State v. Janssen

• Decision Date: 25 June 1998
• Docket Number: No. 97-1316-CR,97-1316-CR
• Citation: 219 Wis.2d 362,580 N.W.2d 260
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Matthew C. JANSSEN, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 260

580 N.W.2d 260

219 Wis.2d 362

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Matthew C. JANSSEN, Defendant-Respondent.

No. 97-1316-CR.

Supreme Court of Wisconsin.

Argued April 9, 1998.

Decided June 25, 1998.

For the plaintiff-appellant-petitioner the cause was argued by Vincent R. Biskupic, District Attorney for Outagamie County, with whom on the briefs was James E. Doyle, Assistant Attorney General.

For the defendant-respondent there were briefs by Eugene A. Bartman and Brian G. Figy, Office of the State Public Defender, Appleton, with oral argument by Eugene A. Bartman.

Amicus curiae was filed by Peter M. Koneazny, Carolyn M. Hagner and American Civil Liberties Union, Milwaukee for the American Civil Liberties Union.

¶1 JON P. WILCOX, Justice

On June 14, 1777, the Continental Congress resolved "[t]hat the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation." 8 Journal of the Continental Congress 1774-1789 at 464 (W. Ford ed.1907). For the more than 220 years since that day, our "Stars and Stripes" has endured as one symbol that Americans may look to with quiet reflection upon who we are as a nation, what our ancestors have done for us, and what it is that we wish to accomplish for our future generations.

¶2 It should come as no surprise that in a country of such great pride, honor and tradition, disrespect for the flag often leaves a bitter taste in the mouths of even the most tolerant among us.

The American flag ... has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.

Texas v. Johnson, 491 U.S. 397, 429, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (Rehnquist, C.J., dissenting). The flag is a world-wide symbol of freedom; it is symbolic of the sacrifices we have made in our lives as Americans, and for most of us, it deserves respect and honor.

¶3 Although the flag's significance to most Americans may be readily apparent, one critical and indispensable fact which may exist only in the most distant recesses of our internal thought process may not reveal itself so willingly: we must also honor and respect the United States Constitution by carrying out its commands. As a court, this is not only our primary function in this case, it is our only function.

¶4 This is a review of a published decision of the court of appeals, State v. Janssen, 213 Wis.2d 471, 570 N.W.2d 746 (Ct.App.1997), which affirmed an order of the circuit court for Outagamie County, John A. Des Jardins, Judge. The circuit court dismissed the state of Wisconsin's (State) charge of flag desecration against the defendant Matthew C. Janssen (Janssen). The flag desecration statute, Wis. Stat. § 946.05 (1995-96), ¹ provides:

946.05 Flag desecration. (1) Whoever intentionally and publicly mutilates, defiles (2) In this section "flag" means anything which is or purports to be the Stars and Stripes, the United States shield, the United States coat of arms, the Wisconsin state flag, or a copy, picture, or representation of any of them.

or casts contempt upon the flag is guilty of a Class E felony.

¶5 We are presented with two issues upon review: (1) is Wis. Stat. § 946.05(1), on its face, unconstitutionally overbroad; and (2) if so, can the constitutionality of § 946.05(1) be preserved by a limiting construction of the statute or by severing any of its unconstitutional provisions? We hold first that § 946.05(1) is unconstitutionally overbroad on its face, ² and second, that its overbreadth may not be cured by a limiting construction or by severing any of the statute's unconstitutional provisions. Accordingly, we affirm the decision of the court of appeals. ³

¶6 The facts relevant to our decision are not in dispute. Beginning in May or June of 1996, Janssen and several of his friends began stealing United States flags from different locations in the city of Appleton, Wisconsin. One of the first thefts occurred when the group passed through the Reid Municipal Golf Course one evening and decided to take the flag down from the golf course flag pole. After stealing the flag, Janssen eventually discarded it.

¶7 On approximately June 9, 1996, Janssen and his friends returned to the golf course and noticed that a new flag had been hung on the flag pole. After lowering and removing the flag, Janssen defecated on the flag and left it on the steps to the golf course clubhouse. Janssen and his friends did not return until approximately June 26, 1996.

¶8 At that time, Janssen and his friends returned to the golf course to find that the flag had been cleaned and put back on the flag pole. Once again, Janssen and his friends lowered and stole the flag. This time, however, the group left a handwritten note at the golf course, which was eventually recovered by the Appleton Police Department.

¶9 The note read as follows:

Golf Course Rich Fucks:

When are you dumb fucks going to learn? We stole you're [sic] first flag and burnt [sic] it, then we used your second flag for a shit-rag and left it on your doorstep with a peice [sic] of shit. The ANARCHIST PLATOON HAS INVADED Appleton and as long as you put flags up were [sic] going to burn them you yuppie fucks. Shove you're [sic] cluB [sic] up your ass.

¶10 Approximately one month later, Janssen was arrested by the Appleton Police Department. Upon his arrest, Janssen confessed to various flag thefts in the city of Appleton, including those at the Reid Municipal Golf Course. Janssen also confessed to defecating on the flag. As a result of his confessions, he was charged with two counts of theft, and one count of "intentionally and publicly defil[ing] the United States flag."

¶11 On February 5, 1997, the circuit court held a hearing to address Janssen's motion to dismiss the flag desecration charge on grounds that his act of defecating on the flag was constitutionally protected expression. See U.S. Const. amend. I. ⁴ At this hearing ¶12 On March 13, 1997, following an additional hearing to address the issues of overbreadth and vagueness, the circuit court entered an order dismissing the count of flag desecration on grounds that Wis. Stat. § 946.05(1) is unconstitutionally vague and overbroad on its face.

the circuit court concluded that the handwritten note--though it "brings into focus an expressive communication of protest, dislike, alienation against the establishment, government, and other institutions in society"--was in this case "not tied to the actual act of defecation on the flag" since it was left some 17 days after the defecation had occurred. Record on Appeal, 37:32 (Motion Hearing, February 5, 1997). Accordingly, the circuit court held that defecating on the flag, by itself, was not constitutionally protected expressive [219 Wis.2d 369] communication within the meaning of the First Amendment and Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342.

¶13 Upon the State's appeal, Janssen presented three arguments in his defense: (1) Wis. Stat. § 946.05(1) is unconstitutionally vague on its face; (2) § 946.05(1) is unconstitutionally overbroad on its face; and (3) § 946.05(1) is unconstitutional as applied to Janssen, because his conduct in this case constituted expression which is protected by the First Amendment. See Janssen, 213 Wis.2d at 476, 570 N.W.2d 746.

¶14 The court of appeals first concluded that Janssen lacked standing to assert a vagueness challenge against Wis. Stat. § 946.05(1) because a reasonable person could not have any doubt that defecating on the flag falls within the statutory prohibition against defiling the flag. ⁵ See id. at 477, 570 N.W.2d 746. After examining the relevant United States Supreme Court precedent, the court of appeals then concluded that § 946.05(1) is overbroad because it makes illegal acts which the Court has deemed to be protected expression within the meaning of the First Amendment. See id. at 480, 570 N.W.2d 746. Finally, the court of appeals declined to fashion a limiting construction of § 946.05(1)'s language or to sever any of its unconstitutional provisions because neither the language of the statute itself, nor the legislative history supported the State's suggested constructions of the statute. See id. at 481-82, 570 N.W.2d 746.

¶15 Having affirmed the circuit court's order on these grounds, the court of appeals did not address Janssen's argument that his act of defecating on the flag was expression protected by the First Amendment. See id. at 476, 570 N.W.2d 746. We granted the State's petition for review on November 20, 1997, and now affirm. ⁶

STANDARD OF REVIEW

¶16 Janssen's challenge to the constitutionality of Wis. Stat. § 946.05(1), and the State's corresponding attempt to preserve § 946.05(1), present questions of law which we review de novo, without deference to the conclusions of the circuit court or the court of appeals. See Wisconsin Retired Teachers Ass'n v. Employe Trust Funds Bd., 207 Wis.2d 1, 17-18, 558 N.W.2d 83 (1997).

¶17 Ordinarily, a statute is presumed constitutional, and the party seeking to overcome the presumption must prove the statute unconstitutional beyond a reasonable doubt. See id. at 18, 558 N.W.2d 83. The burden shifts to the proponent of the statute, however, where the statute infringes on the exercise of First Amendment rights. See State v. Thiel, 183 Wis.2d 505, 522-523, 515

N.W.2d 847 (1994); City of Madison v. Baumann, 162 Wis.2d 660, 668-69, 470 N.W.2d 296 (1991). In this case, the State concedes that Wis. Stat. § 946.05(1), at least in part,...