Olvera v. State

• Decision Date: 29 January 1987
• Docket Number: 01-85-00877-C,01-85-00878-CR and 01-86-00105-CR,Nos. 01-85-00874-C,s. 01-85-00874-C
• Citation: 725 S.W.2d 400
• Parties: 124 L.R.R.M. (BNA) 2666, 55 USLW 2443 Indalecio M. OLVERA, Jerry Wayne Schmidt, James Roy Hunt, James Robert Sevier, Jr., Appellants, v. STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 400

725 S.W.2d 400

124 L.R.R.M. (BNA) 2666, 55 USLW 2443

Indalecio M. OLVERA, Jerry Wayne Schmidt, James Roy Hunt, James Robert Sevier, Jr., Appellants, v. STATE of Texas, Appellee.

Nos. 01-85-00874-CR, 01-85-00877-CR, 01-85-00878-CR and

01-86-00105-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 29, 1987.

Catherine Greene Burnett, Morrow & Burnett, Carl Dudensing, Dudensing & Webb, Houston, for appellants.

John B. Holmes, Jr., Harris County Dist. Atty., Kathryn Giannaula, Lorraine Parker, Harris County Asst. Dist. Attys., Houston, for appellee.

Before DUGGAN, LEVY and HOYT, JJ.

OPINION

DUGGAN, Justice.

Following a joint non-jury trial, appellants were convicted of the misdemeanor offense of mass picketing under Tex.Rev.Civ.Stat.Ann. art. 5154d, sec. 1(1) (Vernon 1971). The trial court assessed punishment in each case at three days confinement and a $100 fine.

Although the appellants entered pleas of not guilty, they each signed stipulations of evidence that were accepted by the trial court and that tracked the allegations of the respective informations. Each information charged that the named appellant did, in concert with two other named appellants, "intentionally or knowingly engage in mass picketing by approaching within 50 feet of an entrance to the premises being picketed."

The trial court denied appellants' motions to quash their respective informations. ¹ No other evidence besides the stipulations was introduced. Appellants each assert two identical points of error on appeal.

Appellants contend by their first point of error that section 1(1) of art. 5154d is facially unconstitutional ² because the "numbers-distance formula" of sec. 1(1), used to define "mass picketing," is arbitrarily overbroad and provides no reference to the surrounding circumstances.

The overbreadth doctrine is based on the principle that "a governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Gholson v. State, 667 S.W.2d 168, 172 (Tex.App.--Houston [14th Dist.] 1983, pet. ref'd) (citing NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964)).

Article 5154d provides in part:

Section 1. It shall be unlawful for any person, singly or in concert with others, to engage in picketing or any form of picketing activity that shall constitute mass picketing as herein defined.

"Mass picketing," as that term is used herein, shall mean any form of picketing in which:

1. There are more than two (2) pickets at any time within either fifty (50) feet of any entrance to the premises being picketed, or within fifty (50) feet of any other picket or pickets.

2. Pickets constitute or form any character of obstacle to the free ingress to and egress from any entrance to any premises being picketed or to any other premises, either by obstructing said free ingress or egress by their persons or by the placing of vehicles or other physical obstructions.

The term "picket," as used in this Act, shall include any person stationed by or acting for and in behalf of any organization for the purpose of inducing, or attempting to induce, anyone not to enter the premises in question or to observe the premises so as to ascertain who enters or patronizes the same, or who by any means follows employees or patrons of the place being picketed either to or from said place so as either to observe them or attempt to persuade them to cease entering or patronizing the premises being picketed.

The term "picketing," as used in this Act, shall include the stationing or posting of one's person or of others for and in behalf of any organization to induce anyone not to enter the premises in question, or to observe the premises so as to ascertain who enters or patronizes the same, or to follow employees or patrons of the place being picketed either to or from said place so as either to observe them or attempt to persuade them to cease entering or patronizing the premises being picketed.

Picketing is recognized as a mode of expression and a means of disseminating information that is protected by the freedom of speech guarantee of the First Amendment. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). However, the U.S. Supreme Court has held that picketing is not "pure speech," but an activity that intertwines elements of speech and conduct. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). A distinction exists between the kind of freedom afforded those who communicate ideas by pure speech, and those who communicate ideas by conduct, such as "patrolling, marching, and picketing on streets and highways." Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965). When "speech" and "non-speech" elements are combined in the same course of conduct, "a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). The "speech plus" character of picketing permits its regulation by the State.

The right to use a public place for expressive activity may be restricted only for weighty reasons.

Clearly, government has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable time, place and manner regulations may be necessary to further significant governmental interests, and are permitted.

Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972) (footnote citing eight additional Supreme Court cases for this proposition omitted).

State regulation of conduct that infringes on First Amendment freedoms is justified if four factors coincide:

if [the regulation] is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

In examining the first of O'Brien's four criteria in relation to art. 5154d, sec. 1(1), we observe that it is well established that the State has the right to regulate the use of city streets and other facilities in order to assure the safety and convenience of the public in its use of them. Haye v. State, 634 S.W.2d 313, 315 (Tex.Crim.App.1982).

Second, as to the furtherance of an important or substantial governmental interest, the Texas Court of Criminal Appeals held in Sherman v. State, 626 S.W.2d 520, 526 (Tex.Crim.App.1981), a decision that construed only subsection (2) of art. 5154d, sec. 1, that the State's interest in enacting the statute was the "exercise of the State's historic police power to regulate conduct in the interest of public safety." The court found that the act's preamble showed that the legislative intent was to accommodate, on the one hand, the private interests of the rights of speech and assembly as expressed by picketing activity, and on the other hand, the dual public interests of the "safety and general welfare of the people" and "the right to engage in their daily pursuits without unlawful interference from others." 626 S.W.2d at 526. Sherman further found that the legislature's intent in balancing these interests was the furtherance of the State's interest and duty to prevent violence before it occurred, and not merely to punish or enjoin future violence after its initial occurrence. The court noted that the preamble identified the State's interest as the prevention of violence attendant upon picketing in general, and not strictly labor dispute picketing.

The third criterion, that the government interest be unrelated to the suppression of freedom of expression, is also met. The act is content neutral and applies to all picketing.

The only factor remaining that might bar State regulation is O'Brien's fourth criterion, i.e., whether any incidental restriction on First Amendment freedoms is greater than essential to the furtherance of the State interest. We conclude that the limitation is no greater than necessary.

For a statute to be constitutionally infirm for overbreadth when conduct and not "pure speech" is involved, the overbreadth must be not only real but substantial in relation to the statute's plainly legitimate sweep. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). An overbreadth challenge will fail if the statute does not reach a substantial amount of protected conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

Neither the Texas Court of Criminal Appeals ³ nor the Texas Supreme Court has authoritatively decided the constitutionality of art. 5154d, sec. 1(1). However, the San Antonio Court of Civil Appeals in Geissler v. Coussoulis, 424 S.W.2d 709 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.), found section 1(1) to be constitutional and upheld, in part, a temporary injunction enjoining the defendants from "mass picketing" as defined therein.

The Geissler defendants had been picketing a cafe incidental to a labor dispute. The temporary injunction issued by the district court forbade the defendants from: (1) having more than two pickets at any time within 50 feet of any entrance to the cafe or within 50 feet of any other picket; (2) displaying any red or black banner in connection with the picketing; and (3) displaying such red or black banner accompanied by the use of "huelga," the Spanish word for strike. Geissler struck down those portions of the injunction prohibiting display of a red or black banner or the use of the word "huelga," but...