People v. Keough

Cardamone, J. (dissenting).

I dissent and vote to reverse the convictions. By express terms the statute under which these defendants were indicted (General Business Law, § 136) defines the word “ flag ” as including a picture or a representation ” thereof. It further provides in the following paragraph that, ‘ ‘ This section shall not * * * be construed to apply to a * * * newspaper or periodical, on any of which shall be printed, painted or placed, said flag, standard, color, shield or ensign disconnected and apart from any advertisement.” It is hard to conceive of clearer legislative language. The periodical in question, being expressly excluded from the application of section 136, cannot serve as a basis for either the indictments or the convictions of these defendants.

Unlike public acts or public words (People v. Radich, 26 N Y 2d 114, affd. 401 U. S. 531; People v. Street, 20 N Y 2d 231, revd. on other grounds 394 U. S. 576), writing or printing is not that form of communication which is directed toward inciting or producing imminent lawless action, nor is it capable of producing such action, and may not, therefore, be constitutionally proscribed by this statute which refers only to “ words and acts ” (cf. Brandenburg v. Ohio, 395 U. S. 444, 447).

However, even if published writings or pictures were capable of inciting a breach of the peace, the printed pictures for which these defendants were indicted were not so ‘ ‘ inherently inflammatory as to come within that small class of ‘ fighting words ’ which are likely to provoke the average person to retaliation, and thereby cause a breach of the peace ’ [citation omitted] ” (Street v. New York, 394 U. S. 576, 592).

Although these defendants did plead guilty to disorderly conduct, such pleas did not constitute a waiver of their right to challenge the sufficiency of the indictment (People v. Scott, 3 *298N Y 2d 148; People v. Shafer, 30 A D 2d 213). The validity of these indictments should not have been sustained merely on the basis of evidence that several people complained and that such threatened a breach of the peace. An ‘ ‘ undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression ” (Tinker v. Des Moines School Dist., 393 U. S. 503, 508; cf. Cohen v. California, 403 U. S. 15, 23). The purpose of an indictment is to notify a defendant of the nature and character of the crime charged so that he may prepare his defense (People v. Armlin, 6 N Y 2d 231, 234; People v. Farson, 244 N. Y. 413). But neither the statute itself nor the indictments brought notice home to these defendants that a breach of the peace was a necessary element in a violation of section 136 of the General Business Law. Only by an analysis of People v. Radich (supra) and People v. Street (supra) could these defendants have known that breach of the peace was an essential, constitutionally required element in the crime they allegedly committed.

Under these circumstances, the test to be applied in this case should be whether the printed pictures were of such a nature as to create a clear and present danger that they would bring about the breach of the peace which the State has a right to prevent (Schenck v. United States, 249 U. S. 47, 52). Applying this test, it seems manifest that no such danger reasonably existed and, indeed, since the indictment contained no such allegation, the demurrer to it should have been sustained.

Del Vecchio, J. P., and Henry, J., concur with Gabrielli, J.; Cardamone, J., dissents and votes to reverse the judgments and dismiss the indictments in an opinion.

Judgments affirmed.