Morehead v. State

• Decision Date: 02 February 1988
• Docket Number: No. 05-87-00038-CR,05-87-00038-CR
• Citation: 746 S.W.2d 830
• Parties: Gardell Anthony MOREHEAD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 830

746 S.W.2d 830

Gardell Anthony MOREHEAD, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-00038-CR.

Court of Appeals of Texas Dallas.

Feb. 2, 1988.

Rehearing Denied April 1, 1988.

Howard C. Rubin, Dallas, for appellant.

Pamela Sullivan Berdanier, Dallas, for appellee.

Before STEPHENS, STEWART and BAKER, JJ.

STEWART, Justice.

Gardell Anthony Morehead was convicted of disrupting a lawful meeting, a violation of TEX.PENAL CODE ANN. § 42.05 (Vernon 1974). The jury assessed punishment at thirty days' confinement, probated, and a fine of $250. Appellant raises sixteen points of error, contending that: 1) the statute is unconstitutionally overbroad and vague; 2) the trial court erred in refusing to submit requested jury instructions; 3) the court committed error when it refused him an evidentiary hearing on his motion to quash; 4) it was improper to prevent testimony and comments from defense counsel concerning first amendment rights; and 5) the evidence is insufficient to support the conviction. For the reasons below, we affirm appellant's conviction.

I. THE FACTS

The record indicates that appellant attended a session of the national convention of a sorority, at which Jesse Jackson, a sometime presidential candidate, was the speaker. Jackson showed a film and then began a speech. There was no question and answer session, and the audience was not intended to participate except by listening. About three-fourths of the way through Jackson's speech, appellant arose from his seat and began walking down the center aisle of the auditorium toward the podium. As he reached the front row of seats, he began yelling, apparently at Jackson. A lady from the audience grabbed appellant's arm and said, "we didn't come to hear you speak, please sit down." Appellant pulled away from the woman and continued down the aisle toward Jackson.

There are conflicting versions of what appellant was saying. Some witnesses testified that he was just screaming, with no discernable words. Several witnesses agreed that he called Jackson a liar. One witness testified that he was questioning Jackson about South African affairs, Nicaragua, and the International Monetary Fund. The stories of the audience's reaction also varied. Some testified that the crowd got loud, with women standing and screaming, approaching hysteria, very hostile. Others stated that there was little reaction other than amusement. There was also disagreement among witnesses as to whether appellant was addressing Jackson, the audience, or both.

When appellant first began yelling, Jackson continued his speech. He eventually stepped away from the podium, interrupting his speech. The police then approached appellant and told him he would have to leave. Appellant continued his yelling, and the police, after a brief struggle, escorted him out of the convention center. He continued yelling as he was escorted up the aisle. After he left, the audience applauded, and Jackson resumed his speech. The witnesses testified that the entire disturbance lasted from thirty seconds to two minutes.

II. CONSTITUTIONALITY OF STATUTE

Section 42.05 of the Texas Penal Code provides:

A person commits an offense if, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he obstructs or interferes with the meeting, procession, or gathering by physical action or verbal utterance.

In his first three points of error, appellant contends that the statute is facially overbroad, overbroad as applied to him, and vague. For these reasons, he contends, the statute violates the first and fourteenth amendments of the United States Constitution and article 1, section 8 of the Texas Constitution. ¹

The first amendment provides: "Congress shall make no law ... abridging the freedom of speech, or of the press.... U.S. CONST. Amend. I. This limitation on federal governmental authority also applies to state governments via the fourteenth amendment. Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). This prohibition against enacting legislation abridging speech has not been read literally by the United States Supreme Court. Thus, the Court has stated, "[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. International Society For Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). This Court must, however, scrutinize closely a statute that on its face punishes spoken words. See Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). Such a restriction may be unconstitutionally broad or vague.

A. Overbreadth

A statute is considered impermissibly overbroad if, in addition to proscribing activities which may constitutionally be forbidden, it sweeps within its coverage speech or conduct which is protected by the first amendment. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Clark v. State, 665 S.W.2d 476, 482 (Tex.Crim.App.1984). We must determine whether section 42.05 prohibits protected speech. We are not restricted to the consideration of whether appellant's speech was protected. Rather, we must consider whether the application of section 42.05 in other situations would also restrict protected speech:

[W]e have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. [citations]. We have fashioned this exception to the usual rules governing standing, ... because of the '... danger of tolerating in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.

Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965).

1. Competing First Amendment Rights

In this case, appellant's right to speak comes into conflict with the first amendment rights of the scheduled speaker and the rights of the audience members to assemble peaceably and to listen to the scheduled speaker. We must examine these competing interests.

The Supreme Court has recognized that much of the speech and conduct that disturbs, disrupts or annoys others is constitutionally protected. See Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Although audience activities such as heckling, interrupting, and harsh questioning may be contrary to ordinary good taste and decorum, they can, nevertheless, advance the goals of the first amendment. The first amendment contemplates a debate of public issues, a free interchange of ideas resulting in the ascertainment of truth. See Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964). "The First Amendment presupposes that the freedom to speak one's mind is not only an aspect of individual liberty--and thus a good unto itself--but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502 (1984).

The heckling and harassment of public officials and other speakers while making public speeches is not new to American politics. See In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142 (1970) (Congressman Tunney); University Committee to End War in Vietnam v. Gunn, 289 F.Supp. 469 (W.D.Tex.1968) (President Johnson); Pope v. State, 192 Misc. 587, 79 N.Y.S.2d 466 (1948) (Governor Dewey); People v. Malone, 156 App.Div. 10, 141 N.Y.S. 149 (1913) (Governor Wilson). In Landry v. Daley, 280 F.Supp. 968 (N.Ill.1968), the court commented:

Political campaigns, athletic events, public meetings and a host of other activities produce loud, confused or senseless shouting not in accord with fact, truth or right procedure to say nothing of not in accord with propriety, modesty, good taste or good manners. The happy cacophony of democracy would be stilled if all 'improper noises' in the normal meaning of the term was suppressed.

Id. at 970. For many citizens, such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people.

It seems, then, that an astute and disputatious audience serves an important function and is entitled to some degree of first amendment protection. However, it is equally clear that the scheduled speaker has a right to express his views. See Bishop v. Reagan-Bush '84 Committee, 635 F.Supp. 1020 (S.D.Ohio 1986). The first amendment also protects the associational rights of those who attend the meeting to hear the scheduled speaker. "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 prevent such a meeting in disregard of the customs and rules applicable to it." Kay, 83 Cal.Rptr. at 691, 464 P.2d at 147.

Since the Constitution indubitably affords some measure of protection to the speech and associational rights of all those present at a meeting, section 42.05's prohibition of disruption potentially may collide with safeguarded first amendment interests. Nonetheless, the State retains a legitimate concern in ensuring that some individuals' unruly assertion of their rights of free expression does not imperil other citizens' rights of free association and discussion. Freedom of everyone to talk at once can destroy the right of anyone to talk effectively. Free expression can expire as tragically in the tumult of license as in the silence of censorship. See Red Lion Broadcasting Co. v. Federal Communications Committee, 395 U.S....