ORIGINAL FAYETTE CTY. CIVIC & WELFARE LEAGUE, INC. v. Ellington

Citation309 F. Supp. 89
Decision Date09 February 1970
Docket NumberCiv. A. No. C-69-266.
PartiesThe ORIGINAL FAYETTE COUNTY CIVIC AND WELFARE LEAGUE, INC., et al., Plaintiffs, v. Buford ELLINGTON, Governor of the State of Tennessee, et al., Defendants.
CourtUnited States District Courts. 6th Circuit. Western District of Tennessee

Ratner, Sugarmon, Lucas & Willis, and Russell X. Thompson, Memphis, Tenn., for plaintiffs.

Joe A. Dycus, Cooperating Atty., Memphis, Tenn., American Civil Liberties

Union, West Tennessee Chapter, intervening as amicus curiae.

David M. Pack, Atty. Gen., State of Tenn. and Thomas E. Fox, Deputy Atty. Gen., Nashville, Tenn., for Ellington and Pack.

J. P. Matthews, Somerville, Tenn., for Yancy, Burrow and Howse.

J. P. Matthews, and Joe N. Cocke, Somerville, Tenn., for Rhea, Rike, Tapp, Cooksey, Price, Minor, Walters, Fair, Powers, Rosser, Fisher, Rhea, Barnes, Thompson, Shinault, Sanders, Damron, Peaks and Hampton.

Joe N. Cocke, Somerville, Tenn., for Bowling, Luck and Tomlin.

Will Abernathy and Preston Park, pro se.

Paul R. Summers, pro se.

Thomas E. Fox, Deputy Atty. Gen. Nashville, Tenn., for Gray.

Before PHILLIPS, Chief Circuit Judge, BROWN, Chief District Judge, and McRAE, District Judge.

OPINION

BAILEY BROWN, Chief District Judge.

In this class action, in which a three-judge court has been convened, plaintiffs attack the Tennessee "Riot" (T.C.A. §§ 39-5101, 39-5102) and "Disorderly Conduct" (T.C.A. § 39-1213) statutes and common law offense of criminal trespass, alleging that such statutes and offense are unconstitutional in that they are vague and overbroad and further that they have been unconstitutionally applied to plaintiffs. Plaintiffs seek both declaratory and injunctive relief. At the hearing that has been held by this court, it was agreed that the three-judge court would determine whether such statutes and common law offense are invalid,1 leaving the question of unconstitutional application to the single-judge court.2 Since the only issue before the three-judge court was the validity of such statutes and common law offense, no evidence was presented at the hearing.

A lengthy recitation of the circumstances giving rise to this action, as alleged by plaintiffs, is unnecessary, since we are considering only the issue of validity. The plaintiffs allege that on Sunday, August 24, 1969, they and others were participants in a civil rights march which proceeded from the outskirts of Somerville, Tennessee, to the Fayette County Courthouse which is situated in the Somerville town square. The plaintiffs allege, further, that this march was, at all times, peaceful and orderly, and was for the purpose of protesting the existence of racial segregation and discrimination in Somerville. Upon reaching the Fayette County Courthouse, the demonstrators requested permission to use the Courthouse lawn and steps for the purpose of conducting a rally. This request was denied by the sheriff and when some of the demonstrators, nonetheless, stepped upon the Courthouse lawn, they were arrested. They were charged with violating one or more of the statutory offenses of inciting to riot and disorderly conduct and the common law offense of criminal trespass.

The plaintiffs ask this Court for a declaration that the statutes and common law offense in question are unconstitutional in that they are vague and overbroad and, also, they seek injunctive relief from both the pending and future prosecutions under such statutes and common law offenses.

It is now elementary that, to satisfy the requirements of the Due Process Clause, a statute cannot be "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Recently, in declaring the Tennessee vagrancy statute unconstitutional, a three-judge court, composed of the same judges as the present one, commented: "Legislation of the type that employs ambiguous phrases such as apparent means of subsistence and honest calling `does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.' Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 213, 15 L.Ed.2d 176 (1965)." Kirkwood et al. v. Ellington et al., 298 F.Supp. 461, 465 (W.D.Tenn.1969).

With respect to the doctrine of overbreadth, in N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964), the Court said: "This Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." See, to the same effect, Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

Neither the "Disorderly Conduct" statute, enacted by the Tennessee legislature in 1961, nor the "Riot" statute, enacted in 1968, has been interpreted by the Tennessee appellate courts.

The Tennessee disorderly conduct statute (T.C.A. § 39-1213) provides as follows:

"39-1213. Disorderly conduct declared a misdemeanor — Definition — Penalty. — It shall be a misdemeanor for any person to engage in disorderly conduct, which is defined as the use of rude, boisterous, offensive, obscene or blasphemous language in any public place; or to make or to countenance or assist in making any improper noise, disturbance, breach of the peace, or diversion, or to conduct oneself in a disorderly manner, in any place to the annoyance of other persons. Any person violating the provisions of this section shall, upon conviction therefor, be fined not less than two dollars ($2.00) nor more than fifty dollars ($50.00); and in the discretion of the court be confined in the county jail or workhouse for not more than thirty (30) days. Acts 1961, ch. 236, §§ 1, 2."

It is the view of this court that this statute is susceptible to no construction which will relieve it of the constitutional infirmities of vagueness and overbreadth. A statute prohibiting and making criminal, as this one does, "the use of rude, boisterous, offensive, obscene or blasphemous language in any public place," and further declaring it a criminal offense "to make or to countenance or assist in making any improper noise, disturbance, breach of the peace, or diversion, or to conduct oneself in a disorderly manner, in any place to the annoyance of other persons," does not provide the fair warning to the public and certainty of interpretation by courts and juries that is required by the Due Process Clause of the Fourteenth Amendment.3 Further, by limiting the exercise of the First Amendment right of freedom of speech to language that is not "rude, boisterous, offensive, * * * or blasphemous" the statute sweeps too broadly. Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). See, to the same effect, Brooks v. Briley, 274 F.Supp. 538, 556 (M.D.Tenn.1967) (concurring opinion, Gray, J.).

The Tennessee "Riot" statute provides as follows:

"39-5101. Definitions. — A. A `riot' is a public disturbance involving an act or acts of violence by one or more persons who is or are part of an assemblage of three (3) or more persons, which act or acts shall constitute a breach of the peace, or an immediate danger or shall result in damage or injury to persons or property.
"B. `Incite to riot, to organize, promote, encourage, participate in or carry on a riot' is the urging or instigating or leading others to riot."
* * * * * *
"39-5102. Participating in, inciting, organizing riot — Penalty. — Any person participating in a riot as herein defined or who shall incite others to riot or who organizes, promotes, encourages, or participates in a riot shall be guilty of a felony and, upon conviction, such persons shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or confined in the penitentiary for not less than one (1) year nor more than five (5) years or both. Acts 1968 (Adj.S.), ch. 484, § 2."

Prior to the enactment of this statute, incitement to riot was a common law crime in Tennessee. Kasper v. State, 206 Tenn. 434, 326 S.W.2d 664, 333 S.W. 2d 934, 92 A.L.R.2d 1081 (1959).

It is the contention of plaintiffs, as stated, that such statute has the vices of both vagueness and overbreadth. With respect to vagueness, the contention is that, by defining a "riot" in part as an act by a member of an assemblage which act constitutes a "breach of the peace," the statute is not readily understandable because "breach of the peace" has no definite meaning. With respect to overbreadth, the contention is that the statute would make criminal the act of asserting First Amendment rights of protest and assembly simply because one is part of an assemblage of which other participants are committing acts of violence. Further, with respect to overbreadth, the additional contention is that the statute, by making criminal the act of inciting others to riot, sweeps within its prohibitions the legitimate exercise of the constitutional right of free speech.

In support of its contention that the statute is unconstitutionally vague because of the incorporation of the phrase "breach of the peace," plaintiffs rely principally on the definition of that crime as set out in State ex rel. Thompson v. Reichman, 135 Tenn. 653, 685, 188 S.W. 225, 597 (1916), which is the leading Tennessee case on the question. We agree that the definition in that case is too vague to pass muster.4 We conclude, however, that a fair construction of the "riot" statute makes it clear that, as used in the statute, an act cannot be a "breach of the peace" unless it is an act of "violence." So construed, we conclude that the riot statute, in this respect, is not unconstitutionally vague. See Landry v. Daley, D.C., 280 F.Supp. 938, 954, n. 60 (1968).

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