| Smith v. Goguen
(No. 72-1254)
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| Syllabus
| Opinion
[ Powell ] | Concurrence
[ White ] | Dissent
[ Blackmun ] | Dissent
[ Rehnquist ] |
| HTML version
PDF version | HTML version
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Smith v. Goguen
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, dissenting.
I agree with MR. JUSTICE WHITE in his conclusion that the Massachusetts flag statute is not unconstitutionally vague. I disagree with his conclusion that the words "treats contemptuously" are necessarily directed at protected speech, and that Goguen's conviction for his immature antic therefore cannot withstand constitutional challenge. [p591]
I agree with MR. JUSTICE REHNQUIST when he concludes that the First Amendment affords no shield to Goguen's conduct. I reach that result, however, not on the ground that the Supreme Judicial Court of Massachusetts "would read" the language of the Massachusetts statute to require that "treats contemptuously" entails physical contact with the flag and the protection of its physical integrity, but on the ground that that court, by its unanimous rescript opinion, has, in fact, already done exactly that. The court's opinion states that Goguen
was not prosecuted for being "intellectually . . . diverse" or for "speech," as in Street v. New York, 394 U.S. 576, 593-594. . . .
Having rejected the vagueness challenge and concluded that Goguen was not punished for speech, the Massachusetts court, in upholding the conviction, has necessarily limited the scope of the statute to protecting the physical integrity of the flag. The requisite for "treating contemptuously" was found, and the court concluded that punishment was not for speech -- a communicative element. I, therefore, must conclude that Goguen's punishment was constitutionally permissible for harming the physical integrity of the flag by wearing it affixed to the seat of his pants. I accept the Massachusetts court's opinion at what I regard as its face value.