Com. v. Bohmer

• Citation: 374 Mass. 368,372 N.E.2d 1381
• Parties: COMMONWEALTH v. Peter BOHMER et al. 1
• Decision Date: 15 February 1978
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1381

372 N.E.2d 1381

374 Mass. 368

COMMONWEALTH v. Peter BOHMER et al. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 3, 1977.

Decided Feb. 15, 1978.

Matthew H. Feinberg, Boston, for defendants.

Sheila Ryan, Legal Asst. to the Dist. Atty., Cambridge, and Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

QUIRICO, Justice.

This case is before us on a bill of exceptions challenging the defendants' conviction of wilfully interrupting or disturbing a school in violation of G.L. c. 272, § 40. ² The defendants question the constitutionality of the statute, both on its face and as applied, and challenge certain of the trial judge's evidentiary rulings, his instructions to the jury, and his exclusion of the brother of one of the defendants from the court room. We hold that there was no error, and we affirm.

The evidence most favorable to the prosecution is summarized. The convictions arose out of two incidents at the Massachusetts Institute of Technology (MIT). On January 16, 1970, the defendant Peter Bohmer entered the classroom of MIT Professor John Wulff, while class was in progress, apparently in order to make an announcement. Bohmer attempted to address the students but Wulff cut him off and ordered him out of the room. George Katsiaficas ³ then entered and attempted to distribute leaflets, and Bohmer again began speaking. Wulff demanded that both of them leave. When Bohmer attempted a third time to speak, Wulff again ordered him to be silent and called on members of the class for help. Two students responded and ushered the defendants out of the classroom.

Later the same day the defendants entered another MIT classroom while a class was being conducted. The teacher, Professor Edwin Bransome, asked the defendants if he could help them. Bohmer stated that he wished to address the class. Bransome refused, but Bohmer nevertheless began to speak. Bransome then made an attempt to lead Bohmer out the door. Words were exchanged, Bohmer telling Bransome to "take your hands off me," and Bohmer requested that the professor allow the class to decide for itself whether the defendants should be allowed to speak. Bransome also refused this request, and led both Bohmer and Katsiaficas out of the room. When the door was closed on Katsiaficas's foot an exchange of name-calling ensued. Both incidents lasted approximately five minutes, and class resumed after each one. ⁴

Criminal complaints were filed by Professors Wulff and Bransome against the two defendants, charging each with wilfully interrupting and disturbing a school in violation of G.L. c. 272, § 40. After appealing a District Court conviction, the defendants were convicted by a jury in the Superior Court. ⁵ They appealed the conviction, and we ordered direct appellate review. G.L. c. 211A, § 10(A).

The defendants first contend that G.L. c. 272, § 40, is void for vagueness, ⁶ and that their conviction under it is therefore a denial of their right to due process of law under the Fourteenth Amendment to the Constitution of the United States.

Due process requires that a criminal statute be sufficiently clear to give notice of the conduct that it prohibits. A "statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666 (1950). Due process requirements also mandate that no statute have such a standardless sweep that arbitrary and discriminatory enforcement by the police and the courts is permitted. Commonwealth v. A Juvenile, 368 Mass. 580, 595 n.15 ^a, 334 N.E.2d 617, 627, n. 15 (1975). Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." Smith v. Goguen, 415 U.S. 566, 573 n.9, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974), quoting from United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875).

However, since words are the elements that constitute a statute, mathematical precision in the definition of legislative enactments is not required. Grayned, supra, 408 U.S. at 110, 92 S.Ct. 2294. A statute is satisfactory so long as it clearly indicates what it prohibits as a whole. Id. "A law is not vague, however, if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning." Commonwealth v Orlando,--- Mass. ---, --- ^b, 359 N.E.2d 310 (1977). Uncertainty as to whether marginal offenses are included within the coverage of a statute does not render it unconstitutional if its scope is substantially clear. Commonwealth v. Jarrett, 359 Mass. 491, 496-497, 269 N.E.2d 657 (1971). United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973).

We conclude that G.L. c. 272, § 40, is sufficiently definite to satisfy the notice requirements of the due process clause. ⁷ The statute proscribes only such activity as actually creates an interruption or disturbance of the normal functioning of a school. Because of the limited scope of the statute's application, viz., to disturbances in schools or other public meetings, the degree of interruption necessary to constitute a violation is easily measured by its impact on, and incompatibility with, the functioning of such institutions. Grayned, supra at 112, 92 S.Ct. 2294. Additionally, the statute requires that the acts which cause the disturbance be wilfully done. We believe that these limitations on the scope of the statute provide a person of common intelligence with sufficient notice of what the law prohibits; due process requirements are therefore satisfied. ⁸

2. The defendants also attack the school disturbance statute on overbreadth grounds, contending that it is invalid on its face because it punishes activities that are constitutionally protected.

Generally a litigant is not allowed to challenge the application of a statute to himself on the basis that it might be unconstitutional as it applies to others. Commonwealth v. LaBella, 364 Mass. 550, 553, 306 N.E.2d 813 (1974). Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However an exception to this traditional rule of standing has been recognized in certain limited circumstances where a case arises under the First Amendment. United States v. National Dairy Prods. Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). This exception is based on an overriding interest in preventing any "chill" on the exercise of First Amendment rights. Id. As a result of the exception, a criminal defendant may, in certain circumstances, attack a statute on its face because it prohibits conduct protected by the First Amendment even though his own conduct is clearly not so protected. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Such a facial overbreadth attack is allowed where the statute challenged is incapable of being construed so as to limit its application to unprotected activity, and where it presents a real and substantial deterrent to protected expression. Young v. American Mini Theatres, Inc., 427 U.S. 50, 60, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Because we conclude that G.L. c. 272, § 40, does not substantially deter the exercise of First Amendment rights, we reject the overbreadth challenge made by the defendants in this case.

The free speech clause of the First Amendment protects expressive speech or conduct from governmental regulation. This protection is not, however, absolute, since "reasonable 'time, place and manner' regulations may be necessary to further significant governmental interests, and are permitted." Grayned, supra, 408 U.S. at 115, 92 S.Ct. at 2303. Whether such regulations are reasonable depends on "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned, supra at 116, 92 S.Ct. at 2303.

The regulation of expressive conduct within the special characteristics of the school environment is an issue of particular sensitivity. First Amendment rights must be zealously guarded in our schools in order to promote the free exchange of ideas that is central to the development of this country's younger citizens. Keyishian v. Regents of Univ. of the State of N.Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, supra, at 487, 81 S.Ct. at 251. It is also of importance, however, to preserve a measure of order in our schools so that an atmosphere favorable to education can be maintained. See Grayned, supra, 408 U.S. at 119, 92 S.Ct. 2294.

The problem presented by these competing factors has recently been considered by the Supreme Court of the United States in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and Grayned v. Rockford, supra. In the Tinker case, public school children in Des Moines, Iowa, were suspended from classes because they wore black armbands in protest against the United States participation in the war in Vietnam. The protesting students did not engage in any conduct that was "actually or potentially...