322 F. Supp. 585

WOODROW WILSON JONES, Chief District Judge
(concurring).
I concur in the court’s judgment and in much of what is said in the prevailing opinion. I agree that Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L. Ed.2d 572, invalidates the provision of the North Carolina statute which makes it unlawful to defy or cast contempt by words upon the flag of the United States. I also agree that the section of the statute which defines the flag contains some provisions which are vague and perhaps overbroad, but I do not agree that those provisions are subject to the absurd interpretations feared by the majority. While the statute fails to provide enforcement officials with adequate guidance concerning what is proscribed, and fails to afford adequate notice to the public of the scope of its proscription, it nevertheless expressly provides that the object must evidently purport to be a flag of the United States.
I do not agree that the Constitution restricts the Congress or state legislatures to such narrow flag protection as indicated by the majority. It is true that the majority opinion does not go as far as the Second Circuit in Long Island Vietnam Moratorium Committee v. Cahn, 437 F.2d 344 (2nd Cir. December 24, 1970), but the guidelines suggested by the majority go beyond what the Supreme Court has said thus far. I read West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, and Street v. New York, supra, as holding only that no man can be punished for refusal to affirmatively demonstrate respect for the flag nor for speaking contemptuously of the flag by words.
I feel that some federal courts are reading too much into Street. It must be remembered that it was a five to four decision, and while the majority opinion contains a long discussion of First Amendment rights, the court decreed nothing more than a state cannot constitutionally inflict criminal punishment upon one who ventures “publicly to defy or cast contempt upon any American flag by words.” The case was sent back to the New York courts to determine whether the defendant was convicted for his words or for his act of burning the flag. Among the dissenters were Chief Justice Warren and Justice Black, both of whom are ardent First Amendment defenders. Chief Justice Warren said: “I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.” Justice Black said: “It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense. It is immaterial to me that words are spoken in connection with the burning. It is the burning of the flag that the State has set its face against.”
In my opinion, the Congress and the legislatures of the various states have considerable power to regulate the use and protection of the American flag. The Congress has prohibited the registration of any trademark which consists of or comprises the flag or any simulation thereof and has enacted several statutes prescribing how the flag may be displayed. 15 U.S.C.A. § 1052(b) and 36 U.S.C.A. §§ 170-179. In July of 1968 the Congress enacted a federal statute making it a federal crime to desecrate the flag of the United States. 18 U.S. C.A. § 700. This statute seems to meet the constitutional test and at least one federal court has so held. United States v. Ferguson, 302 F.Supp. 1111 (N.D. Calif.1969). In 1907, the Supreme Court in Halter v. Nebraska, 205 U.S. 34, 27 S. Ct. 419, 51 L.Ed. 696, in passing upon a state statute similar to the one under attack here, held:
“Without further discussion, we hold that the provision against the use of representations of the flag for advertising articles of merchandise is not repugnant to the Constitution of the United States.”
This decision has not been overruled.
Apparently, the last word from the Supreme Court on this subject came on January 10, 1970, when a motion to dismiss an appeal was granted in the case of Cowgill v. California, 396 U.S. 371, 90 S.Ct. 613, 24 L.Ed.2d 590. Cowgill had been convicted by a state court of violating a statute making it a crime to publicly mutilate, deface, defile or trample upon the flag of the United States. The defendant’s act of desecration was that of causing the United States flag to be cut and sewn into a vest, and then wore the vest on the public streets. The conviction was allowed to stand.
While under all of the circumstances presented here we must declare the statute unconstitutional, I do not agree that the power of Congress and the legislature of North Carolina is as restricted in this important field as the majority opinion seems to imply.

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