State v. Rosenfeld

• Decision Date: 07 May 1973
• Citation: 62 N.J. 594,303 A.2d 889
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. David A. ROSENFELD, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 594

62 N.J. 594

303 A.2d 889

STATE of New Jersey, Plaintiff-Appellant, v. David A. ROSENFELD, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Feb. 6, 1973.

Decided May 7, 1973.

Wilbur H. Mathesius, First Asst. Prosecutor, for plaintiff-appellant (Bruce M. Schragger, Mercer County Prosecutor, attorney).

Richard J. Schachter, Somerville, for defendant-respondent (Halpern, Schachter & Wohl, Somerville, attorneys).

John J. DeCicco, Deputy Atty. Gen., for George F. Kugler, Jr., Atty. Gen., amicus curiae.

The opinion of the Court was delivered by

JACOBS, J.

The defendant was charged with violating N.J.S.A. 2A:170--29(1) by using foul language at a public meeting. There was a judgment of conviction and the defendant was fined $50, plus $10 costs, but on his ultimate appeal the United States Supreme Court, without opinion, vacated the judgment and remanded the case to the Appellate Division 'for reconsideration' in the light of Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). There were four dissents with opinions. 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972). Thereafter the Appellate Division held that under Gooding, N.J.S.A. 2A:170--29(1) was 'overly broad and violative of the First Amendment' and set aside the defendant's conviction. 120 N.J.Super. 458, 295 A.2d 1 (1972). The Mercer County Prosecutor duly appealed on the State's behalf and, with leave, the Attorney General appeared Amicus curiae.

There had been racial conflicts in the Borough of Hightstown and a meeting to discuss the subject was being held in a school auditorium. It was well attended by both Blacks and Whites and included men and women, along with children ranging between thirteen and eighteen years of age. The defendant, a young schoolteacher, attended the meeting with plans to talk on the racism which he had found in the local school system. When his turn came he did talk and he presented an analysis of what had been happening and urged that corrective steps be taken expeditiously. He was emotionally involved and concluded his talk with the remark that if we Whites didn't do something about the problem 'then the Mother F......ing town, the M.F. county, the M.F. state and the M.F. country would burn down.'

When the defendant finished there was some cheering and applause, particularly from the young Blacks in the audience. But Chief Michinsky of the East Windsor Township Police rose from his seat and pointed to Chief Archer of the Highstown Police indicating that he wanted the defendant arrested. No one else rose and the meeting proceeded in regular fashion and without disturbance. After the meeting was over Chief Archer went to his headquarters and typed a complaint and thereafter the defendant was arrested at his home. The complaint charged without more that the defendant used 'loud and indecent language' at a public meeting, by using the words M.F. four times 'in front of the public and the complainant,' in violation of N.J.S.A. 2A:170--29(1). State v Profaci, 56 N.J. 346, 266 A.2d 579 (1970), held that for a defendant to be guilty under N.J.S.A. 2A:170--29(1) the indecent words 'must be spoken loudly, in a public place and must be of such a nature as (1) to be likely to incite the hearer to an immediate breach of the peace or (2) to be likely, in the light of the gender and age of the listener and the setting of the utterance, to affect the sensibilities of a hearer'; and under either alternative the words 'must be spoken with the intent to have the above effect or with a reckless disregard of the probability of the above consequences.' 56 N.J. at 353, 266 A.2d at 584; State v. Reed, 56 N.J. 354, 357, 266 A.2d 584 (1970); Cf. State v. Palendrano, 120 N.J.Super. 336, 343, 293 A.2d 747 (Law Div.1972); Karp v. Collins, 310 F.Supp. 627, 635--638 (D.N.J.1970), vacated sub nom. Kugler v. Karp, 401 U.S. 930, 91 S.Ct. 933, 28 L.Ed.2d 210 (1971), modified, 333 F.Supp. 15 (D.N.J.1971).

The defendant, after being found guilty in the Hightstown Municipal Court, appealed to the Mercer County Court where a trial De novo was held. Chiefs Archer and Michinsky testified for the State, along with Mr. Wright who also attended the meeting. Chief Archer heard the objectionable words but testified that he did not really understand their context; he observed no indications of any impending disturbances. Chief Michinsky testified that he was 'very shocked' and that his intention at the time he arose was to have the defendant 'arrested right on the scene, and taken out of there.' Mr. Wright testified that he was offended by the use of the words and that he felt it 'sad that a man who is obviously a college graduate should have to resort to this type of language to make a point.'

Several witnesses testified on behalf of the defendant to the effect that their sensibilities were not affected. Thus Mr. Seitz, a member of the Board of Education of a sending district to Hightstown, testified that he 'understood this to be a word which generally is used by Blacks more often than by Whites, which expresses a sense of outrage, in a general sense. I don't think the word was used in a specific sense in this context.' Mr. Seitz viewed the word as enhancing the meaning of the defendant's remarks; he 'felt that it drew attention to the sense of outrage at the fact that grievances, and real grievances, had been ignored, grievances on the part of the black community.' Similarly, Mr. Benedict, an officer of the New Jersey Bankers Association, testified that his sensibilities were not affected, that the language indicated that the defendant 'felt very, very strongly about what he was saying,' and that in context it had no sexual signification. Along the same lines, Dr. Knapp of Princeton University, testified that the words enhanced the meaning of the defendant's remarks and that in their institutional context they carried no sexual import.

The defendant testified that he was twenty-five years of age, was graduated from Brown University, had done graduate work elsewhere, and planned to attend law school. He recognized that some in the audience might be offended but envisioned no danger of any breach of the peace. His intent in using the word was described by him in the following terms: 'I obviously wanted to make it clear how I felt. I felt the use of the strong language would be necessary. * * * The word as I have used it never had a sexual connotation. In fact, afterwards I realized what the sexual connotation was. I tried to use the word because it's a word that comes out of the black ghetto; and the apposition of a black word to what are essentially white institutions, the town and county, seemed to me to say and characterize those problems which existed in Hightstown and the rest of the country. It seemed like a word whose color and use in that sense was very effective.' See Landy, The Underground Dictionary, p. 135 (1971); Wilson, Playboy's Book of Forbidden Words, p. 197 (1972); Cf. Lifton, 'The Young and The Old,' The Atlantic (September 1969), pp. 48, 50--52; see also Papish v. The Board of Curators of the University of Missouri, 464 F.2d 136, 146 (8 Cir. 1972) (dissenting opinion); Duke v. North Texas State University, 338 F.Supp. 990, 997 (D.Texas 1971).

At the close of the testimony, the Mercer County Court did not find that the words in their context were 'likely to incite the hearer to an immediate breach of the peace' within the first alternative set forth in Profaci, 56 N.J. at 353, 266 A.2d 579. Nor would the testimony have supported such finding. The words were not addressed face to face to any individual nor did they refer to any individual. They referred to the town, the county, the state and the country and in their institutional context they carried no sexual connotation. They were in bad taste, were undoubtedly offensive to many in the audience, and were probably self-defeating. But under the circumstances and in context they were not likely to and did not incite any breach of the peace. They were not rendered as 'fighting words' within the original contemplation of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and surely not within the Supreme Court's later narrowing formulations and applications of Chaplinsky. See Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572, 585 (1969); Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 1314, 25 L.Ed.2d 570, 573--574 (1970); Cohen v. California, Supra, 403 U.S. at 20, 91 S.Ct. at 1785, 29 L.Ed.2d at 291; Gooding v. Wilson, Supra, 405 U.S. at 524, 92 S.Ct. at 1106, 31 L.Ed.2d at 415.

The Mercer County Court, invoking the second alternative in Profaci, 56 N.J. at 353, 266 A.2d 579, found that the language was of such nature 'that it would likely, in the light of the gender and the age of the people present, the women that were present, affect the sensibilities of the hearers.' The County Court went on to say that the matter was 'accentuated by the setting of the utterance' and that the language 'clearly breaches the limits of decent speech' and is not protected by the First Amendment. The Appellate Division affirmed the County Court's finding and certification was denied. 59 N.J. 435, 283 A.2d 535 (1971). Thereafter, as set forth earlier in this opinion, the Supreme Court remanded the case to the Appellate Division which filed an opinion setting aside the defendant's conviction. 120 N.J.Super. 458, 295 A.2d 1. The Appellate Division expressly found that the second alternative in Profaci sweeps 'too broadly' and renders N.J.S.A. 2A:170--29(1) unconstitutionally overbroad within Gooding v. Wilson, Supra, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408. See also Cohen v. California, Supra, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284.

In Cohen the defendant wore a jacket bearing the words 'F..... the draft' in a corridor of...