Anniskette v. State

• Decision Date: 15 October 1971
• Docket Number: No. 1231,1231
• Parties: Ralph ANNISKETTE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1012

489 P.2d 1012

Ralph ANNISKETTE, Appellant, v. STATE of Alaska, Appellee.

No. 1231.

Supreme Court of Alaska.

Oct. 15, 1971.

Victor D. Carlson, Public Defender, Anchorage, Michael L. Rubinstein, Ketchikan, and R. Collin Middleton, Asst. Public Defenders, Ketchikan, for appellant.

G. Kent Edwards, Attorney General, Juneau; and W. H. Hawley, District Attorney, Ketchikan, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.

OPINION

CONNOR, Justice.

Appellant was convicted by a district court jury of disorderly conduct and disturbance of the peace under AS 11.45.030. The complaint stated that on or about August 22, 1969, Ralph Anniskette 'did unlawfully conduct himself in a disorderly manner in his home to the disturbance of an Alaska State Trooper, Lorn Campbell, by telephoning Trooper Campbell and berating him with loud and abusive language.'

It seems that appellant regularly telephoned the local resident trooper and complained at length regarding the trooper's qualifications and performance. Repeated calls were often made late at night while appellant was apparently intoxicated. The trooper and his family became increasingly upset with such recurrent harassment, which occurred even while the trooper was out of town.

However, appellant was charged with making but a single telephone call on August 22, 1969. The call was from appellant's home to Trooper Campbell's home. During the course of that conversation, he complained at langth regarding the trooper's effectiveness, and even questioned whether the trooper was properly qualified to be a law-enforcement official. ¹

At his trial, appellant moved to dismiss the charge for failure to state an offense under AS 11.45.030. If an offense was stated, it was, he argued, an unconstitutional application of the statute. Alternatively, he asserted that the statute was unconstitutionally vague on its face, and that it constituted an invalid prior restraint on his freedom of speech. His motion was denied. He was convicted in the district court and appealed to the superior court. Upon affirmance of his conviction by that court, this appeal followed.

At the relevant time AS 11.45.030(1) and (2) provided:

'Disorderly conduct and disturbance of the peace. A person who (1) uses obscene or profance language in a public place or private house or place to the disturbance or annoyance of another; (2) makes a loud noise or is guilty of tumultuous conduct in a public place or private house to the disturbance or annoyance of another, or is otherwise guilty of disorderly conduct to the disturbance or annoyance of another, upon conviction, is guilty of a misdemeanor, and is punishable by a fine of not more than $300, or by imprisonment in a jail for not more than six months, or by both.' ²

This is not a case in which a comprehensive interpretation of the disorderly conduct statute is required. Whatever the statute means, it cannot be applied to behavior which is constitutionally exempt from criminal prohibition. It must be recognized at the outset that it is communicative utterances which are the subject of prosecution. They constitute the sole form of behavior for which the defendant was prosecuted.

Under the First Amendment to the Constitution, ³ it is only in the most limited circumstances that speech may be punished. Certainly the defendant's conduct does not fall within the unprotected area of 'obscenity'. No claim is made that Anniskette's message was erotically arousing. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). The defendant did not use 'profanity' of the type which creates in and of itself a public nuisance. At least no such 'profanity' is charged here. ⁴ Writing for the court in Cohen, Mr. Justice Harlan pointed out that coarse words must often be a necessary concomitant to achieving those values which open debate and free speech are designed to serve:

'Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.' 403 U.S. 15, at 25, 91 S.Ct. at 1788, 29 L.Ed.2d, at 294. See also Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638 (1969).

Nor can we find in defendant's telephone call an exhortation to violence by others which creates a clear and present danger that such violence will occur. Cf., Terminiello v. Chicago, 337 U.S. 1 (1949), 69 S.Ct. 894, 93 L.Ed. 1131.

We cannot classify the defendant's telephonic communication as falling within the category of 'fighting words', which is recognized as another exception to the freedom of speech guaranteed by the Constitution. The 'fighting words' doctrine covers those face-to-face utterances which ordinarily provoke, in the average, reasonable listener, an immediate violent response. The defendant's conduct in this case did not reach that degree of provocation.

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), 62 S.Ct. 766, 86 L.Ed. 1031, is not apposite. It concerns a narrowly construed statute prohibiting 'face-to-face words plainly likely to cause a breach of the peace by the addressee'. 315 U.S., at 573, 62 S.Ct., at 770, 86 L.Ed., at 1036. An important distinguishing feature of Chaplinsky is that the words, 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists', were uttered at a street intersection where the listening crowd had become unruly, and after a disturbance in the crowd had actually occurred. 315 U.S. 568, 569, 62 S.Ct. 768, 86 L.Ed. 1031, 1034. Because these words, in context, tended to incite an immediate breach of the peace, they were held not to be protected as free speech.

But here the situation is quite different. For even if it were assumed for purposes of argument that Anniskette's message contained 'fighting words', constitutional protection would still extend to the particular factual setting presented here. The time necessary for the officer to travel from his residence to that of the defendant should have allowed enough cooling off so that any desire on the part of the officer to inflict violence on the defendant should have been dissipated. We assume that the officer had sufficient self-control that, after such a period of time, he would not have assaulted the defendant for what had been said earlier. As another court has observed,

'A policeman's special powers and training, and his constant exposure to situations where the norms of common speech are not distinguished by unvarying delicacy of expression, leave him less free to react as quickly as the private citizen to a purely verbal assault. In a situation where he is both the victim of the provocative words of abuse and the public official entrusted with a discretion to initiate through arrest the criminal process, the policemen may, ordinarily at least, be under a necessity to preface arrest by a warning. It would appear that there is no First Amendment right to engage in deliberate and continued baiting of policemen by verbal excesses which have no apparent purpose other than to provoke a violent reaction.' Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638, 646, note 23 (1969). ⁵

That the officer was personally offended by the telephone call does not render the defendant's conduct a crime. That would be to make the terms of the statute and the content of the First Amendment shift with the mentation and emotional status of the recipient of the verbal communication. Under an objective standard it is not permissible to make criminality hinge upon the...