Commonwealth v. Goguen

Massachusetts Supreme Judicial Court

Commonwealth v. Goguen

279 N.E.2d 666, 361 Mass. 846, 1972 Mass. LEXIS 977

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 2, 1972

StatusPublished

Cited by9 cases

This text of 279 N.E.2d 666 (Commonwealth v. Goguen) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Goguen, 279 N.E.2d 666, 361 Mass. 846, 1972 Mass. LEXIS 977 (Mass. 1972).

Pincite

Opinion

The defendant was convicted of publicly treating contemptuously the flag of the United States in violation of G. L. c. 264, § 5. The case is before us on the defendant’s amended bill of exceptions. There was evidence that on Main Street in Leominster he was wearing a cloth American flag sewn to the seat of his blue jeans, and that certain bystanders were amused. We reject his claim that the statute is on its face or as applied to him a restraint upon the right of freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Halter v. Nebraska, 205 U. S. 34, 41. Chaplinsky v. New Hampshire, 315 U. S. 568, 574. United States v. O’Brien, 391 U. S. 367, 376. Sutherland v. DeWulf, 323 F. Supp. 740, 743-746 (S. D. Ill.). Oldroyd v. Kugler, 327 F. Supp. 176, 178 (D. N. J.). Compare Cowgill v. California, 396 U. S. 371, 372 (concurring opinion of Harlan, J.); Hiett v. United States, 415 F. 2d 664, 672 (5th Cir.), cert. den. sub nom. United States v. Hiett, 397 U. S. 936. Long Island Vietnam Moratorium Comm. v. Cahn, 437 F. 2d 344, 348-350 (2d Cir.), cert. den. 400 U. S. 956. His communication, if any, was so thoroughly inarticulate as to lack the slightest redeeming social importance. See Roth v. United States, 354 U. S. 476, 484. He was not prosecuted for being “intellectually . . . diverse” or for “speech” as in Street v. New York, 394 U. S. 576, 593-594, or for a “vulgar allusion,” as in Cohen v. California, 403 U. S. 15, 20. Whatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here. Sutherland v. DeWulf, supra, at 746-749. Oldroyd v. Kugler, supra, at 178-179. See Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 340. Compare Rep. A. G., Pub. Doc. No. 12 (1968) 192-193. Compare Hoffman v. United States, 445 F. 2d 226, 228-229 (D. C. Cir.), with Hodsdon v. Buckson, 310 F. Supp. 528, 536 (D. Del.), Crosson v. Silver, 319 F. Supp. 1084, 1089-1090 (D. Ariz.), and Parker v. Morgan, 322 F. Supp. 585, 588-593 (W. D. N. C.). The jury could infer that the violation was intentional without reviewing any words of the defendant. Commonwealth v. Williams, 312 Mass. 553, 557. State v. Turner, 78 Wash. 2d 276, 283-284. See People v. Radich, 26 N. Y. 2d 114, 125, affd. by an equally divided court, sub nom. Radich v. New York, 401 U. S. 531. Compare Smith v. California, 361 U. S. 147, 152. The statute does not require that the flag be “official.” There was no abuse of discretion in excluding evidence offered through a “vexillologist” as to the contemporary use and treatment of the flag. Johnson v. Orange, 320 Mass. 336, 338. Scully v. [847]*847Joseph Connolly Ice Cream Sales Corp. 336 Mass. 392, 394. There was no error.

Evan T. Lawson (C. Michael Malm with him) for the defendant. John M. O’Connor, Assistant District Attorney, for the Commonwealth.

Exceptions overruled,

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The defendant was convicted of publicly treating contemptuously the flag of the United States in violation of G. L. c. 264, § 5. The case is before us on the defendant’s amended bill of exceptions. There was evidence that on Main Street in Leominster he was wearing a cloth American flag sewn to the seat of his blue jeans, and that certain bystanders were amused. We reject his claim that the statute is on its face or as applied to him a restraint upon the right of freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Halter v. Nebraska, 205 U. S. 34, 41. Chaplinsky v. New Hampshire, 315 U. S. 568, 574. United States v. O’Brien, 391 U. S. 367, 376. Sutherland v. DeWulf, 323 F. Supp. 740, 743-746 (S. D. Ill.). Oldroyd v. Kugler, 327 F. Supp. 176, 178 (D. N. J.). Compare Cowgill v. California, 396 U. S. 371, 372 (concurring opinion of Harlan, J.); Hiett v. United States, 415 F. 2d 664, 672 (5th Cir.), cert. den. sub nom. United States v. Hiett, 397 U. S. 936. Long Island Vietnam Moratorium Comm. v. Cahn, 437 F. 2d 344, 348-350 (2d Cir.), cert. den. 400 U. S. 956. His communication, if any, was so thoroughly inarticulate as to lack the slightest redeeming social importance. See Roth v. United States, 354 U. S. 476, 484. He was not prosecuted for being “intellectually . . . diverse” or for “speech” as in Street v. New York, 394 U. S. 576, 593-594, or for a “vulgar allusion,” as in Cohen v. California, 403 U. S. 15, 20. Whatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here. Sutherland v. DeWulf, supra, at 746-749. Oldroyd v. Kugler, supra, at 178-179. See Boyce Motor Lines, Inc. v. United States, 342 U. S. 337, 340. Compare Rep. A. G., Pub. Doc. No. 12 (1968) 192-193. Compare Hoffman v. United States, 445 F. 2d 226, 228-229 (D. C. Cir.), with Hodsdon v. Buckson, 310 F. Supp. 528, 536 (D. Del.), Crosson v. Silver, 319 F. Supp. 1084, 1089-1090 (D. Ariz.), and Parker v. Morgan, 322 F. Supp. 585, 588-593 (W. D. N. C.). The jury could infer that the violation was intentional without reviewing any words of the defendant. Commonwealth v. Williams, 312 Mass. 553, 557. State v. Turner, 78 Wash. 2d 276, 283-284. See People v. Radich, 26 N. Y. 2d 114, 125, affd. by an equally divided court, sub nom. Radich v. New York, 401 U. S. 531. Compare Smith v. California, 361 U. S. 147, 152. The statute does not require that the flag be “official.” There was no abuse of discretion in excluding evidence offered through a “vexillologist” as to the contemporary use and treatment of the flag. Johnson v. Orange, 320 Mass. 336, 338. Scully v. [847]*847Joseph Connolly Ice Cream Sales Corp. 336 Mass. 392, 394. There was no error.

Evan T. Lawson (C. Michael Malm with him) for the defendant. John M. O’Connor, Assistant District Attorney, for the Commonwealth.

Exceptions overruled,

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279 N.E.2d 666, 361 Mass. 846, 1972 Mass. LEXIS 977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-goguen-mass-1972.

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