APPEAL from the Circuit Court of Macon County; the Hon. JOSEPH
C. MUNCH, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendants, Edward Lindsay and Marvin Klaven, were convicted in the circuit court of Macon County of the violation of section 1 of the Illinois Flag Act (Ill. Rev. Stat. 1969, ch. 56 1/4, par. 6). Lindsay waived trial by jury and was found guilty by the court and Klaven was found guilty by the jury. Each defendant was fined $75.
The evidence established that the defendant Klaven was chairman of the Art Department at Millikin University in Decatur and also served as Director of the Decatur Art Institute, and that the defendant Lindsay was president of the Institute. Klaven, as Director, compiled information about traveling art exhibits and presented such facts to the Art Center Board in connection with its selection of exhibits for display.
An art show entitled "Patriotic Images in American Art" was selected for display at the Art Institute in March of 1969. It was compiled and distributed by the American Federation of Art and its various exhibits were generally described in a catalog, although there was no description of the exhibit which is here in controversy. The show consisted of 29 or 30 separate art objects. Among them was a sculpture entitled "Flag in Chains," which consisted of two American flags sewn together and stuffed with foam rubber. A chain was placed around the middle of the sculpture and was locked into place.
Between 20 to 40 people attended the opening of the show on Sunday, March 2, 1969. There were no disturbances of any kind although complaints were made of another exhibit which contained the caption, "To Hell with Patriotism." Because of the comments, Klaven prepared a statement explaining the exhibits, which was made available to all who visited the Art Institute, including the school children. The "Flag in Chains" exhibit, according to Klaven's explanation, demonstrated the artist's patriotic concern for freedom for all.
On March 3, a picture of and an article on the "Flag in Chains," were published in a local newspaper. The State's Attorney and sheriff then received a number of telephone calls concerning the display.
On March 4, several law-enforcement officials appeared at the Art Institute because of the telephone calls. Subsequently, the State's Attorney notified Klaven's attorney that the exhibit "Flag in Chains" should be removed from the show. In response, the Art Center Board met, but failed to act. Klaven then had the exhibit removed from the main gallery to a separate room where it could be seen on request only, and where it was concealed from public view. Only a few people asked to see it. At no time was there any disturbance, disorder, unusual conduct or vocal threats of any kind.
The exhibit "Flag in Chains" was seized by a deputy sheriff on March 6, and was held until released for display in North Carolina, as a part of the total exhibition.
Subsequently, an information was filed charging the defendants, Klaven and Lindsay, with violating section 1 of "An Act to prevent and punish the desecration, mutilation or improper use of the flag of the United States of America" (Ill. Rev. Stat. 1969, ch. 56 1/4, par. 6), in that "on March 4, 1969, for exhibition or display they knowingly exposed or caused to be exposed to public view a flag of the United States upon which was attached, appended, and affixed a figure, to wit: a chain; and further that said public exposure was such as was likely to provoke a breach of the peace." Section 1 of the Act provides:
"Any person who (a) for exhibition or display, places or causes to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag, standard, color or ensign of the United States or State flag of this State or ensign, (b) exposes or causes to be exposed to public view any such flag, standard, color or ensign, upon which has been printed, painted or otherwise placed, or to which has been attached, appended, affixed, or annexed, any word, figure, mark, picture, design or drawing or any advertisement of any nature, or (c) exposes to public view, manufactures, sells, exposes for sale, gives away, or has in possession for sale or to give away or for use for any purpose, any article or substance, being an article of merchandise, or a receptacle of merchandise or article or thing for carrying or transporting merchandise upon which has been printed, painted, attached, or otherwise placed a representation of any such flag, standard, color, or ensign, to advertise, call attention to, decorate, mark or distinguish the article or substance on which so placed, shall be punished by a fine of not less than $10 nor more than $100 and costs, or by imprisonment for not more than 30 days in a penal institution other than the penitentiary, or both.
"Any person who publicly mutilates, defaces, defiles or defies, tramples or casts contempt upon, whether by words or act, any such flag, 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."
At the trial, four witnesses, including the sheriff of Macon County, testified on cross-examination that there was no disorder, or threat of disorder, at the Art Institute on March 4-three days after the exhibit opened. Several other witnesses for the State, who were members of various local veterans organizations, testified that the exhibit was likely to provoke a breach of peace. These witnesses were permitted by the court to testify to their subjective mental reaction to the exhibit, "Flag in Chains." They stated that they were "shocked and disturbed," although none of them personally had viewed it at the Art Institute. A few of the organizations adopted resolutions and statements condemning the exhibit. The American Legion and VFW Posts authorized their commanders to sign warrants. The testimony of only one witness remotely touched on the possibility of a breach of peace, and that witness testified that he had persuaded those members of the veterans' organizations who objected to the display to rely upon the law rather than to take physical action to remove the display from the Art Institute.
The defendants have raised several issues in this appeal. They assert that the Flag Act is unconstitutional under the first amendment to the Federal constitution because it is over-broad; that it is unconstitutional when applied to the facts in this case; that the State did not prove beyond a reasonable doubt that there was a likelihood of a breach of the peace; that the court erred in advising the jury that there was a violation of a Federal law with which the defendants were not charged; and that the court erred in ruling as admissible allegedly hearsay opinion and subjective evidence of mental state, and in instructing the jury.
It is appropriate to review briefly the history of the Illinois Flag Act. It was originally enacted in 1899 and was held to be unconstitutional in Ruhstrat v. People (1900), 185 Ill. 133. The rationale of the decision was that the legislature had no power under the guise of police regulations to arbitrarily invade the personal rights or liberties of its citizens; that the term "liberty" as used in the Bill of Rights, ...