Dempsey v. People

Justice BENDER

concurring in part and dissenting in part.

To be consistent with First Amendment principles, the majority applies the three elements test articulated in the seminal ease of In re Kay, to determine that Dempsey’s conviction for disrupting a lawful assembly is not supported by sufficient evidence. 1 Cal.3d 930 , 83 Cal.Rptr. 686 , 464 P.2d 142 (1970). However, the majority fails to require, as Kay does, that the jury consider these very same elements in a prosecution for disrupting a lawful assembly when the defendant claims he is exercising his constitutionally protected free speech rights. Id., 83 Cal.Rptr. 686 , 464 P.2d at 153. In my view, Kay protects a defendant’s fundamental First Amendment guarantees in a criminal prosecution for disrupting a lawful assembly by ensuring that a defendant be criminally punished for his conduct and not for the content of his expression. Thus, I would apply the full Kay holding to this case and require that the jury be instructed on all the elements, not simply those found in the Colorado statute. Therefore, while I concur in the majority’s conclusion that there was insufficient evidence to convict Dempsey for disrupting a lawful assembly, I respectfully dissent to part II A 2 of the opinion because I do not believe that the statute, as written, can be applied in a constitutional manner.

The First Amendment contains competing constitutional principles. It protects the rights of people to gather peacefully in a public meeting while at the same time protects the rights of dissenters to speak up and express disapproval of the very assembly which is protected. “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excess of anarchy.” Cox v. Louisiana, 379 U.S. 536, 554 , 85 S.Ct. 453, 464 , 13 L.Ed.2d 471 (1965). Neither right is more important than the other and each should be guarded closely.

Legislatures, such as Colorado’s, have enacted statutes that protect the rights of those *814 who have lawfully assembled from having their assembly disturbed by an unruly contingent of malfeasants. Section 18-9-108 provides that a person disrupts a lawful assembly if he intends to disrupt a meeting by significantly obstructing or interfering with the meeting by any means. 1 These statutes have not gone without thorough examination from the courts to assure that a defendant who is charged under such a statute is not punished for the message he delivers but for the conduct that occurs.

In a similar case, the California Supreme Court wrestled with the application of a disruption statute 2 to a group of individuals who engaged in clapping and shouting during a Congressman’s speech at a Fourth of July celebration. Kay, 83 Cal.Rptr. 686 , 464 P.2d at 145 . That court recognized that “[audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment.” Id., 83 Cal.Rptr. 686 , 464 P.2d at 147 . But, at the same time, “the state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizens’ rights of free association and discussion.” Id., 83 Cal.Rptr. 686 , 464 P.2d at 149 .

Thus, in order to apply the disruption statute in a constitutional manner, that court required three elements to be met: 1) the defendant must have substantially impaired the conduct of the meeting; 2) by an intentional act; and 3) in violation of implicit customs or explicit rules of the meeting or lawful assembly known by a reasonable person. Id., 83 Cal.Rptr. 686 , 464 P.2d at 150 ; McMahon v. Albany Unified School Dist., 104 Cal.App.4th 1275 , 129 Cal.Rptr.2d 184 (2002) (dumping trash not a legitimate element of school board meeting held in elementary school cafeteria). 3

Turning to the language of our disruption statute, it only requires that the defendant intend to prevent or disturb a meeting by “significantly obstructing] or interfere[ing] with the meeting.” § 18-9-108. There is no requirement that the jury also consider the defendant’s conduct in light of the nature of the assembly and whether his conduct, and not his speech, violates the customs or rules of that assembly or meeting.

This third requirement identified in Kay provides the necessary element for a jury to balance the free speech rights of a defendant and the rights of others to assemble. Without this requirement it is entirely conceivable that a person could be convicted for disruption simply by expressing a dissenting view at a public meeting. The person has the intent to disturb the meeting by expressing a discordant view, and may either speak for a long time, or bring to light new information, which interferes with or may even stop the meeting. 4 Thus, while the individual participated in the meeting in the same manner as all the others, a jury could convict based on *815 the outcome of the defendant’s speech and not his conduct. Or, as contemplated by the facts in this case, a person may express a dissenting view at a political rally which obstructs the message delivered by the main speaker. However, in such instances, the person’s conduct of yelling at the speaker at an inopportune time during the speech is no different than where the speaker’s supporters clap, cheer, and make other noises in support of the speaker.

The individual becomes powerless to express his beliefs when the government punishes him for speaking out against the views of others. While the First Amendment protects the right to assemble, it also protects the right of the individual to protest that very assembly. For some, this may be the only way in which they are able to express their views. Therefore, a careful balancing is required to ensure that a conviction is based upon the defendant’s active conduct and not the content of his speech.

Thus, it is critical that the jury consider the defendant’s conduct in light of the type of assembly. Under the plain language of our disruption statute, a defendant could be convicted for speech that is constitutionally protected because the jury is not required to consider this critical third element. To avoid this possible outcome, the jury must consider the nature of the meeting or gathering and the level of disruption that could be expected — not simply whether a person’s behavior is discourteous or rude and thus disrupts the assembly or meeting which, by its very nature, may be a disorderly event. State v. Ervin, 40 S.W.3d at 519 (“A level of disruption to be expected at an outdoor political gathering ... is not what would be reasonably expected at a memorial for slain officers.” (Internal citations omitted)).

The majority applies the complete Kay standards to determine whether there was sufficient evidence to support a conviction but does not require that the jury be instructed on those standards. According to the majority opinion, an appellate court is to apply the Kay balancing test to determine if there is sufficient evidence to uphold a conviction. However, a jury is not required to consider this heightened standard when deciding whether to convict. For purposes of judicial economy and to protect a defendant’s first amendment rights, it is only logical that the jury should also be instructed concerning the very same elements used to review for the sufficiency of the evidence. Only in this way can a protestor’s conviction rest on firm constitutional grounds and be based upon actual conduct and not the content of protected speech.

In addition to the statutory requirements as discussed by the majority, I would also require the jury to be instructed that it should consider the defendant’s conduct in light of the type of assembly and irrespective of the content of the defendant’s message. Therefore I respectfully dissent to part II A 2 of the majority’s opinion. However, because I agree with the majority’s application of the Kay standards when reviewing for the sufficiency of the evidence in this case, I concur in its judgment.

. Section 18-9-108 states:

A person commits disrupting lawful assembly if, intending to prevent or disrupt any lawful meeting, procession, or gathering, he significantly obstructs or interferes with the meeting, procession, or gathering by physical action, verbal utterance, or any other means.

. I agree with the majority that the disruption statute in Kay is different from Colorado's in that it does not require that the defendant intend to disrupt the assembly or that a significant disruption occur. California Penal Code section 403 states: "Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting, not unlawful in its character, ... is guilty of a misdemeanor.” Kay, 83 Cal.Rptr. 686 , 464 P.2d at 146 . However, the inclusion of some, but not all, of the factors articulated in Kay does not eliminate my concern that the statute may be unconstitutionally applied.

. A number of other state courts have followed this three part balancing test set forth in Kay. See e.g., State v. Ervin, 40 S.W.3d 508 (Tenn.Crim.App.2000); State v. Hardin, 498 N.W.2d 677 (Iowa 1993); Morehead v. State, 807 S.W.2d 577 (Tex.Crim.App.1991); State v. Schwing, 42 Ohio St.2d 295 , 328 N.E.2d 379 (1975); City of Spokane v. McDonough, 79 Wash.2d 351 , 485 P.2d 449 (1971).

. See State v. Kane, 303 N.J.Super. 167 , 696 A.2d 108, 115 (App.Div.1997) (principal disturbance was caused by the police arresting and removing the defendant from public meeting after the defendant loudly asked to be recognized and was refused by the chairman; thus, application of the disturbance statute violated the defendant’s free speech rights).