John Marshall Harlan II

“ We have no doubt that the constitutionally guaranteed 'freedom to be intellectually * * * diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous. ”

“ Third, he asserts that New York may not constitutionally punish one who publicly destroys or damages an American flag as a means of protest, because such an act constitutes expression protected by the Fourteenth Amendment. We deem it unnecessary to consider the latter two arguments, for we hold that § 1425, subd. 16, par. d, was unconstitutionally applied in appellant's case because it permitted him to be punished merely for speaking defiant or contemptuous words about the American flag. ”

“ Even assuming that appellant's words might be found incitive when considered together with his simultaneous burning of the flag, § 1425, subd. 16, par. d, does not purport to punish only those defiant or contemptuous words which amount to incitement, and there is no evidence that the state courts regarded the statute as so limited. Hence, a conviction for words could not be upheld on this basis. ”

“ We come finally to the question whether, in the circumstances of this case, New York may constitutionally inflict criminal punishment upon one who ventures 'publicly (to) defy * * * or cast contempt upon (any American flag) by words * * *.'
The relevant evidence introduced at appellant's trial, considered in the light most favorable to the State, must be taken to establish the following. At the time of his arrest, appellant was standing on a street corner and speaking to a small crowd; on the opposite corner lay the burning flag. Appellant said to the crowd: 'We don't need no damn flag' ”

“ To the extent that the matter is governed by New York law, we have found no New York statutes or decisions which require that an issue be raised in the trial court with greater specificity than occurred h re. In fact, in People v. McLucas, 15 N.Y.2d 167, 172, 256 N.Y.S.2d 799, 204 N.E.2d 846, 848 (1965) , the New York Court of Appeals held that when an appellant claims 'deprivation of a fundamental constitutional right' New York appellate courts may review the correctness of a jury charge even though the appellant failed to except to the charge in the trial court. ”

“ They amounted only to somewhat excited public advocacy of the idea that the United States should abandon, at least temporarily, one of its national symbols. It is clear that the Fourteenth Amendment prohibits the States from imposing criminal punishment for public advocacy of peaceful change in our institutions. ”

“ The State pointed out that appellant received a suspended sentence, and that the one-year period within which the suspended sentence might have been replaced with a prison sentence under New York law had expired. It further asserted that there were no significant collateral consequences under↑ Also, we are unable to read the opinion of the Court of Appeals as reading the 'words' clause out of the statute and authoritatively construing it to reach only the act of flag burning, whether as a protest or otherwise.↑ See, e.g., Parker v. ”

“ It is true that in the present case the general verdict was rendered by a judge, not a jury. However, if the ground of the judge's decision cannot be ascertained from the record, then the danger of unconstitutional conviction is not significantly less than in the cases just discussed. Cf. Thomas v. Collins, 323 U.S. 516, 528-529, 65 S.Ct. 315, 321-322, 89 L.Ed. 430 (1945) . Nor would it be appropriate to remand the case to the trial judge for a post hoc explanation of the grounds of his decision. Cf. Central Greyhound Lines, Inc. of New York v. ”

“ The case was originally argued during the 1943 Term but was ordered to be restored to the docket and reargued the following Term, with the parties directed to brief, inter alia, the question whether the general solicitation was a basis of Thomas' conviction.↑ See, e.g., Claassen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891) ”