# Jurisdictional Statement — Sutherland v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 947

## Text

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1487%3A1. Public record. Not legal advice.