People v. Von Rosen
| Decision Date | 24 January 1958 |
| Docket Number | No. 34562,34562 |
| Citation | 13 Ill.2d 68,147 N.E.2d 327 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. George E. VON ROSEN et al., Plaintiffs in Error. |
| Court | Illinois Supreme Court |
Charles A. Bellows and Jason Ernest Bellows, Chicago, for plaintiffs in error.
Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Decatur, William H. South, Carmi, and John T. Gallagher and William L. Carlin, Chicago, of counsel), for the People.
Defendants George E. Von Rosen, Sidney Barker, and Ben Burns, upon trial by the criminal court of Cook County, trial by jury having been waived, were convicted of violating section 1 of the act to prevent desecration of the United States Flag (Ill.Rev.Stat.1955, chap. 56 1/4, par. 6) which declares it unlawful for any person to publicly desecrate the flag of the United States. They were each sentenced to pay a fine of $50 and costs. Direct review is sought in this court by writ of error.
The evidence shows that the three defendants were respectively, publisher, art director, and editor of a magazine known as 'Modern Man.' In the January, 1956, issue they published an illustrated story concerning artists' life in Paris, France. One of the illustrations is the subject of this prosecution. It depicted a young woman who was nude except for a large hat, sunglasses and a piece of cloth which covered the public area of her body. This piece of cloth, though the defendants question the fact, looks exactly like the flag of the United States.
The trial judge considered the publication of this picture an act of desecreation of the flag of the United States within the meaning of the statute. He inferred that the defendants intended this consequence and thus found them guilty as charged.
Defendants seek to invoke the jurisdiction of this court upon the grounds (1) that the section of the statute under which they were convicted in invalid in that it is regulatory of subject matter within a field occupied by the Congress of the United States and (2) that they were denied freedom of the press as guaranteed to them by section 4 of article II of the Illinois constitution, S.H.A. and the first amendment of the United States constitution.
We consider first whether the section under which the defendants were convicted is invalid in that it is regulatory of subject matter within a field occupied by Congress. In the recent case of Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, three tests were set forth, any one of which is determinative of this question. These tests are: (1) whether the scheme of Federal legislation is so persuasive as to make reasonable the inference that Congress left no room for the States to supplement it; (2) whether the Federal statutes touch a field in which the Federal interest is so dominant that the Federal system must be assumed to preclude enforcement of State laws on the same subject; (3) whether the enforcement of the State law presents a serious danger of conflict with administration of the Federal program.
It is contended the Federal statute (U.S.C.A. Title 36, secs. 173-178) codifying existing rules and customs pertaining to the display and use of the flag for civilians or...
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