State v. Brahy

• Decision Date: 10 December 1974
• Docket Number: CA-CR,No. 1,1
• Citation: 22 Ariz.App. 524,529 P.2d 236
• Parties: The STATE of Arizona, Appellee, v. Christine Virginia BRAHY, Appellant. 691.
• Court: Arizona Court of Appeals

Page 236

529 P.2d 236

22 Ariz.App. 524

The STATE of Arizona, Appellee, v. Christine Virginia BRAHY, Appellant.

No. 1 CA-CR 691.

Court of Appeals of Arizona, Division 1, Department A.

Dec. 10, 1974.

As Amended Dec. 12, 1974.

Rehearing Denied Jan. 7, 1975.

Review Denied Feb. 11, 1975.

N. Warner Lee, Atty. Gen. by Frank T. Galati, Asst. Atty. Gen., Phoenix, for appellee.

Goldman & Bendheim by Theodore D. Mote, Phoenix, and Eugene M. Kadish, Tempe, for appellant.

OPINION

OGG, Judge.

Appellant-defendant Christine Virginia Brahy challenges the constitutionality of A.R.S. § 13--371 as impinging upon her First Amendment rights; on this basis she seeks to set aside her conviction for disorderly conduct. The statute reads:

'Article 15. Disorderly Conduct

§ 13--371. Disturbing the peace; methods; punishment

A. A person is guilty of a misdemeanor who maliciously and wilfully disturbs the peace or quiet of a neighborhood, family or person by:

1. Loud or unusual noise.

2. Tumultuous or offensive conduct.

3. Threatening, traducing, quarreling, challenging to fight or fighting.

4. Applying any violent, abusive or obscene epithets to another.

B. A person who violates this section shall be punished by a fine not exceeding two hundred dollars, or by imprisonment in the county jail for not to exceed two months.'

The complaint charged defendant with violating § 13--371, subsection A(4) in that she meliciously and wilfully disturbed the peace and quiet of 'the people at the airport by violent, abusive, obscene epithets to another.' The facts gleaned from the transcript are: Defendant sought to enter the boarding area at the Phoenix airport, but when she was told that her purse would have to be analyzed by the x-ray machine she turned around and left. Approximately 5 minutes later she returned and gave her bag to one of the women operating the x-ray machine. After walking through the magnetometer she was informed that a hand search of her purse was necessary because an object contained within it could not be identified by the x-ray procedure. Defendant then slammed her purse down on the table and went toward the boarding gate. Several minutes later, as she was returning toward the x-ray machine and table, she saw that her purse was being searched, and she began screaming from a distance of approximately 25 feet, 'What are you fucking sons of bitches a-doing in my purse?' The remarks were directed at the women assigned to check the purse. This was repeated six to eight times. Approximately 20 people were around the x-ray machine. The arresting officer tried to calm her, but the defendant said, 'You fucking son of a bitch, I will spit in your face.' After spitting on the officer, defendant was placed under arrest. In a trial to the court defendant was convicted and now brings this appeal.

In the case of State v. Starsky, 106 Ariz. 329, 475 P.2d 943 (1970), our Arizona Supreme Court ruled upon the question presented in this appeal. The Court held that A.R.S. § 13--371 was not an unconstitutional infringement upon those rights guaranteed by the First Amendment. The Court of Appeals cannot overrule or modify a decision of our Supreme Court. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968); State v. Shahan, 17 Ariz.App. 148, 495 P.2d 1355 (1972). It is appellant's position that State v. Starsky, supra, is no longer the law of Arizona because of subsequent United States Supreme Court decisions.

In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), and in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the United States Supreme Court struck down a portion of the 'disturbing the peace' statutes in California and Georgia. The Court found the statutes too broad when they included as a violation any conduct that was offensive to public sensibilities. The Court, however, did follow the guidelines of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and held that certain classes of speech such as profane, insulting or 'fighting' words, which by their very utterance tend to incite an immediate breach of the peace, are not protected free speech under the First Amendment. The statute must be drawn or interpreted to include, as a violation, only those epithets amounting to 'fighting words.'

We believe that our Arizona Supreme Court in Starsky narrowed the interpretation of A.R.S. § 13--371 to make it fall within the accepted guidelines of the Chaplinsky, Cohen and Gooding decisions and that this narrowed interpretation frees the statute from any constitutional infirmity. In Starsky the Court narrowed the definition of 'disturbing the peace' through 'offensive' conduct to mean wilfully and maliciously inciting others to violence or engaging in conduct likely to incite others to violence. In our opinion the conduct of the defendant in this case was likely to incite others to violence. The utterances by the defendant in this case are not an essential part of the exposition of ideas and are of such slight social value that any benefit derived from them is clearly outweighed by the social interest in peaceful and nonoffensive conduct. A statement by the Court in Starsky has equal application here: 'Actions such as these are not an exercise of rights but rather are an abuse of rights and entail a gross lack of understanding--or calloused indifference--to the simple fact that the offended parties also have certain rights under the same Constitution.' 106 Ariz. at 333, 475 P.2d at 946.

The judgment and sentence are affirmed.

STEVENS, J., concurs.

DONOFRIO, Presiding Judge (dissenting).

I find it necessary to respectfully dissent from the majority's analysis, for it is my opinion that State v. Starsky, 106 Ariz. 329, 475 P.2d 943 (1970) has not ruled upon the question of this appeal and that the reasoning of Starsky has been changed by subsequent United States Supreme Court decisions. It is a rule of this jurisdiction that when subsequent interpretations of the United States Constitution by the U.S. Supreme Court render the position of the Arizona Supreme Court untenable, this Court is free to analyze its decision in light of those subsequent interpretations. State v. New Times, Inc., 20 Ariz.App. 183, 511 P.2d 196 (1973).

In part Starsky relied upon the California Supreme Court decision of In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 (1970) which interpreted California's disorderly conduct statute (which was essentially similar to ours) as constitutional. This reliance now appears misplaced in light of the U.S. Supreme Court's reversal of People v. Cohen, 1 Cal.App.3d 94, 81 Cal.Rptr. 503 (1969), in Cohen v. Calif., 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, (1971), the decision of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1971) and the memorandum cases of Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972) and Lewis v. New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972).

The Court's first examination of the problem of offensive language came in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). The court summed up its position in the memorable language of the following passage:

'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' (footnotes omitted) 314 U.S. at 571--572, 62 S.Ct. at 769.

The Court was espousing the viewpoint that the social value of indecent talk as a step toward the truth was clearly outweighed by the social interests in order and morality. This viewpoint has considerably changed, yet it is this viewpoint that Starsky mainly relies upon. I am unable to find within the Starsky decision the basis by which the majority concludes:

'In Starsky the Court narrowed the definition of 'disturbing the peace' through 'offensive' conduct to mean wilfully and maliciously inciting others to violence or engaging in conduct likely to incite others to violence.'

The Starsky opinion declares:

'Actions such as these (referring to the conduct described by the statute) are not an exercise of rights but rather are an abuse of rights and entails a gross lack of understanding--or calloused indifference--to the simple fact that the offended parties also have certain rights under the same Constitution.'

The decision also quotes from Thomas I. Emerson, The Dynamics of Limitation, 72 Yale L.J. 877:

'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.'

The Starsky opinion fails in any way to give guidance as to how our statute must be interpreted to be constitutionally permissible. It does not narrow the definition of subsection A(4) of our disturbing the peace statute to include only that language which can be classified as 'fighting words.'

In analyzing the trend the U.S. Supreme Court has espoused, the model they have utilized dates back to the Chaplinsky decision where they weighed the value of offensive speech against the harms caused by such speech. The Court by defining free speech as only that speech which contributed to the improvement of society and the communication of which was a step toward the determination of truth, clearly indicated that offensive language had a nonexistent value in...