STREET V. NEW YORK (1969)

After the shooting of civil rights icon James Meredith, Sidney Street, a fifty-one-year-old African American New York City bus driver with no previous criminal record, set his American flag on fire on a public street. A crowd gathered, and a police officer demanded that Street explain what was going on. Street replied, “If they let that happen to Meredith, we don’t need an American flag.” Street was arrested and eventually convicted of violating a state statute making it a crime to publicly “cast contempt upon [the US flag] either by words or act.”

After New York’s appellate and high courts affirmed his conviction, the US Supreme Court overturned it in a 5–4 decision, ruling that the part of the law prohibiting contemptuous “words” against the flag violated the right to freedom of speech protected by the First Amendment. The Court wrote, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Because the part of the law against words was unconstitutional and because it was not possible to know from the general verdict at trial whether Street’s words had played a role in his conviction, the Court overturned the guilty verdict. It would take the Supreme Court another twenty years to return to the question of whether the First Amendment protected even the act of burning the flag.