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November 7, 1974

THE CRIMINAL COURT OF THE CITY OF NEW YORK; HON. DAVID ROSS, Administrative Judge of the Criminal Court of the City of New York; FRANK S. HOGAN, District Attorney New York County; and GEORGE F. McGRATH, New York City Commissioner of Correction, Respondents

Cannella, D.J.

The opinion of the court was delivered by: CANNELLA


The writ of habeas corpus is granted.

 On May 5, 1967, the petitioner, Stephen Radich, was convicted in the Criminal Court of the City of New York of casting contempt on the American flag in violation of then § 1425(16)(d) of the New York Penal Law, now recodified as § 136(d) of the New York General Business Law. *fn1" People v. Radich, 53 Misc.2d 717, 279 N.Y.S.2d 680 (Crim. Ct. 1967) (2-1 decision). He was sentenced to pay a $500 fine or serve sixty days in the workhouse. On appeal the conviction was affirmed. People v. Radich, 57 Misc.2d 1082, 294 N.Y.S.2d 285 (App.T. 1st Dept. 1968) (per curiam), aff'd, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (1970) (5-2 decision). Petitioner then sought review in the Supreme Court of the United States. The Court, after hearing oral argument on the merits, "affirmed by an equally divided Court" the judgment of the New York Court of Appeals (Mr. Justice Douglas, although present for oral argument, did not participate in the decision). Radich v. New York, 401 U.S. 531, 28 L. Ed. 2d 287, 91 S. Ct. 1217 (1971). *fn2"

 Immediately upon the affirmance by the Supreme Court, petitioner commenced the instant action in this Court seeking relief in the nature of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. On December 3, 1971, in an unreported decision, the Court denied relief upon the ground that the affirmance of Radich's conviction by an equally divided Supreme Court constituted an actual adjudication by that Court of the merits of petitioner's constitutional claims, thus serving to bar subsequent federal habeas corpus relief pursuant to 28 U.S.C. § 2244(c). The Court of Appeals for the Second Circuit reversed and remanded for a determination on the merits, finding that an affirmance by an equally divided Supreme Court did not constitute an actual adjudication of petitioner's constitutional claims within the meaning of the habeas statute. United States ex rel. Radich v. Criminal Court of the City of New York, 459 F.2d 745 (1972). In light of its decision in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), *fn3" the Supreme Court denied certiorari, Ross v. Radich, 409 U.S. 1115, 34 L. Ed. 2d 698, 93 S. Ct. 893 (1973). The petitioner has been released on one dollar bail pending the adjudication of his claims. *fn4"


 In December of 1966, petitioner, the proprietor of an art gallery on Madison Avenue in New York City, displayed in his gallery certain "constructions", comparable to sculptures, which had been created by an artist named Marc Morrel. These constructions were partly composed of United States flags or portions thereof, and partly of other objects including a Vietcong flag, a Russian flag, a Nazi swastika and a gas mask. Three of the thirteen three-dimensional art forms which had been displayed in the gallery were singled out for particular attention by the state courts: an object resembling a gun caisson wrapped in a flag, a flag stuffed into the shape of a six-foot human form hanging by the neck from a yellow noose, and a seven-foot "cross with a bishop's mitre on the head-piece, the arms wrapped in ecclesiastical flags and an erect penis wrapped in an American flag protruding from the vertical standard." *fn5"

 At trial, the complaining police officer testified that on December 27, 1966, from a vantage point on Madison Avenue, he had observed the construction which appeared to be a human form hanging from a yellow noose in the window of Radich's second floor gallery. He further testified that upon entering the gallery the following day with a police photographer in order to serve petitioner with a criminal summons he had observed this construction, as well as the others. *fn6" There was no testimony adduced from any witness of disturbance or disorder in or around the premises of the gallery.

 The petitioner and Mr. Hilton Kramer, the art news editor of The New York Times, testified for the defense. Both stated that in their expert opinions the constructions were, under contemporary standards, works of art. In addition, petitioner testified that he had not intended to cast contempt upon or show disrespect for the American flag by virtue of his exhibition of the constructions; that the constructions were intended solely to express protest against the American involvement in Vietnam and against war in general. *fn7" Radich further testified that during the exhibition of these sculptures anti-war protest music, audible throughout the entire gallery, was played from a tape recorder. *fn8"

 Petitioner was convicted by a three-judge panel in the New York City Criminal Court. That court, Judge Basel dissenting, concluded that Radich had "cast contempt" upon the American flag by virtue of his exhibition of the Morrel constructions in violation of subsection 16(d) of former § 1425 of the Penal Law (now § 136(d) of the General Business Law). The court found the constructions not to come within the ambit of protection afforded to speech by the First Amendment, and that the state, by means of the statute and the prosecution of the petitioner, had properly exercised its police power to restrict acts which might pose an "immediate threat to public safety, peace, or order." *fn9" In addition, the criminal court rejected petitioner's contention that the statute was unconstitutionally vague, concluding instead that the offense charged was "malum prohibitum", no criminal intent to violate the statute was prerequisite for conviction. *fn10" Judge Basel dissented, finding the "casting contempt" portion of the statute unconstitutionally vague. *fn11" The Appellate Term of the Supreme Court for the First Department affirmed petitioner's conviction without opinion. *fn12"

 On appeal, the New York Court of Appeals affirmed the conviction by a divided bench (5-2). *fn13" That court found the statute neither vague nor requiring a mens rea as predicate for criminal liability, and rejected petitioner's First Amendment claims as well. *fn14" The majority, impliedly accepted the constructions as symbolic speech *fn15" and, thus, finding them to be within the purview of the First Amendment, applied the analysis suggested by United States v. O'Brien, *fn16" concluding therefrom that the governmental interest served by the statute (the preservation of the public peace) was unrelated to the suppression of free expression and that petitioner, by his display of the constructions had dishonored and cast contempt upon the United States flag. *fn17" Chief Judge Fuld, joined by Judge Burke, dissented.


I do not understand how it may reasonably be said that the mere display of Morrel's constructions in an art gallery, distasteful though they may be, poses the type of threat to public order necessary to render such an act criminal. This prosecution, in my view, is nothing more than political censorship. . . . It should not be constitutionally sustained. *fn18"

 The decision of the New York Court of Appeals was affirmed by an equally divided United States Supreme Court. *fn19"


 On the instant petition, Radich challenges his state conviction upon First and Fourteenth Amendment grounds, specifically, that: (a) the involved statute violates the First Amendment in that casting contempt on the American flag may not constitutionally be made a criminal offense; (b) the statute is unconstitutionally overbroad and vague; and (c) the statute violates the equal protection clause of the Fourteenth Amendment in that it arbitrarily bars sculpture which casts contempt on the flag while permitting other forms of expression, such as pictures, photographs and cartoons which cast contempt on the flag. *fn20" As the Court finds the recent decision of the Supreme Court in Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727 (1974) to provide a workable framework within which petitioner's First Amendment challenges can be analyzed, it is content in the conclusion that the New York statute is unconstitutional "as applied" to Radich, reserving to later courts the resolution of the broader constitutional questions which have been presented. *fn21" See also, Cline v. Rockingham County Superior Court, 502 F.2d 789 (1 Cir. 1974).

 In recent years, numerous courts, both state and federal, have been called upon to determine the relationship between statutes prohibiting acts of flag desecration and the First Amendment's guarantee of freedom of speech. Such consideration has produced diverse results, as both the state and federal judiciary have been unable to either agree upon the standard to be applied, or uniformly determine which conduct is to be protected and which is to be proscribed. *fn22" The commentators, on the other hand, while similarly unable to agree upon a uniform standard for balancing the guarantees of the First Amendment against the interests of the state in prohibiting acts of flag desecration, have almost uniformly opposed the imposition of criminal sanctions for conduct such as that engaged in by Radich. *fn23" Although the Supreme Court has had several opportunities in years past to consider and define the limits of the protection afforded by the First Amendment to acts of flag desecration, including the direct appeal of petitioner's conviction, *fn24" it was not until the term just passed that the Court provided direction for lower courts in resolving these controversies.

 In the first flag related decision of the 1973 Term, Smith v. Goguen, 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974), the Court affirmed a First Circuit decision which had granted habeas corpus relief to a state prisoner who had been convicted of violating a Massachusetts statute making it a crime to "treat contemptuously" the flag of the United States. The district court *fn25" and the court of appeals *fn26" had concluded that the contempt provision of the Massachusetts flag misuse statute was both unconstitutionally vague and impermissibly overbroad. The Supreme Court affirmed on vagueness grounds alone, finding that the statute failed to draw reasonably clear lines between the kinds of nonceremonial treatment of the flag which are criminal and those which are not. *fn27" Justice Powell, writing for the Court, specifically declined an invitation to address the substantive First Amendment arguments advanced. *fn28" Mr. Justice White concurred in the result; the Chief Justice and Justices Blackmun and Rehnquist dissented.

 In June of this year, subsequent to its decision in Smith, the Supreme Court, in Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974), reversed the state court conviction of an individual who had been found guilty of violating a Washington statute proscribing improper uses of the flag. Spence, a college student, had hung a United States flag from his apartment house window. The flag was in an upside down position and had attached upon both of its sides a peace symbol fashioned of removable black tape. At trial, Spence testified that he had put the symbol on the flag in protest against the then recent invasion of Cambodia by United States forces and the killings at Kent State University. It was conceded by the state that the sole reason for the arrest was his placing of the peace symbol on the flag and exposing it to public view in that condition. The Supreme Court, in a per curiam opinion (three Justices dissenting), reversed the conviction. The Court found that Spence's use of the flag constituted the expression of an idea through activity, and that his conduct was sufficiently imbued with communicative elements as to bring it within the ambit of speech protected by the First Amendment. The Court then held that no state interest which arguably supported the prosecution had been sufficiently impaired by Spence's activity as to warrant the imposition of criminal sanctions. Hence, the Court in Spence may be said to have adopted a two-step analysis. First, a determination of whether flag related conduct is within the protections of the First Amendment, and, second, whether, upon the record of the given case, the interests advanced by the state are so substantial as to justify infringement of constitutional rights. Mr. Justice Blackmun concurred in the result and Mr. Justice Douglas separately concurred for reasons advanced by the Supreme Court of Iowa in State v. Kool, 212 N.W.2d 518 (1973).

 In addition to the decisions in Smith and Spence, the Supreme Court, during the 1973 Term, summarily disposed of five other appeals involving the flag and its relationship with the First Amendment. *fn29" Several of these summary decisions involved convictions pursuant to statutes similar to that at bar and the action of the Supreme Court with respect to these cases, when read together with the decision in Spence, well illuminates the path upon which this Court will now travel.


 In Spence, the Court recognized that certain "activity [is] sufficiently imbued with elements of communication [as] to fall within the scope of the First and Fourteenth Amendments. . . ." *fn30" At the same time, the Court reiterated that "'[we] cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.'" *fn31" Thus, as point of departure for this Court's analysis of the constitutionality of petitioner's state court conviction, it must be determined whether or not his exhibition of the Morrel constructions is entitled to protection under the First Amendment. Such determination is to be made by objectively viewing "the nature of [petitioner's] activity, combined with the factual context and environment in which it was undertaken;" *fn32" a standard requiring "intent to convey a particularized message" and, from the surrounding circumstances a "likelihood . . . that the message would be understood by those who viewed it." *fn33" That petitioner's display of the Morrel constructions was symbolic speech, that is non-verbal communicative conduct or expression intended to espouse an idea or express a certain viewpoint, is, when viewed both with regard to the symbol employed and the context in which that symbol was so employed, plainly apparent to this Court. *fn34"

 The American flag has long been recognized as a symbol possessed of a "very special meaning." *fn35" As was stated in Spence :


The Court for decades has recognized the communicative connotations of the use of flags. . . . In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas . . .," and "a shortcut from mind to mind." [Citations omitted] *fn36"

 Other federal courts which have considered the symbolic nature of the American flag have been eloquent in defining its expressive qualities, *fn37" and this Court need not engage in lengthy discourse upon the symbolic character of the flag as it finds the communicative qualities of our national standard to be as well recognized as they are obvious. Indeed, as Chief Judge Coffin has noted, were the flag not possessed of such communicative nature,


[if] it did not speak by itself as a symbol of the United States of America, we doubt that any state would have sought to protect its message from verbal or physical abuse . . . *fn38"

 by means of statutes such as that now at bar.

 In addition to the symbolic nature of which the American flag is possessed standing alone, "the context in which [this] symbol is used for purposes of expression is important, for the context may give meaning to the symbol." *fn39" In the instant case, the context and environment in which Radich displayed the Morrel constructions is revealing. He did so at the time of this nation's most significant involvement in the Vietnam conflict, as a means of signifying his dissent and protest against the American action. The playing of recorded anti-war protest music in the gallery during the exhibition further intensified the symbolic and communicative nature of the display. In such an environment, in the context and tenor of those times, "it would have been difficult for the great majority of citizens to miss the drift of [petitioner's] point at the time that he made it" by the display of the sculptures. *fn40" It must be concluded that Radich's exhibition "was not an act of mindless nihilism. Rather, it was a pointed expression of anguish . . . about the then current . . . foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." *fn41" Petitioner's display of the Morrel constructions was, therefore, symbolic speech "of a nature closely akin to 'pure speech'", hence embued with the protections of the First Amendment.


 Having thus concluded that petitioner's exhibition of the sculptures constituted speech and communicative expression coming within the purview of the First Amendment, the Court next turns to consider those state interests which might be advanced to support his conviction and the resulting suppression of expression. In Spence, the Court, drawing upon its earlier opinion in Street v. New York, *fn42" addressed itself to three principal interests which conceivably could be called upon to justify state action against flag desecration: (1) prevention of breach of the peace; (2) protection of the sensibilities of passersby; and (3) preservation of the American flag as an unalloyed symbol of our country. *fn43" In addition to these three primary interests, the Supreme Court noted certain additional factors which are as pertinent to the instant case as they were to the case then before the Court.


First, this was a privately-owned flag. In a technical property sense it was not the property of any government. . . . Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place or manner restraints on access to a public area. *fn44"

 Similarly, there is no evidence in the state court record which would demonstrate that the flags employed in the Morrel constructions were other than privately-owned flags and, it is clear, that the constructions were displayed in Radich's own art gallery; upon private property.


 In Spence, the Court discussed the state's interest in preserving the flag "as an unalloyed symbol of our country" in the following terms:


Presumably, this interest might be seen as an effort to prevent the appropriation of a revered national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular product or viewpoint might be taken erroneously as evidence of governmental endorsement. Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol. For the great majority of us, the flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice and valor of the millions of Americans who in peace and war have joined together to build and to defend a Nation in which self-government and personal liberty endure. It evidences both the unity and diversity which are America. For others the flag carries in varying degrees a different message. "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." [Citation omitted] It might be said that we all draw something from our national symbol, for it is capable of conveying simultaneously a spectrum of meanings. If it may be destroyed or permanently disfigured, it could be argued that it will lose its capability of mirroring the sentiments of all who view it.


But we need not decide in this case whether the interest advanced by the court below is valid. We assume arguendo that it is. The statute is nonetheless unconstitutional as applied to appellant's activity. There was no risk that appellant's acts would mislead viewers into assuming that the government endorsed his viewpoint. To the contrary, he was plainly and peacefully protesting the fact that it did not. Appellant was not charged under the desecration statute . . . nor did he permanently disfigure the flag or destroy it. He displayed it as a flag of his country in a way closely analogous to the manner in which flags have always been used to convey ideas. *fn45"

 In so assuming arguendo the Court stated.


If this interest is valid, we note that it is directly related to expression in the context of activity like that undertaken by appellant. For that reason and because no other governmental interest unrelated to expression has been advanced or can be supported on this record, the four-step analysis of United States v. O'Brien, 391 U.S. 367, 377, 20 L. Ed. 2d 672, 88 S. Ct. 1673, . . . is inapplicable. *fn46"

 Notwithstanding the fact that petitioner has been convicted under the New York desecration statute of casting contempt upon the flag, it can not be said that his display of the Morrel constructions exhibited the flag in a fashion from which "it could be argued that it will lose its capability of mirroring the sentiments of all who view it." The constructions and their display would have been valueless as communication and meaningless as protest were the flag not invoked by the artist in the fashion and form in which it was. Unlike the flag which is burned, destroyed or otherwise substantially and permanently disfigured, thereby divesting it of its "capability of mirroring the sentiments of all who view it," Morrel's use of the flag simply transferred the symbol from traditional surroundings to the realm of protest and dissent. *fn47" This shifting of context did not rape the flag of its universal symbolism. Those who are accustomed to emotions of pride when viewing the flag atop this courthouse, might well have been moved to revulsion when confronted with Morrel's works in the gallery. Others, perhaps, were deeply moved and made proud of our "constitutionally guaranteed 'freedom to be intellectually . . . diverse or even contrary'" *fn48" when viewing the constructions; persons in whom the flag would otherwise stir no emotion. "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." *fn49"

 The quality of the flag as a symbol embraced within Morrel's sculptures was the expression intended by their exhibition. Unlike the consumption of the flag when it is burned as the vehicle for expression of an idea, the flag as displayed by petitioner in his gallery was itself the idea, the sine qua non for the artist's endeavors. The symbol was not consumed by the sculptures, but rather, flourished in all of its communicative majesty, unalloyed and undiminished. "It is the character, not the cloth, of the flag which" *fn50" the State of New York has interest in preserving and, here, the symbolic character of the flag was neither trammeled upon nor dimmed.


 The second factor which was stated, analyzed and rejected by the Court in Spence, "that the State may have desired to protect the sensibilities of passersby," is similarly unavailing to the State of New York in the instant case.


"It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." [citation omitted] Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. *fn51"

 Similarly, in the matter at bar, petitioner did not thrust his ideas upon a captive audience, but rather displayed the constructions in the privacy of his second floor art gallery. Nor can it be said that the construction which was displayed in the gallery window and visible to persons located on the street below was so unavoidable as to require its suppression.


 In affirming the lower courts' conviction of the petitioner, Judge Gibson, speaking for the New York Court of Appeals, stated, "The prime reason for the statute [based upon the legislative history] was not to insure suppression of . . . ideas, but rather to insure preservation of the public peace." *fn52" The Judge concluded that "a reasonable man would consider the wrapping of a phallic symbol with the flag an act of dishonor; he would consider the hanging effigy a dishonor, and to a lesser and more debatable extent it might be found that wrapping the flag in chains, attaching it to a gas meter, and fashioning the other representations involved, were acts dishonoring the flag," *fn53" acts which would arouse passions in the average man likely to lead to disorder, thereby warranting abridgement of petitioner's First Amendment rights. This Court finds that such a standard *fn54" which views the act of display as solely sufficient to allow for the imposition of criminal sanctions, apparently upon the premise that the act creates a possible or hypothetical danger to the public peace, is insufficient predicate upon which the exercise of constitutional rights may be chilled.

 This Court has read and reviewed the transcript of petitioner's trial in the New York City Criminal Court and is unable to find in it any objective evidence whatever which would sustain the conclusion that a breach of the peace was either likely to occur, or an imminent result of petitioner's exhibition of the Morrel constructions. There is no evidence that any crowd had gathered outside of the gallery nor is there proof that any disturbance or altercation had occurred within the premises. The display of the Morrel pieces had been in progress for approximately two weeks prior to the time that the state acted, and, aside from an expression of outrage by one group which resulted in a civil law suit, *fn55" there is absolutely no proof of any reaction whatsoever by any individual who viewed the sculptures. Thus, as in Spence, the notion that the state acted in preservation of the public peace "is totally without support in the record."

 There is no question but that preservation of the public peace is a valid interest which the state may invoke in order to justify prosecutions for flag desecration. Spence and the earlier Supreme Court case of Street v. New York so state. *fn56" Those other cases which have considered the validity of this interest have so concluded. *fn57" The commentators do not disagree. *fn58" Rather, the question at bar is to what extent must the state demonstrate the factual existence of this interest, i.e., how imminent must a breach of the peace be, before it can validly act to punish an individual for exercising his First Amendment rights.

 Numerous courts have concluded, as did the New York Court of Appeals in Radich, that acts of flag desecration are, of themselves, always so inherently inflammatory as to pose so great a danger to the public peace as warrants the state to act. *fn59" Other courts have adopted the view that an act of flag desecration standing alone is insufficient provocation to justify the imposition of criminal sanctions or abridge First Amendment rights; other objective evidence which demonstrates the imminence of public unrest or a clear and present danger that a breach of the peace is likely must be adduced before a state may constitutionally act in a given case. *fn60" A fair reading of Spence,61 and those other cases which have delimited the bounds of First Amendment freedoms, results in the conclusion that the latter view is the only one which is constitutionally sanctioned; *fn62" the state's interest in preventing a breach of the peace cannot be said to arise merely in its assertion.

 As Mr. Justice Holmes long ago stated, "[every] idea is an incitement." *fn63" So too, every act of flag desecration and every employment of the flag in other than ordinary contexts must be viewed as a provocation, a calling out to others to react and counteract, to express support or disdain. As every expression of ideas may not be trammeled upon in derogation of the First Amendment, so too, conduct regarding the flag, which is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," may not be suppressed solely because it is done or because someone might find the act so reprehensible as to become violent. As has been stated:


a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, 315 U.S. 586, 62 S. Ct. 766 (1942), is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. [Citations omitted] There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. *fn64"

 So too, New York's undifferentiated fear *fn65" that the display of the Morrel constructions in Radich's gallery might provoke a reasonable person to commit unlawful and disruptive acts is insufficient under the Constitution.

 While it is not the duty of this Court in the present case to determine the extent of the objective evidence which must be shown before a state may constitutionally suppress an act of flag desecration, whether the anticipated disorder be imminent or probable or whether such potential disorder present a clear and present danger to the public peace, *fn66" the Court can unhesitatingly state that New York's unsupported assertion that a breach of peace might have resulted from the exhibition of the Morrel constructions, is not a permissible basis for imposition of criminal sanctions. *fn67" Where the constitutionally guaranteed right to freedom of speech and the free dissemination of ideas, be they popular or unpopular, is to be chilled or abridged, the state must demonstrate more than a mere speculative or hypothetical possibility of disorder; it must present to the trier of facts objective evidence which would lead to the conclusion that, at the very least, a disorder was in fact likely and imminent.


[Our] task in a given case, and in this case, is to weigh the likelihood of violence against the right of free expression. The danger is that we will overuse "likelihood of violence" in order to be on the safe side. But the framers of the constitutional guarantees must have known they were taking some risk when they inserted the free speech clauses, for many utterances of unpopular ideas are fraught with the possibility of retaliatory action. . . . We must not water down the guarantees by undifferentiated fear or apprehension. For our part, we will uphold incursions upon symbolic expression on the basis of probable violence only when we are convinced that violence is really probable.68

 Our Constitution and the guarantees which are embodied in it are the supreme symbol and law of our nation. Its values and meaning surpass all other symbols and law. In seeking to afford our citizenry the right to speak freely, to assert views which may be unpopular to the majority, and, even, to deprecate those symbols which others hold dear, the framers consciously chose to construct a society and a nation in which the free dissemination of ideas, the thoughts of all free-thinking men, even the smallest dissenting voice, might be heard without fear of prosecution. This is our birthright as Americans. The "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." *fn69" Although such freedom is not absolute, it may not lightly be abrogated.

 The flag and that which it symbolizes is dear to us, but not so cherished as those high moral, legal and ethical precepts which our Constitution teaches. When our interests in preserving the integrity of the flag conflict with the higher interest of preserving, protecting and defending the Constitution, the latter must prevail, even when it results in the expression of ideas about our flag and nation which are defiant, contemptuous or unacceptable to most Americans.

 For its own part, this Court does not subscribe to the views espoused by the petitioner by means of his display of the Morrel constructions, but his right to express his mind is guaranteed by our Constitution and, on the state of this record, the Court finds no cause for the state's abridgement of that right.


 It is the opinion and decision of this Court that the conviction of petitioner, Stephen Radich, in the Criminal Court of the City of New York, as affirmed by the Appellate Courts of the State of New York, served to deprive him of his rights under the First and Fourteenth Amendments to the Constitution of the United States and that § 1425(16) (d) of the New York Penal Law, now § 136(d) of the New York General Business Law, is unconstitutional as applied to him.

 Let the writ of habeas corpus issue forthwith upon the submission of an appropriate order.

 JOHN M. CANNELLA United States District Judge

 Dated: New York, N.Y. November 7, 1974.

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