Neal v. Still

Lyle Brown, Justice. Joe Neal and wife were formally charged, tried, and convicted in the Arkadelphia Municipal Court with willfully violating Ark. Stat. Ann. § 41-1431 (Repl. 1964), titled “Creating Disturbance on School Property.” The charges stemmed from their activities on the campus of Henderson State College. The pertinent point on appeal here is that the statute is unconstitutional. An appeal to the circuit court was not perfected. Appellants filed in that court a petition which named the municipal judge, Hon. J. E. Still, as the respondent. The petition was styled, “Petition for Certiorari, Petition for Writ of Coram Nobis, and Petition for Writ of Prohibition.” The circuit court granted die petition for certiorari -and after deleting that part of the sentence which was admittedly objectionable, denied -any other relief. That amendment left each appellant with a fine of $500. The part of § 41-1431 which is relevant to this appeal reads: Any person who shall enter upon any public school-property, school cafeteria,' ... in the State of Arkansas, and while therein or thereon shall create- a disturbance, or a breach of the peace, in any way whatsoever, including, but- not restricted to, loud and offensive talk, the making of threats or attempting to intimidate, or any other conduct which causes a disturbance or breach of the peace or threatened breach of the peace, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six [6] months, or both such fine and imprisonment. Appellants contend the statute is “void in that it is vague and overbroad in violation of the fourteenth amendment and productive of a chilling effect on the exercise of rights protected by the first amendment to the Constitution of the United States.” A legislative act is unconstitutionally vague which imposes criminal sanction for the doing of- an act, and that act is so nebulously described as to require men of common intelligence to guess at its meaning. Winters v. New York, 333 U. S. 507 (1948). We presume an act of the Legislature to be constitutional and must so hold unless it is clearly incompatible with the Cons titu don; any doubt is resolved in favor of constitutionality. Walden v. Hart, 243 Ark. 650, 420 S. W. 2d 868 (1967). In light of the stated principles we examine and resolve appellants’ contention. It is difficult to conceive of language more vague than that which declares one a law violator when he “creates” a disturbance or breach of the peace “in any way-whatsoever.” The same is true of language whicb makes it a misdemeanor to use “offensive talk.” Then_ we find a prohibition against “attempting to intirrtfdate,” which is about as vague as one can imagine. Finally, we find in the forbidden category “any other conduct which causes a . . . threatened breach of the peace.” We have no hesitancy in concluding that men of common intelligence would have to guess as to what conduct is proscribed by those phrases. The United States Supreme Court has considered, and unfavorably, a host of -cases involving phraseology similar to that with which we are concerned. In Ashton v. Kentucky, 384 U. S. 195 (1966), there was a conviction for an offense described as “any writing calculated to create disturbances of the peace.” The Court held that language to be so indefinite and uncertain as to be unconstitutionally vague. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the charge of “inciting a breach of the peace” was condemned as being of general and indefinite character. In Terminello v. Chicago, 337 U. S. 1 (1949), an ordinance which as construed punished an utterance as a breach of the peace “if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” It was held unconstitutional. For other cases in which convictions for breaches of the peace were reversed because the offenses were imprecisely defined, see Edwards v. South Carolina, 372 U. S. 229 (1963), and Cox v. Louisiana, 379 U. S. 536 (1965). In Ashton the Court said: “Here ... we deal with First Amendment rights. Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.” The indefiniteness of penal laws is the subject of a recent annotation in 16 L. Ed. 2d, p. 1231. This brings us to the question of whether the entire § 41-1431 must fall because of the unconstitutionally vague portions. The different parts of the section are so mutually connected and interwoven as to lead us to believe that the Legislature intended them as a whole. The entire section consists of one sentence. In fact, when the impermissive words and phrases are deleted there remains hardly a skeletal sketch of a section with which to deal. We are further persuaded in that view because any permissible portions of the section are duplicated in misdemeanor statutes of long standing. It is our conclusion that § 41-1431 should be, and is hereby, declared unconstitutional in its entirety. Reversed and dismissed. Fogleman and Jones, JJ., dissent.