Street v. New York
The Supreme Court reversed a man's conviction for burning an American flag on a Brooklyn street corner, ruling that the trial record left open the possibility that he was convicted, at least in part, for the defiant and contemptuous words he spoke about the flag rather than solely for burning it.
Because speaking critically about the flag is protected expression, and the judge who convicted him never made clear whether the words or the burning (or both) supported the verdict, the conviction could not stand. The Court expressly avoided deciding whether flag burning itself can be punished.
“we are unable to sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects.”
The Court's core reason for reversing the flag-burning conviction.
How it got here: A New York City Criminal Court judge convicted him without a jury; the Appellate Term affirmed without opinion; the New York Court of Appeals unanimously affirmed, and he appealed to the Supreme Court.
The Case in Depth
What happened
After hearing that civil rights leader James Meredith had been shot, a Black transit worker in Brooklyn burned a small American flag on a street corner and, when questioned by police, said he no longer felt the country deserved the flag given what happened to Meredith. He was charged and convicted under a New York law making it a crime to publicly mutilate, deface, or "cast contempt upon" a flag "by words or act."
The question before the Court
Could New York punish a man for burning an American flag in protest when his conviction may have rested partly on words he spoke condemning the flag?
Why it matters
The ruling meant prosecutors and trial judges had to be careful to separate protected speech from potentially punishable conduct when both were part of the same protest, or risk having convictions thrown out. It also left the deeper question — whether burning the flag itself can be criminally punished — unresolved, fueling continued legal and political debate over flag-desecration laws for years afterward.
What changes now
The case was sent back to the New York courts for further proceedings, but the Supreme Court explicitly declined to decide whether flag burning itself, apart from any accompanying words, could be constitutionally punished. That broader question remained open, leaving states free to continue prosecuting flag desecration under statutes drafted to avoid the "words" defect identified here, subject to future litigation.
What this does not decide
The Court explicitly did not decide whether New York, or any state, may constitutionally punish someone for burning an American flag as an act of protest. The ruling rests narrowly on the possibility that this particular conviction was based on protected speech, not on the constitutionality of flag burning itself.
Concurrences and dissents
Dissent — Justice Warren
“This record is not sufficiently ambiguous to justify the Court's speculation that the verdict below might rest even in part upon a conviction for appellant's words.”Warren's objection that the trial record clearly showed the conviction rested only on burning the flag.
Chief Justice Warren argued the Court strained to avoid the real question — whether flag burning as protest can be punished — and that the trial record showed unambiguously that the conviction rested solely on the act of burning, not on any words. He would have reached and decided that flag burning could be criminally punished.
Dissent — Justice Black
Justice Black agreed with the New York Court of Appeals that the conviction rested entirely on the act of burning the flag, not on speech, and would have affirmed. He argued that speech used as an integral part of unlawful conduct is not shielded by the First Amendment.
Dissent — Justice White
Justice White argued the Court could not avoid deciding whether a flag-burning conviction is constitutional, since any speech component was clearly intertwined with and secondary to the burning itself. He rejected the majority's rule requiring reversal whenever a general verdict might rest on either of two charged acts, calling it inconsistent with longstanding practice upholding verdicts supported by at least one valid ground.
Dissent — Justice Fortas
Justice Fortas joined Chief Justice Warren's dissent and separately argued that the flag is a special kind of property subject to unique regulation, so states and the federal government have power to protect it from public desecration even when the act is meant as political protest.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the constitutionality of the statute's 'words' provision had actually been raised in the state courts, since it could only review a federal question if it had been adequately presented; it found the defense's trial-court motion invoking free speech satisfied that requirement.
- Applying the rule from Stromberg v. California — that a general, unexplained guilty verdict must be reversed if it might rest on a constitutionally protected ground the statute also covers — the Court held that when a single verdict could rest on either protected or unprotected conduct, and the record does not show which, the conviction cannot stand.
- The Court extended this principle, drawing on Thomas v. Collins, to hold that even if the record showed the conviction rested on both the flag burning and the spoken words together, reversal would still be required if the words themselves could not constitutionally be punished, because the two acts could not be disentangled from a single general verdict and single sentence.
- Examining the trial record, the Court found it could not rule out that the judge convicted appellant, at least in part, for his spoken words alone, since the information charged both the burning and the words, a police officer testified to the words, and the judge never indicated the words were relevant only to intent.
- The Court then considered four possible government interests in punishing the words — preventing incitement, preventing violent retaliation, protecting bystanders' sensibilities, and enforcing respect for the flag — and found the New York statute, as written and applied, was not narrowly tailored to serve any of them without also punishing protected expression.
- Because the words themselves were constitutionally protected advocacy about a national symbol, and the conviction might have rested on those words, the conviction could not be sustained regardless of whether a conviction based solely on the flag burning might have been constitutional.
Doctrinal impact
Cases affected by this decision
Reaffirms Stromberg v. California (283 U.S. 359)
Reaffirmed that a general verdict must be reversed if it might rest on a constitutionally protected ground.
Reaffirms Thomas v. Collins (323 U.S. 516)
Relied on to hold reversal is required if a single verdict could rest on both a protected and unprotected act.
Distinguishes Chaplinsky v. New Hampshire (315 U.S. 568)
Distinguished because New York's statute, unlike Chaplinsky's, was not narrowly drawn to cover only fighting words.