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holding that the words “defile,” “deface,” and “cast contempt upon,” in flag mutilation statute when read in association with the specific words “mutilate, burn destroy,” and “trample upon,” denote a legislative intent to proscribe only contemptuous physical acts of destruction, mutilation, defilement, or defacement of the flag of the United States
Summary of this case from English v. StateOpinion
No. 72-584
Decided June 6, 1973.
Criminal law — Desecration of flag — R.C. 2921.05 — Statutory construction — "Defile," "deface," "cast contempt upon," construed — Evidence — Offense not charged, when.
The words "defile," "deface," and "cast contempt upon," in R.C. 2921.05, when read in association with the specific words "mutilate, burn, destroy," and "trample upon," denote a legislative intent to proscribe only contemptuous physical acts of destruction, mutilation, defilement or defacement of the flag of the United States.
APPEAL from the Court of Appeals for Athens County.
As the defendant, Gary D. Kasnett, an 18-year-old Ohio University student stood at the counter of an Athens, Ohio, restaurant, wearing a pair of Levi's with a flag of the United States sewn on the back of his pants, he was observed by a police officer. The latter watched as defendant walked from the counter and seated himself at a table, thereby "sitting on the flag." Shortly thereafter two additional officers arrived, and when defendant proceeded from the restaurant, he was arrested and subsequently charged with violating R.C. 2921.05, commonly referred to as "the flag desecration statute."
No person shall contemptuously print, paint or place a word, figure, mark, picture, or design upon a flag, standard, color, or ensign of the United States, or of this state, or cause it to be done, or expose or cause to be exposed, such flag, standard, color or ensign upon which is printed, painted, or placed, or to which is attached or appended a word, figure, mark, picture, or design. No person shall manufacture or have in possession an article of merchandise upon which is placed or attached a contemptuous representation of such flag, standard, color, or ensign, or publicly mutilate, burn, destroy, defile, deface, trample upon, or otherwise cast contempt upon such flag, standard, color, or ensign.
The affidavit contained the following language:
"Gary David Kasnett * * * did publicly defile, deface and cast contempt upon the flag of the United States by having said flag sewn on the seat of his pants."
At the trial, held in the Athens County Municipal Court, the defendant testified that "it was very poor judgment wearing the flag on my pants that way." He indicated that he had been caught up in and was merely following a fad.
He stated that in the student community there were many "people with flags sewn on the seat of their pants, on the backs of their jacket, on motorcycle helmets * * * everywhere."
There is no evidence of record that the public order of Athens was endangered by the public display of the flag, as stated. That is to say, there is no indication that a breach of the peace impended. Further, the record discloses no evidence bearing upon the purpose or intent of the defendant in wearing the flag upon the "seat of his pants."
The flag was approximately 6 x 9 inches in size and was sewn to the defendant's right rear or hip pocket. The jury returned a verdict of guilty, upon which a sentence of one year in the Athens County jail and a fine of $500 was imposed. Nine months of the confinement was suspended on condition that the defendant be a law-abiding citizen for a period of two years following his jail term and remain outside Athens County for a period of two years following completion of the jail term.
Upon appeal, the Court of Appeals affirmed the judgment of conviction, voided the sentence and imposed a lower fine. State v. Kasnett (1972), 30 Ohio App.2d 77.
The majority opinion concluded that the act of the defendant fell within the language of R.C. 2921.05, and that the fact that the flag was intentionally "sewn to the seat of his trousers" and "on that part of the clothing covering the human fundament, a part of the human body universally and historically considered unclean" and "sewn to the seat of his trousers so that it extended over his anus," consisted of defiling, defacing and casting contempt upon the flag.
The concurring opinion, applying the doctrine of ejusdem generis, concluded that the words "otherwise cast contempt" meant acts of physical destruction or abuse similar in nature to acts of mutilating, burning, destroying, defiling, defacing or trampling upon, but equated "sitting on" with the physical act of "trample upon" the flag.
The Court of Appeals, claiming authority under Section 3(B) ( 1) (f) of Article IV of the Ohio Constitution, held the sentence of the trial court to be excessive, voided the sentence and, in its stead, imposed a fine of $200.
The state appealed from the judgment of the Court of Appeals modifying the sentence. The defendant cross-appealed from that court's affirmance of the judgment of conviction. The cause is now before this court pursuant to the allowance of the state's motion to certify the record and on a cross-appeal by defendant.
Mr. Gerald A. Mollica, city solicitor, Mr. Claire M. Ball, Jr., and Mr. Michael Nolan, for appellant and cross-appellee.
Messrs. Lavelle Yanity and Mr. L. Alan Goldsberry, for appellee and cross-appellant.
At the outset, it must be observed that the majority of the Court of Appeals was anatomically in error in concluding that the flag was "over the anus"; and that the conclusion in the concurring opinion, that the young man sat on the flag, does not seem to be material to a charge of having a flag sewn on his pants pocket.
R.C. 2921.05 cannot be said to specifically prohibit the use of the flag as an article of clothing, as an attachment or a decoration or a patch thereon. If the General Assembly chose to proscribe the wearing of the flag as an item of wearing apparel, there is little doubt that it could have done so.
The question before us is whether a proscription of such use may be derived from the prohibition of acts which "defile," "deface," or "otherwise cast contempt upon" the flag, or, if such a general proscription of use may not be derived from the quoted language, whether a more specific proscription may be derived from it. In other words, does that language of the statute proscribe wearing the flag over a particular part of the body, but permit the flag to be worn over some other part of the body? Under the statute, is a flag worn by a policeman over his heart, or on his sleeve, or on his helmet permissible, and the same flag worn by a student impermissible depending upon which part of his anatomy it is upon or near?
If these distinctions must be made, then the traditional task of line-drawing becomes most difficult, complicated by the fact that the statute concerns a genuinely sacred national symbol, acts concerning which evoke a variety of unpredictable emotional responses because the feelings, opinions and beliefs that dictate these responses are subjective, and exist only in the mind of the viewer.
That consideration of such subjective responses produces a variety of conclusions is demonstrated by the conflicting Ohio appellate court decisions, which have seldom been unanimous. This conflict is further evidenced by the generalization in the annotation in 41 A.L.R. 3d 502, at 505, where we find the following: "Generally the courts have determined what conduct constitutes a violation of a flag desecration statute on a case-by-case basis, scrutinizing the particular facts and circumstances of each individual prosecution."
See State v. Saionz (1969), 23 Ohio App.2d 79; State v. Kasnett (1972), 30 Ohio App.2d 77; State v. Liska (1971), 32 Ohio App.2d 317; Cincinnati v. Bunch (1971), 32 Ohio App.2d 161; State v. Mitchell (1972), 32 Ohio App.2d 16. See, also, State v. Saulino (1971), 29 Ohio Misc. 25; State v. Hershey (1972), 34 Ohio Misc. 73.
Although ad hoc determinations may be satisfactory, or at least acceptable, in refining definitions in other areas of the law, they should not be considered to be so in defining the limits of crimes.
"* * * a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess of its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction Co. (1926), 269 U.S. 385, 391.
That is especially true in this case, where, on its particular facts, the vagueness of R.C. 2921.05 becomes apparent in the presence of the severe sanctions imposed. We believe that statutory vagueness must be limited by strict standards in areas as sensitive as that which surrounds so sacred a symbol as the American flag.
Since judges disagree as to whether the language of the flag desecration statute proscribes the use of a flag as wearing apparel, or as a decoration, or as a patch upon wearing apparel, and disagree as to the reasons for including or excluding certain locations on one's person for displaying such flags, the judicial line-drawing has become so involved with the due process problems of "fair warning" that it ought not be attempted.
"* * * No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the state commands or forbids." Lanzetta v. New Jersey (1939), 306 U.S. 451, 453.
In this case, the court's options are either to narrow or to void the statute, for as it stands it fails to contain such predictable indicia of guilt so as to provide fair notice of what acts are punishable thereunder, and hence, as to the specific act concerned, violates the due process requirement of the state and federal constitutions. See Ashton v. Kentucky (1966), 384 U.S. 195; Giacco v. Pennsylvania (1966), 382 U.S. 399; Wright v. Georgia (1963), 373 U.S. 284; United States v. Cardiff (1952), 344 U.S. 174.
We choose therefore to consider that the meaning of the ambiguous words must be determined under the doctrines of ejusdem generis and noscitur a sociis, as was done in State v. Aspell (1967), 10 Ohio St.2d 1, and in State v. Saionz (1969), 23 Ohio App.2d 79.
In view of the foregoing, we conclude that in order to avoid constitutionally impermissible vagueness in R.C. 2921.05, the words "defile," "deface," and "cast contempt upon," when read in association with the specific words "mutilate, burn, destroy" and "trample upon," cannot be given a loose or expanded meaning and must be held to denote a legislative intent to proscribe only contemptuous physical acts of destruction, mutilation, defilement or defacement of the flag. Thus, the sole act of wearing it on one's clothing cannot be said to fall within the prohibition of the statute.
Intent is material. Throughout the statute the word "contemptuous" is used, and even in the sentence which is here involved the words "otherwise cast contempt" indicate the necessity for any of the acts described to be done other than innocently or with a benign intent. Also note that, as bearing upon legislative intent, the General Assembly, in its 1967 amendment of this statute, added the words "contemptuously" and "contemptuous."
The charge contained in the affidavit and the facts disclosed by the record fail to support the conviction under the statute, as so construed. It is therefore unnecessary for us to pass upon the question raised by the cross-appeal. The judgment of the Court of Appeals is reversed and the cause is remanded to the trial court with directions to discharge the defendant.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.