APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.
Powell, J., delivered the opinion of the Court, in which Douglas, Brennan, Stewart, and Marshall, JJ., joined. White, J., filed an opinion concurring in the judgment, post, p. 583. Blackmun, J., post, p. 590, and Rehnquist, J., post, p. 591, filed dissenting opinions, in which Burger, C. J., joined.
MR. JUSTICE POWELL delivered the opinion of the Court.
The sheriff of Worcester County, Massachusetts, appeals from a judgment of the United States Court of Appeals for the First Circuit holding the contempt provision of the Massachusetts flag-misuse statute unconstitutionally vague and overbroad. 471 F.2d 88 (1972), aff'g 343 F.Supp. 161 (Mass). We noted probable jurisdiction. 412 U.S. 905 (1973). We affirm on the vagueness
ground. We do not reach the correctness of the holding below on overbreadth or other First Amendment grounds.
The slender record in this case reveals little more than that Goguen wore a small cloth version of the United States flag sewn to the seat of his trousers.*fn1 The flag was approximately four by six inches and was displayed at the left rear of Goguen's blue jeans. On January 30, 1970, two police officers in Leominster, Massachusetts, saw Goguen bedecked in that fashion. The first officer encountered Goguen standing and talking with a group of persons on a public street. The group apparently was not engaged in any demonstration or other protest associated with Goguen's apparel.*fn2 No disruption of traffic or breach of the peace occurred. When this officer approached Goguen to question him about the flag, the other persons present laughed. Some time later, the second officer observed Goguen in the same attire walking in the downtown business district of Leominster.
The following day the first officer swore out a complaint against Goguen under the contempt provision of the Massachusetts flag-misuse statute. The relevant part of the statute then read:
"Whoever publicly mutilates, tramples upon, defaces or treats contemptuously the flag of the
United States . . . , whether such flag is public or private property . . . , shall be punished by a fine of not less than ten nor more than one hundred dollars or by imprisonment for not more than one year, or both. . . ."*fn3
Despite the first six words of the statute, Goguen was not charged with any act of physical desecration.*fn4 As permitted by the disjunctive structure of the portion of the statute dealing with discretion and contempt, the officer charged specifically and only that Goguen "did publicly treat contemptuously the flag of the United States . . . ."*fn5
After jury trial in the Worcester County Superior Court, Goguen was found guilty. The court imposed a sentence of six months in the Massachusetts House of Corrections. Goguen appealed to the Massachusetts Supreme Judicial Court, which affirmed. Commonwealth v. Goguen, Mass. , 279 N. E. 2d 666 (1972). That court rejected Goguen's vagueness argument with the comment that "whatever the uncertainties in other circumstances, we see no vagueness in the statute as applied here." Id., at , 279 N. E. 2d, at 667. The court cited no Massachusetts precedents
interpreting the "treats contemptuously" phrase of the statute.*fn6
After Goguen began serving his sentence, he was granted bail and then ordered released on a writ of habeas corpus by the United States District Court for the District of Massachusetts. 343 F.Supp. 161. The District Court found the flag-contempt portion of the Massachusetts statute impermissibly vague under the Due Process Clause of the Fourteenth Amendment as well as overbroad under the First Amendment. In upholding Goguen's void-for-vagueness contentions, the court concluded that the words "treats contemptuously" did not provide a "readily ascertainable standard of guilt." Id., at 167. Especially in "these days when flags are commonly displayed on hats, garments and vehicles . . . ," the words under which Goguen was convicted "leave conjectural, in many instances, what conduct may subject the actor to criminal prosecution." Ibid. The Court also found that the statutory language at issue "may be said to encourage arbitrary and erratic arrests and convictions." Ibid.
The Court of Appeals, with one judge concurring, affirmed the District Court on both First Amendment and vagueness grounds. 471 F.2d 88. With regard to the latter ground, the Court of Appeals concluded that "resolution of [Goguen's void-for-vagueness] challenge to the statute as applied to him necessarily adjudicates the statute's facial constitutionality . . . ." Id., at 94. Treating
as-applied and on-the-face vagueness attacks as essentially indistinguishable in light of the imprecision of the statutory phrase at issue, id., at 92, 94, the court found that the language failed to provide adequate warning to anyone, contained insufficient guidelines for law enforcement officials, and set juries and courts at large. Id., at 94-96. Senior Circuit Judge Hamley, sitting by designation from the Ninth Circuit, concurred solely in the void-for-vagueness holding. Id., at 105. Judge Hamley saw no need to reach the "far broader constitutional ground" of First Amendment overbreadth relied on by the majority, noting the "settled principle of appellate adjudication that constitutional questions are not to be dealt with unless this is necessary to dispose of the appeal." Ibid.
We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here.*fn7 The doctrine incorporates notions of fair notice or warning.*fn8 Moreover, it requires
legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent "arbitrary and discriminatory enforcement."*fn9 Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.*fn10 The statutory language at issue here, "publicly . . . treats contemptuously the flag of the United States . . . ," has such scope, e. g., Street v. New York, 394 U.S. 576 (1969) (verbal flag contempt), and at the relevant time was without the benefit of judicial clarification.*fn11
Flag contempt statutes have been characterized as void for lack of notice on the theory that "what is contemptuous to one man may be a work of art to another."*fn12 Goguen's behavior can hardly be described as art. Immaturity or "silly conduct"*fn13 probably comes closer to the mark. But we see the force of the District Court's observation that the flag has become
"an object of youth fashion and high camp . . . ." 343 F.Supp., at 164. As both courts below noted, casual treatment of the flag in many contexts has become a widespread contemporary phenomenon. Id., at 164, 167; 471 F.2d, at 96. 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 draw 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 (1939), and that "men of common intelligence" not be forced to guess at the meaning of the criminal law. Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Given today's tendencies to treat the flag unceremoniously, those notice standards are not satisfied here.
We recognize that in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language.*fn14 In such cases, perhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine -- the requirement that a legislature establish minimal guidelines to govern law enforcement. It is in this regard that the statutory language under scrutiny has its most notable deficiencies.
In its terms, the language at issue is sufficiently unbounded to prohibit, as the District Court noted, "any public deviation from formal flag etiquette . . . ." 343 F.Supp., at 167. Unchanged throughout its 70-year history,*fn15 the "treats contemptuously" phrase was also devoid of a narrowing state court interpretation at the relevant time in this case.*fn16 We are without authority to cure that defect.*fn17 Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law. E. g., Papachristou v. City of Jacksonville, 405 U.S. 156, 165-169 (1972). In Gregory v. City of Chicago, 394 U.S. 111, 120 (1969), Mr. Justice Black, in a concurring opinion, voiced a concern, which we share, against entrusting lawmaking "to the moment-to-moment judgment of the policeman on his beat." The aptness of his admonition is evident from appellant's candid concession during oral argument before the Court of Appeals regarding state enforcement standards for that portion of the statute under which Goguen was convicted:
"As counsel [for appellant] admitted, a war protestor
who, while attending a rally at which it begins to rain, evidences his disrespect for the American flag by contemptuously covering himself with it in order to avoid getting wet, would be prosecuted under the Massachusetts statute. Yet a member of the American Legion who, caught in the same rainstorm while returning from an 'America -- Love It or Leave It' rally, similarly uses the flag, but does so regrettably and without a contemptuous attitude, would not be prosecuted." 471 F.2d, at 102 (emphasis in original).
Where inherently vague statutory language permits such selective law enforcement, there is a denial of due process.
Appellant's arguments that the "treats contemptuously" phrase is not impermissibly vague, or at least should not be so held in this case, are unpersuasive. Appellant devotes a substantial portion of his opening brief, as he did his oral argument, to the contention that Goguen failed to preserve his present void-for-vagueness claim for the purposes of federal habeas corpus jurisdiction. Appellant concedes that the issue of "vagueness as applied" is properly before the federal courts,*fn18 but contends that Goguen's only arguable claim is that the statute is vague on its face. The latter claim, appellant insists, was not presented to the state courts with the requisite fair precision. Picard v. Connor, 404 U.S. 270 (1971). This exhaustion-of-remedies argument is belatedly raised,*fn19 and it fails to take the full measure of
Goguen's efforts to mount a vagueness attack in the state courts.*fn20 We do not deal with the point at length, however, for we find the relevant statutory language impermissibly vague as applied to Goguen. Without doubt the "substance" of this claim was "fairly presented" to the state courts under the exhaustion standards of Picard, supra, at 275, 278.
Appellant's exhaustion-of-remedies argument is premised on the notion that Goguen's behavior rendered him a hard-core violator as to whom the statute was not vague, whatever its implications for those engaged in different conduct. To be sure, there are statutes that
by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes. The present statute, however, is not in that category. This criminal provision is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Such a provision simply has no core. This absence of any ascertainable standard for inclusion and exclusion is precisely what offends the Due Process Clause. The deficiency is particularly objectionable in view of the unfettered latitude thereby accorded law enforcement officials and triers of fact. Until it is corrected either by amendment or judicial construction, it affects all who are prosecuted under the statutory language. In our opinion the defect exists in this case. The language at issue is void for vagueness as applied to Goguen because it subjected him to criminal liability under a standard so indefinite that police, court, and jury were free to react to nothing more than their own preferences for treatment of the flag.
Turning from the exhaustion point to the merits of the vagueness question presented, appellant argues that any notice difficulties are ameliorated by the narrow subject matter of the statute, viz., "actual" flags of the United States.*fn21 Appellant contends that this "takes some of the vagueness away from the phrase, 'treats contemptuously . . . .'"*fn22 Anyone who "wants notice as to what conduct this statute proscribes . . . , immediately knows that it has something to do with flags and if he
wants to stay clear of violating this statute, he just has to stay clear of doing something to the United States flag."*fn23 Apart from the ambiguities presented by the concept of an "actual" flag,*fn24 we fail to see how this alleged particularity resolves the central ...