303 F.Supp. 952 (N.D.Ga. 1969), Civ. A. 12511, Wilson v. Gooding

Docket NºCiv. A. 12511
Citation303 F.Supp. 952
Party NameWilson v. Gooding
Case DateJuly 08, 1969
CourtUnited States District Courts, 11th Circuit, Northern District of Georgia

Page 952

303 F.Supp. 952 (N.D.Ga. 1969)

Johnny C. WILSON


Millard GOODING, Warden of the Richmond County, Georgia, Public Works Camp.

Civ. A. No. 12511.

United States District Court, N.D. Georgia, Atlanta Division.

July 8, 1969

Appeal Dismissed Dec. 8, 1969, See .90 S.Ct. 397.

Page 953

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for plaintiff.

Arthur K. Bolton, Atty. Gen. State of Georgia, Atlanta, Ga., for defendant.

SIDNEY O. SMITH, Jr., District Judge.

In this writ of habeas corpus petitioner seeks to set aside his conviction on a number of grounds. The Court, in an order dated March 4, 1969, concluded that petitioner had not exhausted his available state remedies as to contentions raised in paragraphs 6b, 7, 8, and 9 of the writ. The Court concluded that petitioner had exhausted his remedies as to the contention raised in paragraphs 5 and 6(a), attacking his conviction on the grounds of the alleged unconstitutionality of Georgia Code 26-6303. The Court also concluded that petitioner's failure to utilize a direct appeal to the United States Supreme Court under 28 U.S.C. 1257 did not constitute a bar to this proceeding. Accordingly, this order will not deal with the alleged unconstitutional application of this statute nor any of the other points raised in the writ, except for the facial unconstitutionality of Georgia Code 26-6303.

Georgia Code 26-6303 provides in relevant part:

Any person who shall, without provocation, use to or of another, and in his presence * * * opprobrious words or abusive language, tending to cause a breach of the peace * * * shall be guilty of a misdemeanor.

The question of constitutionality of this statute is exceedingly complex and difficult. None of the reported cases that have come to this Court's attention have dealt with the precise issues presented herein, yet many cases have dealt with at least some aspects of the instant statute. First Amendment rights have assumed a protected place in our jurisprudence. Great care must be taken in this area to assure that vague or overbroad laws do not infringe upon these rights. See, e.g., Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Since speech is normally intended to change the opinions or reinforce the opinions of others, problems arise as to the extent to which mere speech may be curbed when it provokes others into action. The cases reflect the view that peaceful expression of even unpopular views is permitted and even encouraged.

(A) function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stire 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. That is why freedom of speech * * * is * * * protected

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against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * *

Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1948). In a recent decision the Supreme Court has taken a further step in elaborating upon the above language.

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing lawless action and is likely to incite or produce such action. As we said in Noto v. United States, 367 U.S. 290, 297-298 (81 S.Ct. 1517, 1520-1521, 6 L.Ed.2d 836) (1961), 'the mere abstract teaching * * * of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' See also Herndon v. Lowry, 301 U.S. 242, 259-261 (57 S.Ct. 732, 739-740, 81 L.Ed. 1066) (1937); Bond v. Floyd, 385 U.S. 116, 134 (87 S.Ct. 339, 348, 17 L.Ed.2d 235) (1966).

This decision in Brandenburg v. State of Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (June 9, 1969) logically followed from the Court's earlier decisions inYates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1937). But a speaker sometimes passes the bounds of argument and persuasion and undertakes incitement to riot. See, e.g., Feiner v. New York, 340 U.S. 315 at 321, 71 S.Ct. 303, 95 L.Ed. 267 (1950). The above distinction, while easily stated, is not so easily applied to a given factual situation. What is clear, however, is the fact that the Supreme Court will not allow intrusions into this protected area.

For standards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.

N.A.A.C.P. v. Button, 371 U.S. 415 at 432-433, 83 S.Ct. 328, at 337-338, 9 L.Ed.2d 405 (1963). Thus, in Ashton v. Kentucky, supra, the Court struck down a statute prohibiting '* * * any writing calculated to create disturbances of the peace * * *.' In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the Court struck down an ordinance...

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