For reversal -- Chief Justice Weintraub, and Justices Jacobs, Hall, and Mountain, and Judges Conford, Sullivan and Lewis. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J. Conford, P.J.A.D., Temporarily Assigned, concurring. Conford, P.J.A.D., concurs in result.
The Camden County Court found the defendant guilty on an indictment which charged that, contrary to the provisions of N.J.S.A. 2A:107-1, the 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." State v. Zimmelman, 118 N.J. Super. 345 (1972). The defendant appealed to the Appellate Division and we certified before argument there. R. 2:12-2.
The defendant Stanley S. Zimmelman was a 1970 graduate of Temple University. Though he planned further studies towards a medical career his summer of 1970 was occupied by temporary employment as an itinerant ice cream vendor. On July 4 he decorated his truck with red, white and blue streamers and his attire was in the same colors. Two American flags were displayed on the truck; each of the flags bore the now familiar peace symbol, namely, a circle containing lines in the form of an inverted trident.
In his testimony, which was fully credited by the Camden County Court, the defendant stated that the purpose of the streamers and his colorful dress "was a display of patriotism," since it was July 4th." His purpose in placing the peace symbols on the flags was expressed by him in the following terms: "It's my belief that the flag, its meaning, the pursuit of peace and happiness for all people, and I believe this was being supplemented at the time, and many people were not cognizant of this very essential part of the flag in American heritage, so it was my intention to sort of awaken the people to something they had forgotten about, which could be read into the flag that it meant this and people were forgetting about this part."
The defendant testified further that his placement of the peace symbols was not intended to defile or degrade the flag in any way, that he was not aware that it might be a criminal offense and that if the police officers who stopped his truck had asked him to remove the flags he would have done so readily since it was not his intention to break any law. But admittedly the officers gave no warnings, made no requests, and summarily placed him under arrest. This was followed by indictment and trial before a Judge of the Camden County Court, on the defendant's waiver of trial by jury. The Judge, after stating that he had no doubt that the defendant did not "consciously intend to violate the law," "regretfully" held that the statute had been violated and that the defendant was "guilty as charged."
At sentencing, the Judge stated that he took into consideration the defendant's prior unblemished record and the fact that he was "a person obviously of intelligence, ability and conviction"; nevertheless, he imposed a fine of $200 and placed the defendant on probation for a period of 1 year. But, as his counsel appropriately pointed out at sentencing, the defendant's newly acquired "criminal record" had already had collateral consequences adverse to him, such as the additional difficulties which confronted him on his application for financial assistance in furtherance of his graduate
studies. Apart from the persuasive legal contentions now being advanced on the defendant's behalf, it does seem to us that more enlightened exercises of official judgment and discretion along the way would have, as a practical matter, avoided this largely purposeless criminal proceeding against him. See generally, Abrams, "Internal Policy: Guiding the Exercise of Prosecutorial Discretion," 19 U.C.L.A.L. Rev. 1 (1971); Tieger, "Police Discretion and Discriminatory Enforcement," 1971 Duke L.J. 717; Davis, Discretionary Justice: A Preliminary Inquiry (1969).
Legislation seeking to preserve the American flag from desecrating uses has been common since the turn of the century. 9B Uniform Laws Ann., "Uniform Flag Act," 48 (1966); Rosenblatt, "Flag Desecration Statutes: History and Analysis," 1972 Wash. U.L.Q. 193. In 1899 and 1903 New York adopted flag legislation (see People v. Van De Carr, 91 App. Div. 20, 86 N.Y.S. 644, aff'd, 178 N.Y. 425, 70 N.E. 965 (1904); Rosenblatt, supra at 200) and in 1904 New Jersey adopted its Flag Act which followed the general outlines of New York's 1903 enactment. L. 1904, c. 16, p. 35. The primary goal of New Jersey's Act, as set forth in marginal notes (cf. State v. Kohler, 40 N.J. Super. 600, 606-607 (App. Div. 1956)), was to make "mutilating or using flag for advertising purposes a misdemeanor." When L. 1904, c. 16 (see 2 Comp. Stat. 1910, p. 1745) was carried over into the 1937 Revised Statutes it was broken up into 4 sections. The first (R.S. 2:130-1) was set forth under the heading "Use of state or national flag for advertising"; the second (R.S. 2:130-2) bore the caption "Mutilation or defilement of flag"; the third (R.S. 2:130-3) contained a definition and the fourth (R.S. 2:130-4) enumerated specific permitted uses of the flag. When title 2 of the Statutes was revised in 1951 the sections were carried forth without material changes and they now appear under the same captions in N.J.S.A. 2A:107-1 to N.J.S.A. 2A:107-4, inclusive.
N.J.S.A. 2A:107-1 provides in most sweeping terms that any person who affixes to any United States or New Jersey flag "any inscription, design, device, symbol, name, advertisement, words, characters, marks, notice or token of any nature whatever" shall be guilty of a misdemeanor. State v. Zimmelman, supra, 118 N.J. Super. at 347-348. N.J.S.A. 2A:107-2 provides in more narrow terms that any person "who publicly mutilates, tramples upon or otherwise defaces or defiles" any flag of the United States or New Jersey shall be guilty of a misdemeanor. N.J.S.A. 2A:107-3 defines flag to include any picture or representation purporting to be a flag of the United States or a flag of New Jersey and any picture or representation of either upon which shall be shown "the colors, the stars and stripes, in any number of either." State v. Zimmelman, supra, 118 N.J. Super. at 348. N.J.S.A. 2A:107-4 provides that the restrictive provisions of the statute shall not apply to any act permitted by United States statutes or military regulations or to the display of any flag disconnected from advertisement in any "newspaper, periodical, book, pamphlet, circular, certificate, diploma, warrant or commission of appointment to office, ornamental picture, or stationery used in correspondence."
In State v. Schlueter, 127 N.J.L. 496 (1941), the former Supreme Court had occasion to construe the terms of our Flag Act. A German woman, after proclaiming herself to bystanders as a Nazi, had pulled a small American flag from the front of her motorcycle and had torn, crumpled and thrown it to the ground. She was convicted of defacing the flag in violation of R.S. 2:130-2 (now N.J.S.A. 2A:107-2). Her conviction was sustained in an opinion by Justice Case which gave the following interpretation to the section in question: "We understand that the statute, in making it a misdemeanor to deface or to defile the flag, used those words in ...