Motion to Dismiss — Sutherland v. Illinois

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Supreme Court of the Unit Sta

OCTOBER TERM, 1975 en cere

3 1976

No. 75-898

LINDA MARIE SUTHERLAND; ROXANA MARGU-

RITE SCHULTZ; and TONIA SUE PAPKE,

Appellants,

-against-

PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF ILLINOIS

MOTION OF THE APPELLEE TO DISMISS THE

APPEAL OR IN THE ALTERNATIVE TO AFFIRM

THE JUDGMENT BELOW WITH SUPPORTING

MEMORANDUM OF LAW

WILLIAM J. SCOTT,

Attorney General for the State of Illinois

JAMES B. ZAGEL,

JAYNE A. CARR,

Assistant Attorneys General

188 West Randolph Street

Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Attorneys for Appellee.

Of Counsel.

Timotnuy B. Newitt,

Assistant Attorney General

Davin De DoncKeEr,

State’s Attorney of Rock Island County

Rock Island County

Rock Island, Illinois 61201

(309) 786-4451

TABLE OF CONTENTS

Pace

QUESTIONS PRESENTED ..................000 2

ARGUMENT:

l. THIS APPEAL DOES NOT PRESENT A

Il.

III.

SUBSTANTIAL FEDERAL QUESTION

AND, HENCE, IT MUST BE DISMISSED

EE MD veedeccccecocccececcccces 3

APPELLANTS’ CONVICTION FOR FLAG

BURNING DOES NOT VIOLATE THEIR

RIGHT TO FREE SPEECH UNDER THE

FIRST AMENDMENT ..............000.: 7

APPELLANTS’ CONVICTIONS ARE NOT

VIOLATIVE OF THE FOURTEENTH

i Chis cdaecabsctensccocececce 11

The Statutory Language Under Which Ap-

pellants Were Convicted Is Neutral ........ 11

The Illinois Flag Act Is Not Overbroad .... 12

The Illinois Flag Act Is Not Void For Vague-

EEEEDLELEL ESS OOPS OTT CT TT TT TET TET IT Te 12

ii.

TABLE OF AUTHORITIES

CASES:

Deeds v. Beto, 353 ¥. Supp. 840 (N.D. Tex. 1973) ..... 7

Grayned vy. City of Rockford, 408 U.S. 104, 109-110

CRUE 0 0cdeenedecedniedensanesnensteadanddaeee 12

(iregory ¥. City of Chicago, 394 U.S. Tll. (1969) ...... 10

Joyce v. United States, 454 F. 2d 971 (D.C. Cir. 1971),

aot, GOR. GED Wak OO CHMOD bdScocbbeenceesb see 0s 6, 9

People v. Lindsay, 51 Ul. 2d 399, 282 N.E. 2d 431, 435

CPU «<oesakb ogee seensdivdss eddies 9, 12

People v. Sutherland, 329 N.E. 2d 820 (1975) ......... 3

Police Department of Chicago v. Mosley, 408 U.S. 92

CREED c-cecuneahssisewksedseronebekcoett sere as ll

Schacht v. United States, 398 U.S. 58 (1970) .......... 11

Smith v. Goguen, 415 U.S. 566 (1974) ...... 3, 4, 5, 6, 7, 8, 9

Spence v. Washington, 418 U.S. 405 (1974) 3, 4, 5, 6, 7, 8, 13

Street v. New York, 394 U.S. 576, 609, (1969) ........ 6, 8, 9

Sutherland v. DeWulf, 323 F. Supp. 740 (S.D. 11.1971) 6

Sutherland vy. Illinois, 418 U.S. 907 (1974) ............ 3, 7

United States v. Crosson, 462 F. 2d 96 (9th Cir. 1972),

anh, Ga, GaP Wek Be hhc adewcncégccsicwiucasucs 6, 9

United States v. O’Brien, 391 U.S. 367 (1968) 5, 8, 9, 10, 11

U.S. CONSTITUTIONAL AMENDMENTS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-898

LINDA MARIE SUTHERLAND; ROXANA MARGU-

RITE SCHULTZ; and TONIA SUE PAPKE,

Appellants,

-against-

PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF ILLINOIS

MOTION OF THE APPELLEE TO DISMISS THE

APPEAL OR IN THE ALTERNATIVE TO AFFIRM

THE JUDGMENT BELOW WITH SUPPORTING

MEMORANDUM OF LAW

Pursuant to Rule 16 of the Rules of this Court and the

request of the court as contained in the letter of its clerk,

Michael Rodak, dated February 5, 1976, Appellee, PEO-

PLE OF THE STATE OF ILLINOIS, by its attorney,

WILLIAM J. SCOTT, Attorney General of the State of

Illinois, respectfully moves this court to dismiss the above-

esptioned Appeal or, in the alternative, to affirm the judg-

ment of the Illinois Appellate Court, Third District, and

submit the following memorandum of law in support of

the motion.

QUESTIONS PRESENTED

1. Whether this Appeal presents a substantial federal

question under Rule 16 of the Rules of this court.

2. Whether the convictions of Appellants for publicly

burning the United States Flag violated their rights under

the First Amendment to the United States Constitution.

3. Whether the statute under which the Appellants

were convicted was vague or overbroad and, for that rea-

son, rendered their convictions void under the Fourteenth

Amendment to the United States Constitution.

ARGUMENT

THIS APPEAL DOES NOT PRESENT A SUBSTAN.

TIAL FEDERAL QUESTION AND, HENCE, IT MUST

BE DISMISSED UNDER RULE 16.

When this case was last before the court, the judgment

of the Illinois Appellate Court affirming Appellants’ con-

victions was vacated and the case was remanded for con-

sideration in the light of the two recently decided cases

of Smith v. Goquen, 415 U.S. 566 (1974) and Spence v.

Washington, 418 U.S. 405 (1974). Sutherland vy. Illinois,

418 U.S. 907 (1974). The Illinois Appellate Court again

affirmed the convictions, People v. Sutherland, 329 N.E.

2d 820 (1975).’ If there were any ground for reversal of

the judgment in the present case elsewhere than in Smith

and Spence, this court could have, and presumably would

have considered it. Hence, the only reason remaining for

reversal of the judgment is if the Illinois Appellate Court

incorrectly distinguished Smith and Spence. Since that

court was correct in finding that those cases did not re-

quire reversal of the present convictions, there remains

no ground for reversal and the Appeal must be dismissed

because it does not present a substantial Federal question,

Rule 16(b) of the Rules of The United States Supreme

Court.

The present Appellants were convicted in the Circuit

Court of Rock Island County, Illinois of publicly mutilat-

ing the flag by burning it on the lawn of the Post Office in

1. A complete procedural history of the case is to be

found at Page 2 of Appellants’ Jurisdictional Statement.

Rock Island. The indictment reads, in relevant part, as

follows:

... LINDA MARIE SUTHERLAND aka LINDA

MARIE WILLAREDT, ROXANA MARGURITE

SCHULTZ and TONTIA SUE PAPKE . . . committed

the offense of PUBLICLY MUTLIATING A FLAG

OF THE UNITED STATES, in that they did then

and there knowingly and publicly mutilate a flag of

the United States by burning snid flag in a public

place, to-wit: before the Rock Island Post Office, Rock

Island, Illinois. ... Common Law Record, page 9.

The proof showed that after they had set the flag on fire,

a passing motorist stopped h‘s car, double-parked, ran

over to the hurning flag, and stamped out the flames. The

Appellants burned the flag in order to protest the Viet

Nam War and the Kent State killings.

In Smith v. Goquen, cited above, Goguen was convicted

of flag desecration for wearing a flag sewn to the seat of

his pants. The specific language used in the charge and

the statute was ‘‘treats contemptuously.’’ This court found

that those words were unconstitutionally vague and re-

versed Goguen’s conviction. Mr. Justice White concurred

in the judgment, disagreeing with the court on the vague-

ness ground but holding that Goguen’s conduct was com-

munication protected by the First Amendment. The Chief

Justice and Justices Blackmun and Rehnquist dissented.

The present case is clearly distinguishable from Smith.

First, although it also involves a charge of flag deseera-

tion (as opposed to improper use, the charge in Spence),

the language in the present case is quite specific. The Ap-

pellants were charged with publicly mutilating a flag by

burning it. (The words of the indictment are quoted above).

There can be no question that this language provides

proper notice as to the action proscribed. Furthermore,

contrary to Appellants’ claim, it does not allow discrimina-

tory enforcement (see the argument in Section III C be-

low). In the majority opinion in Smith, Mr. Justice Powell

was careful to distinguish the ‘‘treats contemptuously”

language from the more specific language of the Federal

flag desecration statute which prohibits only physical acts

of mutilation, 415 U.S. at 581-582 and note 30 at page

582. Since a physical act of mutilation is what Appellants

in the present case were convicted of, their conviction can-

not be void on the vagueness ground set forth in Smith.

In Spence v. Washington, cited above, Spence was con-

victed of improper use (not desecration as in the Smith

ease and the present case) of the flag in that he hung it

in his window with a peace symbol taped on it. This court

reversed the conviction of Spence on the ground that

Spence’s conduct was communication protected by the

First Amendment, The court did not reach the vagueness

and overbreadth claims. The court identified four impor-

tant factors in the case: First, the flag was private prop-

erty. Second, it was displayed on private property. Third,

there was no risk of breach of the peace. Fourth, Spence

was engaged in a form of communication, 94 S. Ct. at

2729-2730. The court then concluded that this case involved

communication by conduct and that the analysis set forth

in United States vy. O’Brien, 391 U.S. 367 (1968), applied.

If the state had a sufficient interest unrelated to speech

in punishing the conduct involved, then the conviction must

stand as did O’Brien’s. The court mentioned three inter-

ests: protecting against breach of the peace, protecting

the sensibilities of passersby, and preserving the flag un-

sullied as a symbol of our national heritage. None were

found to be present in Spence.

The present case is unlike Spence in a number of im-

portant respects. The second and third important factors

mentioned above are not present in this case. The flag here

was burned on public property and there was evideuce

of likelihood of breach of the peace. Also, at least two

government interests which can justify proscription of

speech-related conduct in this connection are present in

this case, namely, protecting against a breach of the peace

and preservation of the flag as our national symbol. See

Section II of this memorandum below.

Furthermore, it is clear that as far as First Amendment

protection goes, flag burning is in a class by itself and is

not covered by the Spence holding. No less an advocate

of free speech than the late Justice Black stated in his

dissenting opinion in Street v. New York, 394 U.S. 576,

609 (1969), that he believed that the state and federal

governments did have the power to prevent flag desecra-

tion. At page 610 he stated the following:

It passes my belief that anything in the Federal

Constitution bars a State from making the deliberate

burning of the American flag an offense.

The other three dissenters (Justices Warren, White and

Fortas) agreed. It is to be noted that the majority in Street

did not reach the issue of whether flag burning could be

proscribed, but reversed only because they thought Street

might have been convicted for his words alone. The con-

curring opinion of Mr. Justice White in Smith, cited above,

415 U.S. at 587-588, and the dissenting opinions in both

Smith and Spence are in accord with this view as are

United States v, Crosson, 462 F. 2d 96 (9th Cir. 1972),

cert. den. 409 U.S. 1064; Joyce v. United States, 454 F.

2d 971 (D.C. Cir. 1971),cert. den. 405 U.S. 969 (1972);

Sutherland v. DeWulf, 323 F. Supp. 740 (S.D. Ill. 1971)

present case; and Deeds v. Beto, 353 F. Supp. 840 (N.D.

Tex. 1973).

Finally, the court in Spence also specifically exempted

the facts of the present case from its holding by stating

the following:

Appellant was not charged under the desecration

statute, see n. 1 supra, nor did he permanently dis-

figure the flag or destroy it. 94 S. Ct. at 2732.

Appellants here were charged under a desecration statute

and they did destroy the flag.

For these reasons, the Illinois Appellate Court was cor-

rect in holding that Smith and Spence do not require re-

versal of the present convictions and this appeal should

be dismissed because no substantial federal question re-

mains for this court’s consideration.

II.

APPELLANTS’ CONVICTION FOR FLAG BURNING

DOES NOT VIOLATE THEIR RIGHT TO FREE

SPEECH UNDER THE FIRST AMENDMENT.

If the court finds, contrary to the argument presented

above, that there remains a substantial federal question

which should be considered on appeal, Appellees request,

in the alternative, that the court affirm the judgment of

the Illinois Appellate Court without further briefing or

argument. It should be noted in this connection that when

the case was last before the court, four Justices were of

the opinion that this was the correct disposition of the

ease. Sutherland vy. Illinois, 418 U.S. 907 (1974).

Appellants’ first contention is that their action in pub-

licly burning the flag as a means of protesting the Viet

Nam War and the Kent State killings was protected by

the First Amendment. This is not the case.

As indicated above, the four dissenters in Street v. New

York who, unlike the majority, reached the issue of whether

a state may prohibit public flag burning as a means of

protest, all agreed that a state has that power and would

have affirmed Street’s conviction. In Spence v. Washington,

cited above, and Smith v. Goguen, cited above, the Chief

Justice and Justices White, Blackmun and Rehnquist

agreed. The majority of the court in Spence specifically

excepted permanent disfigurement or destruction from its

First Amendment holding, 94 S. Ct. at 2732.

The Illinois Appellate Court correctly held that the

controlling case in this situation was United States v.

O’Brien, 391 U.S. 367 (1968), and Appellants concede at

pages 13 and 14 of their Jurisdictional Statement that this

is so.

O’Brien was convicted for burning his draft card to

protest the Viet Nam War and the draft. Appellants in

this case were convicted of burning the flag for similar

reasons. In O’Brien, Chief Justice Warren made the fol-

lowing statement:

We cannot acccpt the view that an apparently limitless

variety of conduct can be labelled ‘speech’ whenever the

person engaging in the conduct intends thereby to ex-

press an idea. 391 U.S. at 376.

The court held in O’Brien that where speech and non-speech

elements are both present, the non-speech element can be

regulated even though it may have an incidental limiting

effect on the speech element if the regulation:

is within the constitutional power of the Government;

if it furthers an important or substantial governmental

interest; if the interest is unrelated to the suppression

of free expression; and if the incidental restriction on

alleged First Amendment freedom is no greater than is

essential to the furtherance of that interest. 391 U.S. at

376.

As the Appellate Court held, the O’Brien test is met here.

The most important factor in applying this test is identi-

fying the interest of the government in regulating speech-

related conduct. The Appellate Court emphasized the breach

of the peace rationale mentioned above in Section I, but

the government has an additional and equally important in-

terest in regulating flag desecration. This interest is the

preservation of the flag’s integrity as our national symbol.

See, e.g., dissenting opinions of Justice Fortas, Street v.

New York, 394 U.S. 576, 616-617 (1969) ; Justices White and

Rehnquist, Smith v. Goguen, 415 U.S. 566, 586-587, 600-604

(1974); coneurring opinion of Justice Ryan in People v.

Lindsay, 51 Til. 2d 399, 282 N.E. 2d 431, 435 (1972) ; United

States v. Crosson, 462 F. 2d 96 (9th Cir. 1972) ; and Joyce

v. United States, 454 F. 24 971 (D.C. Cir. 1971).

Either one of these interests alone is sufficient to sustain

the constitutionality of the regulation of flag burning and

the combination of the two strengthens the case for constitu-

tionality immeasurably. It is clear that both of these inter-

ests are substantial and that they are within the police

power of the state legislature. Furthermore, government

regulation of flag burning in order to guard against a breach

of the peace is clearly unrelated to speech. Government reg-

ulation of flag burning in order to preserve the flag as a

national symbol may have some relation to ideas, but cer-

tainly has little, if any, effect on their dissemination.

This brings up a very important point made by Justice

Harlan in his concurring opinion in O’Brien, 391 U.S. at 388.

He concurred in the judgment and opinion of the court, but

wanted to make clear that he expected from its impact the

situation where regulation of speech-related conduct might

cut off a person who wants to communicate a particular idea

from a significant audience. This possibility was not present

in the O’Brien case and is not present here. In both situa-

tions, the defendants could have communicated their ideas

to any audience by many alternative means.

Appellants’ argument on this point at pages 12-18 of

their Jurisdictional Statement suffers from a fatal flaw.

That is, they discuss flag burning as if it were pure speech

and entitled to the special protection that the First Amend-

ment gives to pure speech. However, it is clear from the

O’Brien case that speech-related conduct is not entitled to

that high degree of protection. Appellants as wel! as Dick

(Gregory have the right to verbally express their views with-

out fear of a heckler’s veto. Gregory v. City of Chicago, 394

U.S. 111 (1969). What they do not have the right to do is to

express those views by desecrating the flag.

Appellants also speak of Illinois hypothesizing in advance

that hostile reaction might occur. This is absurd. No hypo-

thesis is involved. In this case, there was proof of a hostile

reaction. A motorist who happended to be passing by

stopped his ear, double-parked, ran to the burning flag, and

extinguished the flames. It does not take much common sense

to know that the feeling which provoked this reaction is

widespread. The majority of people in this country love

and revere the flag as a symbol of freedom and national

pride and those who desecrate this symbol inevitably pro-

voke hostile reaction. If burning the flag were the only

means that Appellants had to express their opposition to

government policy, it would be different, but they are free

to express whatever views they want by almost any con-

ceivable means. Regulation of flag desecration simply carves

one tiny sliver from the large body of media of expression

permitted.

IIl.

APPELLANTS’ CONVICTIONS ARE NOT VIOLATIVE

OF THE FOURTEENTH AMENDMENT.

The Statutory Language Under Which Appellants Were

Convicted Is Neutral.

Appellants claim that they were convicted under an un-

constitutional statute because the Illinois Flag Desecration

Statute supposedly is used only to punish dissenters. This is

merely a rehash of an argument that was rejected in

O’Brien. O’Brien claimed that Congress passed the law

under which he was convicted in order to suppress protest

of government policy and thereby abridge free speech. This

court refused to delve into the reasons that may have moti-

vated various members of Congress to pass the bill. There

was a valid government interest in preventing the burning

of draft cards that had nothing to do with suppressing dis-

sent and there was no reason to go beyond that. Likewise,

the State of Illinois has good reasons to prevent public flag

burning that have nothing to do with suppression of dissent.

Both of the cases relied upon by Appellants in this con-

nection are distinguishable for the above reason. In Police

Department of Chicago v. Mosley, 408 U.S. 92 (1972), the

City of Chicago had no other reason to prohibit Mosley’s

picketing than its disagreement with Mosley’s message.

Likewise, in Schacht v. United States, 398 U.S. 58 (1970),

this court held that the only reason Schacht was prosecuted

was because the government disagreed with the message he

intended to convey by wearing an Army uniform. It is

otherwise in the present case.

The Illinois Flag Act Is Not Overbroad.

In making their contention that the Illinois Flag Act is

overbroad,’ Appellants ignore People v. Lindsay, 51 Ill. 2d

399 (1972), cited elsewhere in their Jurisdictional State-

ment, where the Illinois Supreme Court reversed a convic-

tion under the improper use section of the Flag Act because

there was no proof of likelihood of a breach of the peace. The

Illinois Appellate Court followed that holding in the present

case. There is no reason to believe that the desecration sec-

tion would be construed otherwise by the Illinois Supreme

Court. See Grayned v. City of Rockford, 408 U.S. 104, 109-

110 (1972). Since there was evidence of likelihood of a

breach of the peace here, the present case meets the require-

ment of People v. Lindsay. Hence, the theoretical argument

made by Appellants on this point does not comport with

Illinois practice. The statute is not overbroad.

The Illinois Flag Act Is Not Void For Vagueness.

At pages 23 and 24 of their Jurisdictional Statement,

Appellants abandon any claim that the Illinois Flag Act

does not give proper notice of the conduct it seeks to pro-

hibit, and base their argument entirely on the contention

that the Flag Act is unconstitutionally vague because it

permits discriminatory enforcement. It does not. Appellants

make a rather diffuse and theoretical argument about the

attitude of the person who is mutilating the flag by reading a

requirement of motivation into the statute which is not

there.

2. See especially page 22, footnote 9, of Appellants’

Jurisdictional Statement.

It is more instructive to focus upon the language under

which Appellants were charged and determine whether

there was any possibility of discriminatory enforcement as

to them. There was not They were not charged with having

a disrespectful attitude toward the flag, nor were they

charged with speaking disrespectfully of the flag. They were

charged with an act (mutilation by burning) which was in

itself disrespectful to the flag. There is no ambiguity here.

There is no room for discriminatory enforcement. If one

publicly multilates the flag, one has committed an offense,

whether one is protesting the continued presence of United

States Military Forces in Viet Nam or whether one is pro-

testing our failure to bomb the Viet Cong back to the Stone

Age. Discriminatory enforcement could only come from

misuse of prosecutorial discretion and not from the langu-

age of the statute. Spence v. Washington, 94 S. Ct. 2727,

2732, note 9 (dictum).

For these reasons, the statute is neither vague nor over-

broad.

CONCLUSION

For the reason given above, the conviction of Appellants

did not violate the Constitution and Appellees respectfully

request this court to dismiss the appeal for want of a

substantial federal question, or affirm the judgment of the

court below, without further briefing or argument.

Respectfully submitted,

Wim J. Scort,