***493**188*232 David T. Goldstick and John Somers, New York City, for appellant.
Aaron E. Koota, Dist. Atty. (Harry Brodbar, Brooklyn, of counsel), for respondent.
*233 Peter M. Brown and Terence F. Gilheany, New York City, for United States Flag Foundation, Inc., amicus curiae.
Opinion
*234**189 FULD, Chief Judge.
We are called upon to decide whether the deliberate act of burning an American flag in public as a ‘protest’ may be punished as a crime.
On June 6, 1966, after hearing on the radio that James Meredith, the civil rights leader, had been shot by a sniper in Mississippi while participating in a civil rights ‘march’, the defendant—a decorated World War II veteran—decided to express his indignation and publicly to protest the tragic happening by burning an American flag. Owning two—one with 50 stars, the other with 48—he selected the latter and burned it on a street corner, telling the small crowd which collected that ‘(i)f they let that happen to Meredith we don't need an American flag.’ The defendant was arrested, tried and convicted for violating the provision of the Penal Law, Consol.Laws, c. 40 (s 1425, subd. 16, par. d) which makes it a misdemeanor to ‘publicly mutilate’ the United States flag.1 He was acquitted of a second charge of disorderly conduct and given a suspended sentence.
For many years now, public desecration of the American flag has been a criminal offense in all of the States. (See ‘Desecration of the Flag’, Hearings on H.R. 271 Before Subcommittee No. 4 of House Committee on Judiciary, 90th Cong., 1st Sess. (Serial No. 4), pp. 324—346.) There is, in fact, a Uniform Flag Law (9B Uniform Laws Annotated (1966), pp. 51—54), closely resembling subdivision 16 of section 1425 of our Penal Law, which has been adopted by more than a dozen States. This sort of legislation was enacted, it has been said, as a reaction to the unseemly practice, adopted in the 1896 presidential campaign, of affixing political slogans to the flag. (See 9B Uniform Laws Annotated (1966), p. 48.) In any event, whatever motivated the Legislature to act, the statutory purpose is clear—it is to prevent a breach of the peace. (See People ex rel. McPike v. Van de Carr, 91 App.Div. 20, 26, 86 N.Y.S. 644, affd. 178 N.Y. 425, 70 N.E. 965;Halter v. State of Nebraska, 205 U.S. 34, 41, 27 S.Ct. 419, 51 L.Ed. 696;People v. Von Rosen, 13 Ill.2d 68, 70—71.) As the Supreme Court noted in the Halter case (205 U.S. 34, 41, 27 S.Ct. 419, 421, supra), ‘insults to a flag have been the cause of war, and ***496 indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot.’ Subdivision 16 of section 1425 is designed to prevent the outbreak of such violence by discouraging contemptuous and insulting treatment of the flag in public. Happily, the courts have not been called upon to apply the statute, or others like it, with any degree of frequency. In People v. Picking, 288 N.Y. 644, 42 N.E.2d 741, we **191 sustained a conviction under subdivision 16 for exploitation of the American flag in commercial advertising (see, also, Halter v. State of Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696, supra) and other jurisdictions have, on occasion, similarly punished such disrespectful conduct as publicly tearing a flag or throwing it to the ground. (See Hinton v. State, 223 Ga. 174, 154 S.E.2d 246;State v. Schlueter, 127 N.J.L. 496, 23 A.2d 249.)
The violation of the statute may not be condoned simply because the defendant's agitation resulted from the distressing news he had heard on the radio or because no violence actually did occur as a result of the flag burning. These were mitigating circumstances which were properly taken into account by the trial court when it suspended sentence for the conviction. Moreover, since the act in question was specifically prohibited by a statute (Penal Law, s 1425, subd. 16) and the defendant could be punished only once for having engaged in such conduct (Penal Law, s 1938), the court did not render an inconsistent *238 verdict when it dismissed the more general charge of disorderly conduct.
The judgment of conviction should be affirmed.
VAN VOORHIS, BURKE, SCILEPPI, BERGAN, KEATING and BREITEL, JJ., concur.
Although paragraph d of subdivision 16 does not mention the word ‘flag’, no one could possibly be misled as to the object of its coverage since it is perfectly evident, from a reading of the subdivision in its entirety, that the provision was meant to apply to public mutilation of the American flag. (Compare L.1921, ch. 428 with L.1922, ch. 270.)
The First Amendment does not invalidate a statute prohibiting certain bizarre conduct even if the need for restrictive legislation was not fully appreciated until after someone had utilized that form of conduct as a means of social or political protest. (See People v. Stover, 12 N.Y.2d, at p. 466, 240 N.Y.S.2d at p. 736, 191 N.E.2d at p. 274.)
The statute, by its terms, does not apply to any use of the flag ‘expressly permitted’ under Federal law or to any representation of the flag, apart from advertising, upon documents, pictures, jewelry, stationery, newspapers or magazines.
On oral argument before our court, the defendant disclaimed any reliance on the fact that the flag in question was obsolete, containing but 48 stars. Indeed, we note that the statute defines an American flag as one ‘upon which shall be shown * * * the stars, and the stripes, in any number of either thereof’.