The University Committee to End the War in Viet Nam is an un-incorporated voluntary association composed of young men and women who are residents of Austin, Texas, and its environs. The purpose of the University Committee is to protest the conduct of the war in Viet Nam by means of discussions, publications, demonstrations, and non-violent direct action, in an attempt to bring the war in Viet Nam to a quick non-military end. The individual plaintiffs include both members of the University Committee and persons sympathetic to its purposes who participate in its affairs. The defendants are duly elected officials of Bell County, Texas.
During Monday, December 11, 1967, and the morning of Tuesday, December 12, 1967, various news media in the Central Texas area reported that The President of the United States was to appear and speak at a dedicatory program at Central Texas College. Central Texas College is situated near Killeen, Bell County, Texas. Killeen is a city of some 30,000 population and serves nearby Fort Hood, a large United States military establishment, reported to be the largest United States armored post. Fort Hood has a population of about 35,000 soldiers and an equal number of civilian dependents. From Fort Hood military members of armed units of the United States Army are transferred to Viet Nam and from Viet Nam many veterans of military service there are transferred to Fort Hood. The President of the United States was also scheduled to make an inspection of Fort Hood on December 12, 1967. Accompanying the President and his official party on the occasion of his appearance at Central Texas College was the usual corps of so-called White House press correspondents, and other representatives of the news media including television commentators and cameramen. Some 25,000 military personnel, their dependents, and civilians from in and around the central Texas area were assembled to hear the President of the United States and other speakers on the dedicatory program.
The evidence indicates that the members of the University Committee learned of the President's scheduled appearance on the morning of December 12, about three hours before the program was to begin. As many Committee members and interested parties as possible were notified, and several carloads of persons desiring to attend the President's speech drove to Killeen. The President had begun speaking when the group, which included the individual plaintiffs, arrived at the turnoff to the college. They parked the car some distance from the speaking area at the college. After choosing placards and signs, the group began walking in the direction of the college. The first people that the group met were friendly, waving and taking pictures of the group with their signs. They then came upon the main speaking grounds which were filled with soldiers in uniform and civilians.
This suit, seeking interlocutory and permanent injunctions and a declaratory judgment, was filed on December 21, 1967. Subsequently, on February 13, 1968, the criminal charges in Bell County were dismissed, on the County Attorney's motion; the reason recited for the dismissal was that the alleged offenses had occurred on a federal enclave, to which criminal jurisdiction had been ceded by the State of Texas.
The dismissal of the criminal charges in Bell County caused the defendants in the present action to move this Court to dismiss this action for lack of jurisdiction. Defendants contend that the case is now moot for the reason that "no useful purpose could now be served by the granting of an injunction to prevent the prosecution of these suits because same no longer exists." It appears, in other words, that defendants' motion to dismiss is addressed to that part of the plaintiffs' complaint which seeks an injunction against the prosecution of the criminal charges in Bell County. We are clear that that part of plaintiffs' prayer is no longer before us. But we cannot fail to understand that, just as in Dombrowski v. Pfister, 380 U.S. 479, 483-492, 85 S.Ct. 1116, 14 L. Ed.2d 22 (1965) and Zwickler v. Koota, 389 U.S. 241, 253-254, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), more is involved where the prayer for relief also requests a declaratory judgment that the statute under which the criminal charges were brought is unconstitutional on its face for being overly broad. The dispositive question at this point then is whether the additional prayer defeats the defendants' argument that this Court is presently without jurisdiction to determine the merits of the case.
Any discussion of plaintiffs' standing in this regard must begin with a consideration of Dombrowski v. Pfister, supra. In that case the appellants brought suit for injunctive and declaratory relief to restrain the prosecution or threatening of prosecution under Louisiana's Subversive Activities law, which they alleged violated their rights of free expression. A three-judge court dismissed the complaint, holding that there was involved a proper case for abstention pending possible future narrowing of the state statute by state courts. The Supreme Court reversed, holding the abstention doctrine (i. e. waiting for a state court to clarify the state statute) inapplicable. The following language bears on our determination:
380 U.S. at 486-487, 85 S.Ct. at 1120-1121. The Court then drew its conclusion, containing the now famous metaphor: "The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure." 380 U.S. at 487, 85 S. Ct. at 1121. Indeed the Court went even further: "So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression." 380 U.S. at 494, 85 S.Ct. at 1125.
The same kind of notion had been voiced earlier by the Fifth Circuit in Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958). There a group of Negroes had brought a class action for injunction and declaratory relief against compulsory segregation in railroad waiting rooms. State charges had been filed against the Negroes but were dismissed because only the offending railroad or bus line could be criminally punished under the law. The Fifth Circuit held that the fact that criminal charges had been dismissed as against these particular plaintiffs did not bar the federal action:
251 F.2d at 787.
More recently, in Carmichael v. Allen, 267 F.Supp. 985 (N.D.Ga.1967), a three-judge court had occasion to consider the mootness contention. Among other charges against the appellant was one charging him with violation of the Georgia statute on inciting insurrections. The state Solicitor General had disavowed any intention to prosecute under that statute for the acts already done. In the following language the three-judge court granted an injunction prohibiting future prosecutions under the insurrection law:
267 F.Supp. 994.
Is there then the requisite "chilling effect" here? The sworn evidence in support of the plaintiffs' prayer for relief indicates that these men have ceased efforts to carry out the purposes and objectives of the University Committee for fear of sanctions under the statute which is presently attacked, that they have "postponed further expression of (their) views through peaceful, non-violent activities lest (they) be arrested" for disturbing the peace. This in itself demonstrates a broad curtailment of activities which may include, and (as discussed in Part II) do include, protected behavior. Not only, as in Carmichael, supra at 994, can the presence of this statute cause a person to "pattern his speech with the ever present threat" of sanctions; here, it appears to have induced suspension of expression altogether.
With this background, how then do we evaluate the defendants' argument that inasmuch as the state charges have been dismissed, the record is bare, there is no "case or controversy", there is nothing useful which can be accomplished. Of course, it ignores the reality that plaintiffs' prayer includes the request for a declaration that the statute is unconstitutional on its face. It ignores the notion, introduced in Dombrowski and reiterated in Carmichael, that the statute's simple presence on the books (which is what the plaintiffs are attacking) may have the requisite "chilling effect" on constitutionally protected behavior to warrant close judicial scrutiny. It even ignores that at least twice in the area of First Amendment rights, the United States Supreme Court has felt compelled to decide the constitutionality of state statutes where no state criminal charges thereunder were pending.
Before we discuss the issues presented as to the merits of this controversy, it may be wise to state what is not involved. This case does not involve in any way an appraisal of the constitutionality of the application of the statute to the plaintiffs; we do not evaluate whether Article 474 was constitutionally applied to these plaintiffs' activities. Our sole concern is the determination of whether Article 474 on its face is, as plaintiffs argue, constitutionally defective as being overly broad.
Article 474 provides:
Our inquiry deals with the overbreadth attack as it relates to the part of the statute which prohibits the use of "loud and vociferous * * * language * * * in a manner calculated to disturb the person or persons present." Does that part of the statute
Zwickler v. Koota, 389 U.S. at 250, 88 S.Ct. at 396.
The United States Supreme Court some years ago in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), outlined in broad terms the legitimate thrust of the breach of the peace offense:
310 U.S. at 308, 60 S.Ct. at 905. The Court vacated Cantwell's conviction because there had been no showing of violent or truculent conduct or assault or threatening of bodily harm.
In Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the petitioner was convicted for violation of a disorderly conduct ordinance. The trial court had charged that "the `misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance * * *'." The Court struck down the conviction, saying
337 U.S. at 4, 69 S.Ct. at 896.
The Supreme Court, in Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), had before it a state statute, which, like Terminiello, permitted conviction if the speech "stirred people to anger, invited public dispute, or brought about a condition of unrest." 372 U.S. at 238, 83 S.Ct. at 685. The evidence was that the petitioner had engaged in conduct which was boisterous, loud, and flamboyant. 372 U.S. at 233, 83 S.Ct. 680. The Court struck down the conviction, utilizing the Terminiello reasoning. An Atlanta city ordinance, prohibiting disorderly conduct, came under similar condemnation in Carmichael v. Allen, supra. The ordinance prohibited acting "in a boisterous manner." The three-judge court declared the ordinance unconstitutional as an unwarranted restriction of First Amendment Rights.
Texas Article 474 suffers the same constitutional infirmity. It cannot be doubted that the provision regarding the use of loud and vociferous language would, on its face, prohibit speech which would stir the public to anger, would invite dispute, would bring about a condition of unrest, or would create a disturbance. In so doing, the statute on its face makes a crime out of what is protected First Amendment activity. This is impermissible.
The Texas statute is subject to attack for still another reason. As pointed out earlier, Article 474 prohibits the use of "loud and vociferous language * * * in a manner calculated to disturb" the public. (Emphasis added.) Similar provisions have been subject to judicial scrutiny in Cantwell v. State of Connecticut, 310 U.S. at 308, 60 S.Ct. at 905; Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966); Carmichael v. Allen, 267 F.Supp. at 998-999; and Baker v. Bindner, 274 F.Supp. 658, 662-663 (W.D.Ky.1967).
The case which appears to present questions closest to our own is Thomas v. City of Danville, 207 Va. 656, 152 S.E.2d 265 (1967). There the petitioners were appealing on constitutional grounds a restraining order issued by the local corporation court. Among other things the order restrained the petitioners:
Because of the modifying language in the order, the scope of the restraint there was narrower than under the Texas statute. However, the Supreme Court of Appeals of Virginia had no difficulty in striking down the above parts of the order, doing so on Terminiello grounds.
We reach the conclusion that Article 474 is impermissibly and unconstitutionally broad. The Plaintiffs herein are entitled to their declaratory judgment to that effect, and to injunctive relief against the enforcement of Article 474 as now worded, insofar as it may affect rights guaranteed under the First Amendment. However, it is the Order of this Court that the mandate shall be stayed and this Court shall retain jurisdiction of the cause pending the next session, special or general, of the Texas legislature, at which time the State of Texas may, if it so desires, enact such disturbing-the-peace statute as will meet constitutional requirements.
ADDENDUM ON MOTION FOR NEW TRIAL
Subsequent to this Court's Opinion of April 10, 1968, the Defendants have filed a motion for new trial and brief in support thereof. Hence, the Court files this addendum to the original opinion to dispose of points raised in Defendants' motion.
The contention is urged that the Bell County prosecutions were not brought under Article 474, Vernon's Ann. Texas Penal Code, and thus that the Court inappropriately determined the constitutionality of that statute. This argument is without merit.
It is clear that the initial complaints which were brought against the individual plaintiffs did not specify Article 474; the only language informing plaintiffs of the nature of the charge against them was the typewritten phrase "Dist. the peace." However, that the complaints themselves do not expressly refer to Article 474 is of no moment. In the Agreed Statement of Facts and Stipulations, filed with the official papers in this cause, Plaintiffs and Defendants agreed that individual plaintiffs "were each charged with disturbing the peace in violation of Article 474." It was on the question of the constitutionality of Article 474 that issue was joined in the cause. An examination of the various Texas statutes which proscribe offenses against the public peace discloses that the only one encaptioned "disturbing the peace" is Article 474. And it is instructive to note that the complaints were ultimately dismissed on jurisdictional grounds, not for failure to adequately apprise these plaintiffs of the offense charged, i. e. Article 474. In short, there
The applicability of Article 474 is important because these arrests indicate that the State considers Article 474 an appropriate vehicle for the regulation or prohibition of demonstrations. Our original decision was that as presently written, Article 474 was not an appropriate vehicle for controlling demonstrations. The decision in no way implied that Texas lacks the power to regulate demonstrations, but implements the well-settled principle that "the power to regulate must be so exercised as not, in attaining a permissible end, to unduly infringe a protected freedom." Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L. Ed.2d 231 (1960). Our opinion indicated that this principle was disregarded in the Texas statute because its broad scope violated the dictates of the First Amendment. Zwickler v. Koota, 389 U.S. 241, 246, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).
In Defendants' Motion for New Trial and the accompanying briefs, they strive to indicate that Texas courts have adopted a construction which substantially narrows Article 474's language. Defendants argument on this point is based on the view that the critical and dispositive phrase in Article 474 is the use of "loud and vociferous language." That view compels them to the conclusion that the statute invokes a prohibition only as to the quantum of noise or sound. The Defendants phrased their conclusion thusly:
To support that conclusion, the Defendants direct our attention to three Texas cases in which the Texas Court of Criminal Appeals has defined the phrase "loud and vociferous language." In Anderson v. State, 20 S.W. 358 (Tex. Cr.App.1892), the appellate court adopted Webster's definition of "vociferous" as "[m]aking a loud outcry; clamorous; noisy; * * * with great noise in calling; shouting." See also West v. State, 131 Tex.Cr.R. 191, 97 S.W.2d 476 (1936). In Thomason v. State, 98 Tex.Cr.R. 312, 265 S.W. 579 (1924), the Court of Criminal Appeals defined "loud" as "marked by intensity, or relative intensity; not low, soft, or subdued." See also West v. State, supra. In all three cases, the convictions were reversed because the language used did not rise to the level of "loud and vociferous."
In holding that these definitions do not save the statute, we have considered the nature of the demonstrations that pervade our society today. The nature of these protest movements has convinced us that while the Texas definitions may suffice for non-first amendment situations, they are inappropriate in the free-speech arena. The modern demonstration involves hundreds or thousands of citizens marching along highways, picketing public accomodations or schools, or conducting mass meetings in parks or other public buildings. Although these protests create problems, the decisions clearly hold that the peaceful expression of views by demonstrations, marches, and assemblies are within the ambit of the First Amendment. See Strother v. Thompson, 372 F.2d 654 (5th Cir. 1967); Guyot v. Pierce, 372 F.2d 658 (5th Cir. 1967); Hamer v. Musselwhite, 376 F.2d 479 (5th Cir. 1967); N. A. A. C. P. v. Thompson, 357 F.2d 831 (5th Cir. 1966); Wooten v. Ohler, 303 F.2d 759 (5th Cir. 1962). Indeed, it has been held that the individual must be afforded some appropriate "public forum" for his peaceful protests. See Guyot v. Pierce, supra, at 661; Kalvan, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1.
Two Supreme Court cases confirm that Texas' definition of "loud and vociferous" aborts the right to express views by assemblies or demonstrations. In Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697
Therefore, the quantum of disruption necessary for the violation of Article 474 constitutes an "unwarranted abridgement of the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places." See Guyot v. Pierce, supra, 372 F.2d at 661. Indeed, any demonstration considered by this court could be suppressed for its "loud and vociferous" manner under the Texas statute.
That does not, however, conclude our criticism, in terms of overbreadth, of the Texas statute; the definition of "loud and vociferous" does not end the interpretative problems created by Article 474. Not only do the Texas decisions convince us that Texas courts take seriously the requirement that the language be loud and vociferous, but they also, contrary to the Defendants' suggestion, indicate that Texas courts take seriously that part of Article 474 that prohibits the use of loud and vociferous language "in a manner calculated to disturb the person or persons present." In other words, to sustain a conviction, not only must the first element be present but there is the further requirement that the action be done in a manner calculated to disturb. A simple reading of the statute and a review of the cases make this second requirement apparent.
Article 474 prohibits "swearing and cursing * * * in a manner calculated to disturb * * *" Is simply swearing and cursing sufficient for a conviction? Not according to Young v. State, 44 S.W. 507, 508 (Tex.1898), where the Court of Criminal Appeals approved the following language:
Article 474 prohibits "rudely display[ing] any pistol * * * in a manner calculated to disturb * * *." In Bell v. State, 158 Tex.Cr.R. 393, 256 S.W.2d 108, 109 (Tex.1953), the court stated:
And in West v. State, supra, 97 S.W.2d at 473, a loud-and-vociferous language case cited by the Defendants, the Court of Criminal Appeals in its original opinion made it clear that more must be submitted to the jury than simply the question of loud and vociferous language:
Indeed, the State's own argument concedes that the phrase "calculated to disturb the person or persons present * * *" has not been read out of the statute. The state has said that loud and vociferous language refers "to a course of conduct which creates so great an amount of noise that it was calculated to disturb the peace and tranquility of the occupants of a private residence or person in a public place." This contention undermines the State's original suggestion and reveals that the key to understanding the Texas statute is not the meaning of loud and vociferous, but the effect, in terms of quantum of disturbance, that the speech had on others. An examination of the Texas decisions shows that this quantum of disturbance is the same as that condemned in Edwards and Cox. E. g., Woods v. State, 213 S.W.2d 685, 687 (Tex.Cr.App.1948), and Head v. State, 131 Tex.Cr.R. 96, 96 S.W.2d 981, 982-983 (1936). These decisions prompted our original holding that the peaceful, orderly expression of views by marches or demonstrations cannot be interfered with, merely because the views expressed may be so unpopular at the time as to stir the public to anger, invite dispute, or create the chance of unrest. See Hurwitt v. City of Oakland, 247 F.Supp. 995 (N.D.Cal.1965). See also Brown v. State of Louisiana, 383 U.S. 131, 147, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Cox v. State of Louisiana, supra, at 552, 85 S.Ct. 453. Thus the quantum of disturbance necessary for violation sweeps within its broad scope conduct protected by the First Amendment.
For these reasons, the defendants' motion for new trial is overruled and it so ordered.