sion. It would be those who serve on a voluntary basis, except, if I am correct, there would be reimbursement for expenses for travel and ordinary incidental expense.

Mr. COLLINS. But you would prefer a permanent commission?
Mr. O'CONNOR. Yes.

Mr. COLLINS. And you take the approach that the commission should be appointed by the President?

Mr. O'CONNOR. No, I do not. I say that while The American Legion suggested that in its resolution, we are in favor of the creation of a national flag commission, whether it be by the President or by the Congress.

I also testified that we asked the executive branch of the Government over 5 years ago to proceed with these revisions, which could have been done by Presidential proclamation, since they contain no criminal sanctions.

The point that the Senator made was that if you had criminal sanctions, you are in a dangerous area. You sure are. If you have criminal sanctions, the President cannot repeal them, either. I am certain the President, if he wanted to modify, could modify them, but he certainly could not repeal the criminal sanction enacted by the Congress. So I want to make it unequivocally clear that the American Legion will support very strongly a commission formulated by the Congress of the United States.

Mr. COLLINS. Are you saying, then, that The American Legion would also support the approach taken by Senator Tower for the creation of a commission?

Mr. O'CONNOR. Yes. We would support whichever the Judiciary Subcommittee in its best interests felt was best for the United States. We want the flag commission created, and we would like to see it created through legislation, whether it be Senator Tower's temporary commission or a permanent commission. What we are trying to do is to move on this legislation. Our preference is to have the flag commission in existence to consider in the days to come any changes.

Mr. COLLINS. As part of an attachment to your statement, you delineate all of the proposed revisions made by the approach taken in S.J. Res. 91.

Mr. O'CONNOR. Yes.

Mr. COLLINS. I think Mr. Finger in his statement pretty much covered those salient points. Do you have any you want to highlight yourself, or has Mr. Finger covered them in his statement?

Mr. O'CONNOR. Of course, Mr. Collins, these are our own composition. In fact, the language in this resolution is identical to what The American Legion passed. So unless you wish to question me concerning any specific section, we are willing to let our own written recommendations stand.

Mr. COLLINS. Mr. Finger basically covered all these points.

Mr. O'CONNOR. Yes, he did. There is one point that Mr. Finger made in answer to the Senator's question concerning mayors: The whole idea behind limiting flag lowering privileges to the President of the United States. We certainly do not think that privilege should go down below the Governor of the State. In the case that they referred to of a former mayor of New York City lowering the flag, that was in direct contradiction to the position of the Congress

of the United States and most Americans in supporting our men overseas. That symbol at that time was done in sympathy with Vietnam Veterans Against the War and caused great controversy. We used every influence at our command to prevent that incident, and we succeeded. I think that is an abuse when you get down to the office of mayor, and we would not favor that.

Senator HRUSKA. Thank you, all three of you, for appearing. Have you something, Mr. Mattingly, to add to the testimony given?

Mr. MATTINGLY. Senator Hruska, my chief purpose in being here this morning is to accompany our expert witness. I would like to introduce the assistant director of the division which staffs Mr. O'Connor's commission, Mr. Charles E. Masters, assistant director of the Legion's Americanism Division.

Senator HRUSKA. I see in the commission room Mr. Frank Specht, who is very, very active in your Legion and the National Headquarters.

Frank, would you come up here, sit at the witness table, and join your colleagues? We know you thought many years of your having an abiding interest in the program of The American Legion.

You may proceed, Mr. Mattingly.

Mr. MATTINGLY. Mr. Chairman, I have no statement as such. Daniel J. O'Connor, our witness who has just testified, is, as you know, well known throughout the country in patriotic circles as well as veterans' organizations. He has been the chairman of our National Americanism Commission since the year 1962. Prior to that time, he was an active member of that commission, and I believe he has amply demonstrated here today his familiarity and his expertise in this particular field.

We do appreciate very, very much the opportunity that you gave us today to make our recommendations known to your subcommittee. Senator HRUSKA. Have you anything further to add? Mr. MASTERS. No, Mr. Chairman.

Senator HRUSKA. Very well.

The opinion in the Smith case, which was issued on March 25, 1974, is quite historical, because there are concurring opinions, there are dissenting opinions, and a review of the entire subject is made of decisions on this subject. The text of the opinions will be printed at a suitable place in the record, Mr. Counsel, and you will determine that editorially.

[The above-referred-to opinion follows:]

Supreme Court of the United States

syllabus

SMITH, SHERIFF

0. GOGUEN

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 72-1254. Argued November 12-13, 1973-Decided March 25, 1974 Appellee, for wearing a small United States flag sewn to the seat of his trousers, was convicted of violating the provision of the Massachusetts flag misuse statute that subjects to criminal liability anyone who "publicly . . . treats contemptuously the flag of the United States. . . ." The Massachusetts Supreme Judicial Court affirmed. The District Court in appellee's habeas corpus action

found the "treats contemptuously" phrase of the statute unconstitutionally vague and overbroad. The Court of Appeals affirmed. Held:

1. The callenged statutory language, which had received no narrowing state court interpretation, is void for vagueness under the Due Process Clause of the Fourteenth Amendment, since by failing to draw reasonably clear lines between the kinds of non-ceremonial treatment of the flag that are criminal and those that are not it does not provide adequate warning of forbidden conduct and sets forth a standard so indefinite that police, court and jury are free to react to nothing more than their own preferences for treatment of the flag. Pp. 6-9, 12. 2. By challenging in state courts the vagueness of the "treats contemptuously" phrase as applied to him, appellee preserved his due process claim for purposes of federal habeas corpus jurisdiction, Picard v. Connor, 404 U.S. 270, since the challenged language is void for vagueness as applied to appellee or to anyone else. A "hard-core" violator concept has little meaning with regard to the challenged language, because the phrase at issue is vague not in the sense of requiring a person to conform his conduct to an imprecise but comprehensible standard, but in the sense of not specifying any ascertainable standard of conduct at all. Pp. 10–12.

3. Even if, as appellant contends, the statute could be said to deal only with "actual" flags of the United States, this would not resolve the central vagueness deficiency of failing to define contemptuous treatment. Pp. 12-13.

4. That other words of the desecration and contempt portion of the statute address more specific conduct (mutilation, trampling, and defacing of the fiag) does not assist appellant, since appellee was tried solely under the "treats contemptuously" phrase, and the highest state court in this case did not construe the challenged phrase as taking color from more specific accompanying language. P. 13.

5. Regardless of whether restriction by that court of the scope of the challenged phrase to intentional contempt may be held against appellee, such an interpretation nevertheless does not clarify what conduct constitutes contempt of the flag, whether intentional or inadvertent. Pp. 13–14.

471 F. 2d 88, affirmed.

POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. WHITE, J., filed an opinion concurring in the judgment. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., joined.

Supreme Court of the United States

No. 72-1254

JOSEPH SMITH, SHERIFF OF WORCESTER COUNTY,

APPELLANT
V.

VALARIE GOGUEN

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

[March 25, 1974]

Mr. JUSTICE POWELL delivered the opinion of the Court.

The Sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag misuse statute unconstitutionally vague and overbroad. Goguen v. Smith, 471 F. 2d 88, aff'g, 343 F. Supp. 161 (Mass. 1972), prob, juris. noted, 412 U.S. 905 (1973). We affirm on the vagueness ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.

I

The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers.1

1 The record consists solely of the amended bill of exceptions Goguen filed in the Massachusetts Supreme Judicial Court, the opposing briefs before that court. the complaint under which Goguen was prosecuted, and Goguen's federal habeas corpus petition. Appendix 1-36, 42-43. We do not have a trial transcript, although Goguen's amended bill of exceptions briefly summarizes some of the testimony given by witnesses for the prosecution at his state trial. Goguen did not take the stand. Thus we do not have of record his account of what transpired at the time of his arrest or of his purpose in wearing a flag on the seat of his trousers.

The flag was approximately four by six inches and was displayed to the left rear of Goguen's blue jeans. On January 30, 1970, two police officers in Leominister, Massachusetts saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen's apparel." No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominister.

The following day the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag misuse statute. The relevant part of the statute then read:

"Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the United States. whether such flag is public or private property. shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . .' Despite the first six words of the statute, Goguen was not charged with any act of physical decoration. As permitted by the disjunctive structure of the desecration and contempt portion of the statute, the officer charged specifically and only that Goguen "did publicly treat contemptuously the flag of the United States...."5

After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, Mass., 279 N. E. 2d 666 (1972). That court rejected Goguen's vagueness argument with the comment that "[w]hatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here." Id., 279 N.E. 2d, at 667. The

2 Tr. of Oral Arg. 5-6, 35-36.

Mass., at

3 Mass. Gen. Laws Ann. c. 264, § 5 (1971). Omitting several sentences protecting the ceremonial activities of certain veterans' groups, the statute read as follows at the time of Goguen's arrest and conviction:

"§ 5. Flag; penalty for misuse

"Whoever publicly mutilates, tramples upon. defaces or treats contemptuously the flag of the United States or of Massachusetts, whether such flag is public or private property, or whoever displays such flag or any representation thereof upon which are word, figures, advertisements or designs, or whoever causes or permits such flag to be used in a parade as a receptacle for depositing or collecting money or any other article or thing, or whoever exposes to public view, manufactures, sells, exposes for sale, gives away or has in possession for sale or to give away or for any purpose, any article or substance, being an article of merchandise or a receptacle of merchandise or articles upon which is attached, through a wrapping or otherwise, engraved or printed in any manner, a representation of the United States flag, or whoever uses any representation of the arms or the great seal of the commonwealth for any advertising or commercial purpose, shall be punished by a fine of not less than ten or more than one hundred dollars or by imprisonment for not more than one year, or both. Words, figures, advertisements or designs attached to, or directly or indirectly connected with, such flag or any representation thereof in such manner that such flag or its representation is used to attract attention to or advertise such word, figures, advertisements or designs, shall for the purposes of this section be deemed to be upon such flag."

The statute is an amalgam of provisions dealing with flag desecration and contempt (the first 26 words) and with commercial misuse or other exploitation of flags of the state and national government. This case concerns only the "treats contemptuously" phrase of the statute, which has apparently been in the statute since its enactment in 1899. Goguen v. Smith, supra, 471 F. 2d, at 90, n. 2.

In 1971, subsequent to Goguen's prosecution, the desecration and contempt portion of the statute was amended twice. On March 8, 1971, the legislature, per St. 1971, c. 74, modified the first sentence by inserting "burns or otherwise" between the terms "publicly" and "mutilates," and, in addition, by increasing the fine. Mass. Gen. Laws Ann. c. 264, § 5 (1973 Supp.). On August 12, 1971, via St. 1971, c. 655, the legislature appended a new sentence defining "the flag of the United States" phrase appearing in the first sentence: "For the purposes of this section the term "flag of the United States' shall mean any flag which has been designated by Act or Resolution of the Congress of the United States as the national emblem, whether or not such designation is currently in force." Ibid. The 1971 amendments are relevant to this case only in the tangential sense that they indicate a recognition by the legislature of the need to tighten up this imprecise statute.

Perhaps this was because of the difficulty of the question whether Goguen's conduct constituted physical. desecration of the flag. Cf. Goguen v. Smith, supra, 471 F. 2d, at 91, n. 4 ("... [Wle are not so sure that sewing a flag to a background clearly affects 'physical integrity.'").

Appendix 4.

court cited no Massachusetts precedents interpreting the "treats contemptuously" phrase of the statute."

After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. Goguen v. Smith, supra, 343 F. Supp. 161. The District Court found the flag contempt portion of the Massachusetts statute impermissibly vague under the Due Process Clause of the Fourteenth Amendment as well as overbroad under the First Amendment. In upholding Goguen's void for vagueness contentions, the court concluded that the words "treats contemptuously" did not provide a "readily ascertainable standard of guilt." Id., at 167. Especially in "these days when flags are commonly displayed on hats, garments and vehicles the words under which Goguen was convicted "leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution." Ibid. The court also found that the statutory language at issue "may be said to encourage arbitrary and erratic arrests and convictions." Ibid.

The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amedment and vagueness grounds. Goguen v. Smith, supra, 471 F. 2d 88. With regard to the latter ground, the Court of Appeals concluded that "resolution of [Goguen's void for vagueness] challenge to the statute as applied to him necessarily adjudicates the statute's facial constitutionality Id., at 94. Treating as-applied and on-the-face vagueness attacks as essentially indistinguishable in light of the imprecision of the statutory phrase at issue, id., at 92, 94, the court found that the language failed to provide adequate warning to anyone, contained insufficient guidelines for law enforcement officials, and set juries and courts at large. Id., at 94-96. Senior Circuit Judge Hamley, sitting by designation from the Ninth Circuit, concurred solely in the void-for-vagueness holding. Id., at 105. Judge Hamley saw no need to reach the "far broader constitutional ground" of First Amendment overbreadth relied on by the majority, noting the "settled principle of appellate adjudication that constitutional questions are not to be dealt with unless this is necessary to dispose of the appeal." Ibid.

II

We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here.' The doctrine incorporates notions of fair or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent "arbitrary and discriminatory enforcement." Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of

9

• Appellant correctly conceded at oral argument that Goguen's case is the first recorded Massachusetts court reading of this language. Tr. of Oral Arg. 17-18. Indeed, with the exception of one turn of the century case involving one of the statute's commercial misuse provisions, Commonwealth v. R. I. Sherman Manu. Co., 189 Mass. 76, 75 N. E. 71 (1905), the entire statute has been essentially devoid of state court interpretation.

7 The elements of the void for vagueness doctrine have been developed in a large body of precedent from this Court. The cases are categorized in. e.g., Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). See. Amsterdam, "The Void-for-Vagueness Doctrine in the Supreme Court," 109 U. Pa. L. Rev. 67 (1960).

8 E.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939): "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids." (Citations omitted.) ;

Connally v. General Construction Co., 269 U.S. 385, 391 (1926): ". [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." (Citations omitted.)

E.g., Grayned, supra, 408 U.S., at 108; United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921) (". . . [T]o attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury."); United States v. Reese, 92 U.S. 214, 221 (1875) ("It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.").