Kay, In re

• Citation: 1 Cal.3d 930,464 P.2d 142,83 Cal.Rptr. 686
• Decision Date: 30 January 1970
• Docket Number: Cr. 13533
• Court: California Supreme Court
• Parties: , 464 P.2d 142 In re Thomas Patrick KAY et al., on Habeas Corpus.

Page 686

83 Cal.Rptr. 686

1 Cal.3d 930, 464 P.2d 142

In re Thomas Patrick KAY et al., on Habeas Corpus.

Cr. 13533.

Supreme Court of California,

In Bank.

Jan. 30, 1970.

Joe C. Ortega, Los Angeles, for petitioners.

A. L. Wirin, Fred Okrand, Laurence R. Sperber and Tony Geram, Fontana, as amici curiae on behalf of petitioners.

Byron C. Morton, Dist. Atty., and Ross I. Gallen, Deputy Dist. Atty., for respondent.

TOBRINER, Justice.

Petitioners James Caswell, ¹ Thomas Patrick Kay, Alfred Figueroa, and Raul Loya were convicted by a jury of disturbing a lawful meeting, a misdemeanor, in violation of section 403 of the Penal Code. Petitioners appealed to the appellate department of the superior court, which affirmed their conviction. The appellate department, at petitioners' request, certified the case to the Court of Appeal. The Court of Appeal refused certification. Petitioners, who had been sentenced to four months in jail, ² then sought a writ of habeas corpus from this court, claiming that their convictions violated the guarantees of free speech and due process of law in the federal and state Constitutions. We issued an order to show cause, and ordered petitioners released on their own recognizance pending our determination of this proceeding.

We now conclude that petitioners' conduct does not fall within the constitutionally compelled meaning of section 403, and that the writ should therefore issue.

I. The Facts

City officials scheduled a celebration of Independence Day for Jury 4, 1968, in Dateland Park in the City of Coachella. They invited as a speaker, among others, Congressman John Tunney, a candidate for Congress in the November 1968 congressional election. Because he had declined to support a widely publicized consumer boycott of non-union table grapes, Congressman Tunney had become a controversial figure. Coachella, located in the center of one of the major grape producing areas of the state, includes in its population a large number of Mexican-Americans, many of whom apparently supported the boycott, and on this matter disagreed with Congressman Tunney. Although certainly aware of the controversy surrounding Mr. Tunney, the organizers of the celebration decided to invite him to speak. Apparently neither Mr. Tunney's opponent in the November election nor the nationally known leader of the farm workers union was asked to participate in the celebration.

On July 4 petitioners went to the celebration together with some 6,000 other persons, none of whom, so far as appears from the record, had nay prior connection with petitioners. When petitioners arrived, police officials in charge of controlling the crowd contacted them and, upon inquiry, told them that they could protest Congressman Tunney's speech so long as they did so in a nonviolent manner. Petitioners and the rest of the audience courteously listened to a number of speakers preceding Congressman Tunney.

Congressman Tunney spoke last and immediately prior to the fireworks. He discussed a number of political topics, ³ although he does not appear to have mentioned the grape boycott or the farm workers.

After Congressman Tunney had given a portion of his speech, a comparatively small part of the total crowd, between 25 and 250 persons, engaged in rhythmical clapping and some shouting for about five or ten minutes. This demonstration did not affect the program. Congressman Tunney, who had been using a microphone, finished his speech despite the protest, pausing to assure those protesting that they had a right to do so and to urge them to be grateful that they live in a country whose Constitution protects their right to demonstrate in that manner. At no time did either the speaker or the police ask the protestors to be silent or to leave. Following the end of the protest and of the congressman's speech, the fireworks were shown. The police made no arrests during or immediately following the protest; the prosecution filed charges only some two weeks later.

At the trial the prosecution and petitioners differed as to their versions of the role of the protestors in the incident. Prosecution witnesses stated that all four petitioners had joined in the clapping. Petitioners Caswell, Loya, and Figueroa, testifying on their own behalf, denied that they had clapped, although petitioner Loya admitted that he had shouted slogans and applauded Congressman Tunney's statement as to the constitutional right to protest. Petitioner Figueroa admitted having waved a flag bearing an emblem used by the farm workers. The protest appears to have been a spontaneous demonstration in support of the farm workers and in opposition to Congressman Tunney's position. No evidence indicated that the incident had been planned or organized by petitioners, the farm workers, or anyone else.

The effect of the protest on the audience does not appear to have been substantial. Of 10 members of the audience who testified at the trial, only three stated that they had been unable to hear Congressman Tunney. Two of these, a police officer and an official of the celebration, admitted their auditory inability had occurred only after they had deliberately approached the protesting group to investigate the incident. The third witness who stated that she had not been able to hear, also an official of the celebration committee, admitted that she had purposely stood only a few feet from the protesting group although she might have walked to another part of the park where the speech would have been more audible. Two other witnesses, a police officer and a city councilman, both of whom had been sitting behind Congressman Tunney on the speaker's platform, stated that they had been unable to her some parts of the address. The prosecution offered no evidence as to the difficulty, if any, of hearing the congressman's speech at any place in the park other than on the speaker's platform, where the amplifying equipment may or may not have been helpful. Five other witnessesIncluding the city manager, the master of ceremonies, and Congressman Tunney's field representative, testified that they had encountered no difficulty in hearing the speech.

Four witnesses who were called by the prosecution stated that they had been 'disturbed' by the protest. Three of these were officials in charge of the celebration, whom may have been 'disturbed' merely because an element of controversy had been introducd into the meeting. We cannot determine from the record whether any of these witnesses opposed the unionization of the farm workers and thus suffered disturbance because of the content of the slogans and the plain meaning of the clapping. Congressman Tunney's field representative, Douglas Waylon, stated that he had not been disturbed by the protest ⁴ and that he felt that such protests were not unusual, though commonly reserved for presidents. Dr. Francis carney, testifying as an expert on American political history, stated that such clapping and shouting lies 'within the range of normal and acceptable political demonstrations in American politics,' and listed numerous incidents in which such political speakers had been greeted in a similar manner.

Police officials testified that at no time during the nonviolent protest did they fear for injury to persons or property.

II. The application of section 403 involves competing First Amendment interests

Section 403 of the Penal Code provides: 'Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting, not unlawful in its character, * * * is guilty of a misdemeanor.' With one exception, not relevant here, the section has not been interpreted by a California court since its enactment almost a century ago. (See Farraher v. Superior Court of Kern County, (1919) 45 Cal.App. 4, 187 P. 72.)

We initially recognize that in analyzing the application of section 403 to the facts of this case, and, more generally, to comparable situations, we must be guided by the constitutional doctrines governing statutory regulations affecting First Amendment rights. 'Disturbances' of meetings arise in a wide variety of forms; the modern techniques of the 'politics of peaceful confrontation' frequently result in a clash of ideological expressions which may, in many senses, 'disturb' a meeting. Without doubt petitioners' conduct in the instant case, including clapping (Edwards v. South Carolina (1963) 372 U.S. 229, 233, 83 S.Ct. 680, 9 L.Ed.2d 697), cheering and shouting (Cox v. Louisiana (1965) 379 U.S. 536, 546, 85 S.Ct. 453, 43 L.Ed.2d 471), and flag waving (Stromberg v. California (1931) 283 U.S. 359, 362, 51 S.Ct. 532, 75 L.Ed. 1117), was 'closely akin to 'pure speech" (Tinker v. Des Moines School District (1969) 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731). The imposition of criminal sanctions for such conduct under section 403 clearly raises the serious question of the constitutionally permissible bounds of this provision. We turn to an examination of the applicable competing constitutional principles.

Under most circumstances, of course, ordinary good taste and decorum would dictate that a person addressing a meeting not be interrupted or otherwise disturbed. The Constitution does not require that any person, however lofty his motives, be permitted to obstruct the convention or continuation of a meeting without regard to the implicit customs and usage or explicit rules governing its conduct. (Gregory v. Chicago (1969) 394 U.S. 111, 125, 89 S.Ct. 946, 22 L.Ed.2d 134 (Black, J., concurring); Kovacs v. Cooper (1949) 336 U.S. 77, 81, 97, 69 S.Ct. 448, 93 L.Ed. 513.) The constitutional guarantees of the free exercise of religious opinion, and of the rights of the people peaceably to assemble and petition for a redress of grievances, would be worth little if outsiders could disrupt and prevant such a meeting in disregard of the customs and rules applicable to it. (Compare Wall v. Lee (1865) 34 N.Y. 141, 145.) This inhibition does...