Petition for Writ of Certiorari — California v. Brown
Supreme Court brief1974
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In the Supreme Court
OF THE
| United States
OcrosBER TERM, 1973
No 6 3- 33]
State or Carirornta, Petitioner,
Vs.
Rosert F. Brown, et al., Respondents.
Strate or CartFornta, Petitioner,
vs.
Appass Bozora, et al., Respondents.
PETITION FOR WRIT OF CERTIORARI
to the Supreme Court of the State of California
EveLie J. YOUNGER,
Attorney General of the State of California,
Epwarp A. Hinz, JR.,
Chief Assistant Attorney General—
Criminal Division,
Doris H. Mater,
Assistant Attorney General—Writs Section,
Epwarp P. O’BRIEN,
Assistant Attorney General.
W. Eric CoLirs,
Deputy Attorney General,
SANFORD SVETCOV,
Deputy Attorney General,
6000 State Building,
San Francisco, California 94102,
Attorneys for Petitioner.
PERNAU- WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA 94105
Subject Index
Page
Opinions below ......--...---e eee cece rece e tect ee eects 2
OE EELS a PE PENTRU EET Cee Cee eet eee, 2
Questions presented 2.2.2... 6. ee eee eee entre eee e eter t ees 2
Statement of the case ........ 2. eee eee eee cere eee eeeees 3
a er ee ee ee 3
i ee ORR Oy cao sc oa ean sews e nee es 62 598 «sie o* +
Statement of the facts ...........0 2c cece eee eee ee cence 5
A. Events of January 23, 1969 ............-- ieee? es
B. Previous campus disorders ........++-00e esses eee ees 8
C. Disruption of classes on January 23, 1969 ........--- 9
Lae v ae eRe ae meee alee de ee 12
i ee kp nim aaee Kone wean e wee 14
rE ee ee Sage en ewen ae eee e eave 15
Holding of the California Supreme Court .......--++--+-+ 16
Reason for granting certiorari and summary of argument ... 16
MFOUMCME . 2. 52 ete ec cee nn cc cnc ecseererccocresess 19
T
The trial court's instructions in the Brown case insured
the protection of First Amendment Pe 19
II
The California Supreme Court erred by requiring jury
instructions which establish absolute First Amendment
immunity for intentionally disruptive noisy conduct
solely beeause communication of ideas was also in-
ee eames meh tens ae men oy ue @ 24
A. The California rule is unpreeedented .........-- 25
B. The California rule is unworkable ........---.-- 27
C. Properly construed, the loud noise portion of
Penal Code Section 415 is a time, place and man-
ner regulation, sufficiently narrowly drawn to
protect First Amendment activity ....--.-.-+--- 29
a ade nag se hse char eee eared she seuss 32
Table of Authorities Cited
Cases Pages
Adderley v. Florida, 385 U.S. 59 (1966) 2.2... .-.. eee eee 95, 31
Cantwell v. Connecticut, 310 U.S. 296 (1940) ........---- 26
Cohen v. California, 403 U.S. 15 (1971) ........... 18, 20, 21, 29
Cox v. Louisiana, 379 U.S. 536 (1964) ........- 0 eee eee eee 25
Edwards vy. South Carolina, 372 U.S. 229 (1963) ......... 30, 51
Glasser v. United States, 315 U.S. 60 (1941) .........--.- 5
Goldberg v. Regents of University of California, 248 Cal.
App.2d 867 (1967) 2.2... eee eee ee ee eee eee eee eees 6
Grayned v. City of Rockford, 408 U.S. 104 (1964) .....--.
DON Sesh ce Gey 4 Pe Payee 17, 18, 21, 22, 24, 26, 30, 31
In re Bozorg, 9 Cal.3d 612 (108 Cal.Rptr. 359, 510 P.2d
SORT) SED (es bicbarsxes sakes 2.5, 11, 16, 18, 19, 22, 23, 26, 37
In re Bushman, 1 Cal.3d 767 (1970) ..........-.6--6- 20, 21, 25
In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686 (1970) ........ 30
Kovaes v. Cooper, 336 U.S. T7 (1958) 2.26... ee ee eee eee eee 26
People v. Hairston, § Cal.App.3d Supp. 19 (1970) ......-. 6
People v. Kerrick, 86 Cal.App. 542 (1927) ........------: 30
People v. Redmond, 71 Cal.2d 745 CROOET coe wteneanGaahwe 5
Saia v. New York, 3304 U.S. 558 (1948) ........ 25 .ccceees 26
Siegel v. Regents of University of California, 308 F.Supp.
MR A ee Be | area emp rne wy pera s gerey Se 6
Taylor v. Mississippi, 319 U.S. 583 (1942) .......---.-6- 5
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) .... 6,18
Penal Code:
ee to ers Sena cack ke boreer eae 26, 31
es Se ea Uo Le ee MP See ESS ARO CON 2,3
a eas cuss ek SARA OSE NR ENS 2.3
ee I eo an eee Pas oe RE ee 3,13
is ee os own a ee ee 2, 3, 19, 24, 25, 26, 27, 28, 29, 3
eo. ENN ae ee Ts ee er rer era ey ye 12
FG TRAE Oe et mR
TABLE OF AUTHORITIES CITED ili
Constitutions Pages
United States Constitution, First Amendment ............
ete Nay Sn ee AMES SA PL ees 3, 17, 18, 19, 20, 21, 23, 24, 25, 26, 28, 31
Statutes
ETE Or net iay ee Ca tae sie oe os eer ne A Missi Caines 2
Texts
Wm. H. Orrick, Jr.. June 1969
Wm. H. Orrick, Jr.. Shut It Down! A Report to the National
Commission on the Causes and Preventions of Violence,
p. G4, Jame F0GD ons c is cnseccccsencccssssnnssessees 12
Wright. The Constitution on the Campus, 22 Vand.L.Rev.,
wo. BORT, POOL CIDND) ances ee ack cde snes ev ee teen aes 31
Tee) ae
Iu the Supreme Court
OF THE
Hnited States
OctToBER TERM, 1973
No.
STATE OF CALIFORNIA, Petitioner,
VS,
Rosert F. Browy, et al., Respondents.
SraTe oF CaLirornia, Petitioner,
VS.
Appass BozorG, et al., Respondents.
PETITION FOR WRIT OF CERTIORARI
to the Supreme Court of the State of California
Petitioner, the State of California, respectfully
prays that a writ of certiorari issue to review the
judgment of the Supreme Court of the State of Cali-
fornia entered in this proceeding on June 19, 1973,
directing the issuance of writs of habeas corpus dis-
charging respondents from the custody imposed by
the San Francisco Municipal Court pursuant to judg-
ments of conviction of disturbing the peace (Cal.
SAAT LE AORN OLREMIN. TP TTI! FIAT T EE MI LE LI LTS a
Pe PENNER LOLS EVEREST ORTLAND A
SME ATE SG CCR LET HY SONE TPA
eA at
eeeeerereerinp renee
2
Pen. Code $415) and unlawful assembly (Cal. Pen.
Code §$407, 408).
OPINIONS BELOW
The opinion of the C alifornia Supreme Court in
these two companion cases, a Copy of which is set
forth as Appendix A to this petition, is reported as
In re Bozorg, 9 Cal.3d 612 [108 CaL.Rptr. 359, 510
P.2d 1017] (1973). Petitioner's application for re-
hearing was denied on July 18, 1973, two justices
voting in favor of rehearing. See Appendix B.
JURISDICTION
Petitioner invokes the jurisdiction of this Court
under Title 28, United States Code, section 1257(3),
since a right has been especially set up and claimed
under the Constitution of the United States and the
validity of a state statute is drawn in question as
being repugnant to that right. This petition is timely
filed pursuant to the order of this Court on October
3. 1973, extending the time for filing this petition to
December 15, 1973. (California v. Brown, A-350).
QUESTIONS PRESENTED
Whether respondents and 1,000 other persons,
many of whom were armed with billiard balls, rocks,
knives, baggies of wet paint, 2” x 2” clubs, who en-
gaged in a loud, noisy, shouting demonstration which
3
intentionally disrupted classes in session and students
studying in the library and taking final examinations
on a college campus, were engaged in constitutionally
protected conduct under the First Amendment of the
United States Constitution or were lawfully prose-
cuted and convicted under a state breach of peace
statute declaring “loud or unusual noise” which “wil-
fully and maliciously disturbs the peace” to be a mis-
demeanor.’
STATEMENT OF THE CASE
A. Bozorg’s Case:
On June 10, 1969, after a lengthy jury trial, re-
spondent Bozorg and four other persons were con-
victed of disturbing the peace (Cal, Pen. Code $415)
and unlawful assembly (Cal. Pen. Code §§407, 408)
and acquitted of the charge of refusal to disperse
(Cal. Pen. Code §409). On July 2, 1969, the defend-
ants in that case were sentenced by the San Fran-
cisco Municipal Court to two years probation, fines
‘anging from $250 to $300, and jail terms ranging
from 30 to 40 days.
On December 29, 1970, the Appellate Department
of the Superior Court of San Francisco affirmed the
judgments without opinion. The same court denied
rehearing and denied certification of the appeal to
the California Court of Appeal. Thereafter on Feb-
California Penal Code section 415 provides in pertinent part:
“Every person who maliciously and wilfully disturbs the peace
or quiet of any neighborhood or person, by loud or unusual noise.
or by tumultuous or offensive conduct . . . is guilty of a mis-
demeanor... .”
Aci LET GORA SNORE
Ae PO YAATEAIT, MEE IEE MEP A L IY
oe
GLEE OAT MAIER Y KLE RINE MFRS OR
oe
rg ae came =
pa tt
ee wpe PROPS HLI
4
ruary 16, 1971, the State Court of Appeal denied
Bozorg’s petition for writ of habeas corpus, without
opinion.
Two days later, on February 18, 1971, a petition
for habeas corpus was filed in the California Supreme
Court, which, after two and one-half years, culmi-
nated in the decision petitioner seeks to have this
Court review.
B. Brown's Case:
On January 5, 1970, respondent Brown and six
other persons were convicted after a lengthy jury
trial of disturbing the peace and unlawful assembly
and acquitted of refusal to disperse. Each defendant
was sentenced to 60 days in jail by the San Francisco
Municipal Court.
On February 9, 1970, the Appellate Department of
the Superior Court affirmed the judgments without
opinion and certification to the California Court of
Appeal was denied. On March 26, 1971, the Court of
Appeal also denied defendant's application for habeas
corpus Without opinion.
On April 7, 1971, a petition for habeas corpus was
fled in the California Supreme Court. The matter
was subsequently consolidated with the Bozorg action
for oral argument and decision, although each pro-
ceeding originated in a separate jury trial.
Hy)
STATEMENT OF THE FACTS
The facts in both cases are essentially the same,
as the opinion of the California Supreme Court
reveals. That opinion does not, however, fully and
fairly portray the extent of the disruption which
occurred at the San Francisco State College campus
on January 23, 1969. Accordingly, the state sought
a rehearing and now sets forth that version of the
facts most favorable to the judgment of the trial
court as is proper under both state and federal law.
People v. Redmond, 71 Cal.2d 745, 755 (1969); Glas-
ser v. United States, 315 U.S. 60, 80 (1941); Taylor
v. Mississippi, 319 U.S. 583, 585-586 (1942).
A. Events of January 23, 1969:
On January 23, 1969, at about noon, respondents
and 1,000 or more other persons gathered in the cen-
tral campus area of San Francisco State College in
San Francisco to hear speeches by leaders of the
student strike then in progress on campus. The
avowed purpose of the gathering, according to re-
spondents themselves, was to “Shut it down”, that is
close the campus until their strike demands were met
(RT 1195, 1205-1206, 1275) (RT 436 :-4, 1706:11).° Be-
cause of the strike, which had been in progress for
several months (RT 21), the administration of the
college had published a temporary emergency regula-
tion on January 6, 1969, prohibiting all rallies in the
central area of the campus adjacent to classes but
*Transcript references (RT) are to the Reporter's Transeript on
appeal in the Brown ease. As noted, the facts in the Bozorg matter
are essentially the same as here summarized.
6
permitting them elsewhere (RT 542, 615-619). The
emergency regulation was to be in effect for only a
few weeks, during the final examination period.’
Some 8,000 copies of that regulation were widely dis-
3Pertinent portions of the regulation which was read into the
record in its entirety, follow:
“-To: Faculty, students, and staff of the San Francisco
State College.
‘With only four weeks left in this semester we all have a
lot to do if courses are to be successfully completed and
eredit granted. Fortunately, the faculty voted in November
to hold extra sessions where neeessary to make up for time
lost in the past semester's convocations and other interruptions
of the normal academie process. Many instructors have used
the holiday period to replan their classroom activities for
January. The overwhelming majority of teachers and stu-
dents will therefore be extremely busy for the nest four
weeks with exams and preparations for «rams,
‘In view of the forcgoing the period begining January 6
and extending through January 31 is hereby declared to be a
limited activity period. Specifically, rallies, parades, be-ins
and all other publie events likely to disturb the studious in
their reading and reflection are hereby forbidden on the
central campus. The speakers’ platform may not be used and
no substitute loeations on the central campus are authorized.
‘It is not the intention of this administration to deny free-
dom of expression, but the principle of appropriate place and
time will apply. People wishing to hold outdoor meetings or
‘allies in January may do so on the athletic field, which may
be reserved for this purpose by application through the dean
of students to the division of health. physieal education and
recreation. On the athletie field. amplification equipment may
be used. However, the meetings shall be conducted and the
erowd dispersed in such a way as not to disturb classroom
activities, the peace and quiet of the central campus and its
adjoining academic buildings or the peace of the community
surrounding the college.” (RT 615-617) (our emphasis).
The jury was instructed that the letter was admitted only on the
issue of state of mind and intent (RT 2056:9-13, 939:13). The
court correctly ruled that the letter was a valid college regula-
tion (RT 1596). Tinker v. Des Moines Ind. School Dist., 393 U.S.
500, 506-507, 508-511 (1969): Goldherg v. Regents of University
of California, 248 Cal. App.2d 867, S78-S79 (1967): Siegel rv.
Reagents of University of California, 308 F.Supp. 843, 833-838
(N.D. Cal. 1970): People v. Hairston, 8 Cal.App.3d Supp. 19,
23-24 (1970).
(
tributed and posted throughout the campus (RT 545-
544, 582-585). All faculty and staff received a copy
of the regulation (RT 584586). The regulation was
also the subject of headlined front-page local news-
paper coverage (RT 914-919), Several defense wit-
nesses conceded knowledge of the poliev (RT 1384-
1485, 1288, 1183, 1193, 1015).
During the morning of January 23, 1969, before
the assembly formed at noon, there was extensive
picketing of the campus (RT 424, 432-434). At 8:00
a.m. there were 20-30 pickets at the entrance to the
college (RT 424:15-23). By 11:45 am. there were
400-500 pickets there (RT 433), as well as numerous
pickets at various buildings and 200-250 pickets at
the library (RT 433, 537). At noon, these pickets con-
verged upon the central campus area (RT 435-436,
628-629, 690-691, 1402).
The demonstration commenced with speeches given
by several speakers (RT +469). Portable bullhorns
were used as amplifiers (RT 1750:13). Various wit-
nesses testified that the participants in the demon-
stration were loudly chanting and shouting, “Power
to the People, On Strike, Close it Down, Shut it
Down”, continuously throughout the rally (RT 464
465, 496, 540, 629, 691 :21-23, T78, 779-800, 1688). Tele-
vision movie film of the demonstration was shown to
the jury (RT 462-479). A number of defense wit-
nesses conceded that the chanting was loud enough
to make it difficult to hear the speakers, even though
they were using the bullhorns (RT 1088, 1164, 1188,
1194-1195, 1202, 1380, 1496-1497, 1750).
8
Professor Williams, who was teaching a class at
the time, testified that the noise “drowned [him] out
completely” (RT 691:9). A student testified that the
noise was getting louder and louder (RT 800-801).
Another witness described the assembly as “very
noisy” (RT 501:18-26).
B. Previous Campus Disorders:
The January 23rd demonstration was one in a
series of such gatherings on campus which had_ oc-
curred in recent months (RT 424:12-14). Three or
four were held in November 1968, another on Decem-
ber 11 or 12, and one on January 7, 1969 (RT 487,
489, 697:18-23). The prior gatherings had been
marked by loud noise, disruption, violence, destruc-
tion and injury (RT 488, 562-564, 1390). San Fran-
cisco Police Captain Donald Scott,* so testified. He
had 30 years of police experience and had been pres-
ent at all such previous disturbances (RT 423, 487-
491). Other witnesses corroborated his account of the
violence and disruption (RT 562-564, 566).
Specifically, at prior rallies, participants had
thrown rocks, interrupted classes, broken windows
and destroyed other property on campus (RT 563).
Professor Williams and others so testified (RT 690,
751, 780, 790, 794). Bombs had exploded and started
fires in at least one building on campus (RT 790:4).
Beatings and assaults instigated by participants had
occurred at the rallies (RT 563-564, 805, 1699:6-8).
4Now Chief of Police of San Francisco.
§
College employees and students were harassed and
intimidated (RT 791:15, 803-804). Persons partici-
pating in the assemblies had forcefully entered and
disrupted classes (RT 424, 690, 1267). The work of
administrative and clerical employees was also dis-
rupted (RT 566).
C. Disruption of Classes on January 23, 1969:
Remembering these recent events, many instructors
and employees on campus were “apprehensive” if not
terrified for their own and the students’ safety when
the assembly of January 23, 1969, commenced (RT
713 :20-24, 813:8-10). Some reacted by barricading
their windows (RT 762-778-779). Clerical and admin-
istrative employees were also disturbed in their work
and were frightened by the demonstration (RT 752:
22-26, 781, 789, 565-566). Mr. Harroun, Mrs. Schmid
and Professor Williams so testified (RT 780, 751,
687).
Several defense witnesses conceded that classes were
scheduled in nearby buildings at the time the rally
was held in the central campus area (RT 1013, 1213).
Some 224 classes were in fact in session when the
assembly began at noon (RT 587). For example, Pro-
fessor Williams testified that his 11:00-12:15 class
was continuously disrupted by the noise of the dem-
onstrators (RT 684-686). Professor Williams testified
as follows:
“Q. Did the noise interrupt or interfere with
your teaching that class?
A. It interfered very badly with the teaching
of the class,
10
Q. As the morning went on in that class, did
you notice any change in the noise level from the
outside.
A. Yes, as the morning went on, it became
noisier. It got noisier. There were more voices
that I could hear and there were chants which
became more frequent and went on longer and
louder. So the noise level increased.
Q. Do you have a certain amount of material
that you intended to teach that particular day?
A. Yes, I had laid out—and the reason I re-
member it so well, it was the last day of class,
that class for that semester, final exam was the
following Tuesday, the 28th, and I had laid out
an amount of material that I hoped and planned
to cover so as to wrap up my class in fairly good
fashion.
Q. Were you able to complete the amount of
material that you had laid out for your class that
day?
A. No, I couldn’t get through it. I got
through, I would say, somewhere between half
and two-thirds of it, and certainly no more than
two-thirds of the material, I was able to get over
in poor fashion.” (RT 687:5-25)°
Enrollment at the college was approximately 18,000
students (RT 588). Many students were studying for
upcoming final examinations. Indeed, some examina-
tions were already in progress (RT 798-799, 802,
810). However, the chanting and shouting to the
demonstrators seriously disturbed those taking such
5Other professors testified to the disruption of their classes at
the Bozorg trial (ZT 355-359, 215-217, 117-120). “ZT” refer-
ences are to the Bozorg trial.
11
examinations (RT 807, 799-800, 813). A student, Miss
Benfer, so testified (RT 802-804). She was called a
“scab” upon entering the examination (RT 800:16).
Neither was the rally free from violence. The dem-
onstrators, who were encircled and arrested, were
found to have, on their persons, in their hands, or
on the ground by their feet, a variety of missiles
capable of causing serious injury: rocks, billiard
balls, bags of wet paint, pieces of asphalt, knives and
metal knitting needles. Many carried pickets larger
than the usual one-quarter inch standard (RT 435,
622, 750-751). Some sixty 2” x 2” standards were
seized, many without signs attached (RT 466, 454).
Prosecution and defense witnesses agreed the 2” x 2”
(4 feet in length) pole was unusually large. ene
respondent Bush conceded that they were too heavy
to be used as a picket standard (RT 1576-1578).
Earlier, an officer had observed billiard balls being
surreptitiously distributed to the demonstrators as
they were marching (RT 623-624, 527, 533, 636), and
reported this to the Police Command Post (RT 533,
428, 625).
There was testimony at the Bozorg trial, that an officer was
injured by a rock throwi ing demonstrator who sought sanctuary
within the rally group (ZT 483-493). Others also threw rocks and
cans at the police (ZT 487).
“In these cireumstances, we sought rehearing below in part
upon the California Supreme Court characterization of the rally
as “generally orderly.” 9 @21.3d at 615. In all fairness, we submit
that the record belies that characterization.
12
D. The Arrests:
In anticipation of disruption, many police officers
were posted on campus. But, the police made no
effort to prevent the rally so long as it remained a
lawful assembly. The police had decided hours earlier
that the demonstration would be dispersed only if it
appeared to be unlawful, i.e., if there was a disrup-
tion of classes (RT 429-431). As noted above, the
noise of the demonstrators did disrupt classes and
library studies. By their own account, the police acted
only when the noise level reached such a high level,
that disturbance of classes was inevitable (RT 527,
493-494).
Thus, at 12:15 p.m., the participants in the assem-
bly were ordered to vacate the central campus area
by Mr. Scoble, a representative of the college admin-
istration. He announced over a powerful loudspeaker
system (RT 432-437, 440, 607-608), that the assembly
was disrupting classes and requested that the rally
move to the athletic field in accordance with the ad-
ministration regulation (RT 486-437, 507, 566-567).
The rally continued.
Then, at 12:20 pm., San Francisco Lt. Eimil or-
dered the demonstrators to disperse pursuant to sec-
tion 726 of the Penal Code of the State of California
and in the name of the People of the State of Cali-
SThere were approximately 190 officers assigned (RT 423). “In
contrast to... the confrontations .. . of early December, the
mass arrest of January 23 was carried out by a relatively small
number of police officers, and almost without injury. Tactics had
improved.” Shut It Down!, A Report to the National Commission
on the Causes and Preventions of Violence (by Wm. H. Orrick,
Jr.) June 1969, p. 64.
13
fornia (RT 406, 494, 1692, 438). He repeated the
order twice (RT 438:18-19). Upon hearing the word
“California”, the assembled people turned and shook
their fists at the announcer and repeatedly shouted,
“Fuck California” (RT 1692-1693, 451, 1788, 473-474,
753-754).
Lt. Eimil had gone among the crowds at previous
rallies to request dispersal but had been physically
assaulted (RT 440). Consequently, on this occasion,
all directives to disperse were made from the Police
Command Post on the roof of the Administration
Building (RT 428). Captain Scott stated that the
loudspeaker volume was quite sufficient for all those
in the central campus area to hear and understand
(RT 440). It had been obtained from the State Civil
Defense Office (RT 432-433).
Many people promptly left the assembly. As many
as 200-300 persons dispersed (RT 438, 503-504, 632,
1708 :12). For some, however, the noise and shouting
of the assembled persons was so loud that it was diffi-
cult to hear the announcements. Defense witnesses so
testified (RT 1088:23, 1164, 1188:11, 1202:9). This
evidence may explain the jury verdict of acquittal of
the refusal to disperse charge. (Cal. Penal Code
Section 409).
After five more minutes, the 437 persons who did
not respond to the order to disperse (RT 671, 494-
495) were surrounded and arrested (RT 441-442).
Among those arrested were the respondents herein
(RT 727-728, 737-738, 745, 769-777, 837-838). Another
150-200 of those remaining in the crowd after the
14
dispersal order escaped arrest by running off as the
police moved in (RT 481, 503-504), This latter group
attacked the campus library, yelling: “Nill the pigs”
and “burn the library” (RT 844), They succeeded in
breaking windows and setting fires (RT 866, 481-482,
526, 762-765, 844-847). Officer Mahoney was hit by a
flying club as he and seven other officers, assigned to
defend the library, narrowly escaped serious injury
(RT 847, 843-844).
E. Defense:
All the defendants (except Mrs. Brown and Mrs.
Alt) testified and presented several witnesses, whose
testimony was generally in conflict with the prosecu-
tion witnesses as to the degree of noise and disrup-
tion caused by the demonstrators (RT 1085, 1087,
1094, 1123, 1162-1163, 1224, 1380, 1524). However,
some defense witnesses indicated that they were in
interior offices with no windows (RT 1122, 1129
[Miss Neff], 1221 [Miss Van Wambeke]). Other such
witnesses included persons who had been arrested
with respondents (RT 1280, 1181, 1423).
Several defense witnesses conceded, however, that
there had been chanting of “On Strike, Shut it down,
Power to the People”, ete., and that it was difficult
to hear the speakers (RT 1088, 1164, 1188, 1194-1195,
1202, 1380, 1496-1497). Many testified that “Shut it
down” meant close down the college (RT 1195, 1205-
1206, 1275).
Each of the petitioners who testified at the trial
said that they were participants in the demonstration
15
on January 23, 1969, Sfter initial denials, Townsend
and Bush admitted participating in the chanting (RT
1495, 1498, 1339, 1341, 1357). A movie film showed
Mrs, Alt participating in the demonstration and
shouting “seab” (RT 1916:18-24, 1649, 1836-1837,
1270). The Browns, Cirimele, Bush and McGee ad-
mitted participation and carried picket signs (RT
1029, 1242, 1569-1570),
Although labeled a “student” strike by the Califor-
nia Supreme Court, the record shows that the college
had an enrollment of 18,000 and that only 1,000 per-
sons attended the rally. It is not clear how many of
these were students. The record herein does reveal
that only defendant Bush was a San Francisco State
student (RT 1555). The Browns, Mrs. Alt, and Mr.
Townsend were neither students nor employees of
San Francisco State College (RT 1120, 1026-1029,
1485). Cirimele and MeGee were employees of the
college (RT 1238-1239, 1330).
F. Rebuttal:
The prosecution introduced a portion of film taken
by a television cameraman to demonstrate the loud
noise and disruption caused by the demonstrators and
to rebut defense testimony to the contrary (RT 1745,
1715, 1723). A police officer testified that the film was
a fair and accurate representation of the scene (RT
1745-1746). The cameraman testified that the chant-
ing and shouting of the demonstrators was louder
than that of one of the speakers, Mr. Alvarado, even
though Alvarado was speaking through a bullhorn
(RT 1811:5-7, 1808).
16
HOLDING OF THE CALIFORNIA SUPREME COURT
The California Supreme Court held:
“We conclude that section 415 cannot, consis-
tent with First Amendment rights, be applied to
prohibit all loud speech which disturbs others
even if it was intended to do so.”
In re Bozorg, supra, 9 Cal, 3d at 621 (our
emphasis).
“We are satisfied that loud shouting and cheer-
ing, constitutes the loud noise prohibited by sec-
tion 415 only in two situations: (1) where there
is a clear and present danger of imminent vio-
lence and (2) where the purported communica-
tion is used as a guise to disrupt lawful endeay-
ors. Measured by this standard, it is clear that
the instructions in hoth cases.before us relating
to Penal Code section 415 were inadequate and
erroneous. (Footnote omitted.)”
9 Cal.3d at 621. (Our emphasis.)
———
REASON FOR GRANTING CERTIORARI AND
SUMMARY OF ARGUMENT
I. The facts established at trial reveal that San
Francisco State College was the scene for many
months in 1968 and 1969 of violent, noisy, disruptive
conduct. On January 23, 1969, at a time set for
classes and final examinations in adjacent buildings,
a crowd of 1,000 or more persons, many of whom
were armed with billiard balls, rocks, knives, 2” x 2”
clubs and baggies of wet paint, converged on the
central campus. They were not engaged in “pure
17
speech” when they loudly and continuously shouted
“On Strike. Shut it down!” In size, dangerous imple-
ments and sheer noise level they had the means to do
just as they threatened. In fact, the record summa-
rized above discloses that respondents and their asso-
ciates, with intent to so do, disrupted many classes
and final examinations then in progress.
For such conduct, we think that respondents were
properly prosecuted and convicted consistent with the
enidelines set forth by this Court in Grayned v. City
of Rockford, 408 U.S. 104 (1964), The People of
California have a compelling interest in preventing
disruption of the classrooms and related academic
functions of its public colleges. This Court will do
as much or more to protect First Amendment activity
by condemning the invasion of academic freedom by
respondents’ conduct herein as it has in past cases by
upholding lawful assembly against overzealous goy-
ernment curtailment.
Yet, the California Supreme Court concluded that
the jury was given incorrect instructions which did
not define the terms “loud... noise” or “offensive
conduct” and thereby permitted the jury to convict
respondents for engaging in conduct which was con-
stitutionally protected.
With respect, we submit that the California Su-
preme Court has erred, and this is particularly true
in the Brown case. There, the trial court's instruc-
tions fully ensured the protection of respondents’
First Amendment rights as delineated in Grayned
and related decisions of this Court, It is true, how-
reek, pare
ae
ap == -
18
ever, as our detailed discussion below will reveal, that
no comparable First Amendment instructions were
civen in the Bozorg case. For this reason, we believe
that this Court should, at very least, reverse the Cali-
fornia Supreme Court in the Brown case and recog-
nize this critical distinction between the two cases
(Argument I, infra).
II. We also seek certiorari to review the Califor-
nia Supreme Court’s ruling that loud noise which
disrupts classes with intent to so disrupt, is never-
theless activity protected by the First Amendment
simply because communication of ideas was also in-
tended. As discussed below (Argument II), we con-
tend that this formulation is both erroneous and
unworkable, It has repeatedly been rejected by this
Court. E.g., Grayned v. City of Rockford, supra. The
California ruling seems to arise from the premise
that loud noise is to be treated as speech. We must
disagree. This is not a “pure speech” case as was
Cohen v. California, 403 U.S. 15 (1971), or Tinker
rv. Des Moines School Dist., 393 U.S. 503 (1969) :
rather, this is a noisy conduct case, wherein a statute
like that approved on its face in Grayned v. City of
Rockford is being applied, with appropriate instruc-
tions, to a particular set of facts. We urge certiorari
therefore so that this Court may consider and deline-
ate the constitutional limits within which a Grayned-
type statute may be applied.
ee Oe SD SOE CEERI Ee ET
19
ARGUMENT
I
THE TRIAL COURT'S INSTRUCTIONS IN THE BROWN CASE
INSURED THE PROTECTION OF FIRST AMENDMENT AC-
TIVITY.
It was in the trial court’s instructions that the Cali-
fornia Supreme Court found reversible error. It was
held that the instructions permitted the jury to con-
vict repondents for engaging in conduct which was
constitutionally protected. 9 Cal.3d 621 n.5, 625. To
the contrary, it is the State’s position that the in-
structions in the Brown case ensured the protection
of respondents’ First Amendment rights and indeed
presented the case to the jury on an issue that was
narrower than the facts and the law required.
The jury was initially instructed in the language
of the applicable provisions of section 415 (RT
2052 :13-19).° The words “wilfully” and “maliciously”
were defined (RT 2052-2053) and the jury was told
that such terms required that they find a specific in-
tent to vex, annoy or injure others on the part of
the defendants (RT 2049-2050). The word “tumultu-
ous” was defined to mean “noisy” or “boisterous”
conduct (RT 2052:22-24). No definition was given
to the word “offensive” or the phrase “loud or un-
tisual noise.”
Concededly, the trial court’s instructions regarding
tumultuous or offensive conduct did not comply lit-
erally with the definitions thereof established by Jn
*The pertinent instructions referred to are attached hereto as
Appendix C (RT 2048-2056).
re Bushman, 1 Cal.3d 767, 773 (1970), or Cohen v.
California, 403 U.S. 15, 17 (1971). From Bushman
and Cohen, the following rule may be distilled:
“tumultuous or offensive conduct” refers only to con-
duct which is itself violent or which constitutes a
clear and present danger of provoking others te
violence. See Appendix D. CALJIC No. 16.240 (1973
Rev.). The same Appendix also contains the instruc-
tions now required by the California Supreme Court
decision in the instant case.
However, the trial court did give extensive instruc-
tions regarding freedom of speech and assembly which
afforded the defendants equivalent, if not greater,
protection of their First Amendment rights than the
Bushman-Cohen instructions. The jury was first told
that “The right . . . to peaceably assemble includes
the right to communicate ideas by singing, chanting
and shouting, as well as by signs, symbols and slo-
gans,” but that “pickets shouting in unison in a loud
and boisterous manner disturbing the peace and quiet
of the neighborhood” and thereby interfering with a
complainant’s peaceful enjoyment of property is un-
lawful conduct” (RT 2053-2054). Furthermore, the
jury was told that “The offense known as breach of
the peace embraces a large variety of conduct destroy-
ing or menacing public order and tranquility. It in-
cludes, not only violent acts but acts likely to produce
violence in others. When clear and present danger of
immediate threat to public safety, peace or order
1Neighhorhood” was properly defined to include a campus
(RT 2052:21).
Ao Oe A RE TE s-«
21
appears, the power of the State te prevent or punish
is obvious” (RT 2054:7-13).
For the above instructions, the trial court merits
commendation net criticism. The language of the in-
struction is remarkably accurate in its anticipation
of the decisions in Jn re Bushman, supra, and Cohen
ve. California, supra. It will be recalled that the trial
in Brown was completed on January 5, 1970, before
the decisions in Bushman (January 27, 1970) and
Cohen (1971).
Here, in substantial compliance with Cohen, the
jury was effectively instructed that they could con-
viet of disturbing the peace only if respendents’ con-
duct was intentional and was either:
(1) violent (RT 2054:10): or
(2) constituted a clear and present danger of pro-
voking violence in others (RT 2054:10-12): or
(3) so noisy as to disturb others by interfering
with the peace and quiet of the neighborhood, here
a college campus, including adjacent classes in ses-
sion (RT 2053-2054). Compare, Grayned v. City of
Rockford, supra, Moreover, by defining “tumultuous”
to mean “neisy” or “boisterous”, the trial court pre-
sented the case to the jury primarily on the narrow
theory of “loud noise” even though the evidence would
also have supported conviction based upon conduct
provoking violence or itself violent.
Indeed, the trial court went even further in ensur-
ing that the defendants’ First Amendment rights were
protected. Tn its concluding instructions regarding
the right of assembly the court stated:
99
ee
“A peaceful assembly is an exercise of freedom
of speech guaranteed to all by the First Amend-
ment to the United States Constitution. It is not
a violation of the law to attend and remain at a
peaceful assembly.
“The right of freedom of speech is protected
by both the Federal and State Constitutions.
However, this guarantee of freedom of speech
does not confer freedom from responsibility for
any abuse of that right, nor may it be used as a
license to interfere with the rights of others.
When such interference exists, the rights of oth-
ers may be protected by duly enacted laws” (RT
2055 :10-20).
The jury was then told that it was not permitted
to consider the content of the ideas expressed by the
demonstrators in determining whether their conduct
was lawful or unlawful (RT 2055-2056) and that mere
presence at the scene of the demonstration was in-
sufficient to support a conviction (RT 2059). Rather,
the jury was instructed upon the proper requisites
of abettor liability under state law (RT 2058-2059).
The foregoing instructions in the Brown case, far
from permitting the jury to convict upon constitution-
ally protected activity, ensured that any conviction
would be confined within contitutional constraints as
delineated in Grayned. We submit that the California
Supreme Court, by lumping the Brown case together
with the Bozorg matter, erred.
It is true that no comparable instructions were
given in the Bozorg case. Rather, the jury was simply
instructed in the language of the statute. The terms
23
wilfully and maliciously were correctly defined (Cal.
Pen. Code $17) and “tumultuous” conduct was de-
fined as “boisterous” or “noisy” (9 Cal.3d at 617).
The sole instruction regarding the constitutional im-
plications of the charged conduct was as follows:
“A rally or demonstration is not necessarily
in and of itself against the law. Whether or not
it is a violation of the law must be determined
by you from all of the evidence in the case and
under the instructions of law as I have stated
them to you.” 9 Cal.3d at 622.
The omission’ of further instructions was subse-
quently explained by the trial judge in an affidavit
submitted to the California Supreme Court and at-
tached hereto as Appendix E. There, the judge ex-
plains that he himself resolved the constitutional
issues and allowed the case to go to the jury only
after determining that if the defendants were found
to have engaged in the charged conduct such conduct
Was, as a matter of law, net protected by the First
Amendment. Had he determined that defendants’ al-
leged activity was constitutionally protected he would
not have allowed the case to go to the jury (Appendix
FE).
We would urge that the trial court’s legal deter-
mination in Bozerg might well have ensured that the
defendants’ First Amendment rights were protected
in a fashion analogous to the protections ensured by
the trial court’s jury instruction in Brown. In anv
event, the distinction between the eases in this re-
gard highlights the praiseworthy efforts of the trial
24
court in Brown to delineate for the jury the limits
of the First Amendment issues there presented. For
this reason, we urgently appeal to this Court to at
very least grant certiorari in the Brown case to re-
view the unduly restrictive interpretation placed
upon the loud noise proviso of our breach of peace
‘statute by the California Supreme Court. Brown was
a proceeding where every effort was made to comport
with the prior teachings of this Court which culmi-
nated in Grayned regarding the cherished and para-
mount rights of free speech and free assembly, while
at the same time seeking to prevent unlawful noisy
mob conduct which disrupts classes and in no way
could legitimately claim the protections of the First
Amendment.
II
THE CALIFORNIA SUPREME COURT ERRED BY REQUIRING
JURY INSTRUCTIONS WHICH ESTABLISH ABSOLUTE
FIRST AMENDMENT IMMUNITY FOR INTENTIONALLY
DISRUPTIVE NOISY CONDUCT SOLELY BECAUSE COM-
MUNICATION OF IDEAS WAS ALSO INTENDED.
In its opinion, the California Supreme Court in-
terpreted the “loud or unusual noise” provision of
Penal Code section 415 to afford First Amendment
protection to noisy conduct whenever “communica-
tion” is intended even when the noise (1) disturbs
the peace and (2) is intended to disturb the peace.
9 Cal.3d at 619, 621, n.5.
paren
A ES ek NO OE ree « -
25
A. The California Rule is Unprecedented :
This holding is totally at odds with any “traditional
view” of the First Amendment, as a majority of the
same Court only recently pointed out:
“The high court has refused to accept the view
that all conduct is to be deemed speech merely
because it was intended to be communicative in
some way.” Crownover v. Musick, 9 Cal.8d 405,
419 (1973).
“Not all acts intended to express ideas or con-
vey information are protected forms of free
speech.” In re Bushman, 1 Cal.3d 767, 773 (1970).
And, in Cor v. Louisiana, 379 US. 536, 555 (1964),
this Court “emphatically” rejected the notion that the
First Amendment afforded the same protection to
communication by conduct as to communication by
“pure speech.” Rather, it reaffirmed that:
“Tt has never been deemed an abridgement of
freedom of speech or press to make a course of
conduct illegal merely because the conduct was
in part initiated, evidenced or carried out by
means of language, either spoken, written or
printed.” (Emphasis added.)
In short, it is settled law that “certain forms of con-
duct mixed with speech may be regulated.” Cor v.
Louisiana, 379 U.S. 559, 563 (1964): accord, Adder-
ley v. Florida, 385 U.S. 39, 47-48 n.7 (1966).
The loud noise prohibition in California Penal Code
section 415 regulates only the volume of sound, not
the content of the communication. As such, it is a
“manner” regulation of conduct, not a ban on speech.
26
Kovacs v. Cooper, 336 U.S. 77 (1958); Grayned v.
City of Rockford, 408 U.S. 104 (1972).
But, we do not urge that free speech consists only
of the right to be free from censorship of content.
Protection of the means used is also required to as-
sure effective communications. Saia v. New York, 334
U.S. 558, 560-562 (1948). However, as Kovacs and
Grayned teach, the selection and use of means of
communication is not unlimited, but rather is sub-
ject to reasonable regulation.
Section 415 is just such a reasonable regulation. If
construed as we urge below, it prohibits loud noise
only when, (1) there is a disturbance of the peace
and (2) such a disturbance was intended." In such
circumstances, the fact that communication is also
intended should not afford the conduct First Amend-
ment protection. Compare, Grayned v, City of Rock-
ford, supra.
But, says the California Supreme Court, section 415
“cannot be interpreted consistent with the First
Amendment and traditional views as making criminal
all loud shouting or cheering which disturbs and is
intended to disturb.” 9 Cal.3d 619. Rather, the court
states that the statute “encompasses communications
made in a loud manner only . .. when the communica-
114t Common Law a person could be guilty of disturbing the
peace “even though no such eventuality was intended.” Cantwell
v. Connecticut, 310 U.S. 296, 309 (1940). However, section 415 by
stating that the prescribed conduct be done “maliciously” as well
as “wilfully”, seems to require that the disturbance be intended.
Pen. Code § 7.
27
tion is not intended as such but is merely a guise to
disturb persons.” Id,
B. The California Rule is Unworkable:
The California standard is novel. As already noted,
it is not supported by decisional authority, nor by
“traditional views.” But, novelty and lack of precedent
are but minor vices of the “communication as a guise
for disruption” test. Nowhere in the opinion is the
standard adequately explained. First, the California
Supreme Court states “We conclude that section 415
cannot ... be applied to all loud speech which disturbs
others even tf it was intended to do so.” Immediately
thereafter, the Court states “Loud shouting and cheer-
ing designed to disrupt rather than communicate, may
he prohibited generally.” 9 Cal.3d at 621. Such contra-
dictions render the statute unworkable in this highly
sensitive area of mob-action lawbreaking.
Perhaps a specific example will illustrate the di-
lemma we perceive:
A hospital fires a minority employee. With picket
sign and bullhorn in hand, the employee and his
friends post themselves outside the hospital to com-
municate his grievance—he was fired because of his
minority status not because of any lack of ability. In
addition to communicating his grievance to the out-
side public, the employee also intends to make enough
noise to disturb the hospital so as to draw the atten-
tion of the hospital staff and patients to his grievance.
Asa result, many sick patients who require peace and
quiet are seriously disturbed and the cacophony also
28
disrupts the quietude of surgical and intensive care
units, where physicians are hard at work.
In short, there is a disturbance of others, and the
disturbance is intended. But, communication is also
intended, not as a guise for disruption, but simply as
an additional motivation.
Applying the California Supreme Court opinion lit-
erally to these facts, it seems that since communica-
tion is intended, the deliberate disruptive noise is to
be afforded constitutional protection. It is only when
disruption is the sole purpose of the noisy conduct
that section 415 can be applied.
If such be the case, the loud noise portion of the
statute would be emasculated. It would be totally un-
workable and impossible to apply. One could deliber-
ately engage in loud noise with impunity, simply by
adopting a bona fide communication element as an
alternative purpose.
Accordingly, we respectfully urge that certiorari be
granted to review the standards announced in the
opinion of the California Supreme Court in deter-
mining when loud noise which disturbs others, inelud-
ing, as here, college classes in session, is unlawful and
when it is to be afforded First Amendment protection.
We supply one alternative answer in the following
section.
— —
29
C. Properly- construed, the loud noise portion of Penal Code
section 415 is a time, place and manner regulation, suf-
ficiently narrowly drawn to protect First Amendment ac-
tivity.
The California Supreme Court opinion suggests that
section 415 is not sufficiently narrowly drawn to pass
muster as a reasonable time, place and manner regu-
lation, 9 Cal.3d at 620. We respectfully disagree.
The “loud ... noise” portion of the statute is pre-
cisely such a regulation. Cohen v. California, 403 U.S.
15, 19 (1971), is not to the contrary. There, the court
was speaking only of the “offensive conduct” portion
of section 415, when it held: “No fair reading of the
phrase ‘offensive conduct’ can be said to sufficiently
inform the ordinary person that distinction between
certain locations are thereby created.”
The California court now holds that the same is true
of the loud noise portion of the statute. 9 Cal.3d at
620, We submit that no such infirmity affects the
words “loud or unusual noise” which “disturbs the
peace of any neighborhood or person.” The opinion
in Cohen v. California, supra, recognizes a distinction
without articulating it and implicitly approved the
loud noise portion of the statute. 403 U.S. at 21-22 n4.
We attempt such articulation here.
We believe that the ordinary person is sufficiently
aware of the fact that loud noise may be tolerated at
certain times and places and unacceptable and dis-
turbing of the peace at other times and places. Rea-
sonable men should know when loud noise is disruptive
and when it is acceptable,
30
For example, no one would for a moment character-
ize loud noise at a football game or a political con-
vention as disturbing the peace. In re Kay, 1 Cal.3d
930, 943, 83 Cal.Rptr. 686, 694 (1970) ; People v. Ker-
rick, 86 Cal.App. 542, 551-552 (1927). But the ordi-
nary reasonable person knows and should know that
the same loud noise outside a hospital, in a quiet resi-
dential area, or, as here, adjacent to classes in session,
would substantially disturb, disrupt or impair the
normal activity of such places.
We submit that section 415 may be properly con-
strued to hold a person liable for engaging in loud
noise which intentionally and substantially disrupts
the normal activity of a particular place of which he
knew or as a reasonable man should have known.
Grayned v. City of Rockford, 408 U.S. 104, 116 119-
120 (1972). In this case, of course, the defendants
had explicit notice. The temporary campus regula-
tion on demonstrations spelled out precise guidelines
for such activities. For, if the demonstrators had
been on the athletic field as the regulation directed,
they could have chanted or shouted as loud and as
long as they wished.
In this regard, the California court’s reliance on
eases such as Edwards v. South Carolina, 372 US.
12As the court in Grayned so cogently observed:
“We recognize that the ordinance prohibits some picketing
that is neither violent or physically obstructive, Noisy demon-
strations that disrupt or are incompatible with normal school
activities are obviously within the ordinance’s reach. Such
expressive conduct may be constitutionally protected at other
places or other times (citations), but _nert to a school, while
classes are in session it may be prohibited.” 408 U.S. at 120
(our emphasis).
31
999, 235-238 (1963), is inappropriate. Loud noise
found appropriate in a street as in Edwards, or even
2 park, cannot be equated to areas adjacent to classes,
hospitals or libraries. The nature of a place, “the
pattern of its normal activities, dictates the kind of
regulations of time, place and manner that are reason-
able.” Wright, The Constitution on the Campus, 22
Vand.L.Rev. 1027, 1042 (1969): cited in Grayned v.
City of Rockford, supra,
In summary, we submit that the loud noise provi-
sion of section 415 is a narrowly drawn, time, place
and manner regulations: (1) only the volume or man-
ner of expression is affected. (2) The prohibition does
not apply to “all neighborhoods” but rather to places
which reasonable men know or should know would be
disrupted by loud noises; not all loud noises are
unlawful. Only those which “disturb the peace” are
prohibited. (3) Similarly, the prohibition does not
apply “at all times” but only at such times as reason-
able men know or should know that loud noise disturbs
the peace,
Finally, the statute is further narrowed by requir-
ing that the noisy disruption be done intentionally ;
loud noise which disturbs the peace is a_ violation
only if done “wilfully and maliciously.” Cal. Pen, Code
$415. The quoted words are in turn defined by statute
(Cal. Pen. Code 87) and are words considered by this
Court to narrow the scope of a statute to comport
with the First Amendment. Adderley v. Florida, 385
U.S. 39, 43 n.2 (1966).
| BE
FR ae ee
PRT CRETE SENT eS CHISEL SRE
CONCLUSION
For the foregoing reasons, we respectfully request
that a writ of certiorari as prayed for herein be issued
to review the decision of the California Supreme
Court in the instant proceedings.
Dated, December 10, 1973.
EvVELLE J. YOUNGER,
Attorney General of the State of California,
Epwarp A. H1xz, JR,
Chief Assistant Attorney General—
Criminal Division,
Doris H, Mater,
Assistant Attorney General—Writs Section,
Epwarp P, O’BRIEN,
Assistant Attorney General,
W. Eric Couns,
Deputy Attorney General,
SANFORD SVETCOV,
Deputy Attorney General,
Attorneys for Petitioner.
(Appendices Follow)
Appendix A
In the Supreme Court
of the State of California
In Bank
In re Abbass Bozorg, et al., )
on Habeas Corpus. | Criminal No. 15,399
In re Robert F. Brown, et al.,
on Habeas Corpus.
(Consolidated Cases)
| Criminal No. 15,580
[Filed June 18, 1973]
OPINION
THE Court:
Petitioners, Robert F. Brown and his six codefend-
ants in one criminal prosecution, and Abbass Bozorg
and his four codefendants in a second prosecution,
were convicted after jury trials of violating Penal
Code sections 408 (participating in an unlawful as-
sembly and 415 (disturbing the peace), They were
acquitted of charges of violating section 409 of that
code (failure to disperse).
The appellate department of the superior court af- |
firmed the judgments in the two cases and denied
certifications to the Court of Appeal. Upon petitions
for writs of habeas corpus, we issued orders to show
cause.
Ti snb ha ebeblia mnvenbalany
Ret eee ed
Pos Aadays He abahay ani
ie RU ott
bile ait oS
On January 23, 1969, petitioners and approximately
1,000 other people attended a noon rally in the central
area of the then named San Francisco State College
campus to hear addresses by the chairman of the San
Francisco Civil Service Commission and by several
leaders of the student strike then in progress on cam-
pus. Because of the student strike, an administrative
ban on all rallies in the central area of the campus
had been instituted on January 6. This ban was still
in effect on January 23.
During the morning of January 23 there had been
picketing on campus. Towards noon the number of
pickets increased as students gathered for the rally.
Before the rally commenced two complaints of noise
and of threats in the education building had been re-
ceived; one class was dismissed early because of the
din; and several professors and students testified that
classes and study were disturbed while the partici-
pants gathered.
During the rally itself there was chanting and shout-
ing of slogans which one witness described as **thun-
derous.” Picket signs and banners were waved and
clenched fists were raised to punctuate the speeches
and chants. However, despite these activities and the
large number of people in attendance, the mass meet-
ing was generally orderly. All petitioners were present
at the rally for the purpose of hearing the speakers
and demonstrating their support for the strike.
In anticipation of the disruptions, many police of-
ficers had been posted on campus. At 12:10, 194 police
officers were brought to the central area, flanking the
crowd at the speaker’s platform. Approximately five
minutes after the arrival of the police. Mr. Scoble,
a representative of the college administration, was
called to the speaker’s platform by police officials. He
announced that the assembly was unlawful; he ordered
that the participants vacate the central campus area;
and he further suggested that these gathered move
on to the athletic field.’ Five minutes after Mr. Scoble’s
announcement, Lieutenant Emil of the San Francisco
Police Department also declared from the speaker’s
platform that the assembly was unlawful and ordered
the crowd to disperse. There was evidence presented
that a large number of people did not hear either this
or Mr. Scoble’s announcement. Some of those who
heard the announcements responded by shouting ob-
scenities and by shaking clenched fists while others
left the rally immediately after Lieutenant Emil’s
announcement.
Approximately three minutes after Lieutenant
Emil’s announcement, the police who had been flank-
ing the speaker’s platform encircled the crowd that
remained. An arrest order was given within five min-
utes of the officer’s announcement. Everyone within
the police circle, including petitioners and 425 others,
1The text of Mr. Scoble’s announcement was as follows: “T am
a representative of Dr. Hayakawa, President of San Francisco
State College.
“Penal Code section 407 provides that whenever two or more
persons assemble together to do an unlawful act or to do a law-
ful act in a violent, boisterous or tumultuous manner such con-
duct constitutes an unlawful assembly.
“The present conduct of those persons who are now assembled
in the central campus area constitutes an unlawful assembly and
I direct you to leave the central campus area.
“You may move on to the Women’s Athletic Field or off the
campus.”
A
lv
were placed under arrest. The police confiscated as-
sorted objects from various individuals who were ar-
rested. One of the 12 petitioners had in his possession
a large picket standard supported on a 2-by +inch
stick; four had smaller picket standards in their pos-
session; and one of these four also earried knitting
needles with knitting attached; none of the others
carried any objects which were confiscated.
The Convictions of Violations of Penal Code Section
415.
Section 415 of the Penal Code provides in perti-
nent part: ‘Every person who maliciously and will-
fully disturbs the peace or quiet of any neighbor-
hood or person, by loud or unusual noise, or by tumul-
tuous or offensive conduct ... is guilty of a mis-
demeanor... .” .
In the Bozorg case, the jury was read the pertinent
parts of Penal Code section 415. No general explana-
tion of the statute was given and only three words
were specifically defined for the jurors. They were
told that “tumultuous” means “boisterous conduct,
disorderly, noisy,” that “willfully” means “simply a
purpose or willingness to commit the act or to make
the omission in question” and that “maliciously”
means with an intent to vex or annoy or injure
another person or with an intent to do a wrongful
act.
In the Brown case, the jury was similarly read the
applicable provisions of Penal Code section 415.
Definitions of the words “willfully” and “maliciously”
were given that were substantially equivalent to those
Dewees ee ee * ‘ ”
- Oe. tag * ee ee
=a
=p
ats
Se
given in the Bozorg case. The word “tumultuous” was
defined as meaning “boisterous; conducted with dis-
order; disorderly; noisy; confused.” As in Bozorg,
no further definitions were given. Thus, no definition
of the word “offensive” or the phrase “loud or un-
usual noise” was provided for the jury.’
In concluding the instructions on section 415 in the
Brown ease, the judge, unlike the judge in the Bozorg
ease, instructed the jurors on freedom of speech. They
were told that “the right . . . to peaceably assemble
includes the right to communicate ideas by singing,
chanting and shouting, as well as by signs, symbols
and slogans,” but that “pickets shouting in unison in
a loud and boisterous manner disturbing the peace
and quiet of the neighborhood and thereby interfering
with a complainant’s peaceful enjoyment of property
is unlawful conduct.”
The jury was also instructed that “The offense
known as breach of the peace embraces a large variety
of conduct destroving or menacing public order and
tranquility. It includes not only violent acts but acts
and words likely to produce violence in others. When
clear and present danger of immediate threat to
public safety, peace, or order appears, the power of
the State to prevent or punish is obvious.
The literal language of section 415 embraces a wide
variety of prohibited conduct. Much of such conduct
was never intended to be proscribed, and some of the
2In fact, the phrase was continually misstated by the court.
The judge twice used the phrase “loud and offensive noises” in
her instructions rather than the statutory language “loud and
unusual noise.”
vi
other prohibitions are limited by First Amendment
considerations. We held in the case of In re Bushman
(1970) 1 Cal.3d 767, 773 [83 Cal.Rptr. 375, 463
P.2d 727], that that portion of section 415 prohibiting
disturbing the peace by tumultuous and offensive con-
duct was limited to “disruption of public order by
acts that are themselves violent or that tend to incite
others to violence.” In so limiting the statute, we
relied upon the traditional and historical meaning of
similar statutes and in addition reasoned that such
limitation was essential so that the section would not
infringe the guarantee of freedom of speech set forth
in the First Amendment.
In Cohen v. California (1971) 403 U.S. 15, 1% [29
L.Fd.2d 284, 289, 91 S.Ct. 1780], the United States
Supreme Court further limited the applicability of
Penal Code section 415. The court reasoned that the
portion of the statute dealing with “offensive” con-
duct could not validly be applied to speech or conduct
which merely had a tendency to provoke others to
violence and that the proscription was valid only
where there was a clear and present danger that vio-
lence will imminently erupt.
It is clear that the instructions in the instant cases
failed to comply with the requirements of Bushman
and Cohen. The jury was not told in either case that
“tumultuous” means acts violent in themselves or that
“offensive” applies only where there is a clear and
present danger that others will he provoked to im-
mediate violence. Although the judge in Brown did
instruct on the right to peacably assemble and made
es en ee PT
reference to violence, these instructions did not limit
the proscription of section 415 to violent conduct or
the provocation of violent conduct. The instruction
on the right to assemble was qualified by language
which indicated that shouting which disturbed others
in their enjoyment of their property was unlawful.
The reference to violence in the instructions was not
by way of limitation but merely by way of illustra-
tion, pointing out that violence was included in con-
duct which might menace tranquility.
Not only were the instructions too broad but it fur-
thers appears that the evidence did not warrant any
instructions on the portion of section 415 prohibiting
“tumultuous” and “offensive conduct.” There is no evi-
dence that any of the petitioners used or threatened
to use any of the objects confiscated in a violent man-
ner or that they engaged in any “acts that are [by]
themselves violent.” (In re Bushman, supra, 1 Cal.3d
767, 773.) Evidence of violent acts by others on prior
occasions may not justify a conviction of petitioners
for tumultuous conduct. Evidence was totally absent
that any of the petitioners’ conduct constituted a clear
and present danger of provoking others to imminent
violence. (Cohen v. California, supra, 403 U.S. 15,
17.) There was no showing of a hostile audience which
might have been enraged by the conduct of petitioners
at the rally.
The Attorney General seeks to preserve the convic-
tions of violating section 415 on the basis of the lan-
guage in that section prohibiting “maliciously and
wilfully disturbing the peace or quiet . . . by loud
ratte ee + eel hee Ae SH Ree 2 ATO
or unusual noise.” He states that there is substantial
evidence that petitioners made loud noises which dis-
rupted class and campus functions.*
The statute, however, cannot be interpreted consist-
ent with the First Amendment and traditional views
as making criminal all loud [sic] or cheering which
disturbs and is intended to disturb persons.‘ When the
word “noise” in the statute is properly construed con-
sistent with the First Amendment and traditional
views, it encompasses communications made in a loud
manner only when there is a clear and present danger
of violence or when the communication is not intended
as such but is merely a guise to disturb persons.
Edwards v. South Carolina (1963) 372 U.S. 229,
935-238 [9 L.Ed.2d 697, 701-704, 83 S.Ct. 680], and
Cor v. Louisiana (1965) 379 U.S. 536, 546-550 [13
L.Ed.2d 471, 479-481, 85 S.Ct. 453], held that partici-
pating in mass demonstrations in the city streets in-
volving picketing and noisy singing and chanting that
undoubtedly disturbed some peaceful enjoyment of
8The noise in the instant case was due to speaking, chanting
and shouting, and we are not concerned here with the alternative
prohibition of “unusual” noise.
¢Subdivisions 1 and 4 of section 7 of the Penal Code define the
words “willfully” and “maliciously”: “1. The word ‘willfully,’
when applied to the intent with which an act is done or omitted,
implies simply a purpose or willingness to commit the act, or make
the omission referred to. It does not require any intent to vio-
late law or to injure another, or to aequire any advantage:
“4 The words ‘malice’ and ‘maliciously’ import a wish to vex,
annoy, or injure another person, or an intent to do a wrongful
act, established either by proof or presumption of law; .. .”
If section 415 is viewed as a prohibition of disturbing others,
the requirement imported by the terms “willfully” and “ma-
liciously” is simply that the actor intends to disturb.
PO NR OE) COT ES TET
property was protected under the First Amendment.
Such loud and boisterous conduct was criminal there-
fore only when it involved a clear and present danger
of violence.
As we recognized in In re Kay (1970) 1 Cal.3d 930,
940 [83 Cal.Rptr. 686, 464 P.2d 142]: * ‘Political cam-
paigns, athletic events, public meetings and a host of
other activities produce loud, confused or senseless
shouting not in accord with fact, truth, or right proce-
dure to say nothing of not in accord with propriety,
modesty, good taste or good manners. The happy
cacophony of democracy would be stilled if all “im-
proper noises” in the normal meaning of the term
were suppressed.’ ”
As early as 1927, the California courts recognized
that loud shouting is not in itself unlawful. The court
in People v. Kerrick (1927) 86 Cal.App. 542, 551-552
[261 P. 756], stated: “Not every meeting where vio-
lent, boisterous, and tumultuous conduct occurs may
be denominated an unlawful assembly, even though
that be the wording of the statute. It is particularly
dangerous in a country where meetings are constantly
held for every conceivable purpose, many of them ac-
companied with much noise and excitement, to lay
down such a doctrine. At this time of the year in our
country in almost every hamlet, and certainly in every
city of any size, contests between the youth of schools
and colleges are being staged which could not be char-
acterized as anything other than violent, boisterous,
and tumultuous. Yet the communities are not alarmed
and the public peace is not endangered. No one would
x
for a moment characterize high school or college foot-
ball games as unlawful assemblies.”
The courts have long recognized that there may be
limitations on the exercise of the right to free speech
based on time, place, or manner of the exercise of the
right. (See, e.g., Healy v. James (1972) 408 U.S. 169,
192-193 [33 L.Ed.2d 266, 286, 92 S.Ct. 2338]: Kovacs
v. Cooper (1949) 336 U.S. 77 [93 L.Ed. 513, 69 S.Ct.
448, 10 A.L.R.2d 608]; Wollam v. City of Palm
Springs (1963) 59 Cal.2d 276, 283 [29 Cal.Rptr. 1, 379
P.2d 481].) Precisely worded statutes establishing rea-
sonable regulations based on the time, place or manner
of the exercise of the right of speech will be upheld.
Section 415 in this respect may be contrasted to the
narrowly drawn statute in Coz v. Louisiana, 379 U.S.
559 [13 L.Ed.2d 487, 85 S.Ct. 476], relating to picket-
ing at courthouses. Although the Legislature by care-
fully drafted statutes could properly establish sub-
stantial limitations on noise in particular places such
as areas near hospitals and campuses (Healy v. James,
supra, 408 U.S. 169, 192-193, Grayned v. City of Rock-
ford (1972) 408 U.S. 104, 118 [33 L.Ed.2d 222, 233,
92 S.Ct. 2294]; Tinker v. Des Moines School Dist.
(1969) 393 U.S. 503 [21 L.Ed.2d 731, 89 S.Ct. 733]),
section 415 contains no such limitation but applies to
all neighborhoods and in addition, to all persons who
are disturbed. Moreover, the question is foreclosed by
Cohen v. California, supra, 403 U.S, 15, 19 [29 L.Ed.
2d 284, 290], where the court speaking of the provision
in section 415 relating to offensive conduct said that
the provision would not inform the ordinary person
that distinctions between localities were created.
Ga ted
ee 3 a
xi
The prohibition on loud noise does not purport to’
be a reasonable time limitation, as it applies at all
times. The manner limitation, ‘*loud,” is so broad as to
amount to a total prohibition on loud public speech.
Although reasonable regulations on the volume of
speech are permissible, a prohibition of all loud speech
is not. (Saia v. New York (1948) 334 U.S. 558, 560-
562 [92 L.Ed, 1574, 1577-1578, 68 S.Ct. 1148]; Wol-
lam v. City of Palm Springs, supra, 59 Cal.2d 276, 284
et seq.; see Kovacs v. Cooper, supra, 336 U.S. 77, 82,
[93 L.Ed. 513, 519-520].) We conclude that section
415 cannot, consistent with First Amendment rights,
be applied to prohibit all loud speech which disturbs
others even if it was intended to do so.
We do not hold, however, that section 415 may never
be applied to loud shouting and cheering. There is a
fundamental difference between loud communications
and the use of loud shouting and cheering, not to in-
form or persuade, but to disrupt lawful endeavors.
Loud shouting and cheering designed to disrupt rather
than communicate may be prohibited generally. As
stated in Giboney v. Empire Storage Co, (1949) 336
U.S. 490, 502 [93 L.Ed. 834, 843-844, 69 S.Ct. 684],
‘it has never been deemed an abridgement of freedom
of speech or press to make a course of conduct illegal
merely because the conduct was in part initiated, evi-
denced, or carried out by means of language, either
spoken, written, or printed.” (Italics added; see also,
Cox v. Louisiana, supra, 379 U.S. 559, 563 [13 L.Ed.2d
487, 491-492]: Cor v. Louisiana, supra, 379 U.S. 536,
555 [13 L.Ed.2d 471, 484].) The use of the human
voice to disturb others by the mere volume of the
sound when there is no substantial effort to communi-
cate or when the seeming communication is used as a
guise to accomplisk-the disruption may be prohibited
consistent with First Amendment guarantees.
We are satisfied that loud shouting and cheering
constitutes the loud **noise” prohibited by section 415
only in two situations, 1) where there is a clear and
present danger of imminent violence and 2) where the
purported communication is used as a guise to dis-
rupt lawful endeavors. Measured by this standard, it
is clear that the instructions in both cases before us
relating to Penal Code section 415 were inadequate
and erroneous.°
The Convictions of Violations of Penal Code Sec-
tion 408.
We turn next to the convictions for unlawful as-
sembly in violation of Penal Code section 408. At the
times relevant here, Penal Code section 407 provided:
“Whenever two or more persons assemble together
to do an unlawful act, and separate without doing or
advancing toward it. or do a lawful act in a violent,
boisterous or tumultuous manner, such assembly is an
5The problem was particularly accentuated in the Brown case
because the judge in discussing the right to communicate by
shouting went on to qualify the right by stating that it was
unlawful to shout in unison in a loud and boisterous manner
where the quiet of the neighborhood was disturbed an] there
was interference with the peaceful enjoyment of property. By
this qualification, communications would be unlawful as long as
there was shouting which disturbed others whether the shouting
was for purposes of communication and regardless whether there
was a clear am] present danger of imminent violence.
xu
unlawful assembly.” Section 408 provides that any
person who participates in an unlawful assembly is
guilty of a misdemeanor.
In both the Brown and Bozorg cases the juries
were instructed in the lanenage of the statute except
that in the Bozorg case, the word “violent” was
omitted from the instruction. In neither case were
any of the words of the statute defined. *“Tumultuous”
had been defined by both courts previously as mean-
ing boisterous, disorderly, noisy or confused. Both
courts instructed that the administrative ban on ral-
lies was purely a statement of administrative policy
and not a statement of the law of the State of Cali-
fornia,
In Bozorg there was only one instruction given on
freedom of speech. The jury was told that “A rally
or a demonstration is not necessarily in and of itself
against the law. Whether or not it is a violation of
law must be determined by vou from all of the evi-
dence in the case and under the instructions of law
as I have stated them to you.”
In Brown there were extensive instructions given
on freedom of speech. The jury was told that “An
assembly of persons attended by cireumstances rea-
sonably calculated to excite alarm may be an unlawful
assembly” but the fact that a policeman declared the
assembly unlawful did not make it so.
"In 1969, the Legislature deleted the phrase “and separate
without doing or advancing toward it.” (Stats. 1969, ch. 365,
p. 890, § 1.)
xiv
The jury was further told that “A peaceful assem-
bly is an exercise of freedom of speech guaranteed
to all by the First Amendment to the United States
Constitution. It is not a violation of the law to attend
and remain at a peaceful assembly.” The jury was
also told that the “right of freedom of speech is pro-
tected by both the federal and state constitutions.
However, this guarantee of freedom of speech does
not confer freedom from responsibility for any abuse
of that right, nor may it be used as a license to inter-
fere with the rights of others. When such interference
exists, the rights of others may be protected by duly
enacted laws.”
The court in Brown concluded its instructions by
stating that in determining whether the assembly was
unlawful the jury was not permitted to pass on the
content of the ideas expressed by the participants.
The jury was permitted to consider the ideas only
as evidence of the participants’ state of mind.
The right to assemble peaceably, like freedom of
speech, is guaranteed by the First Amendment. As
noted earlier we held in In re Bushman, supra, 1 Cal.
3d 767, 773, that in light of the First Amendment
cuarantee of freedom of speech, the provision in sec-
tion 415 prohibiting disturbing the peace by tumul-
tuous and offensive conduct must be limited to dis-
ruption of public order by acts that are themselves
violent or that tend to incite others to violence. The
First Amendment guarantee of the right to assemble
peaceably, requires similar limiations on the provision
in section 407 prohibiting assembly to do “a lawful
Oe Een ene ee
xv
act in a violent, boisterous or tumultuous manner.”
(See Brandenburg v. Ohio (1969) 395 U.S. 444, 9,
fn. 4 [23 L.Ed.2d 430, 435, 89 S.Ct. 1827]: Cor v.
Louisiana, supra, 379 U.S. 536, 544-552 [13 L.Ed.2d
471, 478-483].)
The foregoing is the traditional construction of the
lawful act provision of section 407. It has long been
recognized that the portion of section 407 which
proscribes assembling to do a lawful act in a violent,
boisterous or tumultuous manner must be narrowly
construed. (People v. Kerrick, supra, 86 Cal. App. 542.
991-552.) Although the publie may fear a large, noisy
assembly, particularly an assembly that espouses an
unpopular idea, such an apprehension does not war-
rant restraints on the right to assemble unless the
apprehension is justifiable and reasgnable and the
assembly poses a threat of violence. ( Td., see also In
re Bacon (1966) 240 Cal.App.2d 34, 55 [49 Cal.Rptr.
322].) Accordingly, the proscriptions of sections 407
and 408 on assemblies to do a lawfy] act must be
limited to assemblies which are violent or which pose
a clear and present danger of imminent violence.
Not only were the instructions on the Jawful act
portion of section 407 erroneous in that they did not
limit the offense to assemblies which are violent or
which pose a clear and present danger of imminent
violence, but the evidence was insufficient for convic-
tion under this portion of the statute. 4< pointed out
earlier there is no evidence that petitioners engaced
in acts which were by themselves Violent or which
posed clear and present danger of violence.
xvi1
The alternative proscription of sections 407 and
408, assembly to do an unlawful act, was at the time
relevant here qualified by the requirement that the
persons “separate without doing or advancing toward
it.” In the case of In re Bacon, supra, 240 Cal. App.
2d 34, 48-50, the court concluded that this court, in
Coverstone v. Davies (1952) 38 Cal.2d 315, [239 P.2d
876], had in effect eliminated that requirement in
former section 407. The majority in Coverstone, which
was an action for false arrest, did not expressly deal
with the requirement of separation without doing or
advancing toward the illegal act, but merely con-
cluded that there was probable cause to arrest for
violation of section 407 on the basis that the de-
fendants had assembled to view a “hot rod” race. The
dissenting view likewise did not treat the separation
requirement. Although under the facts as stated in
Coverstone it appears that there was no separation,
the case should not be read as deleting the statutory
requirement.
In California all crimes are statutory and there are
no common law crimes. Only the Legislature and not
the courts may make conduct criminal. (Pen. Code $6:
People v. Mosher (1969) 1 Cal.3d 379, 385, fn. 1 [82
Cal.Rptr. 379, 461 P.2d 659].) (10) Deletion by the
courts of one of the statutory requirements of a crime
would make conduct criminal which the Legislature
has not seen fit to make criminal and would violate
the fundamental principle that there are no common
law crimes in this state. Insofar as Bacon indicates
that this court deleted one of the statutory require-
OP OP ROTTEN S > EM
ments of an unlawful assembly or that a court could
do so, it is disapproved.
There is no substantial evidence sufficient to justify
a finding by the jurv that the petitioners or any of
them assembled with the purpose of doing an unlawful
act and separated without doing it or advancing
toward it. An unlawful act within the meaning of
section 407, as the Attorney General concedes, means
criminal conduct prohibited by state law. The evidence
is such that a jury would be required to find either
that the petitioners did not assemble to do an unlawful
act or that they did so assemble and that they accom-
plished the unlawful act or advanced toward it. This
is because the only evidence that they assembled to
do an unlawful act is their presence at and conduct
during the demonstration; such presence or conduct
cannot logically furnish an inference that they assem-
bled to do an unlawful act and at the same time an
inference that they did not advance toward it or
accomplish it.
Habeas Corpus.
“Habeas corpus is available in cases where the court
has acted in excess of its jurisdiction. (Pen. Code,
$1487, subd. 1: Neal v. State of California [1960] 55
Cal.2d 11, 16 [9 Cal.Rptr. 607, 357 P.2d 839].) For
purposes of this writ as well as prohibition or certio-
rari the term ‘jurisdiction’ is not limited to its funda-
mental meaning, and in such proceedings judicial acts
may be restrained or annulled if determined to be
in excess of the court’s powers as defined by consti-
tutional provision, statute, oF rules developed by
courts. [Citations.] In accordance with these princi-
ples a defendant is entitled to habeas corpus if there
is no material dispute as to the facts relating to his
conviction and if it appears that the statute under
which he was convicted did not prohibit his conduct.
[Citations.]” (In re Zerbe (1964) 60 Cal.2d 666, 667-
668 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840];
see also People v. Mutch (1971) 4 Cal.3d 389, 396
[93 Cal.Rptr. 721, 452 P2d 633]: In re Wallace
(1970) 3 Cal.3d 289, 293 [90 Cal.Rptr. 176, 475 P.2d
208].) Habeas corpus thus is an appropriate remedy
to challenge the convictions for unlawful assembly in
violation of Penal Code sections 407 and 408 because
there is no substantial evidence to support the con-
victions.
With respect to the convictions of violation of sec-
tion 415 of the Penal Code, we have noted that there
is no substantial evidence to sustain the convictions
on the basis of the pertion of the section prohibiting
tumultuous or offensive conduct. No instructions
should have been given on this portion of the section.
Nevertheless the courts gave such instructions which
erroneously defined the crime. Under the erroneous
instructions the evidence strongly pointed to ouilt, and
there is no way to ascertain whether petitioners’ con-
victions were in fact based on such instructions.
The evidence relating to the loud noise portion of
section 415 strongly indicates that although the dem-
onstrators’ purpose was to interrupt academic fune-
tions on the campus they sought to do so by persuasive
eel LO a OT DP PER Se et Se
xix
communications rather than by disruption in the guise
of communication. There is no evidence that petition-
ers themselves engaged in violence or that their con-
duct presented a clear and present danger of violence.
The instructions in the instant eases left the juries
free to conviet even though they believed that the
cheering and shouting was fer the purpose of com-
municating views and of enlisting support for those
views.
Under these circumstances petitioners have met
their burden of establishing that their convictions of
violation of section 415 were based on constitutionally
protected conduct. (In re Bushman, supra, 1 Cal.dd
767, 774; In re Klor (1966) 64 Cal.2d 816, 821 [51 Cal.
Rptr. 903, 415 P.2d 791].)
The writs of habeas corpus are granted, and _peti-
tioners are discharged from the custody imposed by
the Municipal Court for the City and County of San
Francisco pursuant to the judgments of July 1, 1969
and January 5, 1970.
McComs, J.
[June 1973]
I dissent. I would deny the writs.
Appendix B
In the Supreme Court
of the
State of California
In BaNK
In re Abbass Bozorg, et al. | Crim. No.
on Habeas Corpus. 15580, 15399
[Filed July 18, 1973]
ORDER DENYING REHEARING
Respondents’ petition for rehearing DEYIED.
McComb, J., and Clark, J., are of the opinion that
the petition should be granted.
/s/ Wright
Chief Justice
I, G. E. Bishel, Clerk of the Supreme Court of the
State of California, do hereby certify that the pre-
ceding is a true copy of an order of this Court, as
shown by the records of my office.
Witness my hand and the seal of the Court this
30th day of July, A.D. 1973.
/s/ By G. E. Schneider
Deputy Clerk
Appendix C
INSTRUCTIONS
The complaint in this case charges each of the de-
fendants before you with three counts. The first
count charges that the said defendants did, in the
City and County of San Francisco, State of Califor-
nia, on or about the 23rd day of January, 1969, com-
mit the crime of misdemeanor, to-wit: Violating
Section 415 of the Penal Code in that said defendants
did then and there maliciously and wilfully disturb
the peace and quiet of the campus of San Francisco
State College by making loud and unusual noise and
by tumultuous and offensive conduct.
Count 2 provides that the said defendants did, in
the City and County of San Francisco, State of Cali-
fornia, on or about the 23rd day of January, 1969,
commit the crime of misdemeanor, to-wit: Violating
Section 408 of the California Penal Code, in that said
defendants did participate in an unlawful assembly.
Count 3 provides that the said defendants did, in
the City and County of San Francisco, State of Cali-
fornia, on or about the 23rd day of January, 1969,
commit the crime of misdemeanor, to-wit: Violating
Section 409 of the California Penal Code, in that
said defendants did remain present at the place of an
unlawful assembly after the same had been lawfully
warned to disperse.
Those are the complaints, ladies and gentlemen.
On their first appearances in court, their arraign-
ments to these charges, all of the defendants pleaded
a
_
not guilty, thus putting in issue every material alle-
gation contained in the complaints which have just
been read to you.
T am now going to give you some instructions on
intent, the intent required for a finding of guilty in
these cases.
The first instruction on intent concerns general
criminal intent. It relates to Counts 2 and 3.
In crimes such as those of which each defendant is
charged in Counts 2 and 3, specifically the unlawful
assembly and the failure to disperse, there must exist
a union or joint operation of act or conduct and
criminal intent. These are crimes in which there is
involved a general criminal intent. In this type of
crime, to constitute criminal intent it is not necessary
that there should exist an intent to violate the law.
Where a person intentionally does that which the law
declares to be a crime, he is acting with criminal in-
tent, even though he may not know that his act or
conduct is unlawful.
With regard to Count 1, disturbing of the peace,
in regard to Count 1, Section 415 of the Penal Code,
disturbing the peace, it is necessary that in addition
to the intended act which characterizes the offense,
the act must be accompanied by a specific or particu-
lar intent without which such crime may not be com-
mitted. Thus, in this crime, disturbing the peace, a
necessary element is the existence in the mind or
minds of the perpetrator or perpetrators of the spe-
cifie intent to vex, annoy or injure another person,
oe eS ee ROS ATE A TS a>
or the intent to do a wrongful act by making loud
and offense noise and by tumultuous and offensive
conduct, and unless such intent so exists, that crime
is not committed.
The intent with which an act is done is manifested
by the circumstances attending the act, the manner
in which it is done, the means used, and the sound
mind and discretion of the person committing the
act. All persons are of sound mind who are not af-
fected by insanity.
For the purpose of the issues now on trial, you
must assume that the defendants were sane at the
time of the alleged conduct which, it is charged, con-
stituted a crime described in the Information.
If that were not the case there would have been
preliminary proceedings.
Now I am going to now advise you of the intent
in relation to the disturbing of the peace.
The specific intent with which an act is done is
manifested by the circumstances surrounding its com-
mission, But you may not find the defendants guilty
of the offense charged in Count 1, disturbing the
peace, unless the proved circumstances not only are
consistent with the hypothesis that the defendants
had the specific intent to vex, annoy or injure an-
other person, or the intent to do a wrongful act by
making loud and offensive noise and by tumultuous
and offensive conduct. You also must find that the
circumstances are irreconcilable with any other ra-
tional conclusion.
ais
XXIV
Now, evidence was offered m this case for the
purpose of showing that the Defendants Robert F.
Brown and Sheila M. Brown were arrested on a pre-
vious occasion in New York City for violation of a
statute prohibiting disorderly conduct, which statute
is comparable to California’s Section 419, prohibiting
disturbing of the peace, and for a violation of a
statute prohibiting refusal to obey a police officer's
order to leave the scene of disorderly conduct.
Such evidence was received for a limited purpose
only: Not to prove distinct offense or continual crim-
inality, but for such bearing, if any, as it might have
on the question whether the defendants are innocent—
and I mean in this case the Defendants Mr. and Mrs.
Brown—are innocent or guilty of the charges against
them in this action.
You are not permitted to consider that evidence
for any other purpose, and as to that purpose you
must weigh such evidence as you do all other evidence
in the case.
The value, if any, of this particular evidence de-
pends on whether or not it tends to show that these
two defendants entertained the intent which is a
necessary element of the alleged erimes for which
they now are on trial.
This particular evidence that was admitted about
Mr. and Mrs. Brown must not be considered in rela-
tion to the other five defendants in any way, ladies
and gentlemen.
I am now going to give vou instructions on dis-
turbing the peace, one of the specific charges, the
first count.
You are instructed that Section 415 of the Penal
Code, the disturbing the peace section, as applicable
to this case, provides as follows:
Every person who maliciously and wilfully disturbs
the peace or quiet of any neighborhood or persons,
by loud or unusual noise, or by tumultuous or offen-
sive conduct, is guilty of a misdemeanor,
TI instruct vou that a campus is a neighborhood
within the meaning of this section.
The word “tumultuous” as used in that section is
defined as meaning boisterous; conducted with dis-
order; disorderly; noisy; confused.
The word “wilfully,” which is used in that section,
when applied to the intent with which an act is done
or omitted, and as just used in that section, implies
simply a purpose or willingness to communicate the
act or to make the omission in question. It does not
require any intent to violate the law, or to injure
another, or to aequire any advantage.
The words “malice” and “maliciously,” which ap-
pear in the definition of disturbing the peace, import
a wish to vex, annoy or injure another person. or an
intent to do a wrongful act.
The meaning of the words “wrongful act.” which
IT have just read to you in the definition of malice,
are not restricted to an intent to commit a crime,
Pe A
though it may cover such a situation, The words
“wrongful act” also cover any activity which, in the
ordinary course of events, will infringe upon or vie-
late the rights of another to his disadvantage.
When a defendant is charged with the offense of
disturbing the peace, as these defendants are, in which
any of the acts charged constitute the offense, the
defendant may be found guilty if the proof shows
bevond a reasonable doubt that the defendants com-
mitted any one or more of such acts, but in order to
return a verdict it is necessary that all of the jurors
agree as to the same act or acts by each defendant.
It is not necessary that these particular act or acts
so agreed upon be stated in your verdict, however.
The right of the People, ladies and gentlemen, to
peaceable assemble, includes the right to communicate
ideas by singing, chanting and shouting, as well as
by signs, symbols and slogans.
You are instructing that pickets shouting in unison
in a loud and boisterous manner, disturbing the peace
and quiet of a neighborhood and thereby interfering
with peaceful enjoyment of property. is unlawful
conduct.
The offense known as breach of the peace, or dis-
turbance of the peace, embraces a large variety of
conduct destroying or menacing public order and tran-
quality. It includes not only violent acts, but acts
and words likely to produce violence in others. When
clear and present danger of immediate threat to public
safety. peace or order appears, the power of the state
to prevent or punish is obvious.
a eS << eee we Ts me
xxvu
Now I am going to read vou some instructions on
Section 408 of the Penal Code, which is the second
count.
Section 408 of the Penal Code, with which the
defendants are charged in Count 2, provides as fol-
lows:
Every person who participates in any unlawful
assembly is guilty of a misdemeanor.
Section 407 of the Penal Code provides as follows:
Whenever two or more persons assemble together
to do an unlawful act, and separate without doing or
advancing toward it. or do a lawful act in a violent.
boisterous or tumultuous manner, such assembly is an
unlawful assembly.
An assembly of persons attended by circumstances
reasonably calculated to excite alarm may be an un-
lawful assembly.
The mere fact that a police officer declared the
assembly to be unlawful dees not necessarily make it
an unlawful assembly.
You are instructed that neither the acting president
of a college or any other school official can declare
any assembly to be unlawful, nor does an order so
civen amount to a warning toe disperse, which may
be given only by a sheriff or police officer.
A peaceful assembly is an exercise of freedom of
speech guaranteed to all by the First Amendment to
the United States Constitution. It is not a violation
of the law to attend and remain at a_ peaceful
assembly.
The right of freedom of speech is protected by both
the Federal and State Constitutions. However, this
guarantee of freedom of speech does not confer free-
dom from responsibility for any abuse of that right,
nor may it be used as a license to interfere with the
rights of others. When such interference exists, the
rights of others may be protected by duly enacted
laws.
In determining whether the assembly in this case
was unlawful or lawful, you must not consider
whether the ideas expressed by the assembly, or by
any of the participants therein, were proper or im-
proper, wise or unwise, reasonable or unreasonable,
valuable or worthless, sound or unsound, or even
whether they were dangerous.
Thus, you are not to judge the ideas expressed by
the assembly, nor shall your verdict reflect approval
or disapproval of such ideas. However, you may con-
sider the content of such ideas as to the issues of
state of mind.
2 eT RET Ss Po
Appendix D
CALJIC 16.261 (1973 Revision)
Breach of Peace—Definition of Terms Used
As used in these instructions the following terms
have the following meanings:
1. The term “loud or unusual” noise does not
mean all loud shouting or cheering such as at an
athletic event or political rally. Nor does it include
all loud speech which disturbs others even if intended
to do so. What the term does mean is loud shouting
and cheering where there is a clear and present dan-
ger of its giving rise to immediate violence or where
such loud shouting and cheering is not intended as a
means of communication to inform or persuade but
is.used as a guise to disrupt lawful endeavors.
2. The term ‘‘tumultuous” conduct means acts vio-
lent in themselves.
3. The term “offensive” conduct does not mean
speech or conduct which merely has a tendency to
provoke others to violence. What the term does mean
is speech or conduct which constitutes a clear and
present danger of provoking others to immediate vio-
lence.
Use Nore
This instruction is limited to loud shouting and
cheering as *‘loud or unusual” noise as set forth in
In re Bozorg, infra.
CALJIC 16.460
Misdemeanor Instructions
CoMMENT
Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29
L.Ed.2d 284; In re Bozorg, 9 Cal.3d 612, 108 Cal.
Rptr. 465, 510 P.2d 1017; In re Bushman, 1 Cal.3d
767, 83 Cal.Rptr. 375, 463 P.2d 727.
PRI Se I 6 ET ig a
Appendix E
In the Supreme Court
of the
State of California
In re Abbass Bozorg, et a
1.|
“No. 15
on Habeas Corpus, 0. 15399
a
AFFIDAVIT OF
HONORABLE FRANCIS McCARTY
JUDGE OF THE SUPERIOR COURT
CITY AND COUNTY OF SAN FRANCISCO
State of California—ss.
City/County of San Francisco
Honorable Francis McCarty, being first duly sworn,
deposes and says:
I am Presiding Judge of the Superior Court of the 4
State of California for the City and County of San
Francisco.
During May and June of 1969 I acted as a pro-tem :
trial judge in the San Francisco Municipal Court to ;
assist in the disposition of cases arising out of the ;
turmoil at San Francisco State College in 1968 and r
1969. The cases in question had imposed an insur-
mountable strain upon the Municipal Court which
was alleviated only by the voluntary service of sev-
eral Superior Court judges as pro-tem Municipal
Court judges.
ee
From May 8, 1969, through June 10, 1969, I acted
as trial judge in the case of People v. Bozorg, et al.,
No. 1526-1/2 in the files of the Appellate Division of
the San Francisco Superior Court.
At trial, defendants’ counsel submitted a group of
jury instructions setting forth various legal conclu-
sions regarding the right of free speech and freedom
of assembly and the application of these rights to the
case being tried. I rejected these instructions.
I understand that the transcript of the trial does
not reflect any discussion, argument or ruling con-
cerning instructions. Such discussion was in fact held
off the record without a court reporter. I cannot, of
course, recall or relate the arguments of counsel. I
ean, however, outline generally my reasoning in re-
jecting the proferred instructions.
First, the question of whether or not the defend-
ants alleged conduct, as distinguished from pure
speech, was protected by the First Amendment was
deemed to be an issue of law for the court. Thus, if
the conduct that the defendants allegedly engaged in
was, as a matter of law, protected by the First
Amendment, the case could not go to the jury and I
would have dismissed the complaint. However, I con-
cluded that defendants’ conduct, if truly engaged in,
was as a matter of law not protected by the First
Amendment. Consequently, the case was submitted to
the jury with appropriate instructions which are of
record, to determine whether in fact the defendants
had engaged in conduct prohibited by the statutes.
Xxxiii
It may be observed in this regard that although
defendants were convicted of disturbing the peace
and unlawful assembly, they were acquitted of the
charge of refusal to disperse. This suggested to me
that the jury understood the instructions given and
was able to properly apply them to the evidence pre-
sented,
Alternatively, I pointed out to defense counsel that
if I gave the First Amendment instructions he re-
quested, I would also be required to give instructions
advising the jury that if the defendants were found
to have engaged in the conduct charged, thereby vio-
lating the statutes in question, such conduct was not
protected by the First Amendment. I felt certain that
the jury would be confused and misled, had I fol-
lowed this approach. I also concluded that such in-
structions could be a detriment rather than a benefit
to the defendants. In any event, it is my firm belief
that the issue of application of the First Amendment
was not properly one for the jury in this ease.
‘s/ Francis McCarty
Francis McCarty, Judge
Subscribed and sworn to before me this 2nd day of
June, 1971.
(Seal)
‘s/ John W. Egan
Notary Publie for said
County and State
My Commission Expires
Dee. 7, 1972.
EERE IT ROTTED RUT
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.