Disorderly Conduct
Vs.
The First Amendment The balancing test between the First Amendment
Right of freedom of speech on one hand, and the public tranquility on the other, has been a continuing process with acceleration being noted in recent years because of civil strife cases. The evolution of permissible conduct under the First Amendment has been piecemeal; however, it is hoped that through this maze of case law certain definitive parameters are beginning to emerge.
By Kenneth E. Baughman
The balancing process between freedom of expression on one hand and the public tranquility on the other has constitutionally been a never-ending process which has been accelerated in recent years because of civil strife. A frequent charge arising out of group protests is disorderly conduct. The Illinois disorderly conduct statute[1] has been cited as a model.[2] There is also a maze of municipal disorderly conduct ordinances under which charges may be brought, however, many are so poorly drafted that reversal frequently follows conviction. [3] Additionally, if a municipal ordinance charge is brought incident to the filing of a more serious criminal charge, the prior prosecution of the ordinance violation bars the subsequent prosecution of the state charge.[4]
The Illinois disorderly conduct statute deals with acts by definition come within the protection of the First and Fourteenth Amendments,[5] provided that they are not of the type which are lewd, obscene, profane or libelous.[6] As to which type of communication is obscene has not been an easily resolved question. The simple public display of a four letter offense without showing (1) that it is intended to incite or produce imminent lawless action or (2) that the expression is in some significant way erotic, or (3) that it was directed to a person in a provocative fashion with the intent to arouse said person, or (4) that a substantial privacy interest has been invaded in an essentially intolerable manner. The undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. So long as the means are peaceful, the communication need not meet standards of acceptability. The right to
Under the First
Amendment a
citizen may speak
foolishly and
without moderation.
freedom of speech means not only to utilize information and responsible criticism but to speak foolishly and without moderation.[7] Additionally, in the case of an obscene gesture, it has recently been held that there must be an allegation of the significance and meaning which the gesture would be expected to convey to the observer.[8]
Otherwise, for the acts to be constitutionally proscribed they must be of the type which tend to incite violence or a breach of the peace.[9] The aforesaid limitations were articulated by the oft quoted Justice Holmes in the Schenk case:
…The most stringent protection of
free speech would not protect a man in
falsely shouting fire in a theater and
causing panic…It is a question of
proximity and degree… If the act …
its tendency and the intent with which
it is done are the same, we perceive no
ground for saying that success alone
warrants making the act a crime.[10]
It is difficult to apply the “proximity test” to specific factual situations, however, a number of recent cases growing out of civil strife prosecution have served to further define areas of permissible conduct under the First Amendment.
Excluded from the protection of the First Amendment are words which are derogatory and indicative of class hatred which are used under such circumstances as to create a clear and present danger.[11]
Obscene words directed solely to a police officer are actionable even though no one else hears them or is thereby provoked.[12] If the arrest is unlawful, however, the obscenity of the defendant may be deemed to be the natural consequence of the unlawful arrest and consequently a protected act.[13] When a defendant is loud and abusive to a police officer in the presence of others, although not using obscene words, he cannot be convicted of disorderly conduct unless the testimony of the
Excluded form First
Amendment protection
are words which are
derogatory and indicative
of class hatred
officer is corroborated by other witnesses.[14] Protestations of innocence no matter how loud do not amount to disorderly conduct.[15]
The First Amendment does not allow one to disrupt a public meeting. One who fails to obey the rulings of the chairman after being asked to do so may be asked to leave and upon refusal may be convicted of disorderly conduct.[16] Likewise, one who jumps up and shouts in a crowded meeting and prevents the orderly function of the meeting may be convicted of disorderly conduct.[17]
A peace officer has a right to make a reasonable request to prevent a disturbance to a public meeting and failure to obey it constitutes disorderly conduct.[18]
There is, however, an interesting twist to the law in the case of the individual who espouses unpopular ideas.[19] He cannot be prosecuted merely because others are stimulated to commit disorderly conduct as a result of his speech.[20] In the case of Gregory v. City of Chicago,[21] the Illinois Supreme Court set forth a format which must be followed before the arrest of a person who espouses unpopular ideas. First, there must be an imminent threat to violence from the observing crowd; Second, there must be reasonable efforts made by the police to protect the demonstrators; Third, the police must have requested the demonstrators to stop and have explained the request, if there be time; and Fourth, there must then be a refusal to obey the request to disperse. That case was reversed on other grounds but the Illinois Supreme Court has since reaffirmed its position on the format.[22] In order to correct the objections noted by the U.S. Supreme Court in Gregory the charge should be made in such a way as to make it clear that the defendant is being charged for his refusal to disperse when requested and not for the reason that he conducted a protest. Additionally, the jury should be similarly instructed, a crucial matter which will be discussed later in this article.
The measure of the quality of the defendant’s conduct as to whether it amounts to a breach of the peace as required not only by Cantwell but also by statute, is an objective standard to be determined by the fact finder. How a particular witness views the defendant’s conduct should be irrelevant.[23] Numerous courts have adopted the reasonable man standard in this respect.[24] The Illinois Supreme Court has stated in the Raby[25]case that the interpretation of the Illinois disorderly conduct statute required to application of the
The First Amendment
does not allow
one to disrupt a
public meeting.
reasonable man standard. In fact the Illinois Supreme Court in affirming the case of People v. Crockett[26] indicated that there was no proof nor was it alleged that any specific person was subjectively provoked. The implicit holding of Crockett is that a matter of law the defendant’s conduct would provoke a reasonable man.
Also implicit in Crockett is the holding that one does not have the right to obstruct a hallway not dedicated to public use nor to sit in a private office[27] in order to express himself. It has been held that when demonstrators are in a public area which is lawfully restricted and another public area is provided for their actions, they may be convicted
Crockett implies that
no one has the right
to obstruct a hallway
not dedicated to
public use.
of disorderly conduct for refusal to obey an order to leave the area even though there was no breach of the peace.[28] The foregoing cases seem to hold that one’s continued presence in a private place or the presence of a group in a restricted public area, provided there is an alternative public protest area available, can amount to disorderly conduct upon refusal to obey a request to leave irrespective of whether there is a threatened breach of the peace or whether anyone was subjectively provoked. It therefore seems implicit in these cases that such conduct of the First Amendment or its essentially an invasion of privacy, provided the determination as to whom is allowed to be present does not possess the aura of discrimination in violation of the Fourteenth Amendment.[29] Certainly those wishing to protest against governmental action or propagandize their views do not have a constitutional right to do so whenever and wherever they please.[30]
One need not be an actual participant to be guilty of disorderly conduct if there is some evidence of aiding and abetting.[31]
The mere allegation of the violation in terms of the statute is inadequate. As the Illinois disorderly conduct statute does not describe the acts which constitute its violation, they must be specifically averred o as to inform the defendant of the nature of the charges against him in order to be a bar to future prosecution,[32] however, specific allegation of obscene words or grotesque statements are not required.[33] There also need be no specific allegation of whom was provoked.[34]
The Illinois Pattern Criminal Jury instructions on disorderly conduct[35] paraphrase the Illinois Statute. The U.S. Supreme Court has held that where it is impossible to tell from the instructions and the verdicts whether the conviction rests on unconstitutional grounds, it must be set aside.[36] This is a special problem in the Gregory situation discussed earlier. It is mandatory, therefore, that the
Few realize that
the simple charge
of disorderly conduct
can be so intricate.
disorderly conduct instruction restate the wording of the criminal charge in terms of acts alleged to have been committed and the verdicts separately identified in the case of multiple charges of disorderly conduct.
Few realize the simple charge of disorderly conduct can be so intricate. The broadly worded Illinois statute covers wide latitude of proscribed conduct. Occasionally the concern of both the prosecution or the defense should be whether the acts alleged in the criminal charge are the type which are protected by the First Amendment. The answer is not always easily determined, but the civil strife cases of recent years helped it along.
[1] Ill. Rev. Stat. ch. 38 § 26-1-a-1 (1973).
[2] Williams v. The District of Columbia, 419 F.2d 638, 640 at n.3 (C.A.D.C. 1969)
[3] …Narrowly drawn statues regulating the conduct of demonstrators and picketers are not impossible to draft…Gregory v. City of Chicago, 394 U.S. 117, 124, 89 S.Ct. 946, 953 (1969).
…(The Chicago disorderly conduct ordinance)…might better be described as a meat-ax ordiance, gathering in one comprehensive definition of a offense a number of words which have a multiplicity of meanings, some of which would cover activity specifically protected by the First Amendment. Id. at 18-19, & 950.
See also City of Chicago v. Perez, 45 Ill.2d 258, 259 N.E.2d 4 (1970), wherein a sit-in conviction in a public building was thrown out because there was no breach of the “public” peace and quiet as required in the ordinance. The word “public” peace is not contained within the Illinois disorderly conduct statute. See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970 (1974),
[4] Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184 (1970).
[5] Cantwell v. Conn. 310 U.S. 296, 60 S.Ct. 900 (1940).
[6] Chaplinsky v. State of N.H., 315 U.S. 568, 62 S.Ct. 766 (1942).
[7] Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780 (1971) ; Hess v, Indiana, 414 U.S. 105, 94 S.Ct. 326 (1973).
[8]State v. Drake, [Doc. No. 1090] (S.Ct. Maine, decided September 12, 1974).
[9] Cantwell v. Conn., supra note 5.
[10] Schenck v. U.S., 249 U.S. 47, 52, 39 S.Ct. 247, 249 (1919).
[11] Chicago v. Lambert, 47 Ill.App.2d 151, 197 N.E.3d 448 (1964).
[12] City of St. Paul v. Morris, 258 Minn. 467, 104 N.W.2d 902 (1960), cert. den. 365 U.S. 815, 81 S. Ct. 696 (1961) ; Duncan v. U.S., 219 A.2d 110 (D.C. 1966) ; Hammond v. State 498 S.W.2d 652 (S.Ct. Ark. 1973) ; Meyers v. State, 253 Ark. 38, 484 S.W.2d 334 (1972).
But there has been a significant erosion of this rule in the case of Lewis v. City of Orleans, supra note 3, wherein the dictum of the concurring opinion of Justice Powell indicates that the Model Penal Code Comments may be accepted. See § 250.1, Comments 14 (Tent. Draft. No. 13, 1961). See also dictum in the City of Chicago v. Blakemore, 15 Ill. App3d 994, 305 N.E.2d 687 (1973).
[13] City of Columbus v. Guidotto, 81 Abs. 33, 160 N.E.2d 355 (1958).
[14] Landry v. Daley, 288 F.Supp. 189, 193 (N.D.E.D. Ill. 1968).
[15] Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624 (1960).
[16] State v. Moore, 101 N.J. Super 419, 244 A.2d 522 (1968).
[17] U.S. v. Woodard, 376 F.2d 136 (C.A. 7th Cir. [1967]; State v. Smith, 46 N.J. 510, 218 A.2d 147 (1965).
[18] Harris v. State, 237 Md. 299, 206 A2.d 254 (1965); Felner v. New York, 340 U.S 315, 71 S.Ct. 303 (1951).
[19] Gregory v. City of Chicago, supra, and 39 Ill.2d 47, 233 N.E..2d 422 (1962).
[20]Id., and cf. Zwicker v. Boll, 270 F.Supp. 131 (W.D. Wis. 1967).
[21]Id.
[22] City of Chicago v. Meyer, 44 Ill2d 1, 4-5, 253 N.E.2d 400, 402 (1969).
Therein the court stated:
…Applying this rational to the facts of the Gregory case we upheld the disorderly conduct conviction.
The Supreme Court reversed these convictions. (Citations omitted). That Court observed that a peaceful and orderly march falls within the sphere of conduct protected by the First Amendment. It then noted, as did we, that there was no evidence that the march was disorderly. If (sic) then concluded, as did we, that the disorderly conduct convictions could not be based on the manner in which the march was conducted.
The court next properly observed that our opinion held the demonstrators “were convicted not for the manner in which they conducted their march but rather for their refusal to disperse when requested to do so by Chicago police”. However, because “ The trial Judge charged solely in terms of the Chicago ordinance” and “Neither the ordinance nor the charge defined disorderly conduct as the refusal to obey a police order” the Court concluded that “***petitioners were charged and convicted for holding a demonstration not for refusal to obey a police officer.” (Citations omitted)
The Supreme Court neither approved no disapproved of our conclusion that the police may order the cessation of otherwise lawful conduct where they have made all reasonable efforts to maintain order, buy the conduct is producing an imminent threat of uncontrollable violence or riot. We adhere to the view expressed in our Gregory opinion that they may make such an order and that the demonstrators or speakers may be arrested and prosecuted for failure to obey such order.
…The undisputed evidence shows that the police who arrested the petitioners were left with noting to support their actions except there own opinions that it was a breach of the peace for the petitioners to sit peaceably in a place where custom decreed they should not sit. Such activity, in the circumstances of these cases is not evidence of any crime and cannot be so considered either by the police or by the courts.
[23] Gardner v. Louisiana, 368 U.S. 157, 174, 82 S.Ct. 248, 257 (1962).
[24] In State v. Petty, 24 Conn. Sup. 337, 344, 190 A.2d 502, 506 (1962), where the defendants sat in a private office and where there was no evidence of noisiness, the court held that the statute gauges criminality not by the impressions made on an annoyed or disgruntled citizen. Common sense dictates that language or conduct is to be adjudged disorderly not merely because it offends some supersensitive or hypercritical individual, but because it is by nature of a sort that is a substantial interference with the reasonable man. Citing People v. Harvey, 307 N.Y. 388, 123 N.E.2d 81 (1954).
[25] People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595 (1968), cert. den., 393 U.S. 1083, 89 S. Ct. 867.
…”Unreasonable is not a term which is impermissibly vague. As used in the Fourth Amendment it furnishes the governing standard by which the legality of police intrusions upon privacy are measured. (Citations omitted,) As used in the statute it removes the possibility that a defendant’s conduct may be measured by its effect upon those who are inordinately timorous or belligerent.
[26] People v. Crockett, 41 Ill.2d 225, 242 N.E.2d 235 (1968), cert. den., 394 U.S. 959 89 S.Ct. 1306.
The stipulated facts were that the defendants knowingly did act in such an unreasonable manner as to alarm or disturb another an to provoke a breach of the peace; to-wit: Loitering in the Fifth Floor Hallway [of the County Building]; Sitting on the floor; and knowingly did an act in such an unreasonable manner as to alarm or disturb another and to provoke a breach of the peace, to-wit: By remaining seated in the private office of Cook County Commissioner George Dunne and refusing to leave when ordered to do so. The motion to strike the complaint was denied and upheld on appeal.
[27]Id., and cf. also State v. Petty, supra note 24 ; State v. Givens, 28 Wisc2d 109, 135 N.W.2d 7800 (1965) ; Lloyd Corporation Ltd. V. Tanner, 407 U.S. 551, 92 S.Ct. 2219 (1972) ; City of Chicago v. Rosser, 47 Ill.2d 10 264 N.E.3d 158 (1970), and People v. Sterling, 52 Ill. 2d 587, 287 N.E.2d 711 (1972).
[28] Scott v. District of Columbia, 184 A.2d 849 (D.C. 1962) ; Feeley v. District of Columbia, 220 A,2d 325 (D.C.C.A. 1966) and Lloyd Corporation, Ltd., V. Tanner, supra note 27.
[29] Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719 (1966).
[30] Adderly v. Florida, 385 U.S. 39, 87 S.Ct. 242 (1966) ; Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453 (1965), and City of Chicago v. Joyce, 38 Ill.2d 368, 232 N.E.2d (1967).
[31] Chicago v. Lambert, supra note 11.
Care must be taken to separate intent to achieve a legitimate aim from an intent to utilize an unlawful means in attaining that aim. Often the two are mixed, in which case, only evidence of the latter will justify a conviction based upon aiding and abetting. Castro v. Superior Court for the County of Los Angeles, 9 Cal.App.3rd 675, 88 Cal. Rptr. 500 (1970).
A showing of an attachment to a group with knowledge of its desire to utilize illegal means will satisfy the scienter requirement. People v. Rybka, 16 Ill.2d 394,158 N.E.2d 430, 233 N.E.2d 158 (1967).
[32] People v. Lee, 337 Ill.App. 158, 78 N.E.2d 822 (1948), People v. Griffin, 36 Ill.2d 430, 223 N.E.2d 158 (1967).
[33] Chicago v. Lambert, supra note 11 cf. also Allison v. State, 249 Ind. 556, 166 N.E.2d 171, cert. den., 81 S.Ct. 822, 365 U.S. 608. Contra : State v. Good, 308 A.2d 576 (Maine 1973).
[34] People v. Raby, supra note 25, at 399-400 and 599-600 wherein the court stated: The disorderly conduct charge alleged that “the Defendant on or about 28 June 1965 at Randolph and LaSalle committed the offense of disorderly conduct in that he knowingly did collect in a crowd or body for unlawful purposes to the annoyance or disturbance of other persons in such an unreasonable manner as to alarm and to disturb another and to provoke a breach of the peace.” The court hld that the language was adequate to apprise the defendant of the conduct that constituted the offense charge against him. If the defendant needed more detailed information to prepare his defense, a motion to that effect should have been made.
[35] I.P.I – Criminal, 19.03.
[36] Bachellar v. State of Md., 397 U.S. 564, 90 S.Ct. 1312 (1970).