CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1972 Fla. App. LEXIS 6459
...Miami. The circuit judge has fully set forth the facts and the law of the case. The City does not controvert any of the facts as stated. * * * * * * "Defendant Eugene T. Wolfenberger was arrested on December 4, 1970, and charged *733 with violating Section 256.05(2), 12 F.S.A., and Chapter 38, Section 50 of the Code of the City of Miami. Section 38-50 provides: It shall be unlawful to commit, within the city, any act which is recognized by the laws of the state as a misdemeanor, as set out in the Florida Statutes... Section 256.05(2) states that: No person shall, in any manner, for exhibition or display: (2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall...
...ave been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement. Section
256.08, 12 F.S.A., adds the following definitions: The words flag, standard, color, ensign or shield, as used in Sections
256.05-256.07, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States or of this state, or a copy, picture or representation thereof. "At the trial the defendant's contention that Section
256.05(2) was unconstitutional as violative of the First Amendment of the United States Constitution was rejected by the trial judge....
...680,
9 L.Ed.2d 697 (1963); Winters v. New York,
333 U.S. 507,
68 S.Ct. 665,
92 L.Ed. 840 (1948). "As was noted in Long Island Vietnam Moratorium Committee v. Cahn,
437 F.2d 344, 348 (2d Cir.1970), a case on all fours holding New York's equivalent of Section
256.05(2) unconstitutional on its face, the statute, ......
...I believe we are all familiar with the television film of the American flag waving and our planes and ships superimposed thereon with the playing of the National Anthem. To hold otherwise would make the aforesaid patriotic acts a crime. "Thus the broad range of Section 256.05 (2) would proscribe the respectful and customary use of emblems employing the flag or resembling the flag, although the emblems are used to espouse ideas which *734 are protected by the First Amendment....
