Disorderly Conduct
Vs.
The First Amendment
The balancing test between the First Amendment
Right of freedom of speech on one hand, and the
public tranquility on the other, has been a
continuing process with acceleration being noted in
recent years because of civil strife cases. The
evolution of permissible conduct under the First
Amendment has been piecemeal; however, it is
hoped that through this maze of case law certain
definitive parameters are beginning to emerge.
By Kenneth E. Baughman
The
balancing
process
between freedom of expression
on one hand and the public
tranquility on the other has
constitutionally been a neverending process which has been
accelerated in recent years
because of civil strife.
A
frequent charge arising out of
group protests is disorderly
conduct. The Illinois disorderly
conduct statute1 has been cited
as a model.2 There is also a
maze of municipal disorderly
conduct ordinances under which
charges may be brought,
however, many are so poorly
drafted that reversal frequently
3
follows
conviction.
Additionally, if a municipal
ordinance charge is brought
incident to the filing of a more
serious criminal charge, the
prior
prosecution
of
the
ordinance violation bars the
subsequent prosecution of the
state charge.4
The
Illinois
disorderly
conduct statute deals with acts
by definition come within the
protection of the First and
Fourteenth
Amendments,5
provided that they are not of the
type which are lewd, obscene,
profane or libelous.6 As to
which type of communication is
obscene has not been an easily
resolved question. The simple
public display of a four letter
offense without showing (1) that
it is intended to incite or
produce imminent lawless action
or (2) that the expression is in
some significant way erotic, or
(3) that it was directed to a
person in a provocative fashion
with the intent to arouse said
person, or (4) that a substantial
privacy interest has been
invaded in an essentially
intolerable manner.
The
undifferentiated
fear
or
apprehension of disturbance is
not enough to overcome the
right to freedom of expression.
So long as the means are
peaceful, the communication
need not meet standards of
acceptability.
The right to
Under the First
Amendment a
citizen may speak
foolishly and
without moderation.
freedom of speech means not
only to utilize information and
responsible criticism but to
speak foolishly and without
moderation.7 Additionally, in
the case of an obscene gesture, it
has recently been held that there
must be an allegation of the
significance and meaning which
the gesture would be expected to
convey to the observer.8
Otherwise, for the acts to be
constitutionally proscribed they
must be of the type which tend
to incite violence or a breach of
the peace.9
The aforesaid
limitations were articulated by
the oft quoted Justice Holmes in
the Schenk case:
…The most stringent protection of
free speech would not protect a man in
falsely shouting fire in a theater and
causing panic…It is a question of
proximity and degree… If the act …
its tendency and the intent with which
it is done are the same, we perceive no
ground for saying that success alone
warrants making the act a crime.10
It is difficult to apply the
“proximity test” to specific
factual situations, however, a
number of recent cases growing
out of civil strife prosecution
have served to further define
areas of permissible conduct
under the First Amendment.
Excluded from the protection
of the First Amendment are
words which are derogatory and
indicative of class hatred which
are
used
under
such
circumstances as to create a
clear and present danger.11
Obscene words directed
solely to a police officer are
actionable even though no one
else hears them or is thereby
provoked.12 If the arrest is
unlawful,
however,
the
obscenity of the defendant may
be deemed to be the natural
consequence of the unlawful
arrest and consequently a
protected act.13
When a
defendant is loud and abusive to
a police officer in the presence
of others, although not using
obscene words, he cannot be
convicted of disorderly conduct
unless the testimony of the
Excluded form First
Amendment protection
are words which are
derogatory and indicative
of class hatred
officer is corroborated by other
witnesses.14
Protestations of
innocence no matter how loud
do not amount to disorderly
conduct.15
The First Amendment does
not allow one to disrupt a public
meeting. One who fails to obey
the rulings of the chairman after
being asked to do so may be
asked to leave and upon refusal
may be convicted of disorderly
conduct.16 Likewise, one who
jumps up and shouts in a
crowded meeting and prevents
the orderly function of the
meeting may be convicted of
disorderly conduct.17
A peace officer has a right to
make a reasonable request to
prevent a disturbance to a public
meeting and failure to obey it
constitutes disorderly conduct.18
There is, however, an
interesting twist to the law in the
case of the individual who
espouses unpopular ideas.19 He
cannot be prosecuted merely
because others are stimulated to
commit disorderly conduct as a
result of his speech.20 In the
case of Gregory v. City of
Chicago,21 the Illinois Supreme
Court set forth a format which
must be followed before the
arrest of a person who espouses
unpopular ideas. First, there
must be an imminent threat to
violence from the observing
crowd; Second, there must be
reasonable efforts made by the
police
to
protect
the
demonstrators; Third, the police
must have requested the
demonstrators to stop and have
explained the request, if there be
time; and Fourth, there must
then be a refusal to obey the
request to disperse. That case
was reversed on other grounds
but the Illinois Supreme Court
has since reaffirmed its position
on the format.22 In order to
correct the objections noted by
the U.S. Supreme Court in
Gregory the charge should be
made in such a way as to make
it clear that the defendant is
being charged for his refusal to
disperse when requested and not
for the reason that he conducted
a protest. Additionally, the jury
should be similarly instructed, a
crucial matter which will be
discussed later in this article.
The measure of the quality of
the defendant’s conduct as to
whether it amounts to a breach
of the peace as required not only
by Cantwell but also by statute,
is an objective standard to be
determined by the fact finder.
How a particular witness views
the defendant’s conduct should
be irrelevant.23
Numerous
courts
have
adopted the
reasonable man standard in this
respect.24 The Illinois Supreme
Court has stated in the Raby
25
case that the interpretation of
the Illinois disorderly conduct
statute required to application
of the
The First Amendment
does not allow
one to disrupt a
public meeting.
reasonable man standard. In
fact the Illinois Supreme Court
in affirming the case of People
v. Crockett26 indicated that there
was no proof nor was it alleged
that any specific person was
subjectively provoked.
The
implicit holding of Crockett is
that a matter of law the
defendant’s conduct would
provoke a reasonable man.
Also implicit in Crockett is
the holding that one does not
have the right to obstruct a
hallway not dedicated to public
use nor to sit in a private office27
in order to express himself. It
has been held that when
demonstrators are in a public
area which is lawfully restricted
and another public area is
provided for their actions, they
may be convicted
Crockett implies that
no one has the right
to obstruct a hallway
not dedicated to
public use.
of disorderly conduct for refusal
to obey an order to leave the
area even though there was no
breach of the peace.28
The
foregoing cases seem to hold
that one’s continued presence in
a private place or the presence
of a group in a restricted public
area, provided there is an
alternative public protest area
available, can amount to
disorderly conduct upon refusal
to obey a request to leave
irrespective of whether there is a
threatened breach of the peace
or
whether
anyone
was
subjectively provoked.
It
therefore seems implicit in these
cases that such conduct of the
First
Amendment
or
its
essentially an invasion of
privacy,
provided
the
determination as to whom is
allowed to be present does not
possess
the
aura
of
discrimination in violation of the
Fourteenth
Amendment.29
Certainly those wishing to
protest against governmental
action or propagandize their
views
do
not
have
a
constitutional right to do so
whenever and wherever they
please.30
One need not be an actual
participant to be guilty of
disorderly conduct if there is
some evidence of aiding and
abetting.31
The mere allegation of the
violation in terms of the statute
is inadequate. As the Illinois
disorderly conduct statute does
not describe the acts which
constitute its violation, they
must be specifically averred o as
to inform the defendant of the
nature of the charges against
him in order to be a bar to future
prosecution, 32 however, specific
allegation of obscene words or
grotesque statements are not
required.33 There also need be
no specific allegation of whom
was provoked.34
The Illinois Pattern Criminal
Jury instructions on disorderly
conduct35 paraphrase the Illinois
Statute.
The U.S. Supreme
Court has held that where it is
impossible to tell from the
instructions and the verdicts
whether the conviction rests on
unconstitutional grounds, it must
be set aside.36 This is a special
problem in the Gregory situation
discussed earlier.
It is
mandatory, therefore, that the
Few realize that
the simple charge
of disorderly conduct
can be so intricate.
disorderly conduct instruction
restate the wording of the
criminal charge in terms of acts
alleged to have been committed
and the verdicts separately
identified in the case of multiple
charges of disorderly conduct.
Few realize the simple charge
of disorderly conduct can be so
intricate. The broadly worded
Illinois statute covers wide
latitude of proscribed conduct.
Occasionally the concern of
both the prosecution or the
defense should be whether the
acts alleged in the criminal
charge are the type which are
protected
by
the
First
Amendment. The answer is not
always easily determined, but
the civil strife cases of recent
years helped it along.
1
Ill. Rev. Stat. ch. 38 § 26-1-a-1 (1973).
Williams v. The District of Columbia,
419 F.2d 638, 640 at n.3 (C.A.D.C.
1969)
3
…Narrowly drawn statues regulating
the conduct of demonstrators and
picketers are not impossible to
draft…Gregory v. City of Chicago, 394
U.S. 117, 124, 89 S.Ct. 946, 953 (1969).
…(The Chicago disorderly conduct
ordinance)…might better be described as
a meat-ax ordiance, gathering in one
comprehensive definition of a offense a
number of words which have a
multiplicity of meanings, some of which
would cover activity specifically
protected by the First Amendment. Id. at
18-19, & 950.
See also City of Chicago v. Perez, 45
Ill.2d 258, 259 N.E.2d 4 (1970), wherein
a sit-in conviction in a public building
was thrown out because there was no
breach of the “public” peace and quiet as
required in the ordinance. The word
“public” peace is not contained within
the Illinois disorderly conduct statute.
See also Lewis v. City of New Orleans,
415 U.S. 130, 94 S.Ct. 970 (1974),
4
Waller v. Florida, 397 U.S. 387, 90
S.Ct. 1184 (1970).
5
Cantwell v. Conn. 310 U.S. 296, 60
S.Ct. 900 (1940).
6
Chaplinsky v. State of N.H., 315 U.S.
568, 62 S.Ct. 766 (1942).
7
Cohen v. California, 403 U.S. 15, 91
S.Ct. 1780 (1971) ; Hess v, Indiana, 414
U.S. 105, 94 S.Ct. 326 (1973).
8
State v. Drake, [Doc. No. 1090] (S.Ct.
Maine, decided September 12, 1974).
9
Cantwell v. Conn., supra note 5.
2
10
Schenck v. U.S., 249 U.S. 47, 52, 39
S.Ct. 247, 249 (1919).
11
Chicago v. Lambert, 47 Ill.App.2d
151, 197 N.E.3d 448 (1964).
12
City of St. Paul v. Morris, 258 Minn.
467, 104 N.W.2d 902 (1960), cert. den.
365 U.S. 815, 81 S. Ct. 696 (1961) ;
Duncan v. U.S., 219 A.2d 110 (D.C.
1966) ; Hammond v. State 498 S.W.2d
652 (S.Ct. Ark. 1973) ; Meyers v. State,
253 Ark. 38, 484 S.W.2d 334 (1972).
But there has been a significant erosion
of this rule in the case of Lewis v. City
of Orleans, supra note 3, wherein the
dictum of the concurring opinion of
Justice Powell indicates that the Model
Penal Code Comments may be accepted.
See § 250.1, Comments 14 (Tent. Draft.
No. 13, 1961). See also dictum in the
City of Chicago v. Blakemore, 15 Ill.
App3d 994, 305 N.E.2d 687 (1973).
13
City of Columbus v. Guidotto, 81 Abs.
33, 160 N.E.2d 355 (1958).
14
Landry v. Daley, 288 F.Supp. 189,
193 (N.D.E.D. Ill. 1968).
15
Thompson v. City of Louisville, 362
U.S. 199, 80 S.Ct. 624 (1960).
16
State v. Moore, 101 N.J. Super 419,
244 A.2d 522 (1968).
17
U.S. v. Woodard, 376 F.2d 136 (C.A.
7th Cir. [1967]; State v. Smith, 46 N.J.
510, 218 A.2d 147 (1965).
18
Harris v. State, 237 Md. 299, 206 A2.d
254 (1965); Felner v. New York, 340
U.S 315, 71 S.Ct. 303 (1951).
19
Gregory v. City of Chicago, supra,
and 39 Ill.2d 47, 233 N.E..2d 422
(1962).
20
Id., and cf. Zwicker v. Boll, 270
F.Supp. 131 (W.D. Wis. 1967).
21
Id.
22
City of Chicago v. Meyer, 44 Ill2d 1,
4-5, 253 N.E.2d 400, 402 (1969).
Therein the court stated:
…Applying this rational to the facts of
the Gregory case we upheld the
disorderly conduct conviction.
The Supreme Court reversed these
convictions. (Citations omitted). That
Court observed that a peaceful and
orderly march falls within the sphere of
conduct protected by the First
Amendment. It then noted, as did we,
that there was no evidence that the
march was disorderly. If (sic) then
concluded, as did we, that the disorderly
conduct convictions could not be based
on the manner in which the march was
conducted.
The court next properly observed that
our opinion held the demonstrators
“were convicted not for the manner in
which they conducted their march but
rather for their refusal to disperse when
requested to do so by Chicago police”.
However, because “ The trial Judge
charged solely in terms of the Chicago
ordinance” and “Neither the ordinance
nor the charge defined disorderly
conduct as the refusal to obey a police
order” the Court concluded that
“***petitioners were charged and
convicted for holding a demonstration
not for refusal to obey a police officer.”
(Citations omitted)
The Supreme Court neither approved no
disapproved of our conclusion that the
police may order the cessation of
otherwise lawful conduct where they
have made all reasonable efforts to
maintain order, buy the conduct is
producing an imminent threat of
uncontrollable violence or riot. We
adhere to the view expressed in our
Gregory opinion that they may make
such an order and that the demonstrators
or speakers may be arrested and
prosecuted for failure to obey such
order.
…The undisputed evidence shows that
the police who arrested the petitioners
were left with noting to support their
actions except there own opinions that it
was a breach of the peace for the
petitioners to sit peaceably in a place
where custom decreed they should not
sit. Such activity, in the circumstances
of these cases is not evidence of any
crime and cannot be so considered either
by the police or by the courts.
23
Gardner v. Louisiana, 368 U.S. 157,
174, 82 S.Ct. 248, 257 (1962).
24
In State v. Petty, 24 Conn. Sup. 337,
344, 190 A.2d 502, 506 (1962), where
the defendants sat in a private office and
where there was no evidence of
noisiness, the court held that the statute
gauges criminality not by the
impressions made on an annoyed or
disgruntled citizen.
Common sense
dictates that language or conduct is to be
adjudged disorderly not merely because
it offends some supersensitive or
hypercritical individual, but because it is
by nature of a sort that is a substantial
interference with the reasonable man.
Citing People v. Harvey, 307 N.Y. 388,
123 N.E.2d 81 (1954).
25
People v. Raby, 40 Ill.2d 392, 240
N.E.2d 595 (1968), cert. den., 393 U.S.
1083, 89 S. Ct. 867.
…”Unreasonable is not a term which is
impermissibly vague. As used in the
Fourth Amendment it furnishes the
governing standard by which the legality
of police intrusions upon privacy are
measured. (Citations omitted,) As used
in the statute it removes the possibility
that a defendant’s conduct may be
measured by its effect upon those who
are inordinately timorous or belligerent.
26
People v. Crockett, 41 Ill.2d 225, 242
N.E.2d 235 (1968), cert. den., 394 U.S.
959 89 S.Ct. 1306.
The stipulated facts were that the
defendants knowingly did act in such an
unreasonable manner as to alarm or
disturb another an to provoke a breach
of the peace; to-wit: Loitering in the
Fifth Floor Hallway [of the County
Building]; Sitting on the floor; and
knowingly did an act in such an
unreasonable manner as to alarm or
disturb another and to provoke a breach
of the peace, to-wit: By remaining seated
in the private office of Cook County
Commissioner George Dunne and
refusing to leave when ordered to do so.
The motion to strike the complaint was
denied and upheld on appeal.
27
Id., and cf. also State v. Petty, supra
note 24 ; State v. Givens, 28 Wisc2d
109, 135 N.W.2d 7800 (1965) ; Lloyd
Corporation Ltd. V. Tanner, 407 U.S.
551, 92 S.Ct. 2219 (1972) ; City of
Chicago v. Rosser, 47 Ill.2d 10 264
N.E.3d 158 (1970), and People v.
Sterling, 52 Ill. 2d 587, 287 N.E.2d 711
(1972).
28
Scott v. District of Columbia, 184
A.2d 849 (D.C. 1962) ; Feeley v. District
of Columbia, 220 A,2d 325 (D.C.C.A.
1966) and Lloyd Corporation, Ltd., V.
Tanner, supra note 27.
29
Brown v. Louisiana, 383 U.S. 131, 86
S.Ct. 719 (1966).
30
Adderly v. Florida, 385 U.S. 39, 87
S.Ct. 242 (1966) ; Cox v. Louisiana, 379
U.S. 536, 85 S.Ct. 453 (1965), and City
of Chicago v. Joyce, 38 Ill.2d 368, 232
N.E.2d (1967).
31
Chicago v. Lambert, supra note 11.
Care must be taken to separate intent to
achieve a legitimate aim from an intent
to utilize an unlawful means in attaining
that aim. Often the two are mixed, in
which case, only evidence of the latter
will justify a conviction based upon
aiding and abetting. Castro v. Superior
Court for the County of Los Angeles, 9
Cal.App.3rd 675, 88 Cal. Rptr. 500
(1970).
A showing of an attachment to a group
with knowledge of its desire to utilize
illegal means will satisfy the scienter
requirement. People v. Rybka, 16 Ill.2d
394,158 N.E.2d 430, 233 N.E.2d 158
(1967).
32
People v. Lee, 337 Ill.App. 158, 78
N.E.2d 822 (1948), People v. Griffin, 36
Ill.2d 430, 223 N.E.2d 158 (1967).
33
Chicago v. Lambert, supra note 11 cf.
also Allison v. State, 249 Ind. 556, 166
N.E.2d 171, cert. den., 81 S.Ct. 822, 365
U.S. 608. Contra : State v. Good, 308
A.2d 576 (Maine 1973).
34
People v. Raby, supra note 25, at 399400 and 599-600 wherein the court
stated: The disorderly conduct charge
alleged that “the Defendant on or about
28 June 1965 at Randolph and LaSalle
committed the offense of disorderly
conduct in that he knowingly did collect
in a crowd or body for unlawful
purposes to the annoyance or
disturbance of other persons in such an
unreasonable manner as to alarm and to
disturb another and to provoke a breach
of the peace.” The court hld that the
language was adequate to apprise the
defendant of the conduct that constituted
the offense charge against him. If the
defendant needed more detailed
information to prepare his defense, a
motion to that effect should have been
made.
35
I.P.I – Criminal, 19.03.
36
Bachellar v. State of Md., 397 U.S.
564, 90 S.Ct. 1312 (1970).