Com. v. A Juvenile

Citation368 Mass. 580,334 N.E.2d 617
Decision Date11 September 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

John F. Palmer, Boston, for defendant.

Joseph A. McDonough, Asst. Dist. Atty., for the Commonwealth.



In this case we conclude, in a result which is required by relevant decisions of the United States Supreme Court, that the 'idle and disorderly persons' provision of G.L. c. 272, § 53, cannot constitutionally be the basis for criminal convictions for the use of offensive and abusive language.

The case comes to this court by a report from the Boston Juvenile Court, Appellate Division, which had before it an appeal from a finding that the juvenile involved was a disorderly person within the meaning of § 53. 1 The case was reported in accordance with G.L. c. 278, § 30A, and G.L. c. 119, § 56. 2

As reported by the judge of the Juvenile Court the questions for our determination are (1) whether the court should grant the defendant's motion to dismiss filed on appeal with the Appellate Division, and (2) what standards should apply in considering offenses involving the use of language and related conduct under a disorderly person complaint pursuant to c. 272, § 53. More broadly stated, the issue is whether the offense of being an idle and disorderly person under § 53 in so far as it encompasses speech or expressive conduct is violative of the First Amendment to the United States Constitution as made applicable to the States through the Fourteenth Amendment. The claim raised is that the disorderly person provision of § 53 is unconstitutionally overbroad with respect to protected First Amendment expression. In addition, the provision is challenged on its face as being void for vagueness.

We state the facts of this case as taken from the report, which incorporates a statement of particulars as filed by the Commonwealth in the trial court. At approximately 4:30 P.M. on March 20, 1974, the defendant while in Jordan Marsh Company, a Boston department store, for reasons not disclosed, began yelling at a saleswoman using such phrases as 'f_ _ a_ _' and the like. He continued his tirade when a female security guard employed by the store arrived, calling her, among other things, a 'f_ _ a_ _' and a 'f_ _ pig.' Apparently, the store employees were unable to control the situation and the defendant continued his onslaught of abusive speech. A crowd of approximately 100 shoppers gathered. When asked by the security guard to leave the store, the defendant, in response, gestured by raising the third finger of his hand, symbolizing what he was verbally expressing. Finally, and it is not clear from the record how, the defendant was escorted from the store. But the defendant did not remain outside; rather he returned once again to assail the employees with his offensive screams and gestures. All told the defendant's activities in the store went on for forty minutes.

The defendant was adjudged delinquent on a complaint charging him with being a disorderly person. The record does not reveal whether the adjudication was based on the defendant's speech, including his offensive and coarse words, or was based on his purely physical conduct in refusing to leave and returning to the store. Therefore, in so far as the finding may have been based entirely or in part on the speech involved, this court is required to review the case as implicating free speech rights. See Bachellar v. Maryland, 397 U.S. 564, 569--571, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970).

We can infer (and indeed we probably understate the case) that the defendant's outcries were unpleasant to the ears of the saleswoman, the security guard, and the crowd of shoppers congregated in the busy downtown store. We can also infer that at least the store employees were involuntarily present during all of this episode. Thus, even were the shoppers free to avert their eyes and close their ears (see Cohen v. California, 403 U.S. 15, 21--22, 91 S.Ct. 1780, 28 L.Ed.2d 284 (1971)), this was clearly not the case with the store employees who could not be expected to abandon their respective counters. To a large degree these employees were captive to the defendants' speech. However, the issues we must consider are whether the defendant's words and conduct, to the extent that they were expressive, were first, as a statutory matter, criminal under § 53 and if so, second, whether those words and conduct may, consonant with our Federal and State Constitutions, be the subject of criminal sanctions in the manner provided for by the disorderly person provision of § 53.

As will be seen at the conclusion of this opinion, we have answered the first reported question (whether the complaint should have been dismissed) in the affirmative; we have answered the second question by a definition as to the conduct which may be constitutionally proscribed under a charge of being an idle and disorderly person as we have construed that term. As will further be made clear, the effect of our decision is that convictions may no longer be constitutionally obtained under § 53 for the offense of being an idle and disorderly person in circumstances where the use of offensive and abusive language is relied on as proof of the offense. We emphasize that our holdings are required by decisions of the United States Supreme Court which have defined the scope of First Amendment protection in the area of offensive speech. 3

1. Idle and Disorderly Person. In reviewing the crime of being a disorderly person under § 53, we, as is required by the First Amendment, start out with the primary postulate that any statute which regulates speech requires the strictest of our scrutiny because 'the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).

This court will consider the facial validity of the § 53 disorderly person offense despite the fact that the defendant's speech might be of the class properly the subject of State regulation, for '(i)t matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute.' Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). See generally, Bigelow v. Virginia, --- U.S. ---, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), and cases cited therein. Thus if a law is found deficient as unconstitutionally overbroad in its potential application to protected speech, it may not be applied even to the person raising the challenge though that person's speech is arguably unprotected by the First Amendment. This follows since '(t)he statute, in effect, is stricken down on its face.' Coates v. Cincinnati, 402 U.S. 611, 620, 92 S.Ct. 1686, 1691, 29 L.Ed.2d 214 (1971) (White, J., dissenting). See generally, note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).

Review by this court of the constitutional validity of the § 53 disorderly person provision is not limited to the textual wording of that section, since we may also consider the authoritative construction given that statute by this court. See Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Commonwealth v. Brasher, 359 Mass. 550, 553, 270 N.E.2d 389 (1971). It is clear that in Alegata v. Commonwealth, 353 Mass. 287, 302, 231 N.E.2d 201 (1967), we have authoritatively construed the disorderly person provision of the statute. In that case the provision was challenged on vagueness grounds. By judicial construction, we attempted to give additional definitional content to the term 'idle and disorderly persons.' In doing so, we drew on a long common law and statutory history. Given that history and relying on the pattern of legislative revisions, we engrafted onto § 53 the Model Penal Code definition of the offense of disorderly conduct. See Am.Law Inst., Model Penal Code, § 250.2 (Proposed Official Draft, 1962), which provides: 'A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. 'Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access,' quoted in Alegata v. Commonwealth, 353 Mass. at 304, 231 N.E.2d 201 at 211 (1967).

There is little doubt that the defendant's activities, as a statutory matter, constituted a crime under this definition. There is also little doubt that our limiting construction in the Alegata case was intended to cure any vagueness in the provision of § 53 relating to disorderly persons. Nevertheless, in the context of the Alegata case we were not called on to further express an opinion as to the constitutional restraints on the State's power to make criminal the use of words so as to be charged as a disorderly person under § 53. However, developments in the area of constitutional adjudication with respect to offensive speech and the First Amendment require that we once again review that aspect of § 53 to determine its constitutional validity.

We state the general principles to be applied. First, if 'idle and disorderly persons' is, per se or as construed, 'susceptible of application to protected expression,' it is unconstitutionally overbroad. Gooding v. Wilson, 405 U.S. 518, 523, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972). 4 Second, unless the words 'idle and disorderly persons' or our...

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