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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 ...

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