Slocum v. Fire and Police Com. of Peoria , 8 Ill. App. 3d 465 ( 1972 )

Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Tazewell County, Illinois, affirming a decision of the Fire and Police Commission of the City of East Peoria. The Commission had suspended Patrolman Woodrow Slocum from duty for thirty days without pay for disobeying orders to wear an American flag emblem on the sleeve of his police uniform.

A complaint filed with the Commission had alleged that Patrolman Slocum had refused to obey an acting sergeants verbal order and the chief of police’s written order to wear the American flag emblem on his shirt. A hearing on the complaint was held by the Commission, and it was brought out that flag emblems had been issued to all policemen in the department without cost; that Acting Sergeant Russell Hale had reminded all the others to have their flags on; that an order of Chief of Police Vem Roberson requiring the wearing of “dept, emblem on left sleeve and flag on right, both at shoulder,” appeared in the department’s Daily Bulletin; that Woodrow Slocum told Sergeant Hale he had read the order, understood it, believed it was improper, and would not comply with it; that Woodrow Slocum wrote a letter to Chief Roberson stating that he did not wish to wear the flag; and that he thereafter reported for duty without the flag.

The Commission found that Woodrow Slocum had wilfully disobeyed a Departmental order and the order of a superior officer, and gave him a thirty-day suspension on his representation that he would commence wearing the flag as ordered. A complaint for administrative review was then filed; the Commission’s decision was upheld; and this appeal followed.

Woodrow Slocum takes the position that wearing the flag is symbolic speech; that displaying a flag on one’s shirtsleeve is like confessing allegiance to the United States, and this cannot be required of anyone under the First and Fourteenth Amendments; that the flag itself is an extension of political discussion and arouses the hostility of some persons, and it is both unreasonable and unconstitutional to require a policeman to indicate approval of what the flag says by wearing a flag emblem on his sleeve; and that no adequate public interest exists to justify depriving a policeman of his right not to confess allegiance, and his right not to say what the flag says, by making him wear a flag. He maintains, further, that the order to wear the flag was vague; that he was not given a fair hearing; that the evidence was insufficient; and that the Illinois legislative scheme providing greater rights in disciplinary proceedings for policemen in municipalities of more than 500,000 population than for policemen in smaller cities violates the Equal Protection Clause of the Fourteenth Amendment.

The Fire and Police Commission, on the other hand, maintains that a municipality has the right to prescribe the kind of uniform to be worn by policemen; that it is reasonable to utilize an emblem which relates a policeman to government and in particular the government of the United States, because of the variety and significance of his contacts with national law and his importance to the nation; that the wearing of a flag emblem is therefore a reasonable condition of employment; that this emblem would not make a policeman seem any more or less the enemy of law violators or dissenters in our society; that the orders given were not vague, nor the hearing fundamentally unfair, nor the evidence in any way insufficient; and that the Equal Protection argument cannot now be made because not included in the specification of errors filed in the administrative review proceedings in the Circuit Court, but the legislative classification is nevertheless supportable.

Woodrow Slocum cites, among other cases, West Virginia State Board of Education v. Barnette, 319 U.S. 624, in which the United States Supreme Court held that a flag salute and pledge of allegiance could not be required of public school pupils. However, we are not persuaded that a policemans wearing a flag as part of his uniform is symbolic speech to nearly the same degree as a schoolchild’s flag salute. It would seem to indicate more about the thinking of the policeman’s superiors who specified the requirement, than the thinking of the wearer. A blue uniform does not tell us that the wearer’s favorite color is blue. If a flag on a uniform is carrying a message of some kind, it might to most persons be simply that the wearer is a member of a subordinate unit of government of the United States of America, without there being political overtones of any kind to which objection could be made. Our thinking along this line is well expressed in Parker v. Morgan, 322 F.Supp. 585, where it was said:

“We reject plaintiff’s argument that because the national flag is a symbol it is always ‘saying’ something, and because it says something control of its display and usage is outlawed by the freedom of speech clause of the Fust Amendment. The argument is based on a false premise: that what the flag stands for can be authoritatively stated, i.e., that it represents government and/or official policy. If the flag says anything at all, and we agree it often may in a given context, we think it says everything and is big enough to symbolize the variant viewpoints of a Dr. Spock and a General Westmoreland. With fine impartiality the flag may head up a peace parade and at the same time and place fly over a platoon of soldiers assigned to guard it.

The flag has never been a trademark of government. It is not ‘official’ in the sense that its display is limited to the Army or the Navy or to public buildings or for state occasions. It no more belongs to the President than it does to the most private citizen. It may be flown, and often is, over the YMCA and the Jewish synagogue, the Peace Corps and the Army post, the American Federation of Labor and General Motors. It belongs as much to the defeated political party, presumably opposed to the government, as it does to the victorious one. Sometimes the flag represents government. Sometimes it may represent opposition to government. Always it represents America — in all its marvelous diversity.”

If to some persons, however, the wearing of a flag has political implications of one kind or another, or signifies a pledge of allegiance, consideration should be given to whether a policeman has valid constitutional grounds for objecting to wearing a flag emblem. The United States Supreme Court has indicated that where symbolic speech is involved there are a number of factors to be weighed. In United States v. O’Brien, 391 U.S. 367, it said: “This Court has held that 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. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a governmental regulation is sufficiently 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.”

The requirements of United States v. O’Brien have been considered by a federal court recently in a case upholding the Illinois flag desecration statute, Sutherland v. DeWulf, 323 F.Supp. 740. In that case the question was not whether wearing the flag could be compelled but whether burning the flag in public could be prohibited. Freedom of speech was again claimed. After mentioning that the primary justification of such flag acts has been preventing breaches of the peace, the court continued:

“This court also believes that the state has a second interest in punishing the public burning of the flag which meets the constitutional tests set forth in O’Brien. That interest is the preservation of the flag as a symbol of national unity on the ideals and purposes of the nation.

History has shown that one of the incidents of nationality is the adoption of a national flag or other symbol. Our own country, early in its history, adopted a flag to represent its existence and sovereignty as a nation. The importance of this flag in developing a sense of loyalty to our nation and its ideals from its incipient stages down to the present is without question. When a state enacts legislation, as in this case, to punish the public mutilation of the flag that has represented this country throughout its history, the state is aiding in the development and extension of a unity of purpose within the nation. In so doing, it necessarily benefits itself, as well as the nation, for the state is indissolubly connected to the Union. (Halter v. Nebraska (1907), 205 U.S. 34, 43, 27 S.Ct. 419.) This interest of the State of Illinois in protecting the flag from public mutilation is clearly important enough to justify any incidental limitation on the right to free speech as is involved here. The public mutilation of the flag would ‘degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of national power and national honor.’ Halter v. Nebraska, supra at 42, 27 S.Ct. at 422.

It is also clear that this state interest like the preservation of the public peace, is unrelated to the suppression of free expression. The statutory provision challenged in this case does not significantly curtail speech. It certainly does not have ‘the effect of entirely preventing a “speaker” from reaching a significant audience with whom he could not otherwise lawfully communicate.’ See United States v. O’Brien, supra at 388-389, 88 S.Ct. at 1685 (Mr. Justice Harlan concurring). Although it is purely speculative what the plaintiffs in this case were trying to express, if anything, this court is certain that they could have conveyed whatever message they may have had in many ways other than burning the flag.

The final requirement under the O’Brien test is that the incidental restriction on afieged First Amendment freedoms be no greater than is essential to the furtherance of the interest sought to be protected. Here, it appears clear to this court that the State of Illinois has at least two sufficiently important interests to justify an incidental restriction on free speech. Any restriction, or even possible chiUing effect, placed on free speech in furtherance of these valid state interests by punishing the act of knowingly burn-the flag in public is minimal. As stated above, the plaintiffs could have conveyed any possible idea that they may have intended to any conceivable audience by means other than burning the flag in a public place. The guarantee of free speech is more concerned with the substance of that speech than the form of the communication. Cf. United States v. O’Brien, supra.”

Other federal cases explain that even in the area of pure speech, “* * * it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance * * Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563. (See also Miller v. Conlisk, 429 F.2d 901.) Furthermore, the United States Supreme Court has held, in Garner v. Board of Public Works of the City of Los Angeles, 341 U.S. 716, that a city’s ordinance requiring its employees to take a loyalty oath is valid as "a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States.” Loyalty oaths like this continue to be upheld. See Law Students Civil Rights Research Council, Inc., v. Wadmond, 401 U.S. 154.

From the foregoing we conclude that the wearing of a flag emblem can be required of Woodrow Slocum. A flag on a uniform has a minimal and ambiguous speech element. The flag does, however, tend to develop a sense of loyalty to the nation. We regard this as an important governmental interest. Since a municipality has the power to prescribe a uniform for its police force, and since display of the flag tends to promote an important governmental interest, a flag emblem may be made part of the uniform. The municipality’s promoting patriotism in this way does not prevent the wearer of the emblem from communicating verbally his ideas on political or any other matters. Wearing the flag may conceivably be considered by some to be an implicit, non-verbal oath of allegiance. A policeman cannot complain of this because he can be required to take an express, verbal oath of allegiance. We find no constitutional infirmity in the orders given Woodrow Slocum to wear the flag.

Woodrow Slocum claims that the orders were vague, but from the record it is clear that he understood the orders yet chose not to obey them. He urges that the hearing was unfair, but the record indicates that he chose to proceed without counsel and was given some amount of assistance and latitude in presenting his case because he did not have an attorney. He argues that the case against him was not proved because Chief Roberson’s order was incorrectly described in the complaint before the Commission as a Departmental order; his brief says: “What Plaintiff disobeyed were orders, pure and simple.” However, the charges did not have to be drawn with the same precision as pleadings in judicial actions. (Sudduth v. Board of Fire and Police Commissioners of the City of Rockford, 48 Ill.App.2d 194.) Disobedience of a superior officer’s order, however it may be described, is cause for suspension (Zinser v. Board of Fire and Police Commissioners of the City of Belleville, 28 Ill.App.2d 435), or for discharge. Coursey v. Board of Fire and Police Commissioners of the Village of Skokie, 90 Ill.App.2d 31.

Woodrow Slocum’s argument directed against the legislature’s classification of municipalities by size need not be considered by us, because this argument was not presented to the Circuit Court in the specification of errors Woodrow Slocum filed as ordered pursuant to Section 9, subsection (a), of the Administrative Review Act. See Bagat v. Police Board of the City of Chicago, 95 Ill.App.2d 45, 50.

For the reasons given, the judgment of the Circuit Court of Tazewell County is affirmed.

Judgment affirmed.

SCOTT, J., concurs.