People v. Sutherland

• Decision Date: 16 June 1975
• Docket Number: No. 74--352,74--352
• Citation: 329 N.E.2d 820,29 Ill.App.3d 199
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Linda Marie SUTHERLAND et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 820

329 N.E.2d 820

29 Ill.App.3d 199

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Linda Marie SUTHERLAND et al., Defendants-Appellants.

No. 74--352.

Appellate Court of Illinois, Third District.

June 16, 1975.

Peter Denger, Stuart R. Lefstein, Rock Island, Thomas Kelly, Davenport, Iowa, for defendants-appellants.

F. Stewart Merdian, Illinois State's Atty. Assn., Ottawa, David DeDoncker, State's Atty., Rock Island County, Rock Island, for plaintiff-appellee; Michael Weinstein, Ottawa, of counsel.

STOUDER, Presiding Justice:

The defendants, Linda Marie Sutherland, Roxana Margurite 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 paragraph of section 1 of the Illinois Flag Act (Ill.Rev.Stat.1969, ch. 56 1/4, sec. 6, par. 2). In a trial before a jury, all defendants were found guilty.

In an earlier opinion filed on February 9, 1973, this court affirmed the judgments of conviction. (People v. Sutherland, 9 Ill.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 judgment and the cause was remanded for further consideration in light of Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 and Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605. Sutherland v. Illinois, 418 U.S. 907, 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 redocketed, 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 combined in the same course of conduct,' a governmental regulation of a 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 restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' z$tThe defendants argue that section 1 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 constitutes speech. This argument fails to account for the view of the United States Supreme Court, expressed in O'Brien and reiterated 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...