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Smith v. Goguen

Supreme Court of the United States · 1974 · Constitutional Law

Constitutional LawDue ProcessVaguenessvaguenessdue processfair noticearbitrary enforcementflag misuse statute

Facts

Goguen wore a small cloth United States flag sewn to the seat of his blue jeans while on a public street and later in the downtown business district of Leominster, Massachusetts. There was no demonstration, protest, traffic disruption, or breach of the peace. He was charged under the Massachusetts statute only with publicly treating the flag contemptuously, not with mutilating, trampling, or physically defacing it. He was convicted, sentenced to six months, and ultimately obtained federal habeas relief on vagueness grounds.

Issue

Whether the Massachusetts statute making it a crime publicly to "treat contemptuously" the flag of the United States was unconstitutionally vague as applied to Goguen. More specifically, the question was whether that phrase gave fair notice and provided adequate standards to constrain police, prosecutors, courts, and juries.

Rule

A criminal statute is void for vagueness under the Due Process Clause if it fails to give people of common intelligence fair notice of what conduct is forbidden or fails to establish reasonably clear, minimal guidelines for law enforcement and triers of fact, thereby permitting arbitrary and discriminatory enforcement. When a statute's literal scope can reach expression sheltered by the First Amendment and there is no narrowing state-court construction, a greater degree of specificity is required.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Maine, Naomi Kerr wears a jacket with a small cloth American flag stitched to one sleeve while walking to a music venue. A city prosecutor charges her under a state misdemeanor statute making it unlawful to publicly treat the United States flag "disrespectfully," and no state appellate court has ever interpreted that phrase.

Is Naomi's strongest due process argument likely to succeed?

Explanation. The majority held that a criminal statute is vague when people of common intelligence must guess at what conduct it forbids. An open-ended term like "disrespectfully," applied to a widely used symbol often displayed informally on clothing, does not draw reasonably clear lines between criminal and noncriminal conduct. The defect is especially serious where the statute can reach expression and lacks a narrowing state-court construction.