State v. Anonymous (1971-4)

• Citation: 6 Conn.Cir.Ct. 402,275 A.2d 620
• Court: Circuit Court of Connecticut
• Decision Date: 24 December 1970
• Parties: STATE of Connecticut v. ANONYMOUS (1971-4) * . . BIELUCH, Judge. The defendant was one of a group of about thirty demonstrators awaiting, with a crowd, the departure of President Nixon from a foreign policy briefing of New England newspaper editors. The demonstrators were standing behind a line of police officers. Some of the demonstrators were displaying various signs, banners, and posters. The defendant was holding one of two poles between which was suspended a banner resembling the Viet Cong flag when a citizen in the crowd tore the banner from the two poles, meeting no resistance or retaliation from the defendant or the other demonstrators. After the President's departure, the defendant was arrested. At the defendant's appearance in court, the prosecutor filed a substitute information charging the defendant in the first count with breach of the peace in violation of General Statutes § 53-174, and in the second count with disorderly conduct in violation of § 53-175. The defendant, by his attorney, filed a motion for a bill of particulars, and compliance was ordered by the court. The bill of particulars filed by the prosecutor alleges the following facts for the prosecution of the defendant under the charges: 'That * * * the accused was waving a Viet Cong flag in a crowd which was awaiting the arrival of the President of the United States, and that his actions did provoke contention in this group and to persons who witnessed the same and further that said actions were offensive to certain witnesses.' The defendant has now filed a motion to dismiss this prosecution on the ground that (1) his alleged conduct is not proscribed by § 53-174 and/or § 53-175 of the General Statutes; (2) his alleged conduct is protected under the first and fourteenth amendments to the United States constitution and therefore cannot be proscribed; and (3) the above mentioned statutes are unconstitutional on their face as violative of the fourteenth amendment to the cons

Page 620

275 A.2d 620

6 Conn.Cir.Ct. 402

STATE of Connecticut v. ANONYMOUS (1971-4) ^*.

Circuit Court of Connecticut.

BIELUCH, Judge.

The defendant was one of a group of about thirty demonstrators awaiting, with a crowd, the departure of President Nixon from a foreign policy briefing of New England newspaper editors. The demonstrators were standing behind a line of police officers. Some of the demonstrators were displaying various signs, banners, and posters. The defendant was holding one of two poles between which was suspended a banner resembling the Viet Cong flag when a citizen in the crowd tore the banner from the two poles, meeting no resistance or retaliation from the defendant or the other demonstrators. After the President's departure, the defendant was arrested.

At the defendant's appearance in court, the prosecutor filed a substitute information charging the defendant in the first count with breach of the peace in violation of General Statutes § 53-174, and in the second count with disorderly conduct in violation of § 53-175. The defendant, by his attorney, filed a motion for a bill of particulars, and compliance was ordered by the court. The bill of particulars filed by the prosecutor alleges the following facts for the prosecution of the defendant under the charges: 'That * * * the accused was waving a Viet Cong flag in a crowd which was awaiting the arrival of the President of the United States, and that his actions did provoke contention in this group and to persons who witnessed the same and further that said actions were offensive to certain witnesses.'

The defendant has now filed a motion to dismiss this prosecution on the ground that (1) his alleged conduct is not proscribed by § 53-174 and/or § 53-175 of the General Statutes; (2) his alleged conduct is protected under the first and fourteenth amendments to the United States constitution and therefore cannot be proscribed; and (3) the above mentioned statutes are unconstitutional on their face as violative of the fourteenth amendment to the constitution of the United States and article first, §§ 8 and 9, of the constitution of Connecticut.

I

The defendant's constitutional attack is predicated on the claim that the breach of peace and disorderly conduct statutes are (1) overly vague and (2) overly broad, thereby creating a 'chilling effect' on the protected right of free expression.

A. The Breach of Peace Statute (§ 53-174)

The crime of breach of the peace as set forth in § 53-174 is constitutionally sufficient. The Appellate Division of the Circuit Court answered such a constitutional claim in State v. Fields, 5 Conn.Cir. 384, 386, 254 A.2d 503, 505, by holding: 'It is fundamental that when a question of constitutionality is raised, courts must approach it with great caution, examine it with infinite care, and sustain the legislation unless its invalidity is clear and beyond a reasonable doubt. Snyder v. Town of Newtown, 147 Conn. 374, 390, 161 A.2d 770; Edwards v. City of Hartford, 145 Conn. 141, 145, 139 A.2d 599. 'Breach of the peace' has been the subject of statutes from the days of Swift. 'The peace' has been defined in our state in many cases. It would serve no purpose to dwell on the many aspects of what constitutes 'Breach of the peace.' See State v. Van Allen, 140 Conn. 586, 589, 102 A.2d 526; State v. Cantwell, 126 Conn. 1, 6, 7, 8 A.2d 533, rev'd on other grounds, 310 U.S. 296, 309 60 S.Ct. 900, 84 L.Ed. 1213; Malley v. Lane, 97 Conn. 133, 138, 115 A. 674. The language used in the statute is plain and unambiguous. The legislative intent is clearly expressed and manifest. In our state, no statute will be held void for uncertainty if a practicable or sensible effect may be given to it. State v. Andrews, 108 Conn. 209, 213, 142 A. 840. "The rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute, in disregard of their context and in frustration of the obvious legislative intent." State v. Faro, 118 Conn. 267, 274, 171 A. 660, 663 (quoting United States v. Corbett, 215 U.S. 233, 242, 30 S.Ct. 81, 54 L.Ed. 173). But where, as in this case, the legislative intent is clear and the language used to express it is unambiguous, there is no room for statutory construction. State ex rel. Cooley v. Kegley, 143 Conn. 679, 683, 124 A.2d 898; State v. Zazzaro, 128 Conn. 160, 165, 20 A.2d 737. Thus, § 53-174 has been held not unconstitutional on its face. Barber v. Kinsella, (D.C.), 277 F.Supp. 72; Watch Tower Bible & Tract Society v. City of Bristol, (D.C.), 24 F.Supp. 57, aff'd per curiam, 305 U.S. 572, 59 S.Ct. 246, 83 L.Ed. 361.'

The doing of acts or the use of language which, under circumstances of which the person is or should be aware, is calculated or likely to provoke another person or other persons to acts of immediate violence may constitute a breach of the peace. State v. Cantwell, 126 Conn. 1, 7, 8 A.2d 533. As the court stated in State v. Van Allen, 140 Conn. 586, 589, 102 A.2d 526, 527, "(t)he peace' has been defined by us to be 'that state and sense of safety which is necessary to the comfort and happiness of every citizen, and which government is instituted to secure.' Malley v. Lane, 97 Conn. 133, 138, 115 A. 674, 676. It is sufficient that the acts intentionally committed are of such a nature that they naturally cause serious disquietude on the part of those in the vicinity. 1 Bishop, Criminal Law (9th Ed.) § 539. No specific intent to break the peace is essential. State v. Cantwell, 126 Conn. 1, 6, 8 A.2d 533; Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 84 L.Ed. 1213.'

Our breach of the peace statute is not merely a codification of the common law; it includes offenses which were not criminal at common law. State v. Boyer, 2 Conn.Cir. 288, 291, 198 A.2d 222. Section 53-174 does not define the crime of breach of the peace but merely specifies certain ways of committing it. Id., 292, 198 A.2d 222 (citing State v. Cantwell, supra, 126 Conn. 5, 8 A.2d 533).

B. The Disorderly Conduct Statute (§ 53-175)

The disorderly conduct statute, § 53-175, is also upheld in its terms. Disorderly conduct was not an offense at common law; it is punishable by statute as an offense separate and distinct from breach of the peace. State v. Boyer, supra, 2 Conn.Cir. 291, 198 A.2d 222; State v. Robinson, 23 Conn.Sup. 430, 1 Conn.Cir. 292, 184 A.2d 188. In State v. Townsend, 6 Conn.Cir. 73, 265 A.2d 512, the court met a similar constitutional challenge to this law. After reviewing the problem of vagueness and uncertainty in the context of other disorderly conduct statutes similar to that in Connecticut, the court concluded (p. 77, 265 A.2d p. 515): 'So, however forceful and persuasive the arguments may be compelling a determination in favor of unconstitutionality of our disorderly conduct statute, the court must bear in mind the admonition in United States v. Roth, 2 Cir., 237 F.2d 796, 797: '(I)t is not the part of responsible judicial administration for an inferior court such as ours, whatever our personal opinions, to initiate a new and uncharted course of overturn of a statute thus long regarded of vital social importance and a public policy of wide general support.' Earlier, in State v. Muolo, 119 Conn. 323, 326, 176 A. 401, 403 our Supreme Court said that while 'any court has power to pass on the constitutionality of a statute and it may be its duty to declare it invalid,' nevertheless 'a court should take such action only upon the clearest ground or where the rights of litigants make it imperative that it should do so. Otherwise it is better * * * to leave the decision to our higher courts, to which the matter may be brought by appeal or otherwise."

The breach of peace (§ 53-174) and disorderly conduct (§ 53-175) statutes meet the constitutional standards required of criminal legislation.

II

We now deal with these crimes as applied to the defendant's conduct measuring his claim of constitutional protection, under the first and fourteenth amendments to the United States constitution, against the charges in the substitute information as specified in the bill of particulars.

The conception of liberty under the due process clause of the fourteenth amendment embraces the right of free speech guaranteed by the first amendment, which right is thereby protected from invasion by the states. Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117; Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213. The Cantwell case is a landmark ruling. The United States Supreme Court has by this decision established the constitutional standard for balancing the freedom to communicate information and opinion of the first amendment against the interest of the state in the preservation and protection of peace and good order within its borders. By its facts and particular holding, the Cantrell opinion now directs the path for this court to follow. Cantwell, as here relevant, was an appeal from the breach of peace conviction of Jesse Cantwell in our courts in that he 'did disturb the public tranquility by certain acts or conduct inciting to violence or tending to provoke or excite others * * * to break the peace,' a common-law definition of the offense. See State v. Cantwell, 126 Conn. 1, 3, 8 A.2d 533, 535. The facts which were held to support this conviction were that Cantwell stopped two men in the street, received permission, and played a phonograph record attacking their religion and church. Both men were incensed by the contents of the record and were tempted to strike Cantwell unless he went away. On being told to do so, he left their presence. There was no evidence that he was personally offensive or entered into any argument with the two men.

The United States Supreme Court overruled Cantwell's conviction of invoking or inciting others to...