Wood, J.c.c. (temporarily assigned).
[118 NJSuper Page 346] Defendant was indicted for violation of N.J.S.A. 2A:107-1, which forbids the marking or improper use or display of the flag of the United States. The indictment charged that on July 4, 1970, in the Borough of Audubon, Camden County, defendant
"did deface the American Flag by putting the sign of peace in black ink on the face of two American Flags and displaying them on the side of an ice cream truck."
Defendant waived trial by jury. He was tried before this court on November 19, 1971 and found guilty as charged. He now moves pursuant to R. 3:10-3 to set aside the judgment on the ground that N.J.S.A. 2A:107-1, the statute under which the indictment is found, is unconstitutional in that it contravenes the First Amendment of the United States Constitution.
The facts are not in dispute. On July 4, 1970 defendant was employed as the operator of an ice cream truck of the type designed for the itinerant sale of ice cream and other confections in suburban streets during warm-weather months. He stenciled the design commonly known and referred to as the "peace symbol" on both sides of two small American flags and affixed these flags to the right and left rear-view mirrors of his truck. He then proceeded to operate the truck in the course of his business, with the flags so displayed, upon the streets of the Borough of Audubon.
Predictably, telephone calls of protest in considerable numbers were speedily received at the borough police headquarters. Defendant was promptly located and arrested and the flags confiscated. This indictment followed.
Defendant made no attempt to evade or resist arrest. He freely admitted and acknowledged his actions. He explained, both to the police and at the trial, that his intent was to emphasize his conviction that one of the ideals which the flag symbolizes is the pursuit of peace and to awaken people, particularly on Independence Day, to the need for a reaffirmation of that ideal. He denied any intent to "defile the flag" or to violate the law.
N.J.S.A. 2A:107-1 provides as follows:
Any person who, for exhibition or display, places, appends, annexes or affixes, or causes to be placed, appended, annexed or affixed, to or upon any flag, standard, color or ensign of the United States, or
state flag of this state, any inscription, design, device, symbol, name, advertisement, words, characters, marks, notice or token of any nature whatever, or who displays or exhibits or causes to be displayed or exhibited any such flag, standard, color or ensign upon which shall in any manner be placed, attached, annexed or affixed any such inscription, design, device, symbol, name, advertisement, words, characters, marks, notice or token, is guilty of a misdemeanor.
By N.J.S.A. 2A:107-3 the term "flag" is defined to include:
The words 'flag, standard, color or ensign,' as used in this chapter, include any picture or representation, of whatever substance or size, evidently purporting to be a flag, standard, color or ensign of the United States, or state flag of this state, or a picture or representation of either, upon which shall be shown the colors, the stars and stripes, in any number of either, or by which the person seeing the same may without deliberation ...