Jurisdictional Statement — Sutherland v. Illinois

| fe Buprome Court. U.S

gE | ED

) MICHAFL RODAK, JR. ‘CLERK

— . _ a eee |

IN THE

Supreme Court of the United States

Ocroper TeRM, 1975

No. ........¢ 5* 898

ee

Linpa Marie SUTHERLAND; RoxaNA MARGURITE SCHULTZ;

and Tonia SuE PaPKE,

Appellants,

—against—

PEOPLE OF THE Stare or ILLINOIS,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF THE STATE OF ILLINOIS

JURISDICTIONAL STATEMENT

PETER DENGER Burt NEUBORNE

507 Cleaveland Bldg. New York University

Rock Island, Illinois 61201 School of Law

Sruart R. LErsTEew 40 Washington Square South

402 First National Bank Bldg. New York, New York 10012

Rock Island, Illinois 61201 —

Jor M. Gora

Tuomas KELLY : a

200 Walgreen Building —- on Liberties Union

Davenport, Iowa 52801 29 Bast 40th Street

New York, New York 10016

Attorneys for Appellants

i

TABLE OF CONTENTS

Page

Opinion Below Cocccccccccccccccccce &

Jurisdiction ee ae eet

Statute Involved ébbenbsebbeséeceece-@

Ee Tee § oggcecsseccoseese O

io a a Re

THE QUESTIONS ARE SUBSTANTIAL ........10

I. APPELLANTS HAVE BEEN CONVICTED

FOR ENGAGING IN CONSTITUTION-

ALLY PROTECTED EXPRESSION ........12

A. The Expressive Nature of

Appellants’ Activity .........12

B. The State Objectives Alleq-

edly Advanced By Suppressing

Appellants’ Ex pression ate ne eae

(1) Protecting the Sensi-

bilities of Passershy .....14

(2) Preventing Breaches

Of the Peace «escseeeeeeeeld

(3) Preserving the Integrity

of Our National Symbol ....17

ii

II. APPELLANTS HAVE BEEN CONVICTED

UNDER AN UNCONSTITUTIONAL

STATUTE 6006066 660seeees 60eecese OU

A. Illinois Outlaws Variant Flag

Usage Expressing Negative Sent-

iments While Permitting Variant

Use of the Flag to Express

POOAS AVS TER 8 ncccccceceoccoen LS

B. The Illinois Statute is Uncon-

stitutionally Overbroad ........20

Cc. The Illinois Statute is Void

for Vagueness jo eendendbnne ese

643066606606606806666686000088

CONCLUSION

APPENDIX:

Statute Involved TUTTI TITITITITTTTTtt

Memorandum of Denial of Petition

for Leave to Appeal by Illinois

Supreme Court WYYTTITITITITIT TTT

Opinion of Appellate Court of Illinois,

Third District, Filed February 9,

1973 sescedecceoososcoseccccodt

Notice of Appeal Filed With the Supreme

Court of Illinois, the Appellate Court

of Illinois, Third District and the

Circuit Court of Rock Island County,

Illinois on August 28, 1973 ........+-9a

iii

Judgment of the United States

Supreme Court, July 8, 1974 .........dla

Decision of the Appellate Court of

Illinois, Third Judicial District,

on Remand eocccccccccccccccccccs 12a

Order of the Supreme Court of

Illinois, Denying Leave to Appeal ---- 16a

Copy of Notice of Appeal filed with

the Supreme Court of Illinois, the

Appellate Court of Illinois, Third

District and the Circuit Court of

Rock Island County, Illinois on

December 16, 12 and 15 respectively... 17a

TABLE OF AUTHORITIES:

Cases

Bigelow v. Virginia, 44 L.Ed.2d

600 BE Se

Broadrick v. Oklahoma, 413 U.S.

601 (1973)

pete hn heseadenesesooee

Cahn v. Long Island Moratorium

Committee, 418 U.S. 906 (1974) ........11

Cantwell v. Connecticut, 310 U.S.

296 (1940) $0606006066006060600088

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) nbaeeeedseooseooosoe Oe

iv

Cohen v. California 403 U.S.

15 (1971) eeeeese7sesee#eseee7#ee#ee#es Se ade 14, 15

Cooper v. Aaron, 358 U.S. 1 (1958) e«-e-+- 17

Cowgill v. California, 396 U.S.

71 (1970) eeeeeevneeneee ee ee ee eeeeeene 13

Cox v. Louisiana, 379 U.S. 536 (1965).++- 15

Edwards v. South Carolina,

372 - - 229 (1963) eoeeeeveeeeeneeneeeeee 15

Erznoznik v. City of Jacksonville,

45 £L.B4.24 125 (1975S) cccccccese Soe Bee Ge

Farrell v. Iowa, 418 U.S. 907 (1974),

on remand 223 N.W. 2d 270 (1974),

appeal dismissed 95 S.ct. 2410 (1975)..22

Feiner v. New York, 340 U.S. 315 (1951).. 16

Gooding v. Wilson, 405 U.S. 518 (1972)... 20

Gregory v. City of Chicago, 394 U.S. 1ll

(1969) TTYTTITTTtTTM:ThLhLh tC—S

Halter v. Nebraskz, 205 U.S. 34 (1907)... 10

Hicks v. Miranda, 45 L.Ed.2d 223 (1975)... 25

Lewis v. City of New Orleans, 408 U.S.

913 (1972) and 415 U.S. 130

(1974) Srrrerstsegfg: Ts SiC‘ i 22

Minersville School District v. Gobitis,

310 U.S. 586 (1940) ecccccccoccocce WO

Vv

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) eeeeeveeeeeeeeeeene 24

People v. Keough, 31 NY 2d 281,

338 NYS 2d 618 (1972) eeeeeneeeneeeneeeee 17

People v..Lindsay, 51 Ill. 2d 399,

282 N.E.2d 431 (1972) eeeeveveeeevee 20, 24

Police Dep't. of Chicago v. Moseley,

408 alte 92 (1972) erry TT Trrrreyrrrrirny? |.

Radich v. New York, 401 U.S. 531

(1971) EPPO TT TTTTTTTTTTTT ot 25

Schacht v. United States, 398 U.S.

58 (1970) eeevxseeeeeesenseocoeeeex#ne@#e#@ee#ee#see#se#ee7#e#ee#ee*#es 19

Smith v. Goguen, 415 U.S. 566, 39 L.Ed.

2d 605, 94 S.Ct. 1242 (1974) ......, 8, 9,

ll, 20, 21, 22, 23, 24

Spence v. Washington, 418 U.S.

405 (1974) ceccccececee 3, 8, 9, 1l, 13,14

18, 21,22

State v. Kool, 212 N.W. 2d 518

(1973) eeeeeeseee#seeseseeseeneeseesenseeee#e#ee#e#e#e# Be 22

Street v. New York, 394 U.S. 576

(1969) errr rTrTTTrTTrrrr+rrg4$9TrTns 8, 10, 14, 15

Stromberg v. California, 283 U.S.

359 (1931) sebeeesecesoeocoeceoococeooeks

Sutherland v. De Wulf, 323 F.Supp. 740... 2

vi

Sutherland v. Illinois, 418 U.S. 907

(1974) eee eereearee eee eee eeeeeeeeeeeeeee 9

Terminiello v. Chicago, 337 U.S.

l (1949) ~errrrirrer TTT. ee eee

Thompson v. Louisville, ,

199 (1960) TTTITITITITTTrriireteTiTt is 22

Tinker v. Des Moines Independent

Community School District, 393

Welbe 503 (1969) wTTvrTrrrTretTrrrrrr+errrtTtT °

United States v. O'Brien,

391 U.S. 367 (1968) PTUTTITITITTTis 9, 14

United States ex rel Radich v. Criminal

Court, 385 F.Supp. 165 (SDNY 1974)

1974) TYTTTTITITITT TTT TTT eT TTT 17

Vachon v. New Hampshire, 414 U.S.

478 (1974) eeceeceseceecesesceososecoooeks

West Virginia Board of Education v.

Barnette, 319 U.S. 624 (1943) .....10, 12

U.S. Constitutional Amendments

First Amendment ......ee+ 3, 4, 6, 10, 21

Fourteenth Amendment ...ccceccees 3, 4 6

Statutes

Federal Flag Etiquette Statute,

36 Balveite §176 (3) eee eeeeeaeee ene 23, 24

vii

Illinois Revised Statute of 1969,

Ch. 56-1/4, Section 6 eeeeeeee 3, 6

28 U.S.C. Section 1257(2) ....seeeceee 3

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

Linda Marie Sutherland; Roxana

Margurite Schultz; and Tonia

Sue Papke,

Appellants,

-against-

The People of the State of Illinois,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF ILLINOIS

JURISDICTIONAL STATEMENT

: Appellants appeal from a decision of the

Supreme Court of Illinois denying a Petition

for Leave to Appeal a Judgment of the Appellate

Court of Illinois, Third District, affirming

their criminal convictions. They submit this

Statement to show that the Supreme Court of the

United States has jurisdiction of the appeal

and that substantial questions are presented.

Cpinion Below

The Opinion of the Appellate Court of

Illinois, Third District, entered following

the remand from this Court, is reported at

_.. Ill.App.3d _,_- 329 N.E.2d 820, and is

set forth in the Appendix, infra, at pp. l2a

to 15a. A Petition for Leave to Appeal the

Decision of the Appellate Court was denied

by the Supreme Court of Illinois, without

Opinion, on September 25, 1975 (App., infra,

p. 16a). The order of this Court, vacating

the earlier decision of the court below and

remanding for further consideration, is re-

ported at 418 U.S. 907 and is set forth in

the Appendix, infra, at p. lla. The first

opinion of the Appellate Court of Illinois,

Third District, is reported at 9 I1l.App.3d

824, 292 N.E.2d 746, and is set forth in the

Appendix, infra, at pp. 3a-8a. A petition

for Leave to Appeal that decision was denied

by the Supreme Court of Illinois, without

opinion, on May 31, 1973 (App., infra, p. 2a).

A separate civil action filed in the United

States District Court for the Southern Dis-

trict of Illinois by Appellants against the

prosecutor in this case, entitled Sutherland

Vv. De Wulf, is reported at 323 F.Supp. 740.

Jurisdiction

The order of the Supreme Court of Ill-

inois, denying the Petition for Leave to

Appeal from the decision of the Appellate

Court of Illinois, Third District, following

remand, was entered on September 25, 1975,

3

A Notice of Appeal to this Court was filed on

December 15, 1975 in the Circuit Court of

Rock Island County, Illinois, on December 12,

1975 in the Appellate Court of Illinois, Third

District, and on December 16, 1975 in the

Supreme Court of Illinois.

The jurisdiction of this Court to review

the decision by appeal is conferred by 28

U.S.C. Section 1257(2) and is sustained by

the following decisions: Street v. New York,

394 U.S. 576 (1969); Cohen v. California, 403

U.S. 15 (1971): Spence v. Washington, 418

u.S. 405 (1974).

Statute Involved

Ill. Rev. Stat. 1969, ch. 56-1/4, §6 is

printed in the Appendix, infra, at p. la.

Questions Presented

l. May the State of Illinois, consistent

with the First and Fourteenth Amendments to

the Constitution of the United States, make

criminal the peaceful and symbolic communica-

tion of ideas, perceived by certain citizens

as showing disrespect for the United States

and its flag, through the medium of publicly

burning a privately owned American flag in

connection with concededly expressive action?

4

2. May such conduct be made criminal

under a statute judicially declared to have

been enacted for the purpose of preventing

breaches of the peace, even though no actual

evidence of an imminent danger of a breach

of the peace is required in a case involving

burning the flag or was actually shown in

this case?

3. Is the Illinois statute proscribing

such conduct impermissibly overbroad or vague

in violation of the First and Fourteenth

Amendments to the Constitution of the United

States?

a

Statement of the Case

On May 5, 1970 at 4:00 p.m., the appel-

lants, one 17 and two 19 years of age,

planted an 8" x 10" American Flag into the

lawn adjacent to the Federal Building located

in Rock Island, Illinois. They then said

prayers over the flag and commenced to burn

it. The flag had belonged to appellant

Sutherland's husband.

The substance of the prayers was excluded

from evidence, but was explained in an offer

of proof made out of the Jury's presence by

appellant Papke:

eve I tried to explain while we

were burning the flag and I said

that the flag was dirty on two

levels; on the first level it was

dirty because it was oily and greasy

5

and dirty and had holes in it

and it was no longer a fitting

display of our country. It

used to be a beautiful symbol

but that particular flag was no

longer beautiful and we were

burning it because that was the

proper way to get rid of dirty

flags. And on the second level,

symbolically it was dirty with

blood from Southeast Asia and

blood from the students that were

killed at Kent State the day

before. And other things the

government had done. And I tried

to, I wasn't trying to talk against

the government, I said that the

concepts that the flag are based

upon are beautiful and that our

flag is a beautiful symbol and our

nation is based upon beautiful

things but the country has strayed

from the concepts set down in the

Constitution that the flag is

supposed to represent, and we must

burn the flag and start again and

go on our path again, return to the

path. (R. 60).*

_

"RC

. -

" refers to the trial transcript;

" refers to the proceedings portion

~£ the record.

6 7

Prior to burning the flag, the appellants Following jury verdicts of guilty, the

had a conversation with an FBI agent working appellants were each sentenced to probation

at the building who happened to be present; for one year, and to pay a fine of $100 plus

he tried to dissuade them from setting fire court costs. Pursuant to Illinois procedure,

to the flag and advised them that it was a they then filed a Motion in Arrest of Judg-

felony. (App., infra, p. 4a). After the ment, reasserting the unconstitutionality of

fire was commenced, and while the agent was the statute on the basis of all grounds

observing, a passing motorist stopped his urged in the initial Motion to Dismiss

vehicle, ran to the scene, and trampled on (RC 85, 91). This motion was also denied

the flag to stamp out the fire (App., infra, (RC 99, 129).

p. 4a).

| On appeal to the Illinois Appellate

Thereafter, the appellants were charged Court the same federal claims of unconsti-

with violating the second paragraph of sec- tutionality were presented, considered and

tion 1 of the Illinois Flag Act, Chapter rejected. In its opinion, the Appellate

56-1/4, Section 6, of the Illinois Revised Court assumed, without explanation, that

Statutes, 1969, to wit: flag burning in a context where contempt is

expressed, involves both "speech" and "“non-

Any person who publicly mutilates, speech" elements, so as to bring into play

defaces, defiles or defies, tramples the four tests of constitutionality applied

or casts contempt upon, whether by in United States v. O'Brien, 391 U.S. 367

words or act, any such flag, stand- (1968) with respect to legislation regulat-

ard, color or ensign shall be ing conduct containing both those elements.

punished by a fine of not less than | The court held that the O'Brien tests were

$1,000 nor more than $5,000 or by | met. It identified the governmental inter-

imprisonment in the penitentiary est being regulated by the statute as "the

from one to 5 years or both, prevention of breaches of the peace and

preservation of public order." 292 N.E.2d

The appellants moved to dismiss the indict- | at 748 (App., infra, p. 5a). In connection

ment on the ground that the statute violated | with this analysis, the court indicated that

the right to freedom of expression guaranteed | in the context of this case, no evidence of

by the First and Fourteenth Amendments to an actual breach of the peace was required,

the Constitution (RC 19). In addition, the remarking merely "... that the desecration of

motion specifically urged the unconstitution- | the flag by burning it in a public place is

ality of the statute on the grounds of over- | highly likely to cause a breach of the

breadth and vagueness (RC 19). The motion to peace.... Violence might have resulted in

dismiss was denied in all respects by the the case before us if the defendants had not

trial court (RC 54).

8

been girls." 292 N.E.2d at 749 (App.,

infra at 7a).

In addition, the majority rejected the

appellants’ vagueness and overbreadth con-

tentions.

In a specially cmcurring opinion,

Justice Stouder rejected “the reasoning" of

the majority, but concurred in the result,

stating that on the basis of the divergent

views expressed in Street v. New york, 394

U.S. 576 (1969), public flag burning was to

be “a special case so far as application of

first amendment liberties are concerned,

-.-.-because of the uniqueness and special

nature of the circumstances." 292 N.E.2d

at 749 (App., infra, p. 8a).

A Petition for Leave to Appeal, raising

all these arguments, was thereafter denied

by the Illinois Supreme Court.

Thereafter, the appellants filed a timely

Jurisdictional Statement with this Court (No.

73-380). On July 8, 1974, the Court entere«

the following order:

Judgment vacated and case remanded

to the Appellate Court of Illinois,

Third District, for further consider-

ation in light of Spence v. Washington,

418 U.S. , 41 L.Ed.2d 842, 945

S.Ct. 2727 (1974) and Smith v. Goquen,

415 U.S. 566, 39 L.Ed.2d 605, 94 S.ct.

1242 (1974). The Chief Justice, Mr.

Justice White, Mr. Justice Blackmun,

9

and Mr. Justice Rehnquist dissent

and without further briefing and

oral argument would affirm judgment.

Sutherland v. Illinois, 418 U.S.

——_— —

907 (1974), (App., infra, p. lla).

In accordance with this Court's remand,

and following briefing and argument, the

Appellate Court of Illinois reconsidered its

earlier decision and reaffirmed the appel-

lants' convictions. —_ Ill. App. 3d __s,

329 N.E.2d 820 (3d Dist. 1974) (App., infra,

pp. 12a to 15a). Over the appellants’

contentions that Spence and Goguen under-

mined the reasoning of the earlier opinion,

that Court, reiterating its previous analy-

sis based upon United States v. O'Brien,

held that Spence was inapposite because the

record here supports "a valid governmental

interest unrelated to expression - that is,

the prevention of breaches of the peace and

the preservation of public order." App.,

infra, p. 15a. This Court's decision in

Spence was also deemed inapplicable because

it involved different facts and a record

which failed to demonstrate any risk of

breach of the peace. The Appellate Court

similarly held that Smith v. Goguen was

distinguishable because this case involved

an allegation of physical desecration.

Finally, the Appellate Court held that the

breach of the peace rationale for flag dese-

cration statutes survived the decisions in

Spence and Goguen. (App., infra, p. 15a).

On September 25, 1975, the Supreme Court

of Illinois denied a petition for leave to

appeal raising these constitutional issues.

10

THE QUESTIONS ARE SUBSTANTIAL

The relationship of the First Amendment

to state laws regulating behavior toward

and use of the American flag has engaged

this Court's attention in plenary argument

on four occasions during the past decade .1/

In Street v. New York, 394 U.S. 576 (1969),

this Court ruled that contemptuous or deris-

ive language directed at the flag was en-

l/ Prior to Street v. New york, 394 U.S.

576 (1969), this Court considered the First

Amendment implications of compulsory flag

salutes in West Virginia State Board of

Education v. Barnette, 319 U.S. 624 (1943)

and Minersville School District v. Gobitis,

310 U.S. 586 (1949). The Court's earliest

consideration of the constitutional impli-

cation of state statutes regulating flag

usage appears to have taken place in Halter

v. Nebraska, 205 U.S. 34 (1907), prior to

the recognition of First Amendment constraints

upon state statutes. The absence of 19th

century precedent is not surprising, since

the phenomenon of state regulated flag usage

dates from the patriotic fervor surrounding

the Spanish-American war. When Lee and Grant

met at Appomattox Courthouse, they are said

to have used the American flag as a table-

cloth without seriously endangering the found-

ation of the Republic.

ll

titled to First Amendment protection. In

Smith v. Goguen, 415 U.S, 566 (1974), this

Court ruled that state statutes regulating

flag usage were obliged to conform to exact-

ing standards of precision in order to

provide adequate notice of the scope of

their proscriptions and to minimize the

danger of arbitrary and subjective enforce-

ment. In Spence v. Washington, 418 U.S.

405 (1974), this Court ruled that affixing

a peace symbol to an American flag was con-

stitutionally protected expressive activity.

See also, Cahn v. Long Island Moratorium

Committee, 418 U.S. 906 (1974). However,in

Radich v. New York, 401 U.S. 531 (1971),

this Court divided evenly on the scope of

the constitutional protection available to

an individual who mutilates or otherwise

destroys an American flag in connection with

expressive activity.

This case raises, once again, the issue

which perplexed the Court in Radich, which

was expressly pretermitted in Spence, which

was virtually ignored on the remand below,

and which remains a serious, unanswered,

question: Under what circumstances, if any,

may a state forbid the mutilation or de-

struction of a privately owned American flag

in connection with concededly expressive

2/ Radich's conviction was ultimately over-

turned on habeas corpus in United States ex

rel Radich v. Criminal Court, 385 F.Supp.

165 (S.D.N.Y. 1974).

12

action? Appellants suggest that, unless we

adopt a view of the State and its trappings

wholly at variance with our heritage, Ameri-

cans must be free to use their flag as an

aid in the dissemination of ideas and that

Illinois’ “undifferentiated fear" of poten-

tial hostile response to appellants’ expres-

sion cannot justify the conviction at issue

herein. As was said in Barnette: "The case

is made difficult not because the principles

of its decision are obscure but because the

flag involved is our own." 319 U.S. at 641.

In addition, whether or not appellants'

expression is ultimately afforded First

Amendment protection, appellants' convictions

must be reversed because the Illinois statute

at issue herein fails to meet the strict pro-

cedural standards required by this Court of

any state criminal statute purporting to

regulate expressive activity.

I. APPELLANTS HAVE BEEN CONVICTED FOR

ENGAGING IN CONSTITUTIONALLY

PROTECTED EXPRESSION,

A. The Expressive Nature of

Appellants' Activity

No serious dispute exists concerning the

expressive nature of appellants’ activity.

In the most graphic terms of which they were

capable, appellants sought to express their

anguish over the loss of life at Kent

13

state.2/ As this Court has repeatedly held,

the fact that appellants chose to utilize

the flag as a non-verbal aid in the commun-

ication of their ideas does not strip their

activity of its essentially communicative

character. E.g., Stromberg v. California,

283 U.S. 359 (1931); Tinker v. Des Moines

Independent Community School District, 393

u.S. 503 (1969); Spence v. Washington, 418

U.S. 405 (1974).4/ Nor does the arguably

questionable taste and judgment of the

appellants, in selecting a mode of communi-

cation likely to be offensive to some viewers,

strip their activity of its communicative

character. E.g., Cohen v. California, 403

U.S. 15 (1971); Erznoznik v. City of Jackson-

ville, 45 L.Ed.2d 125 (1975). Given its

essentially communicative character, appel-

lants' expressive activity may be outlawed

only if necessary to achieve a critical

3/ The similarity of motivation between

appellants herein and the appellant in Spence

v. Washington, supra, is striking. Had appel-

lants placed peace symbols on their flag in-

stead of solemnly burning it, Spence would

clearly require a reversal of their conviction.

4/ This case is, thus, distinguishable from

situations in which flag statutes are applied

against activity which is not intended to

convey or dramatize an idea. E.g., Cowgill

v. California, 396 U.S. 371 (1970).

14

government objective wholly unrelated to

the suppression of expression. E.g., United

States v. O'Brien,39l1 U.S. 367 (1968).

B. The State Objectives Allegedly

Advanced By Suppressing Appel-

lants' Expression

(1) Protecting the Sensi-

bilities of Passersby

In Erznoznik v. City of Jacksonville,

Supra, this Court reaffirmed its consistent

refusal to uphold the suppression of expres-

sion merely because a segment of the popula-

tion might be offended by its content. See

also, Cohen v. California, supra; Street v.

New York, supra. Thus, merely because a

sizeable number of passersby might find

appellants’ expressive activity offensive

and disturbing cannot found a basis for its

Suppression. Spence v. Washington, supra.

(2) Preventing Breaches of the

Peace

It is, of course, a truism that a state

has the right - and the duty - to maintain

public order. Thus, when a personal insult

is hurled directly at an individual under

circumstances likely to result in physical

retaliation, this Court has recognized a

narrow category of cases in which such

“fighing words" may be prohibited. Chaplin-

sky v. New Hampshire, 315 U.S. 568 (1942).

However, as Mr. Justice Harlan noted in

15

Cohen, in order to fall within the “fighting

words" exception, an epithet must be directed

“in a personally provocative fashion" at a

particular individual. Cohen v. California,

supra, 403 U.S. at 20. See also, Cantwell v.

Connecticut, 310 U.S. 296, 309-310 (1940).

No case has ever suggested that pungent pol-

itical expression directed to the general

public which is unpopular or otherwise dis-

favored may be suppressed under the rubric

of “fighting words." Indeed, in an unbroken

series of cases, this Court has refused to

permit the fear of retaliation by a “hypo-

thetical coterie of the violent and lawless"

to justify the suppression of unpopular ex-

pression directed to the general public.

Cohen v. California, supra, 403 U.S, at 23.2

5/ This Court's consistent refusal to permit

fear of hostile reaction to justify suppres-

sion of expressive activity may be traced

through Cantwell v. Connecticut, supra; Term-

iniello v. Chicago, 337 U.S. 1 (1949); Edwards

v. South Carolina,372 U.S. 229 (1963) (presence

of known white troublemakers in hostile crowd

of onlookers no basis for breaking up meetings);

Cox v. Louisiana, 379 U.S. 536 (1965) ("mutter-

ings," “grumblings" and “rumblings" in hostile

crowd of white onlookers no basis for dispersing

demonstrators); Gregory v. City of Chicago, 394

U.S. 111 (1969) (fear of impending civil dis-

order insufficient unless demonstrated factually);

Street v. New York, supra; and Cohen v. Calif-

ornia, supra.

16

Of course, as Feiner v. New york, 340

U.S. 315 (1951) recognizes, even classic

First Amendment activity may be halted upon

a showing of an actual imminent danger of

hostile retaliation which the police are

unable to control. However, no such immin-

ent danger was even alleged in this case.

Indeed, the presence of an FBI Agent on the ’

scene at all stages of the proceedings neg-

ates any serious contention that Feiner

standards were complied with below.

Instead, Illinois argues that it is

entitled to hypothesize in advance that

hostile reaction might develop whenever ea

flag is contemptuously treated, and to impose

a broad, prophylactic ban on such activity.

However, as this Court has repeatedly held,

a prohibition on expressive activity may not

be premised upon an abstract and hypothetical

prediction of hostile reaction; rather, if

permitted at all, a “hecklers veto" must be

premised on a closely scrutinized factual

predicate. Cf., Feiner v. New york, supra.

In the absence of facts indicating that

appellants’ expressim actually created an

imminent danger of a breach of the peace,

Illinois | not seek to impose sanctions

upon them. b/ Under similar circumstances,

6/ There is, in addition, a serious question

whether the predictive aspect of the Illinois

statute is a rational one. In the numerous

reported cases involving flag desecration

(continued on next page)

17

Iowa and New York have required an actual

showing of imminent danger of breach of the

peace before invoking their flag desecration

statutes. E.g., State v. Kool, 212 N.W.2d

518 (1973); People v. Keough, 31 NY 2d 281,

338 N.Y.S. 2d 618 (1972). See also, United

States ex rel Radich v. Criminal Court, 385

F.Supp. 165 (S.D.N.Y. 1974) and the cases

collected in Radich, supra, at 180 n. 60.

Illinois, consistent with the strictures of

the First Amendment, may do ns less. See

Thompson v. Louisville, 362 U.S. 199 (1960);

Vachon v. New Hampshire, 414 U.S. 478 (1974).

(3) Preserving the Integrity of

Our National Symbol

Illinois has not sought to defend its

during the past tumultuous decade, no in-

stance of imminent danger of a breach of the

peace has been documented. It is demeaning

to suggest that a people capable of forging

the freest society the world has known are

incapable of restraining themselves from

violently attacking three teenaged girls.

We are not a nation of vigilantes, and

Illinois has no right to limit expression

within its borders on the assumption that we

cannot be trusted to refrain from violence.

Moreover, if retaliatory violence is a pre-

dictable result of a given form of expression,

the duty of the state is to protect the

speaker and not to reward the mob. Cf.,

Cooper v. Aaron, 3538 U.S. 1 (1958).

18

Statute as one designed to protect the in-

tegrity of our national symbol, and it is,

thus, questionable whether such an interest

may be considered by this Court as a basis

for sustaining the appellants' convictions.

Even if such an interest is properly before

the Court, it cannot justify the Illinois

convictions. In Spence v. Washington, 418

U.S, 405 (1974), this Court ruled that an

interest in preserving the integrity of our

national symbol could not justify a convic-

tion for affixing a peace symbol to the flag.

Although the Court did not reach the issue

of whether such an interest might uphold a

conviction for physical mutilation, it is

difficult to articulate why the integrity of

a symbol would be less affected by displaying

it in altered form (as in Spence) than by

physically destroying it. Indeed, the act

of destroying a privately owned flag is prob-

ably a lesser interference with the symbol

than continuous public display of an altered

flag.

Since appellants were engaged in communi-

cative activity, and since, on the facts of

this case, their activity did not threaten an

imminent. danger of a breach of the peace and

did not impinge upon any other legitimate

governmental interest, their convictions may

not b2 sustained.

19

II. APPELLANTS HAVE BEEN CONVICTED UNDER

AN UNCONSTITUTIONAL STATUTE.

It is appellants' primary contention that

they were engaged in protected First Amend-

ment activity. However, this Court has ruled

that whether or not appellants were engaged

in protected activity, their convictions must

be reversed if Illinois purported to prose-

cute them under a statute which fails to

satisfy strict standards of procedural regu-

larity. Thus, if the Illinois flag dese-

cration statute fails to carry out its task

with sufficient precision and sophistication,

and if the Illinois courts have not supplied

a saving gloss, appellants’ convictions must

be reversed, without reaching the issue of

whether their activities were, in fact, pro-

tected by the First Amendment. The Illinois

statute at issue herein is seriously deficient

in at least three critical areas.

A. Illinois Outlaws Variant Flag Usage

Expressing Negative Sentiments

While Permitting Variant Use of

the Flag to Express Positive Views.

This Court has ruled that statutes regul-

ating expression may not discriminate on the

basis of the contents of the message involved.

E.g., Police Dep't. of Chicago v. Mosely, 408

u.S. 92 (1972). In Schacht v. United States,

398 u.S. 58 (1970), this Court invalidated a

ban on the use of military uniforms in theat-

rical productions because the ban applied

selectively to outlaw only negative expression

about the armed forces. In Illinois the flag

may be used as an aid in the expression

20

of patriotic ideas, but it may not be used

to express a message of contempt or anguish.

Indeed, the 1968 amendment which added the

statute's present harsh penalties was

enacted “...in response to the acts of flag

mutilation, burning and desecration being

perpetrated by civil rights advocates and

youthful protestors of the Vietnam War...."

People v. Lindsay, 51 111.2d 399, 282 N.E.

2d 431, 434 (1972). Such a flagrant dis-

crimination in access to the flag as an aid

in communication is precisely the type of

content-related discrimination which this

Court has repeatedly condemned.

B. The Illinois Statute is 7

Unconstitutionally Overbroad._’

Illinois has not purported merely to out-

law flag burning. Instead, the Illinois

statute casts a dragnet of words and purports

to prohibit activity which "defiles or defies

«+e-Or casts contempt upon" the American flag.

As this Court noted in Smith v. Goguen, supra,

7/ Given the expressive, but non-verbal,

nature of appellants’ activity, it is unclear

whether the “substantial” overbreadth test of

Broadrick v. Oklahoma, 413 U.S. 601 (1973) or

the “pure” overbreadth test of Gooding v.

Wilson, 405 U.S. 518 (1972) is applicable.

From an outcome determinative standpoint,

however, the issue is academic since the

Illinois statute violates even the Broadrick

standard.

21

the use of broad and amorphous language in a

statute regulating flag usage renders it

virtually impossible to learn the precise

scope of its proscription. At the least,

however, such language appears to sweep

within its ambit broad categories of clearly

protected activity, such as contemptuous

gestures and defiant behavior. This Court

has systematically invalidated convictions

under statutes which were “susceptible of

application to speech, although vulgar or

offensive, that is protected by the First

Amendments," =“ without regard to whether

the actual language used was entitled to

First Amendment protection. E.g., Lewis v.

City of New Orleans, 408 U.S. 913 (1972) and

415 u.S. 130 (1974). See also, Erznoznik v.

City of Jacksonville, supra and Bigelow v.

Virginia, 44 L.Ed.2d 600 (1975) for classic

applications of the overbreadth dostrine.

Since the Illinois courts have not provided

a narrowing construction which would limit

the range of application and since the f1ll-

inois statute is obviously rife with potential

unconstitutional applications, appellants’

convictions must be reversed.

Indeed, in vacating the convictions herein_

and remanding them to the Illinois courts for

reconsideration in light of Spence and Goguen,

it was, apparently, the hope of this Court

8/ Lewis v. City of New Orleans, 415 U.S.

130, 134 (1974).

22

that a narrowing construction might avoid

the obvious vagueness and overbreadth

problems inherent in the statute. 418 U.S.

906. Unfortunately, the Illinois courts

have declined to narrow the statute, forcing

this Court into a posture similar to its

role in Lewis v. City of New Orleans, 415

U.S. 130 (1974).2’ In the absence of a

9/ The failure of the Supreme Court of I1l-

inois to even attempt a narrowing construct-

ion on remand is in marked contrast to the

Iowa court's action in Farrell] v. Iowa, 418

U.S. 907 (1974), on remand, 223 N.W. 2d 270

(1974), appeal dismissed 95 S.ct. 2410 (1975).

In Farrell,subsequent to the Farrell convict-

ion, the Iowa Supreme Court, in State v. Kool,

212 NW 2d 518 (1973), dramatically narrowed

Iowa's statute by requiring a factual demon-

stration of an imminent danger of a breach of

the peace prior to conviction. On remand in

Farrell, itself, the Iowa Supreme Court

searched the record and discovered what it

considered sufficient evidence. Whether such

evidence was sufficient to satisfy even the

requirement of Thompson v. Louisville, 362

U.S. 199 (1960) is debatable. However, an

appeal, marred by lack of timeliness, was

dismissed by this Court. 95 S.ct. 2410 (1975).

It should also be noted that while the re-

mand in Farrell was only for reconsideration

in light of Spence, this Court's remand here

requested the Illinois courts to reconsider

their actions and their statute in light of

both Spence and Goguen. Yet the courts below

gave only perfunctory consideration to the

issues raised by either case.

23

narrowing Illinois construction, this Court

must confront the Illinois statute as written

and, under either a “substantial” or a “pure”

overbreadth analysis, invalidate it.

C. The Illinois Statute is Void

For Vagueness.

In Smith v. Goguen, supra, this Court

noted the virtual impossibility of ascertain-

ing precisely what “contemptuous” flag usage

means in modern society. The Illinois statute

provides even less guidance than did the Mass-

achusetts statute. Moreover, although the

Smith opinion is couched primarily in terms

of notice to a prospective defendant, as Mr.

Justice White noted, no serious notice problem

existed since wearing a flag on one's rump

seemed to fall rather clearly within the core

meaning of contemptuous conduct. However, the

imprecision inherent in both the Massachusetts

and Illinois statute is unacceptable for reas-

ons unrelated to notice. The vagueness inher-

ent in such statutes virtually assures that

they will be subject to arbitrary and highly

subjective administration.

Indeed, the Illinois statute is rendered

even more capable of abuse by the purely sub-

jective requirement of intent. Thus, the

person who observed the burning of the flag

and came over to “trample” on the flag to put

out the fire was, of course, not prosecuted,

although the literal terms of the statute were

violated. Similarly, the court below, in

justifying the trial court's refusal to in-

struct on the Federal Flag Etiquette Statute,

24

36 U.S.C. Section 176(4), which advises that

flags in poor condition should be destroyed

“preferably by burning,” stated that “...the

record leaves no doubt that the defendants'

purpose was to protest against current events,

not to dispose of a flag in poor condition in

accordance with prescribed etiquette." (App.

infra, p. 7a). Moreover, the words of the

statute and the breach of the peace rationale

invoked to sustain it, see People v. Lindsay,

supra, make clear that it is not what one does

to a flag which is controlling, but rather the

attitude with which one does it. The words

"defiles," "defies," and "casts contempt upon,"

as well as the title of the act, "Desecration

«+. carry an unmistakable meaning that actions

with respect to the flag must be accompanied

by an attitude perceived as disrespectful or

contemptuous. That additional requirement is

impermissible. See Smith v. Goquen, supra,

415 U.S. at 587-90 (concurring opinion of Mr.

Justice White). And, as a consequence, a

police officer and a jury are left without

meaningful standards to guide them in enforc-

ing the Illinois statute. The absence of

such standards, and the resulting capacity

for abuse, is precisely the vice which the

vagueness doctrine is designed to avoid.

E.g., Papachristou v. City of Jacksonville,

405 u.S. 156 (1972).

25

CONCLUS ION

For the reasons set forth above, juris-

diction should be noted. 10/

Respectfully submitted,

BURT NEUBORNE

New York University School

of Law

40 Washington Square So.

New York, Ny 10012

MELVIN L. WULF

JOEL M. GORA

American Civil Liberties

Union Foundation

22 Bast 40 Street

New York, NY 10016

10/ The recent decision by this Court in

Hicks v. Miranda, 45 L.Ed.2d 223 (1975), that

dispositions of cases within the obligatory

jurisdiction of whis Court carry stare decisis

impact, renders it particularly important that

this case be decided in a plenary opinion.

Given the serious doctrinal issues raised

herein and left unresolved by Radich v. New

York, 401 U.S. 531 (1971), it would be partic-

ularly inappropriate to create a national

precedent by the opaque and unsatisfactory

method of summary disposition.

26

PETER DENGER

507 Cleveland Bldg.

Rock Island, IL 61201

STUART R. LEFSTEIN

402 First National Bank

Bldg.

Rock Island, IL 61201

THOMAS KELLY

200 Walgreen Bldg. A Dp Dp E N D | xX

Davenport, IA 52801

Attorneys for Appellants

December 1975

APPENDIX

Statute lavolved

Ill. Rev. Stat. 1969, ch. 5614, 96:

Desecration, MuTiLation, on ImMpropeR Use—PENALTY.

Any person who (a) for exhibition or display, places or

causes to be placed any word, figure, mark, picture, design,

drawing, or any advertisement of any nature, upon any flag,

standard, color or ensign of the United States or State flag

of this State or ensign, (b) exposes or causes to be exposed

to public view any such flag, standard, color or ensign, upon

which has been printed, painted or otherwise placed, or to

which has been attached, appended, affixed, or annexed, any

word, figure, mark, picture, design or drawing or any adver-

tisement of any nature, or (c) exposes to public view, manu-

factures, sells, exposes for sale, gives away, or has in posses-

sion for sale or to give away or for use for any purpose, any

article or substance, being an article of merchandise, or a

receptacle of merchandise or article or thing for carrying or

transporting merchandise upon which has been printed,

painted, attached, or otherwise placed a representation of

any such flag, standard, color, or ensign, to advertise, call

attention to, decorate, mark or distinguish the article or sub-

stance on which so placed, shall be punished by a fine of not

less than $10 nor more than $100 and costs, or by imprison-

ment for not more than 30 days in a penal institution other

than the penitentiary, or both.

Any person who publicly mutilates, defaces, defiles or

defies, tramples or casts contempt upon, whether by words

or act, any such flag, standard, color or ensign shall be

punished by a fine of not less than $1,000 nor more than

$5,000 or by imprisonment in the penitentiary from one

to 5 years or both.

[Note: In this case, prosecution was under the second

paragraph of the foregoing statute.] .

2a

Memorandum of Denial of Petition for Leave

to Appeal by Illinois Supreme Court

[Emblem]

STATE OF ILLINOIS

OFFICE OF

CLERK OF THE SUPREME COURT

SPRINGFIELD

62706

Justin Tarr TELEPHONE

CLERK AREA CODE 217

525-2035

May 31, 1973

Mr. Stuart R. Lefstein

Attorney at Law

402 1st Nat'l. Bank Bldg.

Rock Island, Il. 61201

No. 45779—People State of Illinois, responder, vs. Linda

Marie Sutherland, et al., petitioners. Leave to

appeal, Appellate Court, Third District.

You are hereby notified that the Supreme Court today

denied the petition for leave to appeal in the above entitled

cause.

Very truly yours,

/s/ Justin Tarr

Clerk of the Supreme Court

3a

Opinion of Appellate Court of Illinois, Third District

Filed February 9, 1973

No. 72-2

—»—

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

Linpa Marie SuTHERLAND et al.,

Defendants-A ppellants.

Dixon, Justice.

The defendants, Linda Marie Sutherland, Roxana Mar-

gurite Schultz, and Tonia Sue Papke, were charged in a

joint indictment with the crime of publicly mutilating a

flag of the United States in violation of the second para-

graph of section 1 of the Illinois Flag Act (Ill.Rev.Stat.

1969, ch. 5614, sec. 6, par. 2). The defendants were all found

guilty by a jury, each of them was sentenced by the Circuit

Court of Rock Island County to pay a fine of $100 plus

costs of suit, and each was placed on probation for one

year. All the defendants have appealed.

The second paragraph of section 1 of the Illinois Flag

Act reads as follows: “Any person who publicly mutilates,

defaces, defiles or defies, tramples or casts contempt upon,

whether by words or act, any such flag, standard, color or

ensign [of the United States or this State] shall be pun-

ished by a fine of not less than $1,000 nor more than $5,000

4a

or by imprisonment in the penitentiary from one to 5 years

or both.”

The defendants contend that this statute violates their

right to freedom of speech guaranteed by the Federal and

Illinois constitutions. They argue that its function is to

punish disrespectful thought expressed by conduct, and

that Illinois has no sufficient interest to justify a statute

of this kind. They say also that the statute is void for

vagueness or for overbreadth, and that errors were com-

mitted in the course of the trial.

The evidence established that the defendants had planted

an American flag in the lawn adjacent to the Federal Build-

ing in Rock Island, Illinois, had said prayers over it, and

had then set it on fire to protest against the invasion of

Cambodia and the death of the four students at Kent State.

An F.B.1. agent who had happened to be present had ad-

vised them not to set fire to the flag and had warned them

that they would be committing a felony. After the fire had

been started, a passing motorist had stopped his car in the

street, double-parked, had run to the scene, and had stamped

on the flag to put the fire out.

After the defendants were indicted, they commenced an

action in a Federal district court to have this paragraph of

the Illinois Flag Act declared void for abridging free speech

or for overbreadth, and to have the Rock Island County

state’s attorney enjoined from prosecuting them under

this statute. In that case, Sutherland v. DeWulf, 323 F.

Supp. 740 (D.C.), the three-judge court, speaking through

Mr. Justice Morgan, answered the arguments of these de-

fendants, upheld the Illinois statute, and denied their re-

quest for an injunction. The same free-speech and over-

breadth arguments are presented to us now.

ae

5a

What the statute proscribes is not pure speech but con-

duet which may in some cases amount to symbolic speech.

The United States Supreme Court has held, in United

States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d

672, that “when ‘speech’ and ‘nonspeech’ elements are com-

bined in the same course of conduct,” a governmental regu-

lation of the nonspeech element which has the incidental

effect of limiting First Amendment freedoms is justified “if

it is within the constitutional power of the Government;

if it furthers an important or substantial governmental

interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental re-

striction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that inter-

est.” It appears to us that the tests laid down in O’Brien

for statutes which may restrict symbolic speech are met

here.

It is not disputed that the Illinois legislature has a con-

stitutional source of power to enact a statute on the misuse

of flags. This has been clear since 1907. (Halter v. Ne-

braska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696 (use of the

flag for advertising prohibited).) No question as to the

scope of a granted or delegated power is raised by a State

statute (see Sutherland v. DeWulf, (D.C.) 323 F.Supp. 740,

744 n. 2), and the Federal government has not pre-empted

State flag-burning statutes. Street v. New York, 394 U.S.

576, 598, 89 S.Ct. 1354, 22 L.Ed.2d 572 (dissenting opinion).

The Illinois statute was enacted, the Illinois Supreme

Court has stated, for the prevention of breaches of the

peace and preservation of public order. (People v. Lind-

say, 51 Ill.2d 399, 282 N.E.2d 43; People v. Von Rosen, 13

Ill.2d 68, 147 N.E.2d 327.) This is plainly an important

and substantial governmental interest.

6a

The State’s interest in preventing breaches of the peace

is unrelated to the suppression of free expression, we be-

lieve, because the maintenance of public order does not

call for inhibiting communication except incidentally and

minimally. The challenged statute throygh which this gov-

ernmental interest is effectuated, though it may restrict

symbolic speech, does not significantly abridge free ex-

pression because many other avenues of communicating

dissent and dissatisfaction remain. (Sutherland v. DeWulf,

(D.C.) 323 F.Supp. 740, 745-746) Analogously, the State’s

interest in maintaining order permits curtailing even “pure

speech” incidentally and minimally, by prohibiting the use

of language which is inherently likely to provoke immediate

and violent reaction. Chaplinsky v. New Hampshire, 315

U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; cf. Cohen v. Cali-

fornia, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284.

The incidental restriction on alleged First Amendment

freedoms does not appear to us to be any greater than is

essential to prevent breaches of the peace. Communication

in one narrow way, by public desecration of the flag, is for-

bidden because a breach of the peace is considered likely

to follow. Obviously, prohibiting flag burning restricts

First Amendment freedoms no more than prohibiting draft-

ecard burning as in O’Brien.

It appears that the four O’Brien tests are met, and that

the statute accordingly does not violate constitutional

rights of freedom of expression, but is validated by the

State’s fundamental interest in securing public order.

The defendants argue that the statute is void for vague-

ness or overbreadth. We think the statute gives reasonable

notice to persons of ordinary intelligence of the kind of

conduct that is prohibited. (Grayned v. City of Rockford,

408 U.S. 104, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, 227;

ee eee en ans

7a

United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98

L.Ed. 989; City of Chicago v. Lawrence, 42 Ill.2d 461, 464,

248 N.E.2d 71.) We think also that the statute goes no

further than a State may go, (see Grayned v. City of Rock-

ford, 408 U.S. 104, 92 S.Ct. 2294, 2305, 33 L.Ed.2d 222, 234,)

its reach having been restricted by the Illinois Supreme

Court to situations where there is an immediate threat to

public order, (People v. Lindsay, 51 Ill.2d 399, 406, 282

N.E.2d 431,) and the O’Brien tests having been met. It

therefore is not void on either of these two grounds.

The defendants also argue that che likelihood of a breach

of the peace was not established. We disagree. It appears

to us that the desecration of the flag by burning it in a

public place is highly likely to cause a breach of the peace.

See Sutherland v. DeWulf, (D.C.) 323 F.Supp. 740, 745. It

was long ago observed by the United States Supreme Court,

in Halter v. Nebraska, 205 U.S. 34, 41, 27 S.Ct. 419, 51 L.Ed.

696, that indignities put upon a flag have sometimes been

punished on the spot. Violence might have resulted in the

ease before us if the defendants had not been girls.

The defendants complain that proof of the substance of

the prayers to show their intent was excluded. However,

their intent was shown by other testimony which was ad-

mitted, so the exclusion was harmless. (Braswell v. New

York, C. & St. L. R. R., 60 Il. App.2d 120, 132, 208 N.E.2d

358.) They complain of the trial court’s refusal to instruct

on the Federal Flag Etiquette Statute, but we consider it

inapplicable. The record leaves no doubt that the defen-

dants’ purpose was to protest against current events, not

to dispose of a flag in poor condition in accordance with

prescribed etiquette. They also complain that no instruc-

tion with respect to breach of the peace was given, but they

did not tender any such instruction and so cannot be heard

8a

to complain of the omission now. Bridges v. Ford Motor

Co., 104 Ill.App.2d 26, 36-37, 243 N.E.2d 559.

We find that the second paragraph of section 1 of the

Illinois Flag Act is valid, that the defendants were proved

guilty, and that no reversible error was committed. Ac-

cordingly the judgment of the Circuit Court of Rock Island

County is affirmed.

Judgment affirmed.

Srouper, P.J., and Auvoy, J., concur.

Stouper, Presiding Justice (specially concurring).

I concur with the result reached by the majority of the

court but I do not agree with the reasoning supporting

such result. After considering the several opinions in

Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d

572, I conclude that public flag burning to convey or drama-

tize protest against social conditions is a special case so

far as application of first amendment liberties are con-

cerned. The divergent views expressed in such opinions

reveals a basic inclination to hold the first amendment of

the Federal constitution inapplicable because of the unique-

ness and special nature of the circumstances.

9a

Notice of Appeal Filed With the Supreme Court of IIli-

nois, the Appellate Court of Illinois, Third District

and the Circuit Court of Rock Island County, Illinois

on August 28, 1973

In THE

SUPREME COURT OF ILLINOIS

Appellate Court No. 72-2

Rock Island County Cireuit Court No. 70Y393

—

Linpa Marie SutTHEerLanD; Roxana MarcuriTE SCHULTZ;

and Tonia SuE PapkE,

Appellants,

v.

PEOPLE OF THE StTaTE OF ILLINOIS,

Appellee.

No. 45779

>

Notice or APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Linda Marie Sutherland,

Roxana Margurite Schultz and Tonia Sue Papke appeal

to the Supreme Court of the United States from the final

order of the Supreme Court of Illinvis denying their Peti-

tion for Leave to Appeal the Decision of the Appellate

Court of Illinois, Third District, which decision affirmed

10a

judgments of conviction entered by the Circuit Court of

Rock Island County, Illinois in Case No. 70 Y 393. The

Illinois Supreme Court denied Appellants’ Petition for

Leave to Appeal on May 31, 1973.

This appeal is taken pursuant to 28 U.S.C. §1257 (2).

Linpa Marizt SuTHERLAND

Roxana Marourite Scuutrz

and Tonia Sue Papke,

Appellants

By: /s/ Peter Dencer

507 Cleaveland Bldg.

Rock Island, Ill. 61201

(309) 786-1083

and

Tomas Ketiy

200 Walgreen Bldg.

Davenport, Iowa 52801,

Their Attorneys

lla

JUDGMENT OF THE

UNITED STATES SUPREME COURT

July 8, 1974

No. 73-380. Linda Marie Sutherland

et al., appellants v Illinois.

Appeal from the Appellate Court of

Illinois, Third District. Judgment vacated

and case remanded to the Appellate Court of

Illinois, Third District, for further

nsideration in light of Spence v Wash-

‘anti. 418 vu.S.405, 41 L.Ed. 2d 842, % S,ct. 2727

(1974) and. Smith v Goguen, 415 US 566, 39

L Ed 2d 605, 93 S Ct 1242 (1974). The

Chief Justice, Mr. Justice White, Mr.

Justice Blackmun, and Mr. Justice Rehnquist

dissent and without further briefing and

oral argument would affirm judgment.

12a

DECISION OF THE APPELLATE COURT OF

ILLINOIS, THIRD JUDICIAL

DISTRICT, ON REMAND

OPINION OF THE APPELLATE COURT

OF ILLINOIS, THIRD DISTRICT

Mr. Justice Stouder delivered the opinion

of the court:

The defendants, Linda Marie Suther-

land, Roxana Margurite Schultz, and Tonia

Sue Papke, were charged in a joint indict-

ment with the crime of publicly mutilating

a flag of the United States in violation

of the second paragraph of section 1 of

the Illinois Flag Act (I1l.Rev.Stat. 1969,

ch.56-1/4, sec.6, par.2). Ina trial

before a jury, all defendants were found

guilty.

In an earlier opinion filed on Feb-

ruary 9, 1973, this court affirmed the

judgments of conviction. (People v.

Sutherland, 9 I1l1.App.3d 824, 292 N.E.2d

746). The Illinois Supreme Court denied

leave to appeal, without opinion, on May

31, 1973.

Thereafter, the defendants appealed

to the United States Supreme Court. On

July 8, 1974, that Court vacated the judg-

ment and the cause was remanded for further

consideration in light of Spence v. Wash-

ington, 418 U.S. 405, 94 S.Ct. 2727, 41

l3a

L.Ed.2d 842 and Smith v. Goguen, 415 U.S.

566, 94 S.Ct. 1242, 39 L.Ed.2d 605.

Sutherland v. Illinois, U.S. » 94

S.Ct. 3198, 41 L.Ed.2d 1154 (mem.).

The cause is now before this court

pursuant to the directions of the United

States Supreme Court. This cause was re-

docketed, additional briefs have been filed

and oral arguments were heard in order to

aid the court in reconsideration of the

issues,

The facts are set out in our earlier

opinion and need not be restated here.

In our earlier opinion, we applied

the four-step analysis of United States v.

O'Brien, 391 U.S. 367, 88 S.ct. 1673, 20

L.Ed.2d 672, a case which involved the

burning of a draft card. In that case the

United States Supreme Court held that “when

‘speech’ and 'nonspeech' elements are com-

bined in the same course of conduct," a

governmental regulation of a non-speech

element which has the incidental effect of

limiting first amendment freedoms is justi-

fied “if it is within the constitutional

power of the Government; if it furthers an

important or substantial governmental inter-

est; if the governmental interest is un-

related to the suppression of free expression;

and if the incidental restriction on alleged

First Amendment freedoms is no greater than

is essential to the furtherance of that

interest."

14a

The defendants argue that section l

of the Illinois Flag Act is unconstitutional

as applied because the act of burning a flag

is protected symbolic speech within the

first amendment. They contend that burning

a flag, unlike a draft card, is a purely

symbolic act containing no nonspeech elements.

Therefore, the O'Brien analysis does not

apply. The defendants also rely on Spence,

a flag case, in which the United States

Supreme Court found the O'Brien treatment

inapplicable,

The defendants attempt to argue that

conduct involving the burning of a flag con-

stitutes speech. This argument fails to

account for the view of the United States

Supreme Court, expressed in O'Brien and re-

iterated in Spence, wherein the Court

rejected the proposition that “an apparently

limitless variety of conduct can be labeled

‘speech’ whenever the person engaging in the

conduct intends thereby to express an idea."

Spence v. Washington, 418 U.S, 405, 94 S.Ct.

2727, 41 L.Ed.2d 842; United States v.

O'Brien, 391 U.S. 367, 88 S.ct. 1673, 20

L.Ed.2d 672.

In Spence, the defendant affixed a

peace symbol fashioned of removable tape to

a flag which he owned and hung it from the

window of his apartment. The record failed

to demonstrate any risk of breach of the

peace,

The United States Supreme Court did

not adopt the O'Brien approach because no

15a

governmental interest unrelated to expres-

sion had been advanced or could be supported

on the record. The record in the instant

appeal, unlike that in Spence, does support

a valid governmental interest unrelated to

expression - that is, the prevention of

breaches of the peace and the preservation

of public order. People v. Lindasy, 51 Ill.

2d 399, 282 N.E.2d 431; People v. Von Rosen,

13 Ill. 2d 68, 147 N.E.2d 327.

We also find that Smith v. Goguen

does not require a different result. In

Smith, the Supreme Court held only that the

"treats contemptuously" portion of a flag-

misuse statute was void for vagueness under

the due process clause of the Fourteenth

Amendment because the statutory provision

did not adequately give notice of what acts

were criminal and did not establish minimal

guidelines to govern law enforcement officers

and juries. No allegation of physical dese-

cration was made there as in the case at bar.

More important, however, the court did not

hold that a legislature may not define “with

substantial specifity what constitutes for-

bidden treatment of United States flage.”

Finally, Spence and Goguen did not

reject the breach of the peace rationale as

a basis for the state's interest in enacting

flag desecration statutes. We find therefore

that neither Spence nor Goguen requires a

reversal of the judgments of conviction.

Judgment affirmed.

Alloy, J. and Barry, J. concur.

l6a

ORDER OF THE SUPREME

COURT OF ILLINOIS, DENYING

LEAVE TO APPEAL

[SEAL]

State of Illinois

Office of

CLERK OF THE SUPREME COURT

Springfield

62706

Clell L. Woods Telephone

Clerk Area Code 217

782-2035

September 25, 1975

Mr. Stuart R. Lefstein

Attorney at Law

402 First National Bank Bldg.

Rock Island, Illinois 61201

No. 47751 = People State of Illinois,

respondent, vs. Linda Marie

Sutherland, et al., petitioners.

Leave to appeal, Appellate Court,

Third District.

You are hereby notified that the Supreme

Court today denied the petition for leave to

appeai in the above entitled case,

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

17a

tice of al filed with the

eme u of Illinois, the llate

Court of Illinois, Third District and the

Circuit Court of Rock Island County,

Illinois on December 16, 12 and 15, res-

pectively.

No. 47751

In The

SUPREME COURT OF ILLINOIS

a a rn Appellate

Linda Marie Sutherland, Court

Roxana Margurite Schultz, No. 74-352

Tonia Sue Papke,

Appellants, Rock Island

Ve County

Circuit Court

People of the State of No. 70Y¥393

Tllinois, Appellee.

[Filed December 16, 1975

Clell L. Woods, Clerk]

Notice of Appeal to The

Supreme Court of

the United States

Notice is hereby given that Linda Marie

Sutherland, Roxana Margurite Schultz and

Tonia Sue Papke appeal to the Supreme Court

18a

of the United States from the final order

of the Supreme Court of Illinois denying

their most recent Petition for Leave to

Appeal the decision of the Appellate court

of Illinos, Third District, which decision

reaffirmed judgments of conviction entered

by the Circuit Court of Rock Island County,

Illinois, in case number 70Y393, following

a remand for further consideration from the

Supreme Court of the United States. The

Illinois Supreme Court denied Appellants'

Petition for Leave to Appeal on September

25, 1975.

This appeal is taken pursuant to 28

U.S.C. §1257(2).

snsnistiintiniain

Linda Marie Sutherland

Roxana Margurite Schultz

and Tonia Sue Papke,

Appellants

By: /s/ Peter Denger

For 507 Cleaveland Bldg.

Rock Island, IL 61201

Tel: 309/786-1083

and

Thomas Kelly

200 Wahlgreen Bldg. |

Davenport, IA 52801

Tel: 319/324-3259

Their Attorneys

19a

No. 47751

In The

SUPREME COURT OF ILLINOIS

Linda Marie Sutherland, Appellate

Roxana Margurite Schultz, Court

Tonia Sue Papke, No. 74-352

Appellants

Vv. Rock Island

County

Circuit Court

People of the State of

[Filed December 16, 1975

Clell L. Woods, Clerk]

Proof of Service of Notice of Appeal

The undersigned, one of the attorneys

for the above-named appellants, hereby

certifies that he has served a copy of the

Notice of Appeal to the Supreme Court of

the United States, which notice has been

filed contemporaneously with this Proof of

Service in all of the above named courts,

on the party entitled to service of such

documents, namely, the People of the State

of Illinois. Service was made upon said

parties by depositing copies of the afore-

said documents in a United States mailbox

with first-class postage prepaid, addressed

to counsel of record at his post office

address. Counsel of record is the State's

Attorney of Rock Island County, Illinois,

namely David DeDoncker, Rock Island County

20a

Courthouse, Rock Island, Illinois 6120l. A

copy of said notice was served in like manner

on William Soctt, Attorney General of the

State of Illinois, Springfield, Illinois

62701. Date of mailing was December 12,

1975.

Linda Marie Sutherland,

Roxana Margurite Schultz,

and Tonia Sue Papke,

Appellants

By: /s/ Peter Denger

For One of Appellants'

Attorneys

507 Cleaveland Bldg.

Rock Island, IL 61201

Tel: 309/786-1083