*1 I believe it disciplinary procedures”, proper preferable avoid that possibility. short, while
In that there are agreeing circumstances wherein in the intervention voluntary judicial operation I associations is not but is necessary, only appropriate, believe should be used power sparingly under more than circumstances those existing compelling here.
I would affirm the court. judgment appellate MR. DAVIS in this joins dissent., JUSTICE
(No. 43379. ILLINOIS, THE PEOPLE OF THE STATE OF Appellee, al., v. EDWARD LINDSAY et Appellants.
Opinion filed
RYAN KLUCZYNSKI, JJ., concurring. SAMUELS, MILLER, SCHROEDER, & JACKSON SLY, of Decatur R. MILLER, of (CARL counsel), appellant. WILLIAM SCOTT, General, of Attorney Spring- J.
field, and BASIL G. GREANIAS, State’s Attorney, Decatur G. LEACH, Assistant (FRED General, Attorney for counsel), People.
MR. delivered the DAVIS opinion JUSTICE court:
The defendants, Klaven, Edward and Marvin Lindsay were convicted in the circuit court of Macon County the violation of section 1 of the Illinois *2 Act 1969, 5614, ch. waived trial (Ill.Rev.Stat. par. Lindsay 6). and was found the by court and Klaven was jury guilty by found the Each defendant was fined guilty by jury. $75.
The evidence established that the defendant Klaven was chairman of the Art at Millikin Department University in Decatur and also served as Director the Decatur Art Institute, and that the defendant was Lindsay president Klaven, Director, Institute. as information compiled about art exhibits and such facts to the traveling presented Art Center Board in connection with its selection for exhibits display. art
An show entitled in “Patriotic American Images Art” for was selected at the Institute in March Art display of 1969. It was distributed American compiled Federation of Art and its various exhibits were generally described in a there was no catalog, although description of here exhibit which is in show controversy. consisted of them 30 art separate objects. Among was a Chains,” entitled in which consisted sculpture “Flag of two American sewn and stuffed with flags together foam rubber. A chain was around the middle placed and was into locked sculpture place.
Between to 40 attended the people opening on 2, show no 1969. There were distur- Sunday, bances of kind were made any although complaints another exhibit which contained the “To Hell caption, comments, Because of Klaven Patriotism.” exhibits, a statement which was prepared explaining Institute, made available all visited the Art who the school children. The in Chains” including “Flag exhibit, demonstrated Klaven’s according explanation, artist’s concern for freedom all. patriotic on the of and an article 3, “Flag On March picture The State’s in a local Chains,” were newspaper. published then received a number and sheriff telephone Attorney calls concerning display. law-enforcement officials
On March several appear- calls. ed at the Art Institute because telephone notified Klaven’s attor- the State’s Attorney Subsequently, removed in Chains” should be that the exhibit ney “Flag met, but Center Board from show. In Art response, removed from failed to Klaven then had the exhibit act. room where it-could be seen the main to a gallery separate on and where it was concealed from only, request a few no time was view. asked see it. At Only people disturbance, disorder, there or vocal unusual conduct any threats kind.
The exhibit Chains” was seized “Flag deputy sheriff on March held until released was for display Carolina, in North as a of the total exhibition. part an information filed Subsequently, charging *3 defendants, Klaven and section 1 Lindsay, violating desecration, of “An Act to and punish mutilation or of the United use States improper ” America in that ch. (IU.Rev.Stat. par. 6), “on 4, 1969, for or exhibition they display or caused to to view be knowingly exposed exposed public attached, a which States was upon chain; and further affixed a to wit: a and figure, appended, that said was as was to such likely public exposure provoke a breach of the 1 the Act Section peace.” provides: “Any person display, places for exhibition (a) who or mark, word, picture, placed any figure, causes to or be nature, upon any any design, drawing, or advertisement of standard, or any ensign or of the United States flag, color exposes to be (b) or or causes ensign, of this State standard, color or any flag, such exposed public to view painted or otherwise printed, has been ensign, affixed, attached, or appended, placed, has been or to which mark, annexed, word, drawing picture, design or any figure, nature, any exposes to any (c) or advertisement of or sale, manufactures, sells, away, or view, exposes gives any use for away or for give for sale or to possession has in substance, article of being an any or purpose, article or merchandise, merchandise or article receptacle or upon which merchandise carrying transporting or thing for attached, placed a or otherwise painted, printed, has been color, standard, ensign, or any flag, such representation to, decorate, advertise, distinguish mark or call attention to placed, shall be on which so article or substance $100 than less than nor more by $10 a fine of not punished costs, days for not more than by imprisonment or or penitentiary, both. penal institution other than defaces, mutilates, defiles “Any publicly person who defies, contempt upon, whether words tramples or casts standard, shall be act, ensign, color or flag, such $1,000 than nor more by a fine of not less than punished to $5,000 from one penitentiary in the by imprisonment years or both.” trial, witnesses, four the sheriff At including there Macon testified on cross-examination that County, disorder, disorder, no or threat of at the Art Institute on March 4—three after the exhibit Several days opened. State, other witnesses for the who were members local testified that various veterans organizations, exhibit was a breach of These likely provoke to their witnesses were court testify permitted exhibit, mental reaction to the in Chains.” “Flag subjective disturbed,” stated that were “shocked They they none of them had viewed it at the Art although personally few of the resolutions Institute. A organizations adopted American the exhibit. The and statements condemning their commanders and VFW Posts authorized Legion one witness remotely warrants. testimony sign and that of a breach of touched on the peace, possibility he those members had witness testified persuaded *4 to to the who display the veterans’ objected organizations action to to take the law rather than rely physical the from the Art Institute. remove display in this have raised several issues The defendants that the Act is unconstitutional assert Flag They appeal. under the first amendment to the Federal constitution over-broad; because it is that it is unconstitutional when case; to the facts in that the did not applied prove reasonable doubt that beyond there was a likelihood of a breach of the that the erred in court peace; the that there advising was a jury a Federal law violation defendants were not and that the charged; court erred in as admissible ruling allegedly hearsay and opinion state, evidence mental subjective and in instructing jury.
It is to review appropriate briefly history Illinois Act. It Flag was enacted in 1899 and was originally held to be unconstitutional in Ruhstrat v. People (1900), 185 Ill. The rationale of the decision that was had no legislature under power guise police to regulations invade the arbitrarily rights personal citizens; liberties its that the term as used in “liberty” the Bill of included the Rights, choose a right particular business and to advertise its in any products legitimate manner.
“An Act desecration, and mutila- punish tion or use of the improper States America” was re-enacted in 1907 as a result of a nationwide movement such adopt legislation. By time more than half of the States had enacted similar statutes. Two immediate causes spurred adoption Acts: Flag of 1896, and the presidential campaign commercial use of the In the of 1896 the campaign was used as an emblem both and political parties, that use resulted in of abuse, mutilation, incidents many Commercial use primarily resentment advertising purposes, Prosser, this was against Desecration widespread. (See: the American Forum 194-197 Ind. Flag, Legal State has Today, every legislation (1969).) protecting American from desecration. act, Illinois in 1907, as re-enacted prohibited *5 on the word or mark design, any advertising
placing marked, and view of a so flag flag, exposure of merchandise or away upon manufacturing giving or a was which flag printed, painted representation defilement, or attached, mutilation, as well as the casting act, word or It made by flag. upon contempt of the and the violation Act misdemeanor penalty nor more of not than such was a fine less $10 transgression or of not more than 30 days, or than $100 imprisonment both. found to that of Illinois was
A act identical 34, 205 U.S. constitutional in Halter v. Nebraska (1907), further It was not until 1968 anything 51 L.Ed.696. In that added to the Illinois Act. year, response Flag mutilation, and desecration to the acts burning advocates youthful civil by rights being perpetrated amended war, the of the Vietnam legislature protesters exhibition, to the Act. The Flag applying provisions etc., mark, word, design, any figure, display, placing or the nature flag, or advertisement any upon any or mark word, figure, attaching appending from the etc., were provisions pertaining separated picture, forth in were set of the They to the desecration and were of section 1 of the Act first punishable paragraph nor more than $100 a fine of not less than $10 by in a than 30 for not more days costs, by imprisonment or both. than the institution other penitentiary, penal 56%, ch. 6. Ill.Rev.Stat. par. defile- mutilation, desecration, burning,
The acts
were
the flag,
ment,
and otherwise casting contempt
of the Act
section
forth in
second
set
paragraph
nor
$1,000
not
than
fine of
less
and were
punishable
in the
$5,000 penitentiary
than
more
imprisonment
1969, ch.
or both. Ill.Rev.Stat.
one to five
from
years,
par.
enact-
the 1907
decision construing
Illinois
The only
from its
aside
provisions
Act
ment
(which
the same as the 1968
relative
is essentially
penalties
is
v. Von Rosen
In Von Rosen this court reversed the conviction defendants because the evidence was insufficient to show *6 the likelihood of a breach of the At 70 and pages 71, we observed: “ *** the of the of the acts various history
States reveals that were enacted for the they of breaches of the purpose preventing peace from of use resulting improper disrespect *** the flag.
“The Illinois act was thus enacted for the of of the within its prevention peace borders, and touches field in which the State’s interest of is dominant (preservation public order) the Federal interest. although remotely affecting [*] [*] [*] “In case, of we facts find applying the record devoid of evidence showing to show that tending publication the defendants was done under such picture circumstances was of such a nature likely about the substantive evils the bring legislature Since the evidence is insuf- sought prevent.
ficient to the likelihood of a breach show section of the Illinois act cannot be 1 peace, to these defendants.” constitutionally applied bar, In the case at the defendants were charged violated the first of section 1 of the having paragraph chain,” in that to wit: a to the Act “affixed a they figure, were not with the offense flag. They having charged mutilated, defaced, The cast flag. contempt upon Klaven, and the as court found found Lindsay, guilty jury charged. decision
We believe that Von Rosen clearly case, and that cannot stand. controls this these convictions Proof of the likelihood a breach occurring peace at the Decatur Art Institute because this exhibit was here, it as was Von Rosen. lacking proof the likelihood that adduced to show tending kind occur at the Art disorder some might public who Institute was the the witness testimony allegedly and unknown had certain unidentified per- “persuaded” to remove the exhibit. Such sons not to take direct action of the likelihood of a falls far short of testimony proof the basis of the breach which circumstance is peace, use, or desecra- interest in the mutilation State’s improper tion v. Nebraska 205 U.S. Halter (1907), 45; v. Sutherland F.Supp. (S.D.Ill. 1971), DeWulf 740, 744-745. context,
In this the words States Court Cantwell v. Connecticut Supreme (1940), 296, 308, 1213, 1220, are U.S. 84 L.Ed. 60 S.Ct. disorder, riot, relevant: clear and “When danger present streets, or other interference with traffic *7 order, immediate threat to safety, peace, appears, public obvious. the of the state to is power punish not obvious is it that a state unduly may suppress Equally views, other, under the free communication of religious of desirable conditions.” guise conserving did not indicate the defendants The evidence against of order or because immediate threat to safety public law enforcement the art exhibit in Chains.” The “Flag the not concerned over of Macon were officials County exhibit. because of this of a breach peace possibility on received The sheriff State’s Attorney complaints 3; the and viewed such investigated complaints 4; to remove no action was taken exhibit on March yet, defendants the and no was filed the against exhibit charge to herein was insufficient until March Since the evidence 6. of the first the of breach show likelihood peace, section 1 of the cannot be of Act applied paragraph to the defendants. other view of we do not reach the decision,
In our defendants, the of issues raised the by including question the of the Act itself. constitutionality
It certain that a new trial will quite appears produce no additional that the exhibit in Chains” proof “Flag Therefore, would have caused disorder. we reverse the of conviction the without defendants judgments remanding. reversed.
Judgments RYAN, MR. concurring: JUSTICE I in concur the result reached the court Although for later, reasons to be stated I the do not with agree in the court I do reasoning its conclusion and reaching not approve perpetuation by opinion as of a misconception authority legislate United regard States Flag. The interest a State in concern- enacting legislation ing States is not for solely breaches purpose preventing peace. opinion of the court comes to this erroneous conclusion by the decision of in this court Von following v. People Rosen, 13 Ill.2d which in turn arrived at this mistaken had enacted conception concluding Congress Therefore, legislation field concerning being dominant, which interest of the Federal is government Von Rosen concluded that a State could enact exercise its legislation police powers The legisla- purpose preventing tion of held a State Von Rosen Congress precluded from in this area is found in Title 36 U.S.C.A. acting However, sections do these sections through *8 408 customs and more than and standardize
nothing codify and of to the use long standing regard display usages therefor. method showing flag respect to These sections do not conduct relating proscribe nor for not conforming flag penalty provide customs set forth therein. 133, erron 185 Ill. also
Ruhstrat v. People (1900),
held that
had no
legislate
authority
eously
that
to the use or
of a
with regard
flag, holding
display
However, in 1907 the
had such
only Congress
authority.
34,
Nebraska,
Court
in Halter v.
205 U.S.
Supreme
696,
held that a State could
concerning
L.Ed.
legislate
use of the United States
The court recognized
had
as well as the Federal
State governments
government
to enact
legisla
the constitutional
flag
appropriate
power
tion, and, in the absence of Federal
exercising
legislation
control,
in the
of its own
exclusive
a State
interest
people
is not
could
This
of the State
legislate.
right
appropriately
on
based
such legislation
necessity
in
on the interest of a State
but
peace
Union.
for the
and thus the
fostering
flag
respect
Rosen,
in
to the conclusion reached
Von
Contrary
in
field to the exclusion
has not
Congress
legislated
to enact
Thus,
flag
a State
States.
right
not
legislation,
solely
purpose
preventing
Halter,
also,
in
for the
breaches of the
but
as held
peace,
Union,
for the
and the
fostering
purpose
respect
Warren
still remains. As
out Mr. Chief
pointed
Justice
York,
394 U.S.
in his
Street v. New
dissenting opinion
1354,
572,
22 L.Ed.2d
at 588. 89 S.Ct.
at
York
on the
of a New
statute
commenting
applicability
the time of
“At
the United States
stated:
concerning
desecration,
trial the federal
prohibition
appellant’s
identical
to New
in all material
particulars
could
York’s
to the District
Columbia
applied
on the same
therefore not have
state legislation
pre-empted
in Title
act referred to is contained
The Federal
subject.”
U.S.C., section 3. In 1968
enacted further
Congress
*9
legislation
desecration
concerning flag
applying generally
the
This
throughout
nation.
act is found in
U.S.C.,
Title 18
section 700. As stated in a footnote on the
above
page
referred to in
dissent,
Mr. Chief
Warren’s
this
Justice
legislation
does not
specifically
State
statutes.
preempt
flag
Annot.,
See also:
Hence the of status a State’s has not been authority Halter, since and a changed statute is authorized flag not as an of exercise its a police power prevent breach the of of but also the peace purpose fostering for the and the Union. The of the respect validity of such a statute must be tested as is a Federal application the is, statute on same that the constitu- subject, against affected If tionally protected rights persons thereby. the of the State not statute does violate an application individual’s is not it constitutionally protected right of test the act necessary its validity considering necessity of the above, outset, as I indicated at the I
Regardless must concur in the result reached opinion court. The the defendants was not made charge against under the section of the act which relates to casting but was made under the section of contempt the statute which or to be proscribes exposing causing “attached, to which has been exposed any flag appended, annexed, word, mark, affixed or any figure, picture, design advertisement of nature.” any drawing (Empha- sis is the contention on It State’s chain supplied.) the art exhibit a and thus violated constituted this “figure” the act. chain does not fall within provision Clearly of word as that word is used meaning “figure” Word, mark, context this figure, prohibition. picture, all relate to similar design drawing representations not to If we that an objects. State’s accept position within the of these terms we object comes ambit (a chain) must within the all also these terms bring meaning Thus, an exhibit Bible attached
objects. showing Holy to the in some manner the motto “For God signifying would constitute violation the statute. Country” if “attached, The same would be true the object appended, affixed or annexed” were an branch or the olive scales of the statute are broad with the justice. proscriptions enumerations contained therein. Therefore each many word used in these enumerations must be con- strictly strued so that be the statute may prohibitions understood. precisely
For do these reasons I not believe that the defendants had been a violation the statute proved guilty involved.
MR. KLUCZYNSKI joins concurring JUSTICE opinion. *10 43974, 44449
(Nos. cons. ILLINOIS, OF Appellee, THE STATE PEOPLE OF THE CITY al., et C. RIDENS v. FRANK Appellants.—THE WALKER, LARRY MOLINE, Appel v. OF Appellee, lant. Rehearing May denied 1972.
Opinion filed