Appellees Brief — Gooding v. Wilson

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“RLLED

LiBRARY. a sep 8 171

SUPREME GOURT, Us 5. a

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IN THE

~ Supreme Count 0 of the United States

. - >

No. 70-26

‘MILLARD GOOBING, Warden,

Appellant,

re h e ¥:

JOHNNY c. WILSON,

ane _ | 7 Appellee,

2 os . . ee a

ON APPEAL FROM THE UNITED STATES COURT OF _

. APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE APPELLEE

——_ . » .

sore fan Jr.

aN ire Suite 1154

| , 8 ‘.. = 9§ Piedmont Avenue, NE

_ Atlanta, Georgia 30303 °

Attorneys for —:

" Wastngtor, OC. - THIEL PRESS - 202 - 393-0825 et Te we

. y a . e x > ea ; ~ 3 .

* ud . ‘ " | ad .

>. * i i ,

B sS

” QUESTION PRESENTED .. Te ee

: STATEMENT .. ors. “See eeae. Do stdowagese,*, OO

—— —_ aren Words or ‘Abusive lanenige” IsSo

7 °°. Vague and Overbroad as.to Violate the Freedom

6f Speech Guarantee. of the First and Fourteenth .

_ Amendments 2... 2.203. eeee a a

_ 7 e .7 IL “Tending to Cause a Breach of the Peace” Is So :

i. . Vague and Overbroad ‘as to Violate the First and

HS _ Fourteenth Amendments ........ .. a eo ot ee --. 10.

CONCLUSION ore eee Same ee |

‘TABLE OF AUTHORITIES

Cases: ae i" 2 es

Ashton v. Kentucky, 384 US.195 ........... ig 911, 140

~ Black Planning Committee v. Minchew, __—sF Supp. on

No. 669 (S.D. Ga. ‘September 23, | Dene 3. **

Bond v. Floyd, 385 US. 116 ......2....... a Lec. 70,9

Brandenberg V. Ohio, 395 US. 444... /....4...... ree.

Cantwell v. Connecticut, 310 US. Ge EET 9515

Carroll v. ‘President and Commissioners, 393 US.175 ...... © 140

__. Chaplinsky v. New Hampshire, 315 US. 568 oot tn iy IO aes ig

canted City-of Cintinnati,’_ U.S.___, 91 S.Ct.1686 .... q..

91 S.Ct. 1686 Sete y Sear e ee ee es ve... 10,.10n, 13, 15n

Cohen v. California, _ US. Tg S.Ct. 1780:. 0.0050. O58

_ Connally v. General Contetvactialn'< Co., 269. US. 305 Kiss cone ee 10 |

Co v. Louisiana (1), 379 US. 536 £468 oes hig a Me 1, 12, J T4n

-Edwatds v. South Carolina, 372 US..229 ............ 11, 13,14n*

Elmore v. State, 15 Ga. App.,461\(Ga. Ct. App. 914}202 5S tS Ae

~ Fish v. State, 124 Ga. 416 (Ga. S.Ct. tec

= (ti) f

Le ens Page

_ Garrison v. Louisiana, 379 US. MEAS ok. 9

| > Giaetio v. Pennsylvania, 382 US. 399)... eee 7

"Gregory v. City of Chicago, 394 US. TH, ony sey As 13, 14n, 15

_ Gunn v. University Committee, 399 U.S. 383 Meee okce, Te

Herndon v. Lowry, 301 U.S. 242°..... Saree rae 2

Holcombe v. State, 5 Ga. App. 47 (Ga. App. rte 5,7

Jackson v. State, 14 Ga..App. 19 (Ga. Ct. App. 1913) . ~ §,6n

Jackson v. State, 38 Ga. App. 138 (Ga. Ct: App. 1928). ee a . 14:

Kennedy v. State, 10 Ga. App. 794 (Ga. Ct. App. 1912). Lees

NAACP v. Button, 371 US. 415........00...000- vee ee 7, 140

_ New York Times Co. v. Sullivan 376 US. 254, MW...

Rich v. State, 160 Ga. 513 (Ga. S.Ct. 1925) ..5:,........ 44

‘Screws v. United States, 325 US.91........ Fo rsnaeens ay ee

_ ‘Schenck v. United States, 294 US.17) 2.2.0.2... 2.00. . 13.

. Shields v. State, 89 Ga, 549 (Ga. S.Ct. 1892) . anes .... 5,6,6n,7

Shuttlesworth ¥City of Birmingham, 392 US. 87. eee fae

Smith v. California, 361, US. 147... 6.0.4... eset

_ Street v. New York, 394 US. 576.02... 2 0. coe 9

Stromberg v, California, 283 US.359 2.2.0, fences. at

Terminiello v. City of Chicago, 337 US.. 1 pines reece 38, 12, ‘14n, 15

Thomas v. City of Danville, 207 Va. 656, 152 S.E. 265,

: (Va. S.Ct. App. ss Wie eis oo Uh ks Ne neg os oi =.

Tillman v. United States, 406 F 24 920 (Sth Cir. 196), oy

(ie i EE, B00 Sin PS Se ‘as 3.

Ee University Committee to End the War v. Gunn, 289 aes

F.Supp. 469 (WD. Tex. 1968) ........-40:... be vig AEE

Wilson v. Georgia; 390 US.911 °........ os Gee

Wilson v. Gooding, 431 F.2d 855 (Sth Cir. "1970)2 pe posed

| Wilson v. State, 223 Ga. $31 (Ga. S.Ct.1967) .......5.. 2,6, 6n’

Williams v: District of Columbia; 419 F.2d 638 (DC. Cir. aa

Boi kes, ee Ce 14,15

Wood v. Georgia, 370 US. 375..... Chimes weiu. amie ae

e°

Ga. Code Ann. 626-6303 :

: tel ae : ets

; Wright : v. ‘City of Montgomery, 406 F. 24 867 th Cir.

% (1969)

Statutes: ae ere ee ; | &

Gac€ode Pet. See | i

Ga. Code Ann. §.27-2508 — cates eer ce

‘Model Penal Code § 250.1.

Model Penal Code $250.2 - eS :

"Other Authorities: Bee ; _ : We ei “

“Carroll, Alice in Wonderland . epee eae ee Pr open as |

Chase, Blackstone (3rd ed. 1890) . aa bideeseedeee oe

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: Supreme Court of the 1 United States. 2

* MILLARD GOODING, Warden, igh Be

“Appellant,

ro 4

JOHNNY C. WILSON,

~ + Appellee.

= * °

ON APPEAL FROM THE UNITED STATES COURT OF

me APPEALS FOR THE FIFTH CIRCUIT "

_BRIEF FOR THE APPELLEE

QUESTION PRESENTED: Se 7 A

r former Section: 26-6303, Ga. Code, proscribing -

ovoked use to or of another person and in the

rson’s presence, of opprobrious words or. abusive

e tending to cause a.b¥each of the peace, is anger

- stitutional for vagueness and overbreadth.

/STATEMENT ee ee a

In addition to the appellant's statement, the following

are also relevant to the Court’ s consideration of the’ issues

_ shere presented. _

Appellee, JOHNNY C. WILSON, was convicted on Feb-

". ruary.2, 1967, of all counts of a four-count' indictment

charging him with two counts of assault and. battery (counts

hand 2) and two counts of opprobrious words or abusive

> language (counts 3 and 4). Appellee was found by a jury.

to have said, in regard to count 3, “white son of a bitch,

-Tll kill you” and “you son of a-bitch, I'll choke you.to - |

death,” and in regard to count 4, “you son of a bitch, if \

you ever put your hands on me again, I’ll cut you all.to_

pieces.” The persons upon whom appellee committed the

assault: and battery offenses were the same persons against ~

whom the illegal language was found to have’ been used.

' Petitioner was sentenced to serve twelve months (the maxi- .

~. mum for a misdemeanor under Georgia law) on each of the

counts, with counts 1, 2 and 3 to be served consecutively . |

and count 4 to be served concurrently with count one. - .

-Record, Wilson ¥. State, No. 24113, hes ieee cea Court,

at 16 ff..

- Appellee’ S conviction was : ie upon oil to the

Georgia Supreme Court, Wilson v. State, 223 Ga. 531 _

- (1967), and certiorari was denied by this Court, Mr;,Justice

‘ Douglas dissenting. Wilson -v. Georgia, 390 U.S. 911° M968).

Prier to the denial of certiorari, inquiry was made from the

office of the Supreme Court Clerk as to whether: appellee

was serving any of his sentences under § 26-6303 concur-

rently with any of the assault and battery sentences; the »

answer-was, of course, in the affirmative.' —

Appéllee began service of his state sentence on April 15,

1968. On March:S, 1969, he filed a petition for writ of

—_———

. .' Telephone conversation ‘Detween the office of the Supreme Court |

‘Clerk and Howard Moore, Jr., counsel for — Wilson, January, .

-- 1968, ~ |

fe.

habeas corpus in the United States District Court for the

Northern District of Georgia, the district in which his staté>

conviction was obtained. The petition was granted and peti- |

tioner was released upon $1,000 bail on August 11,.1969;

into the custody of the United States Marshal. Had appel-

lee not been released by order of the district court, he

would've completed service of his state sentences (with

_ appropriate reductions of time. for good behavior that he

‘had accrued) some two months later, on October 15, 1969. .

Upen his release from state custody, appellee entered .

" upon the service of his federal sentence arising out of thee

same incident. Tillman v. United States, 406. F.2d 930 (Sth

Cir. 1969), cert. den. 395 U.S. 830... On approximately .

~ August 10, 1971, appellee was: released from custody and .

is presently on federal probation in West Point, iinkaleet:.

Subsequent to appellee’s:release on bail from state cus-

* tody, the United States Court of Appeals for the Fifth Cir- ~

cuit affirmed the granting of the writ in his favor. Wilson

v. Gooding, . 431 F.2d 855 (Sth Cir. 1970). In a civil suit

attacking the same statute under which appellee was con-

victed, a-three-judge federal court decldfed § 26-6303 uncon- - rm

stitutional and ‘enjoined | further prosecution thereunder.

‘Black Planning Committe v. “Minchew, F.Supp.

‘No. 669 (S.D. Ga. September 23, 1970). "N No appeal was

taken from that. derision.

>: . ° * . . t . _s

2D ta as to dates of appellee’s incarceration and release time

_ Obtained from Georgia State Board of Corrections. Telephone con-

versation by, the ar mci with maenee i ae August. 235

1971. a4

. vel

BH -

; _ ARGUMENT

a : . : C.

_ “OPPROBRIOUS WORDS OR ABUSIVE LANGUAGE” IS SO

‘ VAGUE AND OVERBROAD AS TO VIOLATE THE FREE-

— \DOM OF SPEECH GUARANTEE OF THE FIRST AND FOUR-

_ TEENTH AMENDMENTS.

Georgia Code § 26-6303, under which siettice was con-

‘victed and which he. successfully challenged in the district

court provides, in relevant part:

| “Any person, who shall, without provocation, use to.

-or- of another, and in his presence.. . . opprobrious

words or abusive janguage, tending to cause a breach

_ Of the peace .. . shall be guilty of a misdemeanor.”

The operative shesiiadits of the statute may quickly be seen

as two: “opprobrious words or abusive, language,” and

‘““tending-to cause a breach of the peace.” The other terms,

“without provécation “and. “in his presence” add nothing

_ to the substance of the crime,.although they may provide

“a defendant with means of, in certain limited factual situa-

tions, asserting a defense against the application of the sta- -

‘tute. But, for a-defendant-who~has not been | provoked and. .

who utters his words in the presence of the affected. other,

a crime cannot have been committed without the utterance

of “opprobrious words or abusive language.” And, even

should the words or language be uttered, no crime can have

been committed unless they are words or language “‘tending

. to cause a breach of the | peace.” The two: phrases will be

. discussed separately in. the order in which they ai te in

_ the statute.

As noted by the district court in granting the writ, “.

no meaningful attempt has been made [by the courts of the

State of Georgia] ‘to limit or properly define these terms

[opprobrious words or abusive language]: (App. 10) It.

: must be noted that there is not even a common-law gloss .

_ upon the terms—the chapters of Chase’ s Blackstone (3rd ed. .

1890) on —— Against Justice” (Ch: VIII) and “OF

| pce ane the Public Peace” (Ch. 1x)’ do not mention.

“opprobrious words.” “Accordingly, both the ‘lower court

and the appellant have turned:to Webster’s dictionary in ‘an

‘attempt to infuse content into the legal definitions.. See; &

App. 10; Brief for the Appellant, 18. So. "8

We are accordingly left with definitions of ‘ ‘opprobrious’ °

_ that include “attaching. disgrace, reproachful; -scurrilous”

(App. 10), “infamous” (Appellant’s Brief, 18), - and syno- ‘

nyms that include “disgraceful, abusive, ‘insulting, offensive,”

(App. 10) as well as “words convenying contempt” OE

lant’s Brief, 18). as ee pete Noe

- . The definitions “abusive” and ‘ ‘opprobrious” represent

* conchusions of the legislature rather than specific guides to

_ the jury. There is no way of determining whether “abu-

sive” refers to the verychature of. a word, or to a misguided

4*\ application by a speaker. A word used for-the highest and

| -most serious of purposes—as during a religious sermon—

might equally be construed as “opprobious” when used ifi _ 9

' -the- street..- Indeed, the preacher himself enjoys the most

_ limited protection. See e Holcombe v. State; 5-Ga-App. S-Ga-App.47, >

eas ~—Ga-_App- 1908) (he ‘big fat rump” case), . Under Eeciion oe

6303,.a term completely | innocuous in itself might be _

judged “abusive” when used by a talented speaker of scorn;

_ ful disposition—or when heard by a listener of oxteontioay .

sensitivity.. | ;

The vagueness and overbreadth of ‘ ‘opprobrious” and |

“abusive” has been compounded by the usual treatment of ,

the words by the Georgia appellate courts. With the nata-

ble exception. of the instant case, the courts have held that

_it was error for a judge to charge certain words to be oppro-

brious and abusive as a matter of law; rather; it was up to -

“ the jury to make that decision. And, in the few decisions:

“to actually reach the merits of spoken words or phrases, the

courts are in conflict and confusion. Thus, by way of

‘example, the court held, in Shields v. State, 89. Ga. 549 (Ga.

S.Ct. 1892), that ““God damn lowdown son of a bitch,” was.’

| opprobrious and abusive, but not obscene or vulgar, while

. - but a few years leit , it lield that it was error for the judge

- to charge the j jury that any particular words are opprobrious

or abusive, or to tell the jury that, “God damn you, why

_ don’t you get out of the road?” was in violation of the sta- a

‘tute. Fish v. State, 124 Ga. 416 (Ga. S.Ct. 1905); Jackson ass

v. State, 14 Ga. App..19 (Ga. Ct. App. 19.13). ;

The confusion about whether any. particular words are

-_ either opprobrious or abusive has been exacerbated by the

Georgia Supreme Court decision in appellee’s case. . Wilson

v. State,.223 Ga. 531 (Ga. S.Ct. 1967). In that decision,

the court said, “The words charged were within themselves

_opprobrious and abusive [citing Shields v. State, supra) and

_it was not necessary to allege in what manner: they ‘wer a

opprobrious and’ abusive.” 156 S.E. 2d 446, 449. “The | * |

opinion is distinguished by its failure to reconcile or *

. -_ attempt to reconcile the Shields doctrine that certain words

_ are opprobrious with ‘the later Gecisions ‘that. it is completely

“a matter for the wisdom of ajury2

The vice of vagueness, when .compounded aes absence

of standards to prohibit arbitrary and unreasonable enforce-

ment, ‘renders a statute such as Section 6303 susceptible of .

"_. application when. and where the police see fit. Not unna-

priced: actions ‘which smack of cent or —eeey ;

he ach, even assuming that in Georgia certain words can be -

"i per se, leaves one in continuing doubt as to the interac-

tion of Shields and Wilson. Is-the speaker henceforth to conclude ~

‘that “God damn lowdown,” used in Shields but not in. Wilson to mod-

ify “son of a bitch,” was not the cause of the phrase being consid- .

ered opprobrious and abusive? If plain “God damn you” presents a

question for the jury, Jackson v. State, supra, can it be that the more ~

ornamented “God damn lowdown” is still opprobrious and abusive

per se? And what of appellee’s use of the word “white” to modify

‘ one of his references to the parentage:of the officers with whom he

was ernbroiled; does the term “white,” in the courts of Georgia, con-

vey any special opprobrium? Would the term “Black;” or, would it

suniak 5a Seren: wees aesenine SOs ne s0tiel Weaiity of the

‘ — addressed? .

' 7 ,

are the first to bear its sting.4 See NAA CP by Button, 371

U.S..415, 432-33, 435 (Court must consider “possible appli-

cations of the statute in other factual contexts. oo Ta. at.

432) eee |

~The opinions of the hoe courts in intniceretions Sec-

tion .6303 “license[s] the jury to create its own standards‘

in each case.” Herndon .v: Lowry, 301 US. 242, 263 .

(1937). The statements of the trial judge in the instant’

_ criminal trial‘ ‘made it explicit at the trial that all standards

_ were in the hands of the jury. Record, Wilson v. State, No.

24113, Georgia Supreme Court, 207-212: Previous deci-

__. sions under Section 6303 bear this out by expressly author-

7 k

izing the jury to create its own standards in each individual.

_ case. Holcombe vy. State, supra; Shields v. State, supra.

Definition of crime. is the function of the Legisiature. .

But, the exercise of unfettered and unguided discretion by

a jury is constitutionally impermissable.. Giaccio v. Penn-

sylvania, 382 U.S. 399, 403 (1966). . ey

That lack of..provocation must be proven is not the ne

requirement of willfdl or knowing unlawful conduct which

has been relied upon in ‘sustaining legislation challenged

upon vagueness grounds. Screws v. Unitéd States, 325 U. Ss.

91 (1945). Proving lack of provocation only goes. to the *

question of willful action or scienter., See Smith v.. Califor-.

-nia,361 U.S. 147 (1959). The statute, by its terms, does.

not make the crime one of intent, arié.the wagueness of the

) terms s eliminates my possibility of scienter. .

"battery charges stemming from the same physical incident with the

same officers who brough@the Section 6303 counts as well. Could

the vagueness of Section 6303 have furnished an opportunity to

“pile on” charges against a Black SNCC member involved in an anti- ~

war protest? Cf. Bond v. Fjoyd, 385 US. 116. When appellee was -

arrested and charged in August, 1966, Representative Bond was still

excluded from: eee or ek

1966 decision. SBR 2G

ee ae

ay; aA.

was

oo Je Aeiian of the Georgia ee Court in apgellee’ Ss.

case renders Section 6303 particularly subject to’constitu- _

‘ tional attack, for by the ‘court's reading of the statute, |

_ words may now be declared illegal per se. But, this is

exactly the sort of state-imposed cleansing of. “public de- —

bate” by forbidding\particular words that. fhe Court has

condemned this past term. Cohen v. California, _- US.

____ 91 S.Ct. 1780, 1785. And, justas California h had out-

. lawed, by use of the term, “offensive conduct,”. a vast un-

known sweep of words, so too has. Georgia limited freedom

of expression by its employment. of “opprobrious’’ and -

“abusive.” The record is barren, as it must be, of any evi- |

dence that officials in Georgia ‘are more qualified than those —

e _in sister states to» distinguish one offensive word from.

- another, to recognize that one man’s vulgarity is another’s .

lyric, or to make principled distinctions in this area so as

to take away from the individual his personal rights in mat-

ters of style and taste. Cf. Cohen, supra, 91 S.Ct. at 1788.

There seems little doubt that Paul Cohen’s vulgar jacket,

passing for the moment its auditory lack, would: have other-

-.. wise qualified as ‘‘opprobrious” or ‘‘abusive” under the

~ Georgia decisions. “And; as such, the statute must fall.

_. + Nor does it require any extension of this Court’s holdings © |

‘to find that making criminal “abysive language” does vio *S

-_— to et First Amendment... After all, § ~- “a ¥

. a function of free speech under our system '

of a thcteaih is to invite dispute. "It may. indeed -

best serve its high purpose when it induces‘4 condi- -

tion of unrest, creates dissatisfaction with conditions

_. as they are, or even stirs people to anger. Speech is

‘often provocative and challenging. It may strike at

prejudices and preconceptions and have profound.

. unsettling effects as it presses\for acceptance of an .

_ . idea.” Terininiello's v. . City pdmceneted 337 US. 1,

There i is simply | no way for the speaker td know when. his

_ Speech has gone beyond the. protected pale and become .

. er: in the sense e that it will eo as to possible

a \ ]

upheld in the instant case is no different f he Court’s

” . .

‘

celui ‘ice: The rowilt is eis to bé a Seen of

“uninhibited, robust. and: widé open” debate on public-’

issues. New York Times-Co. v. . Sullivan, 376 U.S. 254, 270;

Bond v. Floyd, supra.

It is firmly settled under the First ‘Amendment that. the

* public expression of ideas may not be prohibited because ,

_ the ideas are themselves offensive to some of their hearers. _

_ Street v, New York, 394_U,S.' 576, 592. . But, gepw is a

Georgia speaker to know. when his speech turns from being -

constitutionally-permissible, although offensive, . and | )

comes, rather, illegal and criminally “abusive.” Cf. .

well v: Connecticut, 310 U. S. 296; Cox v. Louisiana (D, 379.

U.S. 536, 462-3.

A long and worthwhile tradition of free speech. will, i.

limited and abandoned if a state may impose criminal sanc-

tions upon “abusive” language. Those who are outspoken

on issues of the day may. alway’ be easily considered abu- -

sive by those holding other views, especially if those others

~ have the power of arrest and conviction. Stout-hearted dis- : =

cussion may be intended to influence views, but the First ©

Amendment takes no demand that it be couched in. terms”

to win friends as well. “Maintenance of the opportunity , “ig

for free political discussion is a basic tenet of our constitu- .

tional democracy.” Cox v.. Louisiana (1), spre, 379 bat

at 552 (Emphasis. supplied).

It seems: certain . that the covisttutionally. seceeried:

speeches i in Cox, supra, Brandenberg i v. Ohio, 395 U.S. 444, -

and Street, supra, as well as the caustic criticism in Ashton

».. Kentucky, 384 U.S. 195, and Garrison y. Louisiana, 379

U.S. 64, might be considered by some as “abusive” within |

the. meaning of the Georgia law at issue here. It is hence

clearly a statute which fails to. draw the necessary and

; Proper distinctions so as to prevent impermissible intrusion |

upon. freedoms guaranteed by the First Amendment. :

“Afd, as h, it cannot stand.

The constitutional standard which the below have -

107

recent decision i in Chase v. City of Cincinnati, - U. s.°

, 91 S.Ct. 1686. For the “arinoyance”’ standard of

Coates One might easily substitute the -“opprobrious words’.

or abusive language’’ of the State ‘of Georgia; the statute

here “tis unconstitutionally vague because it subjects. the .

“exercise of the right of [speech] to an unascertainable

standard and. unconstitutionally: broad because it author-

_ ‘izes the punishnient of protected conduct.” Coates, ‘supra, |

91 S.Ct. at 1688. The statute is. vague because the stan- ees

' dard ‘of ‘conduct which it specifies is uncertain; “men of

common intelligence must necessarily guess at’ its meani-

ing.”*S Connally v. General Construction Co:, 269 'U. S. 385,

321; Coates, supra. For Georgia to haéve.enacted a statute

which prohibited “fighting words,” and no more would have

- been acceptable. Cf. Chaplinsky v. New Hampshire, 315

U.S. 568. But, the prohibition. against “opprobrious words .

and ; language” defines less and prohibits more. This —

the state cannot o without trenching ‘upon the First _

> TENDING TO CAUSE A BREACH OF THE PEACE” IS SO”

ee ee ee eer Tat eat

oe eos, the Georgia statute at ism here, does

" require more-than the mere’ use of “opprobrious words or. ee

. abusive language” fora violation. The words or language; soe

et we “tending to cause a breach’ of the :

* (App. 3). But, to catalogue what the vaguely pro-

scoihisd Ws se 4 Ua serena thatare no ees certain docs

Ss ee oe te Ss eaitione vices. That

ko tac “ween ete om:

. sitivity ‘a violation does depend,” Coates, supra, 91 S.Ct. at, 1688, for “

. the courts have either Uarred certain words or left the whole affair See

i Oe ete of 6 ir. GT. FRR vy: Suate, os erenene —,

o oe \ :

- i ¢ a $ see

alarming the. public violates First Amendiment rights). Sec- -

co tion 6303 does not solely forbid violent and menacing :con- .

-. “duct or conduct which tends to provoke violent and n

is 7

~ ° _ *

A 4 -

ad , * s

the -vice remains pacired. may be further: seen trom the'fact,

" that Georgia’ courts have, in corinection with Section 6303,

defined “tending to cayise a breach of the peace” in: circu-

‘lar terms. Thus, “The words of the statute, ‘tending to

cause.a breach of the peace’, are words of description indi- ae

‘cating the kind 6r character of opprobrious dr abusive lan-

guage that ‘is a and the use. of language of this . * dbhcs

. character is a violation of the’ statute. . .” Elmore v. State, |.

15. Ga, App. 461, 462 (Ga. Ct. “App. 1914). To paraphrase

'. Elmore, opprobrious words tendeto cause/a breach of the

peace: if: they are opprobrious; and, in farther paraphrase, - “h

_ words which would tend to cause a breach of the peace are /

- * illegal begause they would so tend. Lewis Carroll and Alice .

in Wonderland have nothing on this statutory gloss. be tmp! \ eit

Convictions for “breach of. the peace” where the offense .

_ was imprecisely defined were similarly: reversed’in Edwards «

_ v, South Carolina, 372 U.S. 229; 236-8, and Cox v. Louisi-

ana (1), 379 U.S. 536, 551-552. These“Gecisions recognize

that to make an offense of conduct which is “calculated to

create disthrbances of the peace” leaves open ‘the standard.

of responsibility. It. involves calculatiofis of the boiling —

" point of particular persons or groups, ‘including perhaps a [ =

jury; rather than ant appraisel:of the nats of tie comments’ ot

"| per se. Cf. ‘Ashton y. ntucky, 384 U.S. 195, 200. See

also, Univ sity Committee to End the War-v..Gunn, 289 —

‘+. F.Supp. 469 (W.D.’Téx. 4968), appeal dismissed sub nom os

” Gunn y. University Committee, 399 US. 383 (Texas breach oe

of peace statute, violates First Amendment rights); Thomat . 2 ae

v. City of Danville, 207 Va. 656, 152 S.B. 265 (Va. S.Ct. ee

App. 1967). (Restraining order in terms of disturbing or -

Montgomery, 406% 24 867 (Sth Cir. 1969) (City disorderly.

ct ordinance constitutional where construed to ae

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Whatever might be said about the specificity of the words

“breach of the peace,” the ward “tending” makes thé phrase |

hopelessly vague. If “with intent to provoke a breach of

~ the peace or under circumstances such that a breach of the

peace may be occasioned. . .” could not pass constitutional

_ muster in Cox v. Louisionas 379 U.S. 536, 551-52, the sta-

tute ere an do no better. . “Intent” is, after all, a word

with defined ‘content in the criminal law; on the other

hand, “tending” is anybody’s guess.

As Mr?‘Justice Black ‘Stated recently:

- As pointed out in Cantwell v. Connecticut, 310 US.

296, 308 (1940), common law breach of. peace is -

at its best a confusing offense that may imperil First _

Amendment rights. But how infinitely more doubt- . «

ful-and uncertain are the boundaries-of an offense _

‘s including any “diversion tending to a breach of the

_ peace***”! Gregory v.-City of Chicago, 394 U.S.

- 111, 119. (Black, J. _concurring)° .

In addition to the facial obscurity of the corm “tend |

| ‘a question arises as to whether the defendant will be held

responsible for the conduct. of others. ‘Is’ one charged under

the statute liable only for his rémarks, or for the actions of

- the person to whom he addresses, those remarks, or for the

actions of others—either his consorts or those in opposition

to him—or even, the police? .The boundaries of the spec-

trum are unclear. Limiting freedom of expression because

ofthe mere possibility of a violent reaction on the part of

others is constitutionally forbidden. sk laced v. City of

Chicago, supra, at 4... |

Another fatal flaw in the use of the werd “tending” as. .

. the nexus between words and their result is the consequent |

-élimination of the clear and present danger test.’ In Ga.

Douglas noted their agreement with Mr. Justice Black on this point.

7“The substantive evil must be extremely serious and the degree

of imminence extremely high before utterances. can’ be punish

Wood v. Georgia, 370 US. 375, 384. The — notes that the clear

~Code Ann. § 26-5304 (inciting to siot) the naiitsicee linked

the words with the result, using: the language “‘a clear and

present danger.” Here they have not, although ithasbeen _

fifty years since,Mr. Justice Holmes’ dictum in Schenck v. _

United States, 294 US..17, 52. _ _

| fwhere it was held that conviction could not be had under —.

the portion of a statute prohibiting the display of a “sign, aa

symbol or emblem of opposition to organized government,”

_. 283 U.S. at 359, illustrates the vice of Section 6303. The .

_ Court recognized that thé state could: punish those “who . 4

indulge in utterances which incite to violence and crime and

threaten the overthrow of organized government by unlaw-|

ful means.” Jd. But since the prohibited display might lead

only to peaceful opposition to the government, the statute -

_ could not stand. Certainly, though, the display of the sym- .

bol, if effective, could be said to have a tendency to.cause

acuta Taw jury may well decide.

- The Supreme Court applied Stromberg, i in Gregory ¥ City oo

_ of Chicago, supra. In his concurring opinion, Mr. Justice ~

-. Black goes to some length. to explain exactly why the Strom.

berg case “requires reversal,” id.. He notes that “[i]n ex-

plaining the elements of the offense to the jury, the trial .

judge merely read the language of the ordinarte,” as was

done .in Stromberg. 394 U.S. at 122. And, this is all that

os the criminal trial judge did here with regard to the breach .

of the peace element. Record, Wilson v. State, No. 24113,

"Georgi Supreme Court, 232, 235.. But.this was grossly

insufficient guidance for the jury in light of the quantum | |

of disryftion allowed in such cases as Cox v. Louisiana, 375

U.S. 536 and Edwards v. South Carolina, 372 US. 229. Cf.

Coates vy. City ‘of Cincinnati, supra:

In approving the use of the aututicy bien to

instruct the j jury on 1 breach the peace (and in holding that

and sginsoat-dagit deticsink pa ek Gas. MMi

the words were gpprobrious per se), the court rejected every

limitation relied.on by the Supreme Court to sustain the

New Hampshire Supreme Court’s reading of the statute in a

Chaplinsky v.. New Hampshire, 315 U.S. 568, 573 (1942). °

- Even under the assumption that Chaplinsky today retains

its full vitality ,* it cannot be of aid to the state here.

It is the vice of inadequate standards-which allowed the

_jury to convict the petitioner of an offense which would

ordinarily merge imthe consumated battery.: See Rich v.

- State, 160 Ga. 513, (Ga. S.Ct. 1925); Jackson v. State, 38

Ga. App. 138, (Ga. Ct. App. 1928); Kennedy v. State, 10

Ga. App. 794 (Ga. Ct. App. 1912). See also Ga. Code Ann.

§ 27-2508.

_ Although reformation of Section 6303 at this stage can-

not serve as a basis for reinstating appellee’ s conviction, ,

Shuttlesworth v. City of Birmingham, 382 U S: 87, it is.

likely that its “breach of the peace” segment might be con- .

stitutional if “tending” were less vague. Cf. Williams v. Dis-

trict of Columbia, 419 F.2d 638 (D.C. Cir. 1969) (en banc)

at 646, positing a constitutional construction-of the | breach —

of peace statutes;

“And for’ these purposes r breach of the hence is

[constitutionally] threatéfied either because the lan-

guage creates a substantial risk of provoking violence

or because” it is, under ‘contemporary community ;

standards,’ so grossly offensive to members of the’

public who actually overhear as to amount to a nui-

sance.”” (Footnotes omitted; emphasis supplied).

® although there is no doubt that the state-can punish-“fighting —

: words” this appears to be about all that is left of the decision in

__Chaplinsky. A number of cases substantially undermine the remain- .

der of that opinion. See, e.g., Terminiello v. City of Chicago, 337

.. US. 1 (1949); NAACP v. Button, 371 U.S. 415 (1963) fie. consid-

eration of other possible applications of statute); Edwards v. South |

Carolina, 372 US. 229 (1963); Cox. v. Louisiana, 379 US. 536

(1965); Ashton v, Kentucky, 384 U.S. 195 (1966); Gregory v. City

of Chicago, 394 US. 111 (1969). Cf.-Carroll v. President and Commis-

sioners, 393 U.S. 175 1968).

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The proposed Model Penal Code likewise would make cer-

tain disorderly conduct illegal if it creates a public annoy-

‘ ance,’ but not if it only has that tendency. Model Penal

- Code § 250.2 (Proposed Official Draft, 1962); Williams v. °

’ District of Columbia, supra, 419 F.2d at 646-7 n.°25.

A statute which depends upon tendencies must of neces- :

sity sweep in a great: variety of conduct, Cantwell v. Con- -

necticut, 310 U.S. 296, 308, and as such must in turn be: |

subject to“a “‘heckler’s veto” that: is inconsistent with. no-

tions. of dué process and the First Amendment. Terminiello :

v. City of Chicago, supra; Gregory. v. City of Chicago, supra.

Just as one; man’s vulgarity is another’s lyric, Cohen v. Cali-

' fornia, supra, 91 S.Ct. at 1788, so too is one man’s tending

to cause a breach of the peace another’s stout language or _

‘ vigorous criticism. The result can only be that hallmark of

vagueness, total uncertainty in application.

That appellee’ S conviction was obtained through the on

vagueness of the statute can be readily seen by an examina-

tion of the facts. Any tendency on the part of the words _

- involved to cause a breach of the peace was immediately

subsumed by the ‘battéry upon the police: officer. In

neither battery was there any time interval between peti-

' tioner’s words and the battery. Nor is there any indication — . =

in the, record that the words were broadcast to a wide range

of the public or the police. The only person to hear the

words, in each case, was a police officer already in ctual

physical contact with petitioner.'®

Only a vague statute could give rise to a conviction where

there was never any physical disengagement so. as. to|\ render

the language in any way distinct from its consequences. To |

say, “Let go of me immediately or I will strike you,” can

°*The Model Penal Code antedates Coates v. City of ‘Cincinnati,

supra.

10The Model Penal Code excludes es from those whose “ peace -

and quiet” may be disturbed. Model Penal Gode § 250.1, comment at .

iy 13, 17 (Teng. Draft No. 13, 1961).

—- .

— seen, realistically, in no other way than as: a threat of

direct physical eonsequence. Indeed, under Georgia law, _

such words themselves are an assault. If the addition of a

few stray. profanities can rendér the verbal assault a new,

separate, and distinct offen) it is only because the statute

which creates the offense: is naconslityonany “sweeping,

- broad and ‘vague.

CONCLUSION _

For the foregoing reasons, the cis of. the court

| below should be affirmed.

Respectfully submitted,

HOWARD MOORE, JR.

PETER E. RINDSKOPF | .

Suite 1154 : |

75 Piedmont Avenue, N.E.

Atlanta, Georgia 30303 x6

Attorneys for Appellee

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