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Under the Constitution, the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.
Street, having heard a news broadcast of the shooting of James Meredith, a civil rights leader, took an American flag, which he owned, to a street corner near his home in New York and ignited the flag. He was arrested and thereafter charged by information with malicious mischief for violating § 1425, subd. 16, par. d, of the New York Penal Law, which makes it a crime publicly to mutilate or "publicly [to] defy . . . or cast contempt upon [any American flag] either by words or act." The information charged Street with burning the American flag and publicly speaking defiant or contemptuous words about the flag. Street unsuccessfully moved to dismiss the information on the ground that the statute violated his constitutional right to free expression by punishing him for activity which he contended was a constitutionally protected "demonstration" or "protest." Street was tried before a judge without a jury and convicted. The arresting officer testified that at the time of arrest Street was standing on a corner speaking to a small and not unruly group, which did not block the street or sidewalk; on the opposite corner was the burning flag; appellant told the group: "We don't need no damn flag," and said to the officer, "If they let that happen to Meredith, we don't need an American flag." Street also challenged the constitutionality of the "words" part of the statute in the Appellate Term and in the New York Court of Appeals, both of which affirmed his conviction, the latter court upholding the constitutionality of the statute without alluding to the "words" part.
Did Street’s conviction deny to him rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment?
The Court reversed and remanded on the grounds that Street’s conviction denied his rights of free expression protected by the First Amendment and assured against state infringement by the Fourteenth Amendment. In being convicted of malicious mischief, although the sentence was suspended, there was an actual rather than merely a potential threat that Street would be deprived of his employment, albeit temporarily. Street was unable, despite diligent prosecution of his appeals, to bring his case here within a year of his sentencing. Thus, the case was not moot. His conviction was invalid because § 1425(16)(d) was unconstitutionally applied in that it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. In Street’s protest against alleged governmental inaction in connection with a shooting, his words were an essential element, for without them no one would have known the object of his protest. Thus, the right asserted was fundamental. The record was insufficient to eliminate the possibility either that Street’s words were the sole basis of his conviction or that he was convicted for both his words and his deed.