Sutherland v. DeWulf, Civ. A. No. RI-331.

Citation323 F. Supp. 740
Decision Date23 February 1971
Docket NumberCiv. A. No. RI-331.
PartiesLinda Marie SUTHERLAND, Roxana Margurite Schultz and Tonia Sue Papke, Plaintiffs, v. James N. DeWULF, as State's Attorney of Rock Island County, Illinois, Defendant.
CourtUnited States District Courts. 7th Circuit. Southern District of Illinois

Peter Denger, Rock Island, Ill., Thomas M. Kelly, Jr., Davenport, Iowa, for plaintiffs.

James N. DeWulf, State's Atty., Rock Island, Ill., for defendant.

Before PELL, Circuit Judge, POOS, Chief District Judge, and MORGAN, District Judge.

OPINION AND ORDER

ROBERT D. MORGAN, District Judge.

This cause is before the court on defendant's motion to dismiss. Plaintiffs are seeking declaratory and injunctive relief under 28 U.S.C. §§ 1343(3), 2201, 2202 and 42 U.S.C. § 1983. The complaint requests that the second paragraph of § 6 of chapter 56¼, Illinois Revised Statutes, be declared void on its face as in conflict with the Constitution of the United States; and that the defendant be permanently enjoined from prosecuting the plaintiffs based upon the aforesaid statute. This three-judge court was convened because the requests for relief properly invoke the provisions of Title 28, United States Code, §§ 2281 and 2284.

Defendant admits by answer on file that the plaintiffs have been indicted for violation of the challenged Illinois statute and that the case, numbered 70 Y 393, is now pending against them in the Rock Island County Circuit Court, General Division. The indictment was returned on May 28, 1970 and recites in pertinent part that the plaintiffs herein

"* * * committed the offense of PUBLICLY MUTILATING A FLAG OF THE UNITED STATES, in that they did * * * knowingly and publicly mutilate a flag of the United States by burning said flag in a public place, to-wit: before the Rock Island Post Office, Rock Island, Illinois, in violation of Section 6, Chapter 56¼ of the Illinois Revised Statutes, 1969."

The indictment is clearly based upon the second paragraph of the subject statute which 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 the flag of the United States or the State of Illinois 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."

One of the plaintiffs, Roxana Margurite Schultz, moved to dismiss the indictment in the state court and said motion was denied on July 23, 1970. The defendant advised this court that he would not proceed with the pending prosecution until a decision in this cause was made, so no injunction pendente lite was considered.

It is apparent that the constitutionality of the statute is the vital issue of law on the pending motion. After receiving briefs from counsel and oral argument on January 15, 1971, several substantial questions are before the court for decision.

I.

The first question that this court must decide is whether this cause presents a proper situation for the application of the abstention doctrine.1 The defendant has urged this court, both in his brief and in oral argument, to apply the abstention doctrine and thereby to abstain from ruling on the merits of the plaintiffs' federal claims in order to give the state courts an opportunity to vindicate them. The application of the abstention doctrine would involve a discretionary exercise of the court's equity powers. Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). Nevertheless, it is clear that the abstention doctrine should not be exercised in this case.

Here, the plaintiffs are attacking the statute on its face, alleging that it is violative of the First Amendment to the Constitution of the United States as applied to the states through the Fourteenth Amendment. The plaintiffs allege that the statute is void on its face because it is overbroad, making various types of conduct illegal which may not be made illegal. The Supreme Court in the recent case of Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), has made it abundantly clear that where the plaintiffs are asserting that a state statute is violative of the First Amendment on its face for overbreadth and where they are requesting declaratory relief as well as injunctive relief, district courts should not abstain from deciding the case on the merits. The Court in Zwickler, speaking through Mr. Justice Brennan, noted that following the Civil War "nationalism dominated political thought" and Congress greatly increased the powers of the federal judiciary. Zwickler v. Koota, supra at 246-247, 88 S.Ct. 391. The Court then stated at 248, 88 S.Ct. at 395:

"In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of federal forum for the hearing and decision of his federal constitutional claims."

The Court, in Zwickler, did point out, however, that under "special circumstances," as where the state statute is susceptible to a "construction by the state courts that would avoid or modify the constitutional question," a district court might properly abstain. Zwickler v. Koota, supra at 249, 88 S.Ct. at 396; see also Baggett v. Bullitt, 377 U.S. 360, 375-379, 84 S.Ct. 1316 (1964). In view of the broad language of the statute involved in this case, it seems clear that no state court construction is possible that would avoid or render unnecessary the plaintiffs' constitutional challenge of the statute on its face. Furthermore, the court sees no other "special circumstances" which might warrant its abstention herein. The plaintiffs' choice of forum should be respected. This court decides, therefore, that this cause does not present a proper situation for invoking the abstention doctrine and that it will decide the issues presented on their merits.

II.

The second question before the court is whether the statutory provision challenged here is unconstitutional as applied to the three plaintiffs in the state court proceedings. As stated above, the plaintiffs are charged in the state indictment with the "offense of PUBLICLY MUTILATING A FLAG OF THE UNITED STATES, in that they did * * * knowingly and publicly mutilate a flag of the United States by burning it." The statute under which the indictment was returned provided for the punishment of "any person who publicly mutilates" the flag of the United States. The issue then becomes whether a state may constitutionally punish such burning of the United States flag in a public place. In the opinion of this court a state may punish such an act.

It is clear that the freedoms protected from infringement by the national government by the First Amendment to the Constitution are also protected by the Fourteenth Amendment from invasion by the state governments. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); N. A. A. C. P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). And, there is no doubt that "nonverbal expression" may be "a form of speech" within the meaning and the protection of the First and Fourteenth Amendments. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed. 2d 731 (1969) (black armbands in school); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178 (1943) (compulsory flag salute); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (display of red flag). There is also no question, however, that First Amendment freedoms are not absolute, and their proper regulation is fully within the powers of the national and state governments. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (draft card burning); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968) (picketing in front of court house); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766 (1942) (fighting words). The First Amendment does not license individuals to speak "whenever and however and wherever, they please." Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).

At the present time, United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968), appears to be the leading Supreme Court opinion setting forth the tests to determine the extent to which government may regulate the exercise of the right to free speech. There, a man named O'Brien burned his selective service registration certificate before a sizable crowd in a protest against war. He was convicted for violating 50 U.S.C. App. § 462(b) for the knowing destruction of his registration certificate. The Supreme Court said at 376-377, 88 S. Ct. at 1678-1679,

"When `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. * * * We think it clear that a governmental regulation is sufficiently justified * * * if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expressions; and if incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."2

Although, in the case at bar, it is by no means clear what the three plaintiffs were trying to express, if anything beyond disrespect, by their public burning of the flag, this court will assume that in such disrespectful demonstration there was a communicative element sufficient to bring the First Amendment into play. Given this assumption, however, the public burning of the flag is not necessarily a constitutionally protected activity since...

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    ...flag " 'is an act having a high likelihood to cause a breach of the peace,' " Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F.Supp. 740, 745 (SD Ill.1971) (citation omitted), and its statute's implicit assumption that physical mistreatment of the flag will lead to "serious offe......
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