Massachusetts Supreme Criminal Court noted that "the jury's verdict means that the jury found that Gergen's offense was intentional." Gergen could hardly argue that he did so without realizing that it was prohibited by state law.
So, Judge White** argued, Massachusetts law was not "too vague" on this point, and Gergen was aware of it. He cited Gergen's main argument: that he sewed a flag patch on the hip of his pants to make a point. A point of view that the officers found unpatriotic, believing that Geoghegan was trying to make the point that America was a place to sit on one's ass, or even something worse. Regardless, there's no mistaking that what he did was trying to make a powerful point.
So, Judge White** points out, Massachusetts state law is not ambiguous, at least to Gergen. Even though the state law may still be too vague for other people, in other contexts, it cannot be ruled "too vague" because the principle of judicial self-control requires the Supreme Court to stay within the bounds of the conduct of which the defendant is accused when it comes to judicial review. A law cannot be invalidated as "too vague" just because some marginal acts are difficult to determine.
In this way, Judge White** took a very different view than Judge Powell**, who held that the state law was not vague. So why does he still think the state law should be repealed?
The real unavoidable question, he says, is whether the Massachusetts law's "contemptuous treatment of the flag" provision violates First Amendment principles. The First Amendment's * * * is, of course, directed to speech. If an act does not express any opinion or point of view, it is not within the scope of * * *. The Supreme Court in 1968 in United States v. O'Brien noted that the government has the power to regulate or prohibit the time, place, and manner of certain conduct, even though it serves the purpose of expressing a viewpoint and is so-called expressive conduct.
Justice White** argued that there is no question that Congress has the power to determine the design of the flag and likewise the power to legislate to protect the integrity of the flag. Congress has the power under the Constitution to legislate for the general welfare, to regulate interstate commerce, to provide for the national defense, etc., and it certainly has the power to protect the sovereignty of the nation and the flag as one of the symbols of that sovereignty. The flag has played a very important role in human affairs. The United States of America has its own flag, and there can be laws governing how it is to be used, displayed, and placed, and how it is to be made, imitated, sold, possessed, and destroyed.
It can be seen that, in fact, Judge White **was** one of the Supreme Court **officials** who advocated for the protection of the flag. So why did he agree with the ruling in Gergen's favor? What convicted Gergen under Massachusetts law, White said, was not what Gergen did to the flag, but that Gergen "treated with contempt" the flag of the United States. Under this provision of state law, to be convicted, Geoghegan must not only have "treated" the flag, but must have treated it "with contempt", which is commonly understood to mean expressing "contempt" for the flag. ". Convicting Grogan on that basis would punish Grogan not only for what he did to the flag, but also for "expressing" ideas about the flag that the dominant majority does not approve of.
That is, while Grogan "did something" to the flag (sewing a patch on the butt of his pants), the state law punishes him not only for what he did to the flag, but also for the ideas he wanted to "express" about the flag. State law here prohibits not only the act, but the expression of the thought. It is this that Judge White** cannot agree with.
Reviewing the federal Supreme Court's rulings in cases involving the flag, Judge White pointed out that in the United States, the law cannot compel anyone to honor the flag as an expression of respect. Moreover, previous Supreme Court decisions have established the rule that expressing contempt and disrespect for the flag in spoken or written words is not punishable by law. Similarly, an act against the flag that is sufficiently "expressive" of an idea is protected by the First Amendment. Herein lies the problem with the Massachusetts law, which says that Geoghegan's behavior did not "express" any ideas, and that it was not "disrespectful" to the flag. If Gergen's behavior is found to be "contemptuous" of the flag, then this "contempt" is exactly the "thought" that Gergen wanted to "express", and this expression must be "expressed". "and that expression must be protected by the **principle** of the First Amendment.
So, Judge White** said he agreed with the majority of the Supreme Court that this Massachusetts law was unconstitutional and should be invalidated.