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But "The test is whether a reasonable man subject to the statute would be informed of the nature of the offense ***." People v. Byron, 17 N.Y. 2d 64, 66 (1966). "The clarity and certainty necessary to satisfy constitutional requirements may be acquired, however, by reference to the context in which the term is used." People v. Merolla, 9 N.Y. 2d 62, 66 (1961).

With regard to the word "flag", the object which the statute protects from desecration must be one "upon which shall be shown the colors, the stars, and the stripes of the American flag, or "by which the person seeing the same, without deliberation may believe the same to represent" the American flag. Surely, in the context of a statute narrowly drawn to prevent desecration of the flag, the definition of flag as an object (a) bearing the white stars upon a blue field and red and white stripes of the American flag or (b) unmistakably representing that flag to the viewer, will clearly convey to a reasonable man the type of object he may not desecrate.

Likewise, in the context of such a statute, the words "defy", "defile" and "cast contempt upon" will convey to a reasonable man with clarity and certainty their established and accepted meanings of "desecrate", "dishonor", "scorn" and "sully". The Random House Dictionary of the English Language (New York, Random House: 1966), p. 316, col. 1; p. 379, col. 2; p. 380, col. 1; State v. Schlueter, 127 N.J.L. 496, 23 A.2d 249, 250-251 (1941).

The conduct prohibited, the objects protected and the standards of enforcement under § 1425-16 of the Penal Law are clearly and narrowly drawn. Its meaning is clear. It does not describe "attitudes", but actions-"word or act". It does not admit of subjective, selective, arbitrary or discretionary application or enforcement-least of all when applied to the facts of this case. The flag of the United States may not be desecrated or dishonored. The statute is constitutional.

Point III. Section 1425, Subdivision 16 of the New York Penal Law Prohibits All Desecration of the American Flag, and Does Not Unconstitutionally Discriminate Against Defendant

Defendant points to a portion of the statute in question which provides that the law shall not "be construed to apply to a certificate, diploma, warrant, or commission of appointment to office, ornamental picture, article of jewelry, stationery for use in private correspondence, or newspaper or periodical, on any of which shall be printed, painted or placed, said flag, standard, color, shield or ensign disconnected and apart from any advertisement." (Emphasis added.) Defendant argues that this provision exempts pictures and newspapers but not sculpture and books from its terms. His point seems to be that while painters and journalists and their exhibitors and publishers are free from prosecution thereunder, sculptors and authors and their exhibitors and publishers are not. Hence defendant, who says he is an exhibitor of a "sculptor" (Morrel), claims that § 1425-16 of the Penal Law denies him equal protection of the laws.

The purpose of the statute is to prohibit desecration of the American flag and to insure its respectful use and representation. 1943 Report of N.Y. Att'y Gen. 90-91; 1941 Reports of N.Y. Att'y Gen. 465; 51 N.Y. State Dep't Reports 240 (1934). One of the means of achieving that purpose is to prohibit the use of the flag or a representation thereof in advertising. Halter v. Nebraska, supra; People v. Picking, supra.

The provision claimed to be discriminatory by defendant does not exempt anyone from prosecution for desecration of the flag, but simply insures that no one will be prosecuted for respectful use or representation of the flag apart from advertising, even though one may place or represent the flag in the media normally used for advertising-papers, fliers, handbills, pictures, photographs, pins, buttons, letterheads, newspapers, magazines, etc.

Hence the statute involved here is not discriminatory and is constitutional. Point IV. This action will not place defendant in double jeopardy

Defendant points to § 1938 of the Penal Law as extending the constitutional prohibition against double jeopardy to this case, and argues that § 1425-16 is unconstitutional in that it places him in double jeopardy.

However, in People v. Savarese, 1 Misc. 2d 305, 310 (Co. Ct. Kings Co. 1952), Judge Sobel said:

"It should be noted that the section [§ 1938] is divided into two parts. The first prohibits double punishment; the second prohibits double jeopardy.

"A question of double punishment may arise only when a defendant is convicted of two or more crimes charged in one indictment. The question of double

jeopardy arises only when a second trial is sought on a subsequent indictment following a conviction or acquittal on an earlier indictment." (Emphasis by the Court.)

Obviously, this is not a double jeopardy situation. The instant case is a civil action, not a second criminal prosecution. There will be no second indictment after conviction or acquittal of defendant in the presently pending criminal case. With regard to double punishment, the applicable rule was stated years ago by New York's highest court in People v. Stevens, 13 Wend. 341, 342 (Sup. Ct. of Judicature, 1835):

"It is undoubtedly competent for the legislature to subject any particular offence, both to a penalty and a criminal prosecution; it is not punishing the same offence twice. They are but parts of one punishment; they both constitute the punishment which the law inflicts upon the offence. That they are enforced in different modes of proceeding, and at different times, does not affect the principle."

See also City of New York v. Carolla, 48 Misc. 2d 140 (City Court, New York City 1965); People v. Snyder, 90 App. Div. 422 (4th Dept. 1904); Rollins v. Breed, 54 Hun 485, 8 N.Y.S. 48 (4th Dept. 1889); People v. Rotunda, 55 N.Y.S. 2d 5 (Sup. Ct. Orange Co. 1945). Here there is no possibility of double punishment or double jeopardy. We submit the statute is in all respects constitutional. Point V. This Action Is Properly Brought in This Court To Recover a Penalty for Violation of the Statue Involved

With regard to ¶ 8 of defendant's affidavit (Aff., p. 3) and Point V of defendant's memorandum (Memo., p. 16), plaintiff agrees that "the State alone, not plaintiff, may prosecute defendant for crime," and alone may punish him for crime upon his conviction. But this is a civil action to recover a penalty. In City of New York v. Carolla, supra, a single section of the Administrative Code made it a misdemeanor to block a certain part of a roadway, with the offender subjected to a fine or imprisonment, and also provided:

"In addition, any person who violates the provisions of this section shall be subject to a civil penalty in the sum of one hundred dollars for each and every day the violation exists." (Emphasis added.)

The criminal charges against defendant were dismissed. The Court held that the words "in addition" did not show a legislative intent

"that there first must be a criminal conviction and the imposition of criminal sanctions, and only then a civil action to recover the statutory penalty. *** The Legislature obviously intended to provide both criminal sanctions and civil penalties. The use of the words 'in addition' appears to intend that the penalties might be cumulative * * *. However, there is no requirement that the remedies be cumulative. *** To hold otherwise would be to frustrate the statutory intention." 48 Misc. 2d 142 and cases cited.

Here § 1425-16 provides that anyone who desecrates the American flag "[s]hall be deemed guilty of a misdemeanor; and shall also forfeit a penalty" of $50 for each offense, recoverable in a civil action by a private citizen in any court with jurisdiction. The Legislature clearly intended that this action may be maintained completely independent of any crimianal prosecution. And the ruling of the Court in Carolla points up the fallacy of defendant's contentions that "unless I am found guilty in a criminal proceeding, the penalty provided by the statute may not be forfeited or collected by the plaintiff herein", and that "the judge who presides over the criminal trial *** is to decide the penalty which is applicable." (Def. Aff., p. 3.)

This action is proper.

CONCLUSION

The motion of defendant to dismiss the complaint should be in all respects denied.

Dated: March 11, 1967.

Respectfully submitted,

Peter M. Brown.

CADWALADER, WICKERSHAM & TAFT,
Attorneys for Plaintiff,
United States Flag Foundation, Inc.

Terence F. Gilheany.

Of Counsel.

Mr. ZELENKO. I also submit for the record a Library of Congress study of Federal and State provisions relating to the United States flag.

Mr. ROGERS of Colorado. That will be received.

(The study follows:)

THE LIBRARY OF CONGRESS LEGISLATIVE REFERENCE SERVICE

FEDERAL AND STATE PROVISIONS RELATING TO THE UNITED STATES FLAG

(By Grover S. Williams and Johnny H. Killian, Legislative Attorneys,
American Law Division, January 2, 1964, Washington, D.C.)

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FEDERAL LAW: FLAG CODE

On June 22, 1942, the President of the United States approved a joint resolution of the Senate and House of Representatives codifying existing customs and rules governing the display and use of the Flag of the United States of America by civilians. Further amendments were approved on December 22 of that year, and the pledge of allegiance was amended in June. 1954. This code includes the provisions of the code adopted by the National Flag Conference at Washington for June 14, 1923, with certain amendments and additions.

56 Statutes-at-Large 415; 36 U.S.C. §§ 171–178

[Public Law 829-77th Congress]
[Chapter 806-2d Session]
[H.J. Res. 359]

JOINT RESOLUTION

To amend Public Law Numbered 623, approved June 22, 1942, entitled "Joint resolution to codify and emphasize existing rules and customs pertaining to the display and use of the flag of the United States of America."

Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That Public Law Numbered 623, approved June 22, 1942, entitled "Joint resolution to codify and emphasize existing rules and customs pertaining to the display and use of the flag of the United States of America," be, and the same is hereby amended to read as follows:

That the following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America be, and it is hereby. established for the use of such civilians of civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States.

SEC. 2 (a) It is the universal custom to display the flag only from sunrise to sunset on buildings and on stationary flagstaffs in the open. However, the flag may be displayed at night upon special occasions when it is desired to produce a patriotic effect.

(b) The flag should be hoisted briskly and lowered ceremoniously.

(c) The flag should not be displayed on days when the weather is inclement. (d) The flag should be displayed on all days when the weather permits, especially on New Year's Day, January 1; Inauguration Day, January 20; Lincoln's Birthday, February 12; Washington's Birthday, February 22; Army Day, April 6; Easter Sunday (variable); Mother's Day, second Sunday in May; Memorial Day (half staff until noon), May 30; Flag Day, June 14; Independence Day, July 4; Labor Day, first Monday in September; Constitution Day, September 17; Columbus Day, October 12; Navy Day, October 28; Armistice Day, November 11; Thanksgiving Day, fourth Thursday in November; Christmas Day, December 25; such other days as may be proclaimed by the President of the United States; the birthdays of States (dates of admission); and on State holidays.

(Armed Forces Day, by custom since 1949, is usually celebrated the third Saturday in May. Constitution Day, by resolution of the 82nd Congress has been designated as Citizenship Day.)

(e) The flag should be displayed daily, weather permitting, on or near the main administration building of every public institution.

(f) The flag should be displayed in or near every polling place on election days.

(g) The flag should be displayed during school days in or near every schoolhouse.

SEC. 3 That the flag, when carried in a procession with another flag or flags, should be either on the marching right; that is, the flag's own right, or if there is a line of other flags, in front of the center of that line.

(a) The flag should not be displayed on a float in a parade except from a staff, or as provided in subsection (i).

(b) The flag should not be draped over the hood, top, sides, or back of a vehicle or of a railroad train or a boat. When the flag is displayed on a motorcar, the staff shall be fixed firmly to the chassis or clamped to the radiator cap.

(c) No other flag or pennant should be placed above or, if on the same level, to the right of the flag of the United States of America, except during church

services conducted by naval chaplains at sea, when the church pennant may be flown above the flag during church services for the personnel of the Navy.

The following paragraph is Public Law 107 as an amendment to the Flag Code by the 83rd Congress, First Session, approved July 9, 1953:

No person shall display the flag of the United Nations or any other national or international flag, equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States at any place within the United States or any territory or possession thereof: Provided, That nothing in this section shall make unlawful the continuance of the practice heretofore followed of displaying the flag of the United Nations in a position of superior prominence or honor, and other national flags in positions of equal prominence or honor, with that of the flag of the United States at the headquarters of the United Nations. (d) The flag of the United States of America, when it is displayed with another flag against a wall from crossed staffs, should be on the right, the flag's own right, and its staff should be in front of the other flag.

(e) The flag of the United States of America should be at the center and at the highest point of the group when a number of flags of States or localities or pennants of societies are grouped and displayed from staffs.

(f) When flags of States, cities, or localitics, or pennants of societies are flown on the same halyard with the flag of the United States, the latter should always be at the peak. When the flags are flown from adjacent staffs, the flag of the United States should be hoisted first and lowered last. No such flag or pennant may be placed above the flag of the United States or to the right of the flag of the United States.

(g) When flags of two or more nations arc displayed, they are to be flown from separate staffs of the same height. The flags should be of approximately equal size. International usage forbids the display of the flag of one nation above that of another nation in time of peace.

(h) When the flag of the United States is displayed from a staff projecting horizontally or at an angle from the window sill, balcony, or front of a building, the union of the flag should be placed at the peak of the staff unless the flag is at half staff. When the flag is suspended over a sidewalk from a rope extending from a house to a pole at the edge of the sidewalk, the flag should be hoisted out, union first, from the building.

(i) When the flag is displayed otherwise than by being flown from a staff, it should be displayed flat, whether indoors or out, or so suspended that its folds fall as free as though the flag were staffed.

(j) When the flag is displayed over the middle of the street, it should be suspended vertically with the union to the north and south street.

(k) When used on a speaker's platform, the flag, if displayed flat, should be displayed above and behind the speaker. When displayed from a staff in a church or public auditorium, if it is displayed in the chancel of a church, or on the speaker's platform in a public auditorium, the flag should occupy the position of honor and be placed at the clergyman's or speaker's right as he faces the congregation or audience. Any other flag so displayed in the chancel or on the platform should be placed at the clergyman's or speaker's left as he faces the congregation or audience. But when the flag is displayed from a staff in a church or public auditorium elsewhere than in the chancel or on the platform it shall be placed in the position of honor at the right of the congregation or audience as they face the chancel or platform. Any other flag so displayed should be placed on the left of the congregation or audience as they face the chancel or platform. (1) The flag should form a distinctive feature of the ceremony or unveiling a statue or monument, but it should never be used as a covering for the statue or monument.

(m) The flag, when flown at half-staff, should be first hoisted to the peak for an instant and then lowered to the half-staff position. The flag should be again raised to the peak before it is lowered for the day. By "half-staff" is meant lowering the flag to one-half the distance between the top and bottom of the staff. Crepe stemmers may be affixed to spear heads or flagstaffs in a parade only by order of the President of the United States.

(n) When the flag is used to cover a casket, it should be so placed that the union is at the head and over the left shoulder. The flag should not be lowered into the grave or allowed to touch the ground.

SEC. 4. That no disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental

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