dissenting:
I do not agree with the majority of the court. Personal liberty has been considered the genius of our governmental organization and freedom of speech is the sine quo non upon which all personal liberties are based. With respect to the exercise of freedom of speech including the rights of political and personal belief I believe that police officers are not and ought not to be regarded as second class citizens (Muller v. Conlisk, (7th Cir. 1970), 429 F.2d 901), any more than high school teachers (Pickering v. Board of Education (1968), 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731), university faculty members (Keyishian v. Board of Regents (1967), 385 U.S. 589, 17 L.Ed.2d 62, 87 S.Ct. 675), state legislators, (Bond v. Floyd (1966), 385 U.S. 116, 17 L.Ed.2d 235, 87 S.Ct. 339), or law students seeking admission to the bar. Law Students Civil Rights Research Council, Inc. v. Wadmond (1971), 401 U.S. 154, 27 L.Ed.2d 749, 91 S.Ct. 720, and Baird v. State Bar of Arizona (1971), 401 U.S. 1, 27 L.Ed.2d 639, 91 S.Ct. 702.
My only disagreement with the opinion of the majority relates to the interpretation and application of first amendment rights. Otherwise I concur in the observations of the majority regarding the procedures before the Board.
Prior to the institution of this proceeding Slocum had been a member of the East Peoria Police Department for five years. He had previously served for five years on active duty with the U.S. Air Force, had been in the Air Force reserves for twelve years and was a member of the reserves at the time of this incident. There is no intimation in the record that Slocum’s prior service with the East Peoria Police Department was other than competent, efficient and satisfactory or is any doubt cast on the faithful performance of his duties.
Another aspect of the factual background is the manner in which the wearing of the flag patch requirement evolved. In the autumn of 1969, members of the East Peoria Police Department discussed the wearing of American flag emblems on their uniform sleeves. In October such emblems were ordered and upon arrival in December were paid for by the City of East Peoria. Officer Slocum from the beginning made known his desire not to wear the emblem for personal reasons, stating among other reasons that he conscientiously did not desire in that manner to make the political or patriotic statement underlying the movement toward wearing the flag emblem.
Officer Slocum declined a tender of a packet of emblems on December 14, 1969, with a note to the Chief of Police that he did not desire to wear the flag emblems. Other officers did however sew the emblems on their sleeves, some on the left sleeves and some on the right, so that in February, 1970, the officers met with the Chief to determine on which sleeve the flags were to be worn. It was determined that all flag emblems would be sewn on the right sleeve by May 1, 1970.
On May 1, 1970, Slocum reported for work and was informed by his superior that he had three days to have the flag emblem sewn on his sleeve. Slocum noted and the Sergeant agreed that no order in writing had been issued making the wearing of the flag mandatory. However, upon reporting to work and reading the Daily Bulletin on May 5, 1970, as required, Slocum noted the following entry: “ATTENTION ALL POLICE: Uniform shall be light blue short sleeve shirts with proper emblems displayed. Dept. Emblem on left sleeve and the Flag on right, both at shoulder. All police will be given three days to comply, by May 7, 1970. No dark shirts to be worn by anyone, at any time. Orders of Chief Roberson”.
On May 5, 1970, Slocum wrote a letter to the Chief asking that the order be reconsidered since (1) he did not wish to wear the flag for personal reasons and (2) the order was not a proper and lawful order. On May 25, 1970, a formal complaint was filed against Slocum.
There can be no doubt but that the flag is symbolic speech and by its very nature is communicative of ideas, goals and beliefs. Within the ambit of freedom of speech protected by the first amendment compulsory speech or expression of belief is just as proscribed as the prohibition or repression of speech. At this juncture I believe it appropriate to observe that in the consideration, interpretation and application of first amendment principles courts are not determining or expressing approval of the wisdom or virtue of the speech sought to be protected.
In my opinion West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct. 1178; Pickering v. Board of Education (1968), 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731, and Muller v. Conlisk (1970), 429 F.2d 901, are persuasive authorities requiring and justifying the conclusion that the order was constitutionally impermissible. In the leading case of West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct. 1178, the court held constitutionally impermissible the requirement that school children pledge allegiance to or salute the flag observing:
“The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. * # * [Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Our traditional commitment, freedom of speech and unrestrained expression of belief or opinion has ebbed and flowed somewhat in accord with the nature and vigor of the controversies inherrent in our social system. Even though unrestrained discussion may be deemed as an abstract proposition to have fundamental importance in our social organization nonetheless the ardor that certain ideas ought to prevail may lead to the desire to limit or eliminate opposing views from the arena.
“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” De Jonge v. Oregon, 299 U.S. 353, 81 L.Ed. 278, 57 S.Ct. 255.
The principal question posed on this appeal is when and to what extent may the State or one of its agencies limit or impose restrictions on the expressions of opinion or belief of its employees. Admittedly the State and its departments and agencies as employer may require subordinate employees to obey and conform to the orders and directives of those in charge. However the question remains as to whether the rule of obedience or its converse insubordination may be invoked to punish or penalize an employee for holding or expressing beliefs contrary to those of his superior or those in charge of the governmental agency. “A citizen’s right to engage in protected expression or debate is substantially unaffected by the fact that he is also an employee of the government and, as a general rule, he cannot be deprived of his employment merely because he exercises those rights. This is so because dismissal from government employment, like criminal sanctions or damages, may inhibit the propensity of a citizen to exercise his right to freedom of speech and association. [Citation.] To protect society’s interest in uninhibited and robust debate the first amendment demands that the government be prohibited from inhibiting or suppressing speech by indirection through discharge of a government employee when the same objective could not constitutionally be achieved by criminal sanctions or other direct means.” Kilskila v. Nichols (1970), 433 F.2d 745.
Pickering v. Board of Education (1968), 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731, and Muller v. Conlisk (1970), 429 F.2d 901, deal directly with this problem, describing the tests or guides to be followed and conclude in each case that the State had unconstitutionally limited the first amendment rights of the employees. To the same effect is Donahue v. Staunton, U.S. Court of Appeals (2d Cir. 1972) Docket No. 71-1160.
In Pickering v. Board of Education (1968), 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731, a school teacher whose letter to a newspaper was critical of school board policies was discharged by the Board because such conduct was “detrimental” to the school system. In holding the teachers first amendment rights had been violated the court observed, “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.” Although declining to establish inflexible standards the court in its opinion did discuss some factors applicable to the circumstances of that case some of which are appropriately considered in the case at bar. These factors related to the existence or non-existence of compelling or substantial governmental interest affecting the purposes of the governmental agency or its relation with its employees.
As I analyze the briefs of the parties and the opinion of the majority it seems to me that a claim is made that the requirement is justified because of a governmental interest in determining and specifying a uniform and because of a governmental interest in promoting patriotism, loyalty and allegiance. There is no doubt that a police department or the commanding officer does have an interest in determining the uniform to be worn by the police officers. However I do not believe or understand the simile between the color of a uniform and the display of a flag patch. I do not regard the display of the flag patch as a meaningless equivalent of whether a uniform should be blue, whether it should have brass buttons or whether the shirt should be light or dark. By the same logic assuming that an emblem was meaningless or that its meaning could be ignored merely because part of a uniform, it would follow that such symbols as a peace symbol or the United Nations flag could be a required display. The flag patch was not intended merely as an ornament or decoration but was intended to convey meaning and beliefs. Thus the wearer is in effect required to speak or make a particular statement. The nature of the flag patch itself as well as the circumstances described above indicating the origin of the requirement dispel any indication that the flag patch was or was intended to be just a part of the uniform. Nor can it be said that the issue is of so little consequence or significance as not to justify constitutional protection. If the matter is of such small significance it should also follow that compulsion, suspension and discharge would be inappropriate penalties.
Nor do I see any special interest of the police department in promoting patriotism, loyalty or allegiance to any agency other than the police department. They are not functions of special concern to police departments as distinguished from other institutions, agencies or individuals affecting the citizens generally. Indeed West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct. 1178, well recognizing the desirability of such virtues, leaves no doubt that particular manners of observance may not be compelled.
The loyalty oath cases (Garner v. Board of Public Works, 341 U.S. 716, 95 L.Ed. 1317, 71 S.Ct. 733; Law Students Civil Rights Research Council, Inc. v. Wadmond (1971), 401 U.S. 154, 27 L.Ed.2d 749, 91 S.Ct. 720; Baird v. State Bar of Arizona (1971), 401 U.S. 1, 27 L.Ed.2d 639, 91 S.Ct. 792, and In re Stolar, 401 U.S. 23, 27 L.Ed.2d 657, 91 S.Ct. 713), I believe lend additional support to the principle that compulsory commitment to the political views and beliefs generally associated with ideas of patriotism and loyalty is constitutionally impermissible. While the cases may not be completely reconcilable in their application to particular factual situations they generally support the proposition that a governmental employee may be required to affirm his support of the principles of the Constitution of the United States and the constitutions of the several states. Conceding that the government has an interest in having employees not bent on destroying the government by force or violence the cases are in harmony that disclosure may not be required of political beliefs, attitudes or views the same being irrelevant to the legitimate interest which the government is seeldng to protect.
The majority opinion relies primarily on three cases. The first Parker v. Morgan (1971), 322 F.Supp. 585, involves two criminal prosecutions under a flag statute of the state of North Carolina which statute was held unconstitutional by the court. Since the case at bar does not involve either the validity or application of a flag statute its observations regarding flags, their display or their destruction are of general interest but the precise holding that the definition of a flag was impermissibly vague is of no particular application to the case at bar. However the court affirms that “No man can be punished for refusal to affirmatively demonstrate respect for the flag, nor can anyone be punished for speaking contemptuously of the flag, whether by word or gesture”, basing such declaration on West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 87 L.Ed. 1628, 63 S.Ct. 1178, and Street v. New York, 394 U.S. 576 22 L.Ed.2d 572, 89 S.Ct. 1354.
The other two cases cited by the majority opinion, U.S. v. O’Brien (1968), 391 U.S. 367, 20 L.Ed.2d 672, 88 S.Ct. 1673 and Sutherland v. DeWulf, 323 F.Supp. 740, involve respectively, prosecutions for the burning of a draft registration card and a United States flag. Each of the cases involves the application of a criminal statute to citizens generally and finds the statutes both constitutional on their face and in their application over the objection that first amendment rights are violated. The force of the reasoning in the O’Brien and Sutherland cases persuades me that a statute either state or federal requiring that all citizens wear flag patches or some other flag emblem on penalty of criminal sanctions would be violative of first amendment rights. Such a conclusion has I believe an important consequence so far as the issues in this case are concerned. If the display of the flag may not be required of citizens generally it would be an equally impermissible requirement of public employees unless as I have discussed earlier there was something unique in the nature of the public employment, justifying restriction of first amendment liberties. As so viewed I believe the O’Brien and Sutherland cases support the view which I am taking rather than that of the majority.
As in Pickering v. Board of Education (1968), 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731, I conclude under the circumstances of this case the interest of the police department administration in limiting police officers’ expression of belief and opinion is not significantly greater than the interest of the public generally to be free of such limitation. Accordingly I would reverse the order of the Circuit Court confirming the Board’s decision.