State v. Summrell, 53

Docket NºNo. 53
Citation192 S.E.2d 569, 282 N.C. 157
Case DateNovember 15, 1972
CourtUnited States State Supreme Court of North Carolina

Page 569

192 S.E.2d 569
282 N.C. 157
STATE of North Carolina
Julius Stewart SUMMRELL.
No. 53.
Supreme Court of North Carolina.
Nov. 15, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. James E. Magner for the State.

Chambers, Stein, Ferguson & Lanning, by Charles L. Becton, Charlotte, and Paul & Keenan, by Jerry Paul, Greenville, for defendant appellant.

SHARP, Justice:

Defendant, by his motion to quash the warrant upon which he was charged and convicted of disorderly conduct, challenged the constitutionality of the applicable sections of G.S. § 14--288.4 (1969), the statute under which it was drawn. The court's denial of this motion raises the constitutional question upon which defendant appeals.

G.S. § 14--288.4(b) provides: 'Any person who Wilfully engages in disorderly conduct is guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00) or imprisonment for not more than six months.' (Emphasis added.)

G.S. § 14--288.4(a), in pertinent part, provides: 'Disorderly conduct is a Public disturbance caused by any person who:

'(1) Engages in fighting or in violent, threatening, or tumultuous behavior; or

'(2) Makes any offensively coarse utterance, gesture, or display or uses abusive language, in such manner as to alarm or disturb any person present or as to provoke a breach of the peace; or

'(3) Wilfully or wantonly creates a hazardous or physically offensive condition. . . .' (Emphasis added.)

[282 N.C. 166] Public disturbance is defined by G.S. § 14--288.1(8) (1969) to be: 'Any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access. The places covered by this definition shall include, but not be limited to, highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.'

The foregoing sections are a part of Article 36A of Chapter 14 of the General Statutes of North Carolina. This Article was enacted by Chapter 869, N.C.Sess.Laws of 1969, Section 9 of which provides: 'If any word, clause, sentence, paragraph, section, or other part of this Act shall be

Page 575

adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof.'

Defendant concedes that a person may be legally convicted of disorderly conduct under G.S. § 14--288.4(a)(1) if he wilfully engages in fighting, violence, or conduct threatening immediate violence. His contentions with reference to the charge based upon this section (count one in the disorderly conduct warrant) will be discussed in considering the assignments of error relating to the charge.

With reference to Section (a)(2) of G.S. § 14--288.4, he basis for the second count in the warrant charging disorderly conduct, defendant contends that this portion of the statute violates the First Amendment guaranty of free speech and section one of the Fourteenth Amendment. He argues that this section is 'facially vague and overbroad'; that its imprecise and sweeping language not only encompasses speech protected by the First Amendment but is so indefinite that men of common experience and intelligence could not know in advance what utterances and conduct would fall within its prohibition.

It must be conceded that all of Section (a)(3) and that part of Section (a) (2) which prosecribes 'offensively coarse' utterances and acts such as 'to alarm and disturb any person present' are vague. See In Re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969). Words and conduct which would alarm and disturb one person might not faze another, and conditions hazardous or physically offensive to some might not be so regarded[282 N.C. 167] by others. It is quite clear that, under the decision of the United States Supreme Court in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), Section (a)(3) and that portion of Section (a)(2) referred to above are unconstitutionally vague and overbroad. In Gooding, the Court passed upon a Georgia statute providing that '(a)ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.' Id. at 519, 92 S.Ct. at 1104, 31 L.Ed. at 412. The decision was that the statute was 'facially unconstitutionally vague and overbroad' and, in the absence of an authoritative construction by the Georgia court (1) narrowing its application to 'fighting' words only, utterances tending to incite and immediate breach of the peace; and (2) excluding from its application speech, however vulgar or offensive, that is protected by the First and Fourteenth Amendments, that it was void.

It has long been established that under our Constitution that public expression of ideas may not be prohibited merely because the ideas are offensive, disturbing, or alarming to some hearers. Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 22 L.Ed.2d 572, 585 (1969). Any other rule would deny the opportunity for free political discussion which is so necessary to keep government responsive to the will of the people and to effect charges by lawful means. Some persons will always be alarmed, and perhaps disturbed, by the advocates of change. Thus, a statute which defines proscribed activity so broadly that it encompasses constitutionally protected speech, cannot be upheld in the absence of authoritative judicial limitations. See Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1948); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117, 1123, 73 A.L.R. 1484 (1931).

Recognizing the vagueness and 'overbreadth' of the 'alarm and disturb' provision in Section (a)(2) and the hazardous or physically offensive provision in Section (a)(3), upon which the third count on the warrant was based, Judge Martin struck the third count and construed Section (a)(2) to prohibit only words and conduct

Page 576

likely to provoke ordinary men to violence. Thus, he deleted the obscurring verbage and left undisturbed [282 N.C. 168] the statutes' proscription against acts and language calculated to bring on a breach of the peace. The State was given permission to amend the second count of the warrant to comply with this construction, and, before verdict the solicitor amended by striking therefrom the words 'alarm and disturb persons present.' This was permissible procedure. State v. Fenner, 263 N.C. 694, 140 S.E.2d 349 (1965); State v. Thompson, 233 N.C. 345, 64 S.E.2d 157 (1951).

Judge Martin's 'construction of severability' was authorized by Section 9 of Ch. 869, N.C.Sess.Laws of 1969 previously quoted herein. Further, it is well settled in our saw that a statute will not be construed so as to raise a question of its constitutionality 'if a different construction, which will avoid the question of constitutionality, is reasonable.' Education Assistance Authority v. Bank, 276 N.C. 576, 592, 174 S.E.2d 551, 563 (1970).

There can be no doubt that the General Assembly intended to prohibit 'fighting words,' words tending to cause an immediate breach of the peace wilfully spoken in a public place, and that Judge Martin's interpretation accurately expressed the legislative purpose. At this point we note that the General Assembly by N.C.Sess.Laws, Ch. 668, § 1 (1971) deleted Section (a)(3) from G.S. § 14--288.4 and rewrote Section (a)(2) so that it now reads '(m)akes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace. . . .' There is no substantial difference between the 1971 revision and the 1969 version of Section (a)(2) as Judge Martin construed it.

'The right of (freedom of speech) is not an absolute...

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