State v. Fielden, S06A0282.

• Decision Date: 25 April 2006
• Docket Number: No. S06A0283.,No. S06A0282.,S06A0282.,S06A0283.
• Citation: 629 S.E.2d 252
• Parties: The STATE v. FIELDEN. The State v. Touchton.
• Court: Georgia Supreme Court

629 S.E.2d 252

The STATE v. FIELDEN.

The State v. Touchton.

No. S06A0282.

No. S06A0283.

Supreme Court of Georgia.

April 25, 2006.

COPYRIGHT MATERIAL OMITTED

Richard W. Shelton, Solicitor General, for Appellant.

Robert Allen Plumb, Jr., Langdale & Vallotton, LLP, Valdosta, for Appellee.

Thurbert E. Baker, Atty. Gen., Vonetta Leatrice Benjamin, Asst. Atty. Gen., amicus appellant.

HUNSTEIN, Presiding Justice.

While attending a Valdosta City Council meeting, appellees Fielden and Touchton stood silently as a show of support for another citizen who, after speaking during the "Citizens to be Heard" portion of the meeting, had then refused the mayor's request to step down from the podium. Appellees were thereafter arrested and charged with violating OCGA § 16-11-34(a), which provides:

A person who recklessly or knowingly commits any act which may reasonably be expected to prevent or disrupt a lawful meeting, gathering, or procession is guilty of a misdemeanor.

Appellees challenged the statute contending, inter alia, that it was unconstitutionally vague and overbroad. The trial court ruled in appellees' favor and the State appeals. For the reasons that follow, we affirm.

A statute is unconstitutionally vague if it describes conduct in a manner so unclear that it leaves intelligent people uncertain as to the limits of its application. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Johnson v. State, 264 Ga. 590(1), 449 S.E.2d 94 (1994). The trial court held that OCGA § 16-11-34(a) is unconstitutionally vague because certain phrases are not defined in the Code or lack clarity.¹ However, reading the statute according to the natural and obvious import of its language, see generally Foster v. State, 273 Ga. 555(1), 544 S.E.2d 153 (2001), we conclude that OCGA § 16-11-34 provides a sufficiently definite warning to a person of ordinary intelligence of the prohibited conduct, namely, the reckless or knowing commission of any act which may reasonably be expected to disrupt or prevent a lawful meeting, gathering or process, and further that it is not susceptible to arbitrary and discriminatory enforcement. See generally City of Chicago v. Morales, 527 U.S. 41, 56(III), 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Thus, we disagree with that part of the trial court's ruling and hold that the language in OCGA § 16-11-34(a) is not vague: it is clear and unambiguous. We agree with the trial court, however, that it is overbroad.

A statute that is clear about what it prohibits can nevertheless be unconstitutionally overbroad if it stifles expression or conduct that is otherwise protected by the Constitution. Johnson v. State, supra, 264 Ga. at 591(1), 449 S.E.2d 94 (statute is unconstitutionally overbroad if it reaches a substantial amount of constitutionally protected conduct). The doctrine of overbreadth is particularly applicable where a statute infringes upon behavior protected by the First Amendment. See Broadrick v. Oklahoma, 413 U.S. 601, 611-612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The First Amendment is "a broad umbrella that shelters all political points of view and shields a wide range of avenues for expression, including symbolic speech. The 1983 Constitution of Georgia provides even broader protection." (Footnote omitted.) State v. Miller, 260 Ga. 669, 671(1), 398 S.E.2d 547 (1990). Conduct comes under the protection of the First Amendment when it has some communicative element, id., and thus may be regulated by the government only if "the regulation furthers a substantial governmental interest that is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedom is no greater than necessary to further the governmental interest." Id. As stated by the United States Supreme Court in N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. [Cit.]"

OCGA § 16-11-34(a) proscribes the knowing or reckless commission of "any act which may reasonably be expected to prevent or disrupt a lawful meeting, gathering, or procession." Disrupting a lawful meeting statutes such as OCGA § 16-11-34(a) clearly implicate protected First Amendment freedoms. See, e.g., Dempsey v. Colorado, 117 P.3d 800(II)(A) (Colo.2005); State v. Ervin, 40 S.W.3d 508(I) (Tenn.Crim. App.2000); State v. Hardin, 498 N.W.2d 677(II) (Iowa 1993); Morehead v. Texas, 807 S.W.2d 577 (Tex.Crim.App.1991); In re Kay, 1 Cal.3d 930, 83 Cal.Rptr. 686, 464 P.2d 142(II) (1970). In addressing constitutional challenges to comparable statutory provisions, our sister states have recognized that a disruption statute reflects an

interest of the government [that] is substantial, even compelling, in that it is aimed at balancing the fundamental right of assembly with that of free speech. That interest would be less effectively achieved were the government to allow "substantial obstruction or interference" with any lawful assembly of its citizens in the name of protecting the First Amendment right to free speech.

State v. Ervin, supra, 40 S.W.3d at 517. We agree that "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. [Cit.]" In re Kay, supra, 83 Cal.Rptr. 686, 464 P.2d at 149(II). "The interests of free people are served by legislation which balances in a reasonable way the First Amendment rights of those desiring to express opposing points of view." State v. Brand, 2 Ohio App.3d 460, 442 N.E.2d 805, 809(C) (1981).

The State argues that OCGA § 16-11-34(a) validly balances the fundamental right of assembly with that of free speech in the same manner as found by the Tennessee Court of Criminal Appeals in reviewing the constitutionality of its disrupting a lawful meeting statute. State v. Ervin, supra, 40 S.W.3d at 513(I). However, in marked contrast to the statutory provisions in OCGA § 16-11-34, the Tennessee statute requires the accused to commit an offense "with the intent to prevent or disrupt" the lawful meeting, requires that the obstruction or interference with the lawful meeting be substantial, and clarifies that the type of acts covered by the statute are those involving "physical action or verbal utterance." Tenn.Code. Ann. § 39-17-306.² The Tennessee Court relied upon this statutory language when it rejected Ervin's overbreadth challenge, noting that the statute does not prohibit speech or other expressive conduct unless the character of the conduct, not its message, "substantially obstructs or interferes with" a lawful meeting. The term "substantial," in this context, means major, consequential, or significant. Further, the statute does not attempt to punish protected conduct unless the actor acts or speaks with the specific intent to "prevent or disrupt a lawful meeting." Only conduct or speech that meets these qualifications is punishable.

To effectuate Tennessee Code Annotated § 39-17-306 within constitutional limits, we interpret it to require that the defendant substantially obstruct the conduct of a lawful meeting with the specific intent of bringing the meeting to an early termination or effectively impairing the conduct of the assemblage. In applying these standards, we are mindful that the nature of the meeting or gathering is necessarily relevant. A level of disruption to be expected at an outdoor political gathering, [cit.], is not what would be reasonably expected at a memorial service for slain [police] officers.

(Footnote omitted.) State v. Ervin, supra at 519(I)(B).

Unlike the Tennessee statute, OCGA § 16-11-34(a) does not require proof of a person's intent to disrupt or prevent a lawful meeting as an element of the offense. Nor does it require that the committed act substantially impair the ordinary conduct of the meeting. Under the literal language of the statute, the only proof required is that the person recklessly or knowingly committed any act that may reasonably be expected to prevent or disrupt a lawful meeting, gathering or procession. It does not matter under the statute where or when the accused commits the proscribed act; it does not even matter whether the act, upon its commission, results in any actual prevention or disruption. Any recklessly or knowingly committed act that could reasonably be expected to prevent or disrupt a lawful meeting, gathering or procession is a misdemeanor, regardless where it is committed, how trivial the act, its impact, or the intent of the actor other than the intent to commit the act itself. OCGA § 16-11-34(a) thus applies to the reckless or knowing commission of such acts as heckling a referee at a sports venue, leaving on the audible ringer of a cellphone during a business symposium, changing lanes into a funeral procession on a rainy day, even playing the stereo loudly in an apartment while a neighbor hosts a dinner party. These examples demonstrate that the literal language of OCGA § 16-11-34(a) reaches conduct that is at once innocent and protected by the guarantees of free speech, thereby affecting and chilling constitutionally protected activity.

We recognize that where conduct and not merely speech is involved, "the overbreadth of a statute must not only be real but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, supra, 413 U.S. at 615, 93 S.Ct. 2908. Based on our analysis of the statutory language in OCGA § 16-11-34(a), we conclude that it significantly impacts constitutionally permitted conduct without the requisite narrow specificity and fails to balance in a reasonable way the First Amendment rights of those desiring to express opposing points of view. Accordingly, we find its overbreadth is both real and substantial.

The effect of...