Marks v. City of Anchorage, No. 1568

CourtSupreme Court of Alaska (US)
Writing for the CourtBefore BONEY; ERWIN; BOOCHEVER; BONEY, C. J., and BOOCHEVER
Citation500 P.2d 644
PartiesClara MARKS et al., Appellants, v. CITY OF ANCHORAGE, and John C. Flanigan, in his capacity as Chief of theAnchorage City Police Department, Appellees.
Docket NumberNo. 1568
Decision Date23 June 1972

Page 644

500 P.2d 644
Clara MARKS et al., Appellants,
v.
CITY OF ANCHORAGE, and John C. Flanigan, in his capacity as
Chief of theAnchorage City Police Department, Appellees.
No. 1568.
Supreme Court of Alaska.
June 23, 1972.
Rehearing Denied Sept. 15, 1972.

Alan G. Sherry, Alaska Legal Services Corp., Anchorage, for appellants.

John R. Spencer, City Atty., John Van Winkle, Asst. City Atty., for the City of Anchorage.

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

Page 645

OPINION

ERWIN, Justice.

Appellants, as individuals and as representatives of a class under Civil Rule 23(a), brought this action seeking to have a 'disorderly conduct' ordinance of the City of Anchorage declared unconstitutional on its face. The ordinance, enacted on May 26, 1970, provides as follows:

It shall be unlawful for any person with purpose and intent to cause public inconvenience, annoyance or alarm, or recklessly create a risk thereof by:

(1) Engaging in fighting or threatening, or in violent or tumultuous behavior; or

(2) Making unreasonable noise or offensively coarse utterance, gesture, or display, or addressing abusive language to any person present; or

(3) Lodging in cars, grocery stores, washrooms, sheds, or other places other than such as is kept for lodging purposes, without the permission of the owner or party entitled to possession thereof.

(4) 'Public' means affecting or likely to affect persons in a place to which the public or substantial group has access; among the places included are highways, streets, transportation facilities, schools, prisons, apartment houses, places of business or amusement parks or any neighborhood. 1

In their amended complaint appellants allege that they are members of a class of long-haired, indigent, unemployed and generally unconventional persons, as well as low-income native persons, who, because of their non-conformist lifestyles, are subject to special scrutiny by the police. They state further that they engage or desire to engage in various constitutionally protected activities and associations which are proscribed by the ordinance, and argue that the ordinance is unconstitutionally over-broad and so vague as to violate the due process guarantee. 2

The superior court judge entered partial summary judgment in appellants' favor holding:

1. That the phrases 'unreasonable noise' and 'gesture and display' as used in § 15-1(mm)(2) of the Code of Ordinances of the City of Anchorage, Alaska, are declared unconstitutional on their face, and that defendants and their agents are enjoined from the enforcement of said provisions;

2. That the remaining portions of § 15-1(mm) of the Code of Ordinances of the City of Anchorage, Alaska, are declared constitutional on their face, and that plaintiff's cause as to these remaining portions of Ordinance 15-1(mm) is dismissed.

Appellants argue on appeal that the validated portion of the ordinance is also unconstitutionally vague and overbroad. The City of Anchorage has not appealed from the superior court's decision and has declined to file a responsive brief before this court.

Page 646

We have concluded that the ordinance is unconstitutional in its entirety. As will appear below, the ordinance contains language that the United States Supreme Court has specifically declared to be impermissibly vague and overbroad in a series of opinions, some of which pre-date the ordinance by several decades. Further, although some of the conduct prohibited by the ordinance is constitutionally reachable, the ordinance must be struck in toto because the prefatory language setting out the mens rea for the entire ordinance is impermissibly vague and thereby infects its otherwise valid portions. 3 Because of the critical importance of these constitutional principles in protecting the fundamental liberties of our citizens and because this is a case of first impression in Alaska, we will examine these precepts of constitutional law in some detail.

Although the overbreadth and void-for-vagueness doctrines are related and, at least in the first amendment area, not wholly separable, 4 they are functionally and doctrinally distinct. The overbreadth doctrine has evolved to give adequate breathing room to specific first amendment freedoms; a statute violates the doctrine when constitutionally-protected conduct as well as conduct which the state can legitimately regulate are included within the ambit of the statute's prohibition. 5 By contrast, specific constitutional guarantees are not necessarily implicated when a statute is declared void for vagueness. The latter doctrine comes into play when the statutory language is so indefinite that the perimeters of the prohibited zone of conduct are unclear; a statute may be unconstitutionally vague even though no activities specifically protected by the Constitution are outlawed. 6 A vague statute violates the due process clause both because it fails to give adequate notice to the ordinary citizen of what is prohibited and because its indefinite contours confer unbridled discretion on government officials and thereby raise the possibility of uneven and discriminatory enforcement. As appellants point out, the ordinance now before this court raises the spectre of all of these abuses: it prohibits conduct which is protected by the United States and Alaska constitutions, it fails to give adequate notice of what conduct is prohibited, and it gives enforcement officials excessive discretion.

Turning first to the overbreadth infirmity, in N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963), the United States Supreme

Page 647

Court articulated the rationale for the overbreadth doctrine:

These (first amendment) freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.

Because of the 'chilling effect' that overbroad laws have on the exercise of constitutional rights, 7 the court emphasized that broad prophylactic rules are suspect and '(p)recision of regulation must be the touchstone . . ..' Id. at 438, 83 S.Ct. at 340, 9 L.Ed.2d at 421. 8

As we noted in Anniskette v. State, 489 P.2d 1012, 1013 (Alaska 1971), it is only in the most limited circumstances that speech can be punished. 9 For example, erotic speech might be punished as obscenity if the tests promulgated by the Supreme Court are met. 10 Similarly, a person may be punished for uttering 'fighting words' which are likely to provoke a violent reaction when addressed to an ordinary citizen 11 or for intentionally provoking a crowd to hostile reaction under circumstances where a clear and present danger of immediate violence exists. 12 Presumably a state could also limit speech or assembly in specific places under limited circumstances, as, for example, in a courtroom while the court is in session. 13 But a careful look at the relevant Supreme Court cases makes it obvious that the Anchorage ordinance lacks the requisite specificity and stretches far outside the area of permitted regulation.

In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the Supreme Court struck down a breach of the peace ordinance as applied to petitioner who had delivered an inflammatory speech to an unruly crowd. The jury was instructed that the language, 'breach of the peace', included speech that 'stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.' Id. at 4, 69 S.Ct. at 895, 93 L.Ed. at 1134. After noting that the vitiality of our civil and political institutions depends on free discussion, the Court stated:

(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 stirs 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, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger

Page 648

of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * * There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. (emphasis added)

Id. at 4-5, 69 S.Ct. at 896, 93 L.Ed. 1134-1135. To emphasize the obvious, Terminiello held that 'public inconvenience, annoyance or unrest' is an insufficient evil to justify punishing speech. In subsections (1) and (2) the Anchorage 'disorderly conduct' ordinance prohibits various constitutionally protected expressive activities done with intent to cause 'public inconvenience, annoyance or alarm.' Since the Supreme Court has never diluted its Terminiello holding, 14 we can only conclude that the overbreadth of these portions of the Anchorage ordinance is as clear today as it would have been in 1949. 15

In Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), 187 persons who demonstrated at the grounds of the state legislature engaging in what the city manager described as 'boisterous', 'loud' and 'flamboyant' conduct were convicted of breach of the peace, 'an offense so generalized as to be, . . . 'not susceptible of exact definition. " 16 Id. at 237, 83 S.Ct. at 684, 9 L.Ed.2d at 703. The court quoted the language cited above from Terminiello and struck down the statute as an overbroad interference with the rights of free speech, free assembly, and freedom to petition...

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55 practice notes
  • Fitts v. Kolb, Civ. A. No. 3:90-2119-17.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 20, 1991
    ...This is because a broadened rule of standing applies in First Amendment cases. As noted by the Alaska court in Marks v. City of Anchorage, 500 P.2d 644, 656 n. 7 (Alaska 1972): To protect first amendment freedoms, the Court has allowed "vicarious" assaults on invalid statutes; a defendant n......
  • Alaskans for a Common Language v. Kritz, No. S-10590.
    • United States
    • Supreme Court of Alaska (US)
    • November 2, 2007
    ...to deal with their government is thereby impaired." Id. at 963 (Kozinski, J., dissenting). 109. See, e.g., Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972) (listing instances in which speech can be restricted on basis of circumstances involved and type of speech at issue, for exa......
  • Holton v. State, No. 4038
    • United States
    • Supreme Court of Alaska (US)
    • November 16, 1979
    ...11.40.130 and AS 11.40.150, are overbroad, vague, and denied him equal protection. A. Overbreadth Challenge In Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972), we described the general contours of the overbreadth The overbreadth doctrine has evolved to give adequate breathing ro......
  • State v. Erickson, No. 3250
    • United States
    • Supreme Court of Alaska (US)
    • January 20, 1978
    ...32.030 and 32.040. 117 7 AAC 32.010(b). 118 509 P.2d 285 (Alaska 1973). 119 See Note 7, supra. 120 457 P.2d 638, 647 (Alaska 1969). 121 500 P.2d 644, 650 122 Casey v. State, supra Note 118 at 266 n.2. 123 Larson v. State, 564 P.2d 365, 371-72 (Alaska 1977); Anderson v. State, 562 P.2d 351, ......
  • Request a trial to view additional results
55 cases
  • Fitts v. Kolb, Civ. A. No. 3:90-2119-17.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • November 20, 1991
    ...This is because a broadened rule of standing applies in First Amendment cases. As noted by the Alaska court in Marks v. City of Anchorage, 500 P.2d 644, 656 n. 7 (Alaska 1972): To protect first amendment freedoms, the Court has allowed "vicarious" assaults on invalid statutes; a defendant n......
  • Alaskans for a Common Language v. Kritz, No. S-10590.
    • United States
    • Supreme Court of Alaska (US)
    • November 2, 2007
    ...to deal with their government is thereby impaired." Id. at 963 (Kozinski, J., dissenting). 109. See, e.g., Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972) (listing instances in which speech can be restricted on basis of circumstances involved and type of speech at issue, for exa......
  • Holton v. State, No. 4038
    • United States
    • Supreme Court of Alaska (US)
    • November 16, 1979
    ...11.40.130 and AS 11.40.150, are overbroad, vague, and denied him equal protection. A. Overbreadth Challenge In Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972), we described the general contours of the overbreadth The overbreadth doctrine has evolved to give adequate breathing ro......
  • State v. Erickson, No. 3250
    • United States
    • Supreme Court of Alaska (US)
    • January 20, 1978
    ...32.030 and 32.040. 117 7 AAC 32.010(b). 118 509 P.2d 285 (Alaska 1973). 119 See Note 7, supra. 120 457 P.2d 638, 647 (Alaska 1969). 121 500 P.2d 644, 650 122 Casey v. State, supra Note 118 at 266 n.2. 123 Larson v. State, 564 P.2d 365, 371-72 (Alaska 1977); Anderson v. State, 562 P.2d 351, ......
  • Request a trial to view additional results

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