Legal Commentary

dead flowers and other messages

By David A. Giacalone

..  Modern Haiku XXVII:1 (1996; cover by John R. Reynolds)

Last weekend, I brought home a box filled with back copies of the Modern Haiku journal, borrowed from my friend Yu Chang.  Modern Haiku is not available online, except for a few sample poems from each issue that appear at its website. My plan was to start culling haiku and senryu written by our f/k/a Honored Guest Poets from the pages of Modern Haiku and share them here at f/k/a.

The first Honored Guest poem that I found as I opened the oldest volume in the box yesterday morning was this senryu by John Stevenson:

not dead roses
she corrects me
. . . dried

.. by John Stevenson - Modern Haiku XXVII:1 (1996

As always happens, I was soon distracted by an email and then a link on the f/k/a statistics page.  The next thing I knew, I was at Sui Generis, where blawger Niki Black pointed me to a posting at Stephen Bergstein’s Wait a Second! weblog. It was titled “Bouquet of dead flowers is free speech, not illegal death threat” (Jan. 21, 2009).  With simple serendipity, a posting theme was born.

After numerous additional, time-consuming distractions, I finally spent a couple hours at the end of yesterday afternoon putting together a “dead flowers” piece.  At about 6 PM, I moved my cursor to click “Publish,” but missed the button by an inch, and instead hit “Delete post.”  It was gone.  Gone.  And I was far too irked (at myself) and dispirited to start again last night.

a happy little horror 
the headless
tulips

…. by David G. Lanoue - Dewdrop World (2005; free download)

A full day later, I’m dragging out the dead flowers again, oblivious to any message my webserver might have been sending yesterday.

fresh grave
the bare earth covered
with cut flowers

… by Tom Painting  - The Heron?s Nest (Aug. 2003)

newspaper roll -
crushed crocuses just below
the headlines

? by Yu Chang - Frogpond 31:2 (Spring/Summer 2008)

At his civil rights weblog, Stephen Bergstein tells us why Mama Holley was being crass, not criminal, when she left dead flowers for the Orange County probation department:

“The case is Holley v. County of Orange, [S.D.N.Y.,] 06 Civ. 3984, decided on January 14. (The case is not yet reported). The plaintiff is a 69 year-old mother who was upset when the local court revoked her son’s probation and the probation officer laughed while leaving the courtroom.  So mom walked into the probation office undetected and left dead flowers on the receptionist’s desk with a message for the probation department reading, ‘Thinking of you, your ‘HELP’ will be long remembered.’ . . . Plaintiff’s follow-up email to a probation supervisor stated that she was sick and tired of the way that office had humiliated her family.  She also said the bouquet was ’serving notice’ and that the ‘gift spoke for itself’.”

Apparently, the probation folk were very scared by the flowers and notes and, as Stephen explains, “Holley was arrested for menacing, which makes it illegal to intentionally place another person in imminent fear of physical injury or death.”  However, the federal trial judge looked at the situation and concluded Holley’s arrest violated the Fourth Amendment, because there was no probable cause that the flowers placed the “victims” in imminent fear of injury or death. In addition, while Holley’s gesture was “crude” and “offensive,” her arrest also violated her First Amendment right to free speech, because there was no “true threat” of violence. Instead, the court held that:

“[The bouquet and card] were neither unequivocal nor unconditional insofar as plaintiff expressed her dismay with the Department of Probation and asked for an apology.”

Moreover (and surely to Walter’s dismay), Ms. Holley is entitled to have a jury determine any damages caused by the denial of her civil rights.  Stephen concludes that “some criminal prosecutions are really First Amendment violations in disguise” and “irate citizens have the right to express profound dissatisfaction with official decision-making.”

Not unexpectedly, the Holley case reminded lawyer Bergstein of “a Rolling Stones classic from 1971″ that he hadn’t heard in years.  It’s “Dead Flowers,” of course, which we discussed at f/k/a in 2005, after first reading John Stevenson’s “dead roses” poem, in his book Some of the Silence.  Indeed, we invited anyone sittin’ back in a rose pink Cadillac,

“to mail the f/k/a gang some dead flowers.  There?s no need to wait for a wedding or funeral.”

.. The Rolling Stones sang “Dead Flowers” on their 1971 Sticky Fingers album. [Click for the lyrics, and also for a 1972 performance by the Rolling Stones found on YouTube.]  Before he headed north in 1980 to NYC and  Cleary Gottlieb, my friend Martin Welling also sang “Dead Flowers” at night spots around Metro D.C. — often at my request.

after her death
composing roses
instead of words

.. by Pamela Miller Ness

Sending dead flowers without a more direct and deadly threat might not amount to menacing, but another cultural icon from the same era as the Stones’ song raises a similar legal issue.  In 1969, when recording began on “Dead Flowers,” Mario Puzo published his novel The Godfather.  In 1972, the movie version of The Godfather gave actor Lenny Montana’s face, voice and hulking presence to the Don’s loyal enforcer Luca Brasi, and gave us the immortal line “Luca Brasi dorme coi pesci.” Which leaves us with a question we can’t refuse to ask:

.. What about sending dead fish? Judging from this YouTube clip from The Godfather, young don Sonny Corleone was rather upset by that package with Luca Brasi’s vest wrapped around dead fish.  It’s clear message was that hit-man Brasi “sleeps with the fishes,” and it didn’t come from a 69-year-old miffed mother.  Please discuss among yourselves whether New York’s criminal menacing statute should have applied when Sonny got those unflappable fish.  We hope Scott Greenfield will share his vast criminal defense experience and NYC savvy to help answer this question.

first date?
the little pile
of anchovies

.?? by Roberta Beary - from The Unworn Necklace (Snapshots Press, 2007); Frogpond (Winter 2007), 1st Place, Haiku Society of America?s 2006 Gerald Brady Senryu Contest

first-date daisies
she never mentions
they?re wilting

.. by dagosan [Aug. 6, 2005]

No, I haven’t totally forgotten Modern Haiku XXVII:1 (1996).  It has a full bouquet of poetry from the f/k/a haijin family, and I’ll get back to them soon.  Until then, here are another pair in keeping with our floral theme.

in the rain
from the car to the house –
wide open chrysanthemums

… by Gary Hotham - Modern Haiku XXVII:1 (1996

a mist at dawn
moonflowers’ fragrance
trumpeting

…. by Peggy Willis Lyles - Modern Haiku XXVII:1 (1996

Flowers: once they’re picked, they’re all dead.

Full post as published by f/k/a . . . on January 27, 2009 (boomark / email).