On petition for writ of certiorari to the Supreme Court of
Tennessee.
The petition for a writ of certiorari is denied.
Page 414 U.S.
1163 , 1164
Mr. Justice BRENNAN and Mr. Justice MARSHALL would also grant
the petition for certiorari.
Mr. Justice DOUGLAS, dissenting.
This case involves a demonstration occasioned by the appearance
of President Nixon at the week-long Billy Graham East Tennessee
Crusade being held at a football stadium in Knoxville. The
petitioner, an ordained Methodist minister and a professor of
religious studies, was convicted under a Tennessee statute which in
relevant part proscribes 'willfully disturb[ing] or disquiet[ing]
any assemblage of persons met for religious worship . . . by noise,
profane discourse, rude or indecent behavior, or any other acts.'1
Disruption of the meeting is not an element of the crime under the
statute, and the jury was instructed that 'if you find from the
evidence that the defendants indulged in any indecent or improper
conduct, so near the worshipping assembly, if you find there was a
worshipping assembly present on this occasion, as to attract the
notice and attention of persons who were present as a part of the
assembly-then, under such a state of facts, if they exist, the
defendants would be guilty, and this would be so, whether witnesses
say they were disturbed or not.' (Tr., p. 518). No evidence was
introduced at trial that
Page 414 U.S.
1163 , 1165
the meeting was disrupted, in the sense that speakers were
shouted down, or that petitioner's group prevented, or sought to
prevent, the meeting from proceeding as planned. Nor did the state
appellate courts make any such findings in affirming the
conviction. Although there were findings that some members of the
protest group engaged in obscene chants, it is uncontested that
petitioner did not. The undisturbed findings of the state court of
criminal appeals were that petitioner 'did not chant obscenities
and that his intent was for a peaceful demonstration.' Petitioner's
contentions that the statute was unconstitutionally vague and
overbroad were rejected by the state courts.
Petitioner's involvement in the demonstration began the day
before when he learned of the President's planned appearance. In
consultation with administration officials of the University of
Tennessee he participated in planning the demonstration and urged
the group to make their protest silently through hand held signs.
On the night of the protest the stadium was filled to capacity of
about 75,000 persons; there were approximately 300 demonstrators.
Despite earlier plans the group did engage in a number of chants,
and petitioner joined in some of them. The only violence occurring
during the evening was the knocking of a collection plate from an
usher's hands. Many members of the group, including petitioner,
joined in retrieving the money and placing it back in the
plate.
Petitioner contends that the part of the meeting relevant to
this case-the portion during which Dr. Graham introduced President
Nixon and the President spoke-was political rather than religious.
He points out that the platform included prominent state Republican
figures but no Democrats and contends that the content of the
Page 414 U.S.
1163 , 1166
President's message was primarily political. [
Footnote 2] We are bound, however, by the state
court's determination that for purpose of the state statute the
meeting was religious, and that the statute reached petitioner's
conduct. We must then consider petitioner's contentions that given
this construction the statute as applied here was either
unconstitutionally vague or overboard. [
Footnote 3]
The statute in relevant part proscribes 'willfull disturb[ing]
or disquiet[ing] any assemblage of persons met for religious
worship . . . by noise, profane discourse, rude or indecent
behavior, or any other acts.' Since it is uncontested that
petitioner did not engage in 'profane discourse' or 'indecent
behavior'4 the only proscriptions applicable here are those against
'noise,' 'rude behavior' or 'any other acts' disturbing the
meeting. We have frequently passed upon statutes with similar
language. In Coates v. Cincinnati,
402 U.S. 611, we
considered an ordinance proscribing assemblies of three or more
persons conducting themselves in a manner 'annoying' to passersby,
and concluded that the term 'annoy' without further clarification
specified 'no standard of conduct . . . at all.' Id., at 614. In
Ashton v. Kentucky,
384 U.S. 195, we found
fatally vague a criminal prohibition on writings 'calculated to
create
Page 414 U.S.
1163 , 1167
disturbances of the peace' because such a standard 'involves
calculations as to the boiling point of a particular person or a
particular group.' Id., at 200. Cf. Terminiello v. Chicago,
337 U.S. 1.5
The addition of 'willful' to the statutory prohibition on
disturbing the meeting adds no greater precision, since this
element of intent is not proved separately but was inferred from
the conduct constituting the violation. Indeed, all the direct
evidence of petitioner's intent was to the contrary. [
Footnote 6] Nor is the specification of
'noise' or 'rude behavior' helpful under the facts of this case. We
may assume that a State can constitutionally protect religious
congregations from unwanted and disruptive intrusions, and it seems
probable that men of common intelligence would understand the
statute to proscribe organized political chants in the midst of a
Sunday morning service at a neighborhood church. But societal norms
of appropriate conduct vary with the nature of the meeting in
question. Thus what constitutes 'rude behavior' or sufficient noise
to disturb the assembled group depends upon calculations of the
expectations of other members of the group, much as the case in
Ashton v. Kentucky, supra. Cf. In re Kay,
1 Cal. 3d
930, 83 Cal. Rptr. 686, 464 P.2d 142 (1970). This imprecision
in the statute is highlighted by the facts of this case.
The meeting in question here was widely advertised and all were
invited, and the attendance the night of President Nixon's
appearance was apparently considerably above the number present
other nights. Thus
Page 414 U.S.
1163 , 1168
there can be no question that petitioner had a right to be
present. Vendors roamed the audience of 75,000 selling refreshments
and there was a general noise level created by the crowd throughout
the proceedings. [
Footnote 7]
People came and went regularly. And at least during the period
relevant here-Dr. Graham's introduction and the President's
speech-the crowd frequently interrupted the proceedings with
applause to indicate their approval of the speaker. [
Footnote 8] It was in this context that the
petitioner was required to gauge what conduct would be appropriate,
and he made a conscientious effort to do so. Although before the
meeting he had argued vigorously for keeping the portest silent, as
the content of the speeches became political he joined several
chants of the crowd. [
Footnote
9] During Dr. Graham's introduction he joined the chant
'politics, politics' to show his disapproval of what he considered
to be a political intrusion into a meeting that was supposed to be
religious. And during the President's talk he chanted 'Peace Now'
and 'stop the war.' But clearly he considered obscene chants
inappropriate, and not only refrained from joining those but spent
some effort in attempting to persuade others in the crowd to
refrain also. And it must be remembered that during this period
others in the crowd were applauding the speakers, and that none of
the activities of the petitioner or of his group were violent or
disruptive of the meeting in the sense that they prevented it, or
sought to prevent it, from proceeding as planned.
Page 414 U.S.
1163 , 1169
Such facts would of course present a different case. Here it
would seem we have no more than the petitioner's expression of his
views was found disturbing by others.
I find it difficult to conclude that the petitioner was given
fair notice under the statute that his conduct was proscribed.
Petitioner had to guess not only as to the conduct proscribed by
the statute at the meeting in question, but whether the statute
applied at all to this portion of the meeting, which could be
characterized as political as well as religious. 'No one may be
required at peril of life, liberty or property to speculate as to
the meaning of penal statutes. All are entitled to be informed as
to what the State commands or forbids.' Lanzetta v. New Jersey,
306 U.S.
451, 543. And here, where the statute is capable of
interpretation reaching expression protected by the First
Amendment, the greatest precision is required. Ashton v. Kentucky,
384 U.S. 195,
200-201; Grayned v. City of Rockford,
408 U.S.
104, 109. Moreover this statute as applied here exhibits the
twin defect of inviting 'arbitrary and discriminatory enforcement'
inviting prosecutors and juries to proceed on their prejudices,
because of its failure to specify sufficiently what is proscribed.
Grayned, supra, at 108. Those disturbing the meeting with applause
were not prosecuted, although the applause of the much larger group
presumably disturbed those in the audience who did not support the
President. Thus it appears that the statute allows for arbitrary
enforcement on the basis of who is disturbed.
Moreover, because disruption of the meeting is not an element of
the offense, the statute poses substantial problems of overbreadth.
Under the instructions given by the trial judge the jury was
allowed to convict petitioner for 'improper conduct' attracting the
notice of persons present. This would appear to sanction conviction
by the jury for doing no more than expressing views
Page 414 U.S.
1163 , 1170
unpopular with the assembled crowd, if the jury found that such
expression was improper to the occasion, and thus disturbed others.
Such a conviction cannot stand under the First Amendment, any more
than the conviction in Terminiello v. Chicago,
337 U.S. 1, where the jury
was allowed to convict the defendant for speech which 'stirs the
public to anger, invites dispute, brings about a condition of
unrest, or creates a disturbance.' Id., at 4.
The theory under which the state appellate court affirmed the
conviction poses further problems under the First Amendment.
Apparently concluding that petitioner did nothing at the meeting
itself which was violative of the statute, the state court of
criminal appeals sustained the conviction on the theory that
petitioner was an aider and abettor because he 'admits to
protesting the appearance of the President, and he admits to
participating in the organizing of the protest.' On this basis the
court held that 'the obscenities from the group and the chanting by
the group . . . are also [petitioner's] acts by his participation
in the group.' The court concluded that petitioner 'cannot escape
responsibility for his participation in planning the demonstration
by relating that he personally did not do the unlawful acts, which
arose during the event.' The State Supreme Court in affirming
rejected the aider and abettor reasoning of the lower court because
under state law there can be no conviction for aiding and abetting
a misdemeanor. The conviction was affirmed, however, because 'the
conduct of [petitioner] cited by the Court of Criminal Appeals as
amounting to aiding and abetting, actually makes [ petitioner]
guilty as a principal offender.' This is followed by citations to
state court decisions holding that as to misdemeanors evidence
showing aiding and abetting supports conviction as a principal. It
thus appears
Page 414 U.S.
1163 , 1171
that petitioner's conviction was affirmed because of his
association with other members of the group whose behavior was
found violative of the statute.
By grounding petitioner's conviction on his participation in the
planning of the protest the state appellate courts place criminal
liability on freedom of expression in its most pristine form.
Petitioner's role was not contested. He attended the meetings and
voiced his approval of some form of protest against the President's
appearance, but it appears that at virtually every opportunity he
urged the group to keep their protest peaceful and silent. He
cannot be held liable because some members of the group chose to
express their views in an illegal manner, United States v. Robel,
389 U.S. 258,
particularly when, as here, there is no evidence that the group
ever agreed to conduct its protest unlawfully or that petitioner
ever acquiesced in such a decision. [
Footnote 10] Nor was petitioner charged which
conspiracy.
I would grant the petition for certiorari.
Footnotes
Footnote 1 'If any person
willfully disturb or disquiet any assemblage of persons met for
religious worship, or for educational of literary purposes, or as a
lodge or for the purpose of engaging in or promoting the cause of
temperance, by noise, profane discourse, rude or indecent behavior,
or any other acts, at or near the place of meeting, he shall be
fined not less than Twenty Dollars nor more than Two Hundred
Dollars, and may also be imprisoned not exceeding six months in the
County Jail.' Tennessee Code Annotated 39-1204.
The jury imposed a fine of $20 upon petitioner; no prison
sentence was imposed.
Footnote 2 In addition to
President Nixon, the podium included Congressman Brock, a
Republican then running for the Senate seat held by Democrat Albert
Gore, and Republican Congressmen Kuykendall and Duncan. Tr., p.
348. No prominent Democrats were included.
Footnote 3 Neither the court
below nor the petition here distinguished between facial and as
applied claims of vagueness or overbreadth.
Footnote 4 There was
behavior by others in the group which might have fell within these
proscriptions. Among the chants which petitioner did not engage in
were 'Bullshit, bullshit' during the President's speech, and 'one,
two, three, four, we don't want your fucking war.' One isolated
member of the group rose during a minister's prayer and screamed an
obscenity.
Footnote 5 In Colten v.
Kentucky,
407 U.S.
104, the Court affirmed a conviction under a disorderly conduct
statute against claims of vagueness and overbreadth. But Colten,
unlike the present case, did not involve expression protected under
the First Amendment, and in Colten the petitioner disobeyed a
lawful police order to move on.
Footnote 6 See transcript at
29, 58, 69, 73, 231, 241, 249, 299, 391, 490.
Footnote 7 Tr., at 117.
Footnote 8 Tr., at 272.
Footnote 9 There was
evidence that others clearly sympathetic to the Graham religious
cause joined the protest because they were offended by the
political overtones of this part of the meeting. Two other
ministers, who had been converted at previous Graham crusades and
who were then attending a Graham training school, testified that
they joined in the protest. Tr., at 299-320.
Footnote 10 There was
evidence that a least one member of the group announced at the
meetings that he would not remain silent during the President's
speech, but other evidence showed that the group consensus at these
meetings was for a silent protest. I do not see how petitioner's
right to attend the Graham Crusade could be curtailed because one
member of the protest group declined to follow his advice to remain
silent.
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