Abbie Hoffman v. United States , 445 F.2d 226 ( 1971 )

MacKINNON, Circuit Judge

(concurring) :

It was charged in the instant indictment that appellant

“ * * * knowingly cast contempt upon the flag of the United States by publicly mutilating, defacing and defiling said flag * * in violation of 18 U.S.C. § 700.

In this court there is no contention that there was any evidence of “mutilating,” and since we are limited to the charges contained in the indictment, we have only to consider whether appellant knowingly cast contempt upon the flag by “defacing” or “defiling” it.

At trial no evidence was introduced that appellant engaged in any physical act directed against the flag except wearing a shirt that had been made commercially from parts of an American flag to which were pinned two political-type buttons reading: “Wallace for President, Stand Up for America” and “Vote Pig Yippie in Sixty-Eight.” We are thus required to decide whether wearing the shirt under the circumstances here present constituted a contemptuous “defacing” or “defiling” of the flag.

The Government brief does not state exactly how it contends “contempt” was cast on the flag by any act of “defacing” or “defiling.” Rather its theory seems to be that the manufactured shirt constituted a flag within the statute (which is correct) and that when it was worn by Hoffman “with buttons affixed to it mocking the American political system with full awareness of that resemblance” (of the shirt to the American flag) contempt was publicly cast on the flag and the statute was violated as charged in the indictment. I disagree with the theory that a contemptuous desecration of the flag can be found solely from such acts. It is noteworthy that the Government brief speaks broadly of acts that desecrate the flag but fails to point to any specific acts or circumstances from which the trier of facts would be warranted in finding that the flag (shirt) was contemptuously defaced or defiled. In fact, the pages of the brief which refer to Hoffman’s acts (pp. 22-23) do not mention the word “defaced” and only once refer to “defiled” and then in the context that the flag is defiled by manufacturing it into a shirt. Hoffman did not make the shirt, he purchased it ready-made. Even if he had manufactured the shirt there would still be absent any evidence that he thereby knowingly cast contempt upon the flag.

Thus, at most the Government is contending that there was a contemptuous “defacing and defiling” of the flag by appellant wearing it with the Wallace and Pig Yippie buttons pinned thereto; but merely wearing a manufactured shirt made from a flag with such buttons pinned thereto, without more, in my opinion falls short of violating the statute. While a flag (or shirt) might be technically defaced by pinning such buttons thereon, such conduct alone does not “cast contempt upon the flag.” Such conduct is at most a breach of the rules and patriotic customs pertaining to the display and use of the flag of the United States of America which are codified in the United States Statutes for the use of such civilians or civilian groups or organizations as may not be required to conform to the regulations promulgated by one or more executive departments of the Government of the United States. These specifically provide that “No disregard should be shown to the flag of the United States of America * * * (g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.” 36 U.S.C. § 176(g), 56 Stat. 1076. Such regulation applies only to “the flag” (not to a shirt made from parts of the flag) and a breach of its terms imposes no penalty for its violation. If it is only a breach of custom to place a design upon a flag for which no penalty is imposed, it is certainly not to be inferred that Congress intended to make it a criminal offense to place a political-type button upon a shirt resembling a flag.

Clearly it is necessary to find something more than a breach of custom to convert such acts into a criminal offense. That extra requirement of the criminal statute is that there must be some proof that the accused acted with the requisite intent to knowingly cast contempt upon the flag. The prohibition against knowingly casting contempt implicitly involves more intent of the accused than mere knowledge that the flag shirt he was wearing had political buttons pinned thereto, the same as a knowing conversion in Morissette v. United States, 342 U.S. 246, 270-271, 72 S.Ct. 240, 96 L.Ed. 288 (1952), was held to require more than mere knowledge that the defendant was taking the property into his possession. What is required is a showing of some intent by the accused to cast contempt upon the flag by publicly defacing or defiling it. The test in this respect is largely subjective and it turns on whether it can be inferred from the acts of the accused that he intended his acts to be contemptuous of the flag.

The conviction of Hoffman was sustained by the District of Columbia Court of Appeals upon the theory that wearing such buttons on the shirt under such circumstances amounted to a “defiling” of the flag. To “defile” means to make filthy, dirty, to make ceremoniously unclean, sully, or to dishonor. Clearly such offense is not proved by merely wearing the Wallace and Pig Yippie buttons on the shirt. Nor would the statute be violated by wearing a Nixon for President, or Humphrey for President button under similar circumstances as the Government contended. Such conduct might be a technical breach of the custom but something more is needed to demonstrate a knowing casting of contempt upon the flag. We have searched the record and the opinion of the District of Columbia Court of Appeals in vain for that additional evidence. We conclude, as appellant argued on this appeal, that the trial and appellate courts found these missing elements to be supplied by the appellant himself and by his public reputation. From this, we believe the other courts concluded that it was actually contemptuous of the flag for appellant to publicly wear the shirt made from it in the manner he did because he was the person he was. We have no doubt that there are many Americans who would come to the same conclusion because of appellant’s well known public image which is highly controversial. He has been associated with a number of causes which are unpopular with a great many people and which a great many people consider to be unpatriotic. However, I find no testimony in the record from which we would be justified in finding that his actions here were knowingly contemptuous of the flag.

The only direct evidence concerning appellant’s intent was provided by the testimony of appellant himself. He indicated, in effect, that in the charade he was enacting he did not use the flag contemptuously but rather as a high symbol of America. His acts were intended by him to cast contempt upon the Committee not upon the flag. The buttons were intended to mock the Committee not the flag. To convey this message required that he be wrapped in the flag with all its majesty so as to indicate that the flag was supporting him against the Committee.

Such being the state of the record, the missing elements that he intended to cast contempt upon the flag cannot be supplied through judicial notice of his unsavory reputation in certain quarters for his opposition to certain traditional patriotic attitudes. He was, I believe, intentionally contemptuous of the Committee and used the shirt made out of the American flag as a prop in exhibiting that contempt, but proof that he demonstrated contempt for the Committee in that manner cannot be converted into proof that he knowingly cast contempt upon the American flag. My conclusion that the evidence here does not prove the charge laid in the indictment is thus based on the finding that there is an absence of any evidence proving that his words or actions were proof of any contempt for the flág (as represented by the shirt). I thus concur in the accompanying opinions of my colleagues except as to those remarks in Judge Fahy’s opinion concerning First Amendment rights which I do not consider to be necessary to the decision.