The opinion of the court was delivered by: WYATT
This is a motion by plaintiffs for the convening of a three-judge district court (28 U.S.C. §§ 2281, 2282 and 2284) and for a preliminary injunction restraining defendants from prosecuting plaintiffs under N.Y. General Business Law, McKinney's Consol. Laws, c. 20, § 136(d) or 18 U.S.C. § 700 or otherwise enforcing those statutes. The cited statutes (in short) make it an offense to defile or otherwise to cast contempt on the flag of the United States.
That part of the motion which asks for a preliminary injunction must be addressed to a three-judge court, if one be convened; it may not be considered at this stage by a single judge (28 U.S.C. §§ 2281 and 2282).
The motion was brought on by order to show cause and was heard on February 16, 1971.
This action was commenced on February 5, 1971. Jurisdiction is said to be based on 28 U.S.C. §§ 1331 and 1343 and on 42 U.S.C. § 1983. The prayer in the complaint is for the convening of a three-judge court, for a declaratory judgment that the cited New York and federal statutes are unconstitutional and void (28 U.S.C. §§ 2201 and 2202), and for interlocutory and permanent injunctions against their enforcement. The impetus for commencement of the action seems to have been an exhibition, said to have been of "art", called "The People's Flag Show" which began in the City of New York on November 9, 1970. The exhibition featured various uses or representations of the national flag.
There are twenty-two named plaintiffs. Most of these are not described in any detail in the complaint. Plaintiffs Hendricks, Ringgold and Van Imschoot are described as members of an "Independent Artists Flag Show Committee"; plaintiff Hoffman is described as the "defendant-appellant" in an appeal now pending before the United States Court of Appeals for the District of Columbia Circuit from a conviction in the District of Columbia Court of General Sessions for violation of 18 U.S.C. § 700. Otherwise, plaintiffs are described simply as "artists", and "many" are said to have been exhibitors at "The People's Flag Show".
The defendants, named individually and in their official capacities, are the Governor of the State of New York, the Attorney General of the State of New York, the District Attorney for New York County, the Attorney General of the United States, and the United States Attorney for this District.
The plaintiffs are said to be "all residents of the City and State of New York" and defendants are all said to be citizens of the United States.
The complaint avers that the Independent Artists Flag Show Committee organized "an art exhibition entitled 'The People's Flag Show'" which opened at Judson Memorial Church in Manhattan on November 9, 1970; that the show contained over 200 works of sculpture, painting, film and of other "media"; that on the evening of November 13, 1970, plaintiffs Hendricks, Ringgold and Van Imschoot were arrested by New York City policemen at Judson Memorial Church; that a police officer ordered that the show not be opened the following day and "warned that whoever opened the show to the public would be arrested"; and that Hendricks, Ringgold and Van Imschoot are co-defendants in "a criminal prosecution" now pending in the New York City Criminal Court. As to plaintiff Hoffman, it is averred that after his arrest and conviction on November 20, 1968 for violation of 18 U.S.C. § 700 in the District of Columbia, he was invited to appear on a television show on the Columbia Broadcasting System, Inc. (CBS); that prior to the telecast the president of CBS announced to viewers that Hoffman "would be visually blacked out because he was wearing a shirt that resembled the American flag and that CBS felt that such an expression might be a violation of federal law"; that the "blackout" destroyed the effectiveness of Hoffman's presentation; that he was invited to reappear on CBS if he undertook not to wear the shirt; and that on November 9, 1970, Hoffman appeared at the People's Flag Show wearing "a replica of the shirt in which he attempted to appear on CBS and in which he had been arrested on October 3, 1968" (presumably this was his arrest in the District of Columbia).
The reason for the arrest and prosecution of plaintiffs Hendricks, Ringgold and Van Imschoot is not made to appear in the body of the complaint, but Appendix 1 to the complaint is a copy of an affidavit of a police officer which accuses Ringgold, Hendricks and Van Imschoot of violating N.Y. General Business Law § 136(d) "by the act of exhibiting * * * [the United States] flag in open view so formed as to resemble in shape a human penis, and draped from a toilet bowl and other manner to mock, descrate (sic), and hold the flag up for public contempt * * *".
It is averred in the complaint that the statutes and the arrests inhibit the exercise by plaintiffs of their First Amendment right of free speech "to communicate ideas about vital social issues using the American flag as a medium of expression * * *" and that the statutes are "so vague and indefinite" that they deprive plaintiffs of "liberty without due process of law, in violation of the Fifth and Fourteenth Amendments * * *".
The affidavits of Hendricks, Ringgold, Van Imschoot, and Hoffman and of Lefcourt (their attorney) in support of this motion repeat the averments of the complaint. The brief in support of the motion elaborates constitutional arguments for plaintiffs.
The issues as to plaintiffs Hendricks, Ringgold and Van Imschoot and N.Y. Business Law § 136(d) on the one hand, and as to plaintiff Hoffman and 18 U.S.C. § 700 on the other are ...