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COMMONWEALTH v. HAUGH (07/02/70)

decided: July 2, 1970.

COMMONWEALTH
v.
HAUGH, APPELLANT



Appeal from order of Superior Court, Oct. T., 1968, No. 1152, affirming judgment of sentence of Criminal Court of Centre County, No. 370 of 1967, in cases of Commonwealth of Pennsylvania v. Rochelle Janoff and Stephen H. Haugh.

COUNSEL

Harry E. Sprogell, for appellant.

Charles C. Brown, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen and Mr. Justice Eagen concur in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: Roberts

[ 439 Pa. Page 213]

Appellant and a co-defendant were convicted, by a judge sitting without a jury, of desecrating the American flag. See Act of June 24, 1939, P. L. 872, as amended, 18 P.S. ยง 4211 (Supp. 1970). An appeal to the Superior Court resulted in an affirmance of his conviction, see 215 Pa. Superior Ct. 160, 256 A.2d 874

[ 439 Pa. Page 214]

(1969) (per curiam without opinion, Hoffman, J., dissenting) and we granted allocatur. We now reverse the order of the Superior Court, reverse the judgment of sentence, and discharge appellant.

The facts are not in dispute. On July 4, 1967, appellant and several others participated in a demonstration at State College, protesting the involvement of the United States in the Viet Nam War. Appellant exposed to public view a flag of the United States on which were printed the words "Make Love Not War" and "The New American Revolutionaries."

Appellant initially urges that we strike down Pennsylvania's flag desecration statute as an unconstitutional restraint on First Amendment rights. See, e.g., Bachellar v. Maryland, 397 U.S. 564, 90 S. Ct. 1312 (1970); Street v. New York, 394 U.S. 576, 89 S. Ct. 1354 (1969); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733 (1969); United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673 (1968); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943); Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532 (1931); Hodsdon v. Buckson, 310 F. Supp. 528 (D. Del. 1970). We do not reach this issue, however, for there is a more narrow, non-constitutional, ground upon which we may rest our decision.

The relevant portion of the statute under which appellant was convicted is: "Whoever, in any manner, places . . . any word . . . upon any flag . . . of the United States . . . or publicly . . . casts contempt either by words or act upon, any such flag . . . is guilty of a misdemeanor . . . . This section does not apply to . . . any patriotic or political demonstration or decorations."

Appellant was obviously participating in a demonstration concerning a political issue, and the trial court so found. We hold, ...


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