Street v. New York/Dissent White

by Byron White

United States Supreme Court

394 U.S. 576

Street  v.  New York

 Argued: Oct. 21, 1968. --- Decided: April 21, 1969

Mr. Justice WHITE, dissenting.

The Court has spun an intricate, technical web but I fear it has ensnared itself in its own remorseless logic and arrived at a result having no support in the facts of the case or the governing law.

The Court's schema is this: the statute forbids insults to the flag either by act or words; the charge alleged both flag burning and speech; the court rendered a general judgment; since the conviction might logically have been for speech alone or for both words and deeds and since in either event the conviction is invalid, the judgment of the New York courts must be set aside without passing upon the validity of a conviction for burning the flag. ^[1] I reach precisely the opposite conclusion; before Street's conviction can be either reversed or affirmed, the Court must reach and decide the validity of a conviction for flag burning.

I reject first the Court's suggestion that we must assume from the trial court's judgment-which was that 'on the charge of Malicious Mischief the defendant is convicted'-that Street might have been convicted for speech alone. True, the complaint referred to both burning and speaking and the statute permits conviction for either insulting words or physical desecration. But surely the Court has its tongue in its check when it infers from this record the possibility that Street was not convicted for burning the flag but only for the words he uttered. It is a distortion of the record to read it in this manner, as THE CHIEF JUSTICE convincingly demonstrates. But even if it were fair to infer that he was convicted for speaking as well as burning, it is sheer fancy to conclude that the trial court convicted him for speech alone and acquitted him of flag burning. The appellant does not seriously argue such a claim; his major point is that he was convicted for burning as a protest and that such a conviction c nnot stand. The Court of Appeals of New York characterized the issue before it as whether the defendant could be validly convicted for burning the flag as a protest. Moreover, without clear indication from the state courts, I would not assume that the particular words which Street spoke in this case would be deemed within the coverage of the statute. In any event, if Street was convicted for speaking, he most certainly was also convicted for flag burning. Hence, Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and like cases to which I adhere, have no application by their own terms.

I reject also the proposition that if Street was convicted for both burning and talking, his conviction must be reversed if the speech conviction is unconstitutional. The Court initially cites Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), for the rule that where two acts violative of a statute are charged, a verdict of guilty on both acts and a single sentence must be reversed if conviction for either act is invalid. This has never been the prevailing rule in this country or in this Court, either before or after Thomas v. Collins. The Court in that case cited no authority for the proposition other than Stromberg and Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), neither of which announced that rule. I am not convinced that the rule stated by the Thomas court was necessary for reversal, but whether dictum or not the rule on which the Court relies today is at odds with many cases in this Court.

Claassen v. United States, 142 U.S. 140, 146-147, 12 S.Ct. 169, 170, 35 L.Ed. 966 (1891), speaks for the law at that time:

'And it is settled law in this court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only. Locke v. U.S., 7 Cranch, 339, 344 (3 L.Ed. 364); Clifton v. U.S., 4 How.

242, 250 (11 L.Ed. 957); Snyder v. U.S., 112 U.S. 216, 5 Sup.Ct.Rep. 118 (28 L.Ed. 697); Bond v. Dustin, 112 U.S. 604, 609, 5 Sup.Ct.Rep. 296 (28 L.Ed. 835) 1 Bish.Crim.Proc. § 1015; Whart.Crim.Pl. & Pr. § 771.'

Many years later, in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959), the Court was equally clear. There the defendant was indicted in five counts for contempt in refusing to answer questions put by a congressional committee. The case was tried to a court without a jury and upon conviction under all counts a general sentence of six months' imprisonment and a fine of $200 was imposed. Because the conviction on at least some of the counts was warranted, the judgment was affirmed. Relying on Claassen among other cases, the Court said:

'Since this sentence was less than the maximum punishment authorized by the statute for conviction under any one Count, the judgment below must be upheld if the conviction upon any of the Counts is sustainable.' 360 U.S., at 115, 79 S.Ct., at 1087. (Footnote omitted.)

There are a host of other cases to the same effect. ^[2]

Even accepting the notion that where there is a conviction on each of several counts and a general sentence is imposed, affirmance requires upholding the conviction on each and every count, the rule would have no application to the facts of this case. Such a rule would be based on the notion that the trial judge might have given a lesser sentence if he had known that some of the counts were infirm. Reversal of the judgment on less than all the counts would call only for resentencing, not for reversal of the convictions on the other counts.

Viewed in this light, the judgment of the New York courts, insofar as it convicted Street for flag burning, cannot be reversed simply because Street was also convicted for speaking and a general sentence was given. Neither can the case be remanded for resentencing since no sentence was imposed. Sentence was suspended under the then applicable New York law and the time for imposing a sentence had expired even before the judgment was reviewed in the New York Court of Appeals.

Recognizing the aberrance of Thomas, the Court now gives that case a new and more confusing gloss. The general finding of guilt for both speaking at a meeting and for an individual solicitation was reversed, we are told, because the speech and solicitation were intertwined, making it uncertain that there was or would have been a judgment of guilty on the solicitation alone. Aside from the fact that Thomas itself said the penalty was imposed for both violations, the rationale which the Court extracts from the facts and judgment in that case hardly qualifies as a constitutional standard to be applied willy-nilly in all cases where there is a general verdict on a count charging dual violations. The Court is capable of more discriminating judgment than to insist on its newly fashioned doctrine in a case like Street's where it is so clear that there was at least a conviction for a public burning of the American flag.

The Court is obviously wrong in reversing the judgment below because it believes that Street was unconstitutionally convicted for speaking. Reversal can follow only if the Court reaches the conviction for flag burning and finds that conviction, as well as the assumed conviction for speech, to be violative of the First Amendment. ^[3] For myself, without the benefit of the majority's thinking if it were to find flag burning protected by the First Amendment, I would sustain such a conviction. I must dissent.

Notes

1. The Court's theory is not that of unconstitutional overbreadth; it does not argue that New York may not convict for burning because the entire statute is unconstitutional for permitting convictions for insulting speech as well as for the act of flag burning.
2. E.g., Pinkerton v. United States, 328 U.S. 640, 641-642, n. 1, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946); Whitfield v. Ohio, 297 U.S. 431, 438, 56 S.Ct. 532, 534, 80 L.Ed. 778 (1936); Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929); Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 18, 63 L.Ed. 1173 (1919); Ballew v. United States, 160 U.S. 187, 197-203, 16 S.Ct. 263, 267-269, 40 L.Ed. 388 (1895); Goode v. United States, 159 U.S. 663, 669, 16 S.Ct. 136, 137, 40 L.Ed. 297 (1895); Evans v. United States, 153 U.S. 584, 595, 14 S.Ct. 934, 939, 38 L.Ed. 830 (1894); Evans v. United States, 153 U.S. 608, 14 S.Ct. 939, 38 L.Ed. 839 (1894). This Court h § recognized the applicability of the same rule to court-martial proceedings, Carter v. McClaughry, 183 U.S. 365, 384-387, 22 S.Ct. 181, 189-190, 46 L.Ed. 236 (1902); to forfeiture actions, Snyder v. United States, 112 U.S. 216, 217, 5 S.Ct. 118, 119, 28 L.Ed. 697 (1884), Clifton v. United States, 4 How. 242, 250, 11 L.Ed. 957 (1846), Locke v. United States, 7 Cranch 339, 344, 3 L.Ed. 364 (1813); and to civil cases under state law, Bond v. Dustin, 112 U.S. 604, 609, 5 S.Ct. 296, 298, 28 L.Ed. 835 (1884). In United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 756, 13 L.Ed.2d 658 (1965), the Court applied the related concurrent sentence rule to a general sentence on a guilty verdict on an indictment charging several counts. See Transcript of Record, 48-50, No. 13, October Term, 1964.
3. Arguably, under today's decision any conviction for flag burning where the defendant's words are critical to proving intent or some other element of the crime would be invalid since the conviction would be based in part on speech. The Court disclaims this result, but without explaining why it would not reverse a conviction for burning where words spoken at the time are necessarily used to prove a case and yet reverse burning convictions on precisely the same evidence simply because on that evidence the defendant might also have been convicted for speaking. The Court's seemingly narrow holding may be of potentially broader application, particularly in view of Thomas v. Collins as now rewritten by the Court.