Here their proprietary interest could subject them, as persons responsible, to the prescribed criminal penalty, and they were so advised by the Attorney General with reference to the cover of Argus, which was the only part of that magazine submitted to the Attorney General. They were also advised by the first printer that his attorney had found not only the cover but the contents to be violative of the so-called uniform ‘flag desecration’ statute. In
People v. Radich, 26 N.Y.2d 114, 308 N.Y.S.2d 846, 257 N.E.2d 30 (Feb. 18, 1970), the proprietor of an art gallery exhibiting the works of an artist was found guilty of flag desecration. And a publisher, as well as the art director and editor of a magazine in
People v. Von Rosen, 13 Ill.2d 68, 147 N.E.2d 327 (1958), were submitted to criminal prosecution, though their conviction was ultimately reversed for insufficiency of the evidence. Other cases that constituted desecration of the flag were
Halter v. Nebraska, 208 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (1907), involving use of the flag on a beer bottle;
State v. Schlueter, 127 N.J.L. 496, 23 A.2d 249 (1941), tearing and crumbling a flag before a group; and more recently,
Hoffman v. United States, 256 A.2d 567 (D.C. Court of Appeals 1969), wearing a shirt resembling an American flag en route to a Congressional hearing. While the United States Supreme Court has held that one need not honor the flag of the United States, it has not yet held that it is permissible to desecrate it. In
Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969), at least four Justices, former Chief Justice Warren, and Justices Black, White and Fortas, indicated that the uniform flag desecration statute, which is the statute in question here, is facially constitutional. Former Chief Justice Warren stated categorically: ‘I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.’
Id. at 605, 89 S.Ct. at 1372. Justice Fortas characterized the flag as ‘a special kind of personalty’ and stated further: ‘its use is traditionally and universally subject to special rules and regulation’ and when it is used for the purpose of protest, its use ‘does not immunize the violator.’ It is not every type of symbolic speech that is constitutionally protected. See
United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). While freedom of expression is certainly the hallmark of academic freedom, with the university community one crucible in which ideas and possible solutions to our complex civilization can be ground out for the betterment of all mankind, freedom of expression cannot and should not be the instrument by which a small minority seeks to bring down our civilization.