Commonwealth v. AshcraftCommonwealth v. Ashcraft
- Reporters:
- ,
- Before:
- Lester, Gudgel, Reynolds
LESTER, Judge.
This is an appeal on behalf of the Commonwealth from a judgment of the Owen Circuit Court which found
That statute provides as follows:
No person shall upbraid, insult or abuse any teacher of the public schools in the presence of the school or in the presence of a pupil of the school.
The appellee, Ed Ashcraft, was charged with violating this section on the basis of statements made by him to his daughter‘s teacher in the presence of several students. The teacher alleged that Mr. Ashcraft made various demands upon her, refused to discuss the matter with her privately, and intentionally humiliated and intimidated her. The appellee moved to dismiss the complaint on the basis that the statute above referred to was both unconstitutionally vague and overbroad in violation of both the United States Constitution and the Kentucky Constitution. By order of April 6, 1984, the Owen District Court granted the motion to dismiss, and the circuit court affirmed.
As noted, the court below found the statute to be both vague and overbroad. While these two concepts often overlap, the parties have discussed each separately and we attempt to do the same. It has been held that an enactment may be void for vagueness where it fails to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972).
The district court, in its opinion, considered dictionary definitions of the statutory terms “upbraid, insult, and abuse,”
Appellant contends that the statute should not be construed so subjectively but rather should be evaluated in the objective sense of what would be insulting to the ordinary person. In support of its argument, the Commonwealth points to Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), which upheld a vagueness challenge to a statute prohibiting the use of “offensive, derisive or annoying” language.
However, it is important to note that the court‘s decision in Chaplinsky was based on the state court‘s construction that the statute referred only to “fighting words.” Such language or “words which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not protected by the First Amendment. Id. 315 U.S. at 573, 62 S.Ct. at 770. On the other hand, words which merely offend, disgrace, anger or frustrate may not be prohibited in violation of one‘s right to freedom of speech. Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).
Pursuant to Chaplinsky, supra, and its progeny, a statute such as this can pass constitutional muster, in the federal courts, if the state courts interpret it as not interfering with speech protected by the First Amendment. In the recent case of Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the Supreme Court again illustrated the power of the state courts to construe a statute so as to limit its application.1
Thus, as appellant points out, this Court could adopt a limiting construction of
While this Court did uphold the constitutionality of
Furthermore, the only case outside this jurisdiction which dealt with a similar statute found the legislation unconstitutional. In McCall v. Florida, 354 So.2d 869 (Fla. 1878), the statute penalized the same type of speech or conduct prohibited by
A statute punishing one criminally for the use of words alone must be carefully drawn or authoritatively construed to punish only unprotected speech. Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408, 414 (1972). While the appellee‘s comments to the complainant/teacher may have been annoying and insulting, they did not amount to unprotected
There are numerous cases standing for the proposition that First Amendment rights are not magically given up when one steps through the schoolhouse door. We believe this applies to parents as well as to teachers and students. Perry Educ. Ass‘n. v. Perry Local Educator‘s Ass‘n., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
It is true, as appellant contends, that the First Amendment does not guarantee the right to communicate one‘s views at all times and places or in any manner that may be desired. Heffron v. Int. Society For Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Accordingly, reasonable time, place, and manner restrictions have been upheld where they serve a significant governmental interest and contain sufficient standards which leave open alternative channels of communication.
While we agree that there is a significant governmental interest in restricting expression which materially disrupts classes or which impairs the dignity of the teacher in the presence of his/her students, no intention to so limit
As it exists, and as the trial court pointed out,
This brings us to the overbreadth argument. A challenge to a statute on the basis that it is overbroad is essentially an argument that in an effort to control impermissible conduct, the statute also prohibits conduct which is constitutionally permissible. Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). While “fighting words” may not be protected, and while reasonable restrictions may be placed on protected speech, this statute is not “narrowly tailored to further the state‘s interest,” Grayned, supra, 408 U.S. at 116, 92 S.Ct. at 2303; and we are not persuaded that this Court can so limit its application that it would withstand constitutional scrutiny.
Even if we were to treat our public schools as a nonpublic forum, as urged by appellant, we cannot find that the statute in question is reasonable in light of the particular nature and function of the forum. Heffron, supra, While alternative avenues for expression are commonly provided in our public schools, the present statute is so vague and overbroad that it could be seen as a blanket prohibition against critical expressions regarding a teacher. We would have to completely rewrite
In the alternative, the Commonwealth argues that the court below erred by failing to determine if any overbreadth in
Accordingly, we find it unnecessary to determine whether the appellee‘s conduct and statements were protected under these facts, or whether his actions could fall within the permissible areas of the legislation. We are dealing here with a single sentence section, and we agree with the court below that
From what we have said herein, we do not intend to convey the message that the legal philosophy is ours but rather one foisted upon us by the Supreme Court of the United States. Under the overbreadth doctrine, the First Amendment has been stretched to a point of torture in order to permit such individuals as Paul Cohen (Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)), David Rosenfeld (Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972)), and Wilbert Brown (Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972)), to do and say whatever they want in total disregard of where they may be or who may be present. See the cases collected in the annotation at 45 L.Ed.2d 725 (1976). We should point out, parenthetically, that Heffron, supra, represents a swing of the pendulum in the opposite direction.
There could be little doubt that
The judgment is affirmed.
All concur.