Sabel v. Stynchcombe

JOHNSON, Circuit Judge: Appellants, members, of the Revolutionary Communist Party, were convicted of violating Georgia’s Refusal to Disperse Statute, O.C.G.A. § 16-10-30,1 during a political demonstration held at Bowen Homes Apartments on April 22, 1981. When their convictions were affirmed by the Georgia Supreme Court, Sabel v. State, 250 Ga. 640, 300 S.E.2d 663 (1983), appellants sought a writ of habeas corpus, challenging the constitutionality of O.C.G.A. § 16-10-30. This petition was denied by the United States District Court for the Northern District of Georgia, Atlanta Division. Because we find that the application of this statute to appellants violated their First and Fourteenth Amendment rights, we reverse. 1. FACTUAL BACKGROUND During the spring of 1981, members of the Revolutionary Communist Party began to speak, disseminate information and organize political discussions at Bowen Homes Apartments in Fulton County, Georgia. Though Party members were able to involve some residents in their activities, they generated little interest and considerable hostility among many residents of the complex. Some resented the aggressive behavior of the Communists: Party members stepped on their grass, solicited the help of their children in distributing signs and literature, and sometimes refused to leave their apartments during door-to-door solicitations.2 Others took exception to the Party members’ political philosophy, feeling, as one witness testified, that “we don’t need Communism in our country”. On April 22, 1981, six members of the Party, including appellants, gathered at Bowen Homes to speak with residents about plans for the upcoming May Day demonstration. On this occasion, appellants participated in their usual range of activities: they distributed literature and red flags, spoke to groups of residents (at times using a bullhorn) and engaged in door-to-door solicitation. At one point during the afternoon, one appellant and a fellow Party worker refused to leave the doorway of a Mrs. Bailey after being told that she was not interested in the Party or its literature. Soon after this incident a crowd of residents began to gather on a sidewalk next — 730 — to the parking lot where appellants were speaking. As more people arrived, the gathering became increasingly hostile to appellants. Some residents complained that “the lady that was with them would not get off of Mrs. Bailey’s apartment”; others “were upset at some of the things the revolutionary workers were saying” and at the workers’ failure to understand that “the Bowen Homes community is not interested in what they have to offer”. Before long the group swelled to almost 200, and residents were “shouting”, “shoving” and “cursing”. An unidentified resident called the Fulton County Police. Officers Britt and Kelly were the first to arrive on the scene. They found an angry crowd, a few residents attempting to take the bullhorn and red flags from appellants, others shouting “if you don’t get them out, police, we will”. Fearing that “we were goiijg to have a riot,” the officers called the remainder of their sector3 to Bowen Hoiries and began efforts to disperse the crowd. When a general request proved unavailing, the officers attempted to address appellant!. Officer Britt approached each one in turn, asking him to leave the area immediately. Officer Kelly approached appellant Hill, who was struggling with a resident over his bullhorn, and told appellant Hill that he would “kick [his] ass if he didn’t get out of there”. When appellants failed to respond in any way to these requests, officers arrested them, led them by the arm to the waiting squad cars and drove them from the scene of the demonstration. II. THE CONSTITUTIONALITY OF § 16-10-30 Appellants claim that § 16-10-30, as applied to them under these circumstances, violated their right to freedom of speech, freedom of association and freedom to petition the government for redress of grievances, as guaranteed by the First and Fourteenth Amendments. The district court, citing the “aggressive and rude behavior” of appellants, held that the state had a sufficiently strong interest in averting imminent violence to justify infringing appellants’ speech. We cannot agree. While appellants may have been abrasive in communicating this message, this does not deprive their conduct at the demonstration on April 22 of its character as speech, deserving of the fullest constitutional protection. See Tinker v. Des Moines School Disk, 393 U.S. 503, 508-09, 89 S.Ct. 733, 737-38, 21 L.Ed.2d 731 (1969). To interfere with such protected conduct, the state must satisfy a heavy burden: it must not only demonstrate a substantial interest in regulating the speech in question, but it must show that the statute under which it regulates such conduct “does not broadly stifle fundamental liberties when the end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). Our review of the record casts doubt on the conclusion that police had a sufficient interest in preventing imminent violence to justify restricting appellants’ speech.4 None of those present testified to any violent acts by either residents or Party members; the only physical contact between the two groups occurred when residents sought to take the bullhorn and red flags from appellants. More importantly, — 731 — the “shouting”, “shoving” and “cursing” described by witnesses were virtually indistinguishable from the “unruly” and threatening behavior attributed to spectators in cases such as Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), and Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1968), in which the Court held that such danger provided an insufficient basis for governmental restriction of protected speech.5 Even if such interest had been sufficient, however, the state failed to demonstrate that it selected a suitably narrow means of achieving it. By prosecuting appellants under the Refusal to Disperse statute, a law designed to facilitate police response during fires and criminal investigations, the state foreclosed the use of other means which would have responded more directly to any illegal conduct without giving officials discretion to focus enforcement efforts on those engaged in speech. If state officials had agreed with some residents that the source of the problem was the aggressive behavior of appellants, they could have arrested appellant Hill for trespassing on Mrs. Bailey’s property, or arrested all appellants for reckless conduct in trampling residents’ newly planted grass. If police believed, as they stated6, that they were less concerned with appellants’ intrusions than with protecting them from an increasingly threatening crowd, they enjoyed an even greater range of choice. They could have taken steps to protect appellants while allowing the demonstration to continue, such as surrounding the speakers or arresting those spectators who threatened violence.7 Or they could have taken Party members into temporary protective custody, curtailing the demonstration but not subjecting appellants to prosecution. Instead, after attempting only voluntary appeals, police arrested appellants and charged them under a statute intended for a different purpose. The application of § 16-10-30 in these circumstances cannot be described as appropriately narrow, “in light of less drastic means for achieving the same purpose.” Shelton v. Tucker, supra, at 488, 81 S.Ct. at 252. In so holding we do not endorse the conduct of appellants. The record shows that they were abrasive in dealing with Bowen Homes residents and unresponsive to what began as reasonable law enforcement efforts. But the protections of the First Amendment do not extend solely to speech which is well-mannered and attentive to the preferences of others. The application of § 16-10-30 to appellants was unconstitutional. REVERSED. Footnotes [1] O.C.G.A. § 16-10-30 states: A person in a gathering who refuses to obey the reasonable official request or order of a peace officer or fireman to move, for the purpose of promoting public safety by dispersing those gathered in dangerous proximity to a fire or other emergency is guilty of a misdemeanor. [2] Party members would generally conduct their solicitation from the doorway of a resident’s apartment; and, in some cases, when a resident would attempt to close the door, the Party member would "put the arm on the screen door” or "put their foot in the screen door”. [3] A total of nine officers, including the sector supervisor, arrived at Bowen Homes in response to Officer Britt’s request. [4] Because a claim of constitutionally protected right is involved, it "remains our duty in such a case as this to make an independent examination of the whole record.” Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). Moreover, the district court’s conclusion that the circumstances gave police a sufficient interest in preventing violence to justify restricting appellants’ speech is a mixed finding of law and fact which is entitled to independent scrutiny by an appellate court. See Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714-15, 64 L.Ed.2d 333 (1980). [5] Strikingly similar to the instant case is Gregory v. City of Chicago, supra, in which spectators threw rocks and eggs at civil rights demonstrators and shouted threats such as "God damned nigger, get the hell out of here" and “Get the hell out of here or we will break your blankety blank head open." Id. at 128, 89 S.Ct. at 955. The Court in Gregory reversed a decision by the Illinois Supreme Court that police were justified in arresting and charging demonstrators with disorderly conduct because they feared violence by unruly spectators. [6] It is one more indication of the poor fit between the statute and the circumstances of the demonstration that the ostensible purpose of the police in applying the statute (protecting appellants from potential violence) differed substantially from the purpose of the Georgia legislature in enacting it (assuring police freedom of action at the scene of an emergency). [7] Some courts have imposed a duty to protect speakers confronted by a hostile audience. See Kelly v. Page, 335 F.2d 114, 119 (5th Cir.1964). Not only did police in this case fail to offer such protection; there is some evidence, such as the threat made by Officer Kelly, that they contributed to the hostility of the crowd. It is noteworthy that those residents who threatened violence — the only participants in the demonstration who engaged in overtly threatening behavior — were neither approached nor arrested by police officers.