Cowgill v. California
Headline: Dismissal leaves undecided whether punishing a person for wearing a vest made from a mutilated American flag is protected speech, as the Court granted the motion and dismissed the appeal.
Holding: The Court dismissed the appeal by granting the motion to dismiss, declining to decide whether wearing a mutilated American flag is protected from punishment because the record was inadequate.
- Leaves unresolved whether mutilating or wearing a flag is protected expression.
- Requires lower courts to establish whether conduct clearly communicates a message first.
Summary
Background
A person who appears to have worn a vest fashioned from a cut-up American flag appealed a criminal case to the Supreme Court against the State of California. The appeal came from the Appellate Department of the Superior Court of Los Angeles County and raised the question whether displaying a mutilated flag can be punished consistent with the Fourteenth Amendment.
Reasoning
The Court, in a brief per curiam order, granted the motion to dismiss and dismissed the appeal without deciding the main constitutional question. Justice Harlan, joined by Justice Brennan, wrote a concurrence explaining that the record was not fit for deciding whether the conduct had a recognizable communicative aspect. Harlan noted the trial record did not show that the trial court made findings, that the defendant had presented evidence, or that any standard had been urged for deciding whether the vest conveyed a message. The opinion also recounts that the Court has not yet established a test for when conduct becomes protected expression and cites prior
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