Wendell G. Freeland, Lichtenstein & Bartiromo, Pittsburgh, for appellant.
Donald E. Williams, Dist. Atty., J. Solomon, New Castle, for appellee.
Eagen and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.
Appellant Geoffrey Morgan was tried by a jury and convicted upon an indictment charging that he "did defile
and cast contempt on the American flag by publicly wearing a 6" by 8" American flag sewn on the seat of his pants . . . ." After denial of appellant's post-trial motions, he appealed to the Superior Court, which affirmed per curiam. 222 Pa. Super. 511, 295 A.2d 183 (1972).*fn1 We permitted an appeal to this Court.*fn2 We reverse.
The statute under which Morgan was convicted punishes one who "publicly or privately mutilates, defaces, defiles or tramples upon, or casts contempt either by words or act upon" the American flag.*fn3 Appellant contends that the statute is impermissibly vague. With respect to the prohibition of "cast[ing] contempt," we agree.
The general principles of the void-for-vagueness doctrine are well-settled and need no extensive discussion here. See generally Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972), and cases cited therein; Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960). The precise question before us has recently been decided by the Supreme Court of the United States in Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). There the defendant had been convicted under a Massachusetts statute of "publicly . . . treat[ing] contemptuously the flag of the United
States" by wearing it sewn to the seat of his pants. The Court, speaking through Mr. Justice Powell, held the statute unconstitutional, stating:
"Flag wearing in a day of relaxed clothing styles may be simply for adornment or a ploy to attract attention. It and many other current, careless uses of the flag nevertheless constitute unceremonial treatment that many people may view as contemptuous. Yet in a time of widely varying attitudes and tastes for displaying something as ubiquitous as the United States flag or representations of it, it could hardly be the purpose of the Massachusetts legislature to make criminal every informal use of the flag. The statutory language under which Goguen was charged, however, fails to drawn reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not. Due process requires that all 'be informed as to what the State commands or forbids . . .,' Lanzetta v. New Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed. 888] (1939), and that 'men of common intelligence' not be forced to guess at ...