Marks v. City of Anchorage

al., Appellants, et Clara MARKS ANCHORAGE, John Flan

CITY OF C. capacity igan, of the Anch his Chief Appellees. orage City Department, Police

No. 1568. of Alaska.

June Sept. 15, 1972.

Rehearing Denied Sherry, Legal

Alan G. Alaska Services Corp., Anchorage, appellants. Spencer, City Atty., R. Van John John Winkle, City Atty., City of Asst. for the Anchorage. BONEY, J.,

Before C. RABINO- WITZ, ERWIN, CONNOR and JJ. unemployed long-haired, of and indigent, OPINION persons, generally as well unconventional ERWIN, Justice. who, persons, because as low-income native repre- and as Appellants, as individuals lifestyles, of sub their non-conformist are 23(a), Rule sentatives of a class under Civil police. ject scrutiny by They special seeking to have a “dis- brought this action they engage state further that or desire City orderly of the of conduct” ordinance constitutionally engage pro in various unconstitutional on its Anchorage declared tected activities and associations are ordinance, May enacted on face. The ordinance, proscribed by argue 1970,provides as follows: unconstitutionally the ordinance is over- any person for It shall unlawful vague broad and so toas violate the due public purpose and intent cause process with guarantee.2 annoyance inconvenience, alarm, or or superior The judge partial court entered by: recklessly risk create a thereof summary judgment appellants’ favor (1) fighting threatening, or Engaging holding: behavior; or in tumultuous violent or phrases 1. That ‘unreasonable or display’ noise’ ‘gesture used (2) Making unreasonable noise or of- (2) 15-1 of (mm) the Code of Ordi- § utterance, fensively gesture, coarse City Alaska, nances of the Anchorage, of display, addressing or or abusive are declared unconstitutional on their any person present; language to or face, and that and their agents defendants cars, (3) grocery stоres, Lodging in enjoined are from the enforcement sheds, washrooms, places or other provisions; said kept lodg- other than as is for such portions 2. That remaining ing § purposes, permission without the 15-1(mm) of the Code Ordinances of party or of the owner entitled to City Alaska, of Anchorage, are de- possession thereof. clared face, on constitutional their affecting ‘Public’ likely means or plaintiff’s as to these cause remain- place to affect in a to which ing portions of Ordinance 15-1(mm) is group or substantial has dismissed. access; among places included streets, highways, transportation are Appellants argue appeal that the val- facilities, schools, prisons, apart- portion idated of the ordinance is also houses, places ment of business or unconstitutionally vague and overbroad. parks amusement or neighbor- City appealed has not hood.1 superior from the court’s decision and has complaint appellants their amended declined responsive al to file a brief before lege they are members of this a class court. deprive any per- Ordinance 17-70 codified as § § [N]or shall state (mm), Anchorage life, property, liberty, Code of son Ordinances or without process law; due Const, provides: I, Alaska art. 5§ provides: Every person may freely speak, write,

2. U.S.Const. amend. I Congress respect- publish being subjects, make no law shall re- on all ing religion, sponsible right. of that establishment the abuse Const, prohibiting thereof; I, provides: exercise free Alaska 0§ art. peaceably abridging speech, right people of the freedom or of press; assemble, govern- people petition or the and to peacеably abridged. assemble, petition ment shall never be Const, griev- I, provides : redress of Alaska 7§ art. deprived life, person No shall ances. process XXV, provides liberty, property, without due § amend. U.S.Const. part: of law. legitimately regulate that the ordinance state can are included We have concluded entirety. ap- prohibi- As will within the ambit of the statute’s unconstitutional contrast, By below, specific tion.5 pear contains constitutional guarantees necessarily implicated has are that the United States impermissibly vague- when a statute is specifically to be declared void for declared opin- play ness. The latter doctrine vague in a series comes into and overbroad when ions, statutory language the ordinance so pre-date is indefinite some of which Further, although perimeters prohibited some of the decades. zone several unclear; of conduct are prohibited may a statute of the conduct reachable, unconstitutionally vague though the ordinance constitutionally even is prefa- specifically protected activities be struck in toto because Con- stitution setting vague the mens rea for are outlawed.6 A tory language out process violates impermissibly vague is the due the entire ordinance clause both because give it fails thereby adequate infects otherwise valid notice to the ordi- portions.3 critical im- Because of the nary citizen prohibited of is what and be- principles portance these constitutional cause its indefinite un- contours confer protecting in the fundamental liberties bridled discretion on officials our and because this a case citizens thereby possibility raise the of uneven Alaska, impression in will examine first we and discriminatory ap- enforcement. As precepts constitutional law some these pellants out, point the ordinance now be- detail. fore this court spectre raises the all of these prohibits abuses: it conduct which

Although the overbreadth protected by the United and Alaska are related States void-for-vagueness doctrines area, and, constitutions, first amendment at least in the give adequate it fails to notice they wholly separable,4 are function prohibited, gives what conduct is and it doctrinally over- ally distinct. The enforcement officials excessive discretion. give ade doctrine has evolved to breadth Turning first in- overbreadth specific first quate breathing room firmity, Button, in N.A.A.C.P. v. freedoms; a statute violates amendment 415, 433, L.Ed.2d constitutionally-protect 9 the doctrine when 418 (1963), ed cоnduct as well as Supreme United States vague, only prefatory language generally Freund, 3. Not is the 6.See The of In- Use point opinion, but, Statutes, in this as we out later definite Terms 30 Yale L.J. (1) (2) (1921) ; Legislation Vague applied Aigler, when subsections 437 constitutionally Terms, of the ordinance to reach or General 21 Mich.L.Rev. 831 (1923) ; Freund, Supreme protected activity, See it The Court and overbroad. Chicago, Liberties, Civil 4 discussion of Terminiello v. Vand.L.Rev. 539- ; (1951) Collings, Unconstitutional 93 L.Ed. 1131 Uncertainty- Appraisal, (1949), 40 Cornell —An infra. (1955) ; Scott, Constitutional L.Q. 195 Note, The Amendment See First Over Limitations Criminal on Substantive Doctrine, breadth 845, 83 Harv.L.Rev. Law, Rocky Mt.L.Rev. 287-89 ; Note, The Void- 871-75 (1957) ; Amsterdam, supra-, note for-Vagueness Supreme in the Doctrine Note, Requirements Defi- Due Process Court, 110-13 109 U.Pa.L.Rev. Statutes, Harv.L.Rev. niteness (1948) ; Law, Note, Constitutional Void generally Amsterdam, Vagueness: Escape for An See Federal Con- Statu- tory Interpretation, 23 Ind.L.J. stitutional Restriction on the Punish- Note, Void-for-Vagueness Status, (1948) ; ment of Crimes of Crimes Supreme Court, Obnoxiousness, in the note 4 of Dis- Doctrine General pleasing Crimes Officers, Like, supra-, Note, Police and the Breach the Peace and (1967) ; Disorderly Note, Void for Crim.L.Bull. Conduct Laws: (1966) ; Vagueness? Doc- The ‍​​‌​‌​​‌​​​​​‌​​‌​​‌​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌​​‌​​​‌‌​‍First Amendment Overbreadth 12 How.L.J. supra. trine, Note, note 4 35 Alb.L.Rev. 391 stances, as, in a courtroom example, the rationale articulated Court But a care- while session.13 the court doctrine: ful the relevant look at are freedoms These amendment] [first cases that the makes obvious vulnerable, su- as well as delicate and requisite specificity and ordinance lacks the precious society. The in our premely permitted stretches far outside area may their exer- deter threat of sanctions regulation. potently the actual cise almost as Chicago, In Terminiello v. application Be- of sanctions. L.Ed. 1131 the Su- need First Amendment freedoms cause preme struck down breach of survive, government space breathing peace applied who petitioner ordinance as regulate in the area with nar- inflammatory speech had an delivered specificity. row unruly jury crowd. was instructed “chilling effect” over- Because peace”, language, that “breach of the laws have exercise con- broad on the of public to speech included that “stirs the rights,7 emphasized stitutional the court dispute, anger, brings about a con- invites suspect rules are prophylactic that broad unrest, dition of or creates a disturbance.” “[pjrecision regulation be the and of 895, 4, Id. at at at 1134. 69 S.Ct. 93 L.Ed. 438,83 . . Id. at touchstone . S.Ct. noting vitality After that the of our civil 340, L.Ed.2d at 421.8 9 political depends and on free institutions discussion, the stated: Court State, noted in Anniskette As we. v. 1012, (Alaska P.2d 1971),

489 1013 free our speech function of under [A] only in the most limited circumstances system dis- is to invite example, For speech punished.9 can be pute. may high It indeed best serve its speech punished ob might purpose erotic when it induces a condition by scenity promulgated unrest, if the the Su tests creates dissatisfaction with con- preme Similarly, person are, they people Court are met.10 a or ditions as even stirs uttering punished “fighting Speech provocative for to anger. often likely provoke preju- challenging. words” which are to a violent may strike ordinary an preconceptions pro- when dices reaction addressed have intentionally provoking presses for unsettling citizen11 or for effects as it found acceptance why free- a crowd to under circum of an idea. That is hostile reaction absolute, present danger speech, though a dom not stances where clear Presumably protected against censor- immediate is nevertheless violence exists.12 ship assembly punishment, likely or unless shown a limit state could also present danger a specific places produce limited circum- clear and under Keyishian Regents question the broader 7. See Board of reach v. constitutionality. 589, University York, U.S. statute’s New 385 675, 629, 604, 641 87 S.Ct. L.Ed.2d 17 476, States, 10. Roth 354 U.S. v. United (1967). Note, The First Amend See also (1957) 1304, 1 1498 L.Ed.2d 77 S.Ct. Doctrine, supra, 4 ment note Overbreadth progeny. and its at 852-58. Hampshire, Chaplinsky 315 U.S. New 11. v. also Alabama rel. See v. ex N.A.A.C.P. (1942). 766, 568, 86 L.Ed. 1031 62 S.Ct. 307-308, Flowers, 288, 377 U.S. 315, York, ; (1964) New 340 U.S. 1302, 325, 12. See Feiner v. 12 L.Ed.2d (1951). 303, Tucker, 95 L.Ed. 295 71 S.Ct. v. 364 U.S. Of. Shelton 1, Chicago, (1960). 247, 231, v. Terminiello 5 L.Ed.2d 894, 93 L.Ed. under a state 9. Anniskette was convicted 15, California, 11.45.030, statute, peace Cohen AS breach Of. 284, strikingly 29 L.Ed.2d 91 S.Ct. similar to the Anchor- Carolina, (1971) ; v. South age Edwards held that Annis- ordinance. we Since 83 S.Ct. specifically protected and n. 236-237 kette’s conduct was however, 9 L.Ed.2d did first we amendment evil that rises substantive duct the peace, serious were convicted of breach inconvenience, annoy- generalized be, above “an so as to offense far * ”16 * * unrest, ance, is no There ‘not susceptible of exact definition.’ under our Constitution more room Id. at For the alternative restrictive view. quoted 703. The court cited ideas would lead standardization above Terminiello down and struck co%irts, by legislatures, or dominant either the statute as an interference overbroad groups, (empha- political community rights with the as- speech,' of free free added) sis sembly, re- petition and freedom grievances. dress of Last term Coates 4-5, 1134— Id. at 69 S.Ct. at Cincinnati, obvious, emphasize the Termi- 1135. To Suprеme Court inconvenience, niello an “public held that Cincinnati, declared on its void face noyance or unrest” is insufficient evil Ohio, it a criminal made justify speech. punishing In subsections persons offense for “three or more (1) Anchorage “disorderly con assemble ... of the sidewalks prohibits duct” ordinance various constitu there conduct themselves tionally protected done expressive activities inconvenience, passing a manner annoying “public with intent to cause ” following annoyance statement or alarm.” Since directly for the Stewart never diluted its has Terminiello Justice applicable to the case at bar: holding,14 we can conclude of An portions these the of public mere Our decisions establish that today chorage is as clear as it ordinance the animosity or cannot be intolerance been would have in 1949.15 abridgement basis for of these constitu- tional . . The First and freedoms. . Carolina, In Edwards v. 372 U.S. South permit 229, not a Fourteenth Amendments do 680, 83 S.Ct. 9 L.Ed.2d 697 of make criminal exercise the State the persons 187 at who demonstrated right simply assembly the because of grounds engaging legislature of the state may ‘annoying1 be to some its exercise city in manager what the described rule, people. the this were not the “boisterous”, If “flamboyant” "loud” con- tranquility, public the Carolina, disturbance 14. See Edwards v. South any inciting 229, 237-238, 680, to vio- act or conduct U.S. 83 S.Ct. 9 L.Ed. any , (1963). generally lence it includes vio- ... 2d See Cohen preserve California, law lation enacted peace good It consist order. 29 L.Ed.2d 284 likely to violence an act of an or act protected by speech, 15. held Termiriiello’s necessary produce not violence. is Court, undoubtedly con- would lay actually peace be broken that “abusive”, sidered “tumultuous” prosecution foundation a “threatening” Anchorage ordi- under If done is un- this offense. what is : Roose- nance Terminiello called Eleanor tending justifiable unlawful, witli communist, a referred to the “Mor- velt peace, sufficient directness to break genthou plan for the of little starvation required. per- is actual no more is Nor Germany”, pregnant in babies and women an element in the sonal violence essential Jews”, castigated “atheistic Communist . . offense. . scum”, “slimy and other non-Christians ‘By “peace,” in the as used law that “there will be and warned violence.” tranquility connection, this is meant Chicago, at See Terminiello v. enjoyed by municipality or citizens of a 17-22, 1140- at 69 S.Ct. good community reigns where order dissenting). (Jackson, J., among members, its which is the natural right political had that the state court of all sо- The Court noted ciety.’ peace in the follow- breach of the defined ing at 9 L.Ed. U.S. at S3 terms: terms, general a breach of 2d ‘In public order, peace a is a violation people gather dencing excitement, or mental emotional intent, places political purposes or, for social or with to use language like summary continually subject vulgar, indelicate, distasteful, would is insulting good-faith reproachful. en- or suspension through the Neither the federal nor prohibition against forcement of a an- Alaska permit constitutions will ‍​​‌​‌​​‌​​​​​‌​​‌​​‌​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌​​‌​​​‌‌​‍such pro- annoying arbitrary conduct. such broad and And interference with hibition, in addition, contains an obvious freedom speech. Public in our life discriminatory vitality invitation to enforcement democracy be robbed its would against together those association whose lose and our citizens soon their self-con- ideas, ‘annoying’ their is their independence thought because fident if such appearance lifestyle, physical their enforced to eliminate were of their fel- majority acceptable resented most speech mode of citizens, omitted) (footnotes squeamish low of our citizens. As Justice Terminiello, Douglas a function noted 91 S.Ct. L.Ed.2d system to invite speech of free in our Likewise, at 218. this term guarantee dispute constitutional Georgia voided a statute wTiich made it a purpose when sometimes serves best “opprobrious crime to use words abusive speech existing dissatisfaction with creates language, tending to cause a breach of ” anger. stirs citizens to conditions and Wilson, peace . . . Gooding . 4-5, 93 L.Ed. at S18, 40S U.S. 31 L.Ed. resolve the issue 1134-1135. We before 2d 408 at 415 The Court noted that “background against profound us a conviction under the statute could be principle national commitment susceptible upheld only if it were “not unin- public issues should be debate on application speech, [although vulgar hibited, robust, wide-open,”17 protected by offensive,] First ” long concluded drafters of our constitution and Fourteenth Amendments likely to ago that nation most our L.Ed.2d at 413. Id. a mul- selecting flourish direction noted The Court that while debate engaged vigorous titude voices tendency has a direct to cause immediate selection authoritative rather than from acts of is stat- protected, violence the by government officials.18 “opprobrious” utory words and “abusive” encompass, according to dic- Webster’s com- for appreciation An the latitude tionary, conveys language merely per- that dis- can manded the first amendment grace harshly insulting. reading or is by haps bеst be obtained close opinion the Court for Harlan’s Justice prohibits ordinance California, v. Cohen “threatening and tumultuous violent There behavior”, noise”, “unreasonable “abusive not, consistent that Cohen could Court held language” “offensively ut- coarse criminally amendment, the first with terances, gestures displays” when moti- in a courthouse punished appearing for “public vated an intent to cause incon- bearing plainly visible wearing jacket venience, annoyance or alarm.” Reference Harlan Draft”. epithet “Fuck Justice Dictionary Webster’s indi- International eloquently referred constitutional thereby it cates that makes expres- affecting backdrop for decisions one, pub- a crime for with intent to cause sion : embarrassment, uneasiness, annoyance, lic expres- right of free The constitutional fear, engage discomfort or conduct society in a noisy, disorderly, causing is medicine powerful that or evi- sion is Sullivan, L.Ecl.2d York 18. New Times See id. at Co. 254, 270, L.Ed.2d 686, 701 therefore populous por as ours. We hold that those as diverse govern- tions of subsections designed and intended to remove (2) pub- Anchorage ap arena of restraints from the ordinance which could mental discussion, plied as protected speech “threatening”, decision putting lic — largely into behavior”, “tumultuous shall be voiced “unreasonable what views hope noise”, “offensively utterance, ges in the us, of each of coarse the hands ture, ultimately pro- display” “addressing such will abusive use of freedom more capable citizenry any person present”- un duce a more —are that no constitutionally and in the belief perfect polity overbroad. comport apрroach would with other addition, In the Anchorage ordinance and choice dignity premise of individual suffers from the in- related constitutional rests. system political our upon above, firmity vagueness. As noted penal the constitutional statute defect of a noted He Id. at 91 S.Ct. at 1787. which does not contours clearly specify the awas resulted verbal tumult which prohibited first in conduct lies state’s rejected the strength sign of as failure notice to what conduct moral- that, public guardian argument punishable, and that an in the fact second from words ity, it could excise offensive unclear, guilt raises variable standard vocabulary: public possibility of uneven administration.19 by the principle contended [T]he in- recent doctrine is no How inherently boundless. seems State novation constitutional law. Con- any other distinguish is one to this Co., nally Construction General has Surely the оffensive word? State debate no cleanse articulated palatable grammatically it is point where invalidating lack-of-notice rationale in among Yet squeamish us. to the most penal statute: prin- readily general ascertainable penal That the terms of a ciple stopping short exists creating a new suffi- offense must be judgment we to result were affirm the ciently explicit to inform those who are four- For, particular below. while subject part to what on their per- being litigated here letter word penalties render them will liable to its others haps than most more distasteful well-recognized requirement, is a con- true genre, it is nevertheless often ordinary sonant alike with notions another’s vulgarity that one man’s law; play and the fair settled rules Indeed, largely be- lyric. we think it is and a statute forbids or which either cannot governmental cаuse officials requires doing in so of an act terms principled in this area make distinctions vague intelligence that men of common matters of that the Constitution leaves necessarily guess meaning at its style so the individ- largely taste and to and differ as to application its violates ual. process first essential of due 294, Id. at little 91 S.Ct. at 1788. haveWe law.20 phrase doubt that the “Fuck Draft” unreasonable, would be of- considered addition, In as Professor Amsterdam fensively many of by coarse and abusive out, points concern Court’s our citizens. vague arbitrary that a statute will invite generally Amsterdam, supra. 19. See may life, note required 5 peril No one be 638, State, See also Harris v. P.2d 457 liberty property speculate to as (Alaska 1969). 641 meaning penal All are statutes. Jersey, 20. See also entited to be as what Lanzetta informed v. New 306 451, 453, 618, 619, U.S. 59 L 83 commands or State forbids. 888, Ed. : by arbitrаry enforcement of the ordinance been evi- long has arrests and convictions police officers: Lowry, 301 U.S. Herndon v. dent.21 In 1066, 732, 741, L.Ed. 57 S.Ct. read, therefore, Literally the second vague a stated that (1937), the Court part says per- this that a its to create penal jury law “licenses son stand on a sidewalk case”; in Thornhill v. in each own standard Birmingham only at the whim of 736, 97-98, Alabama, 60 S.Ct. U.S. city. police The con- officer of (1940), 84 L.Ed. provision stitutional vice of so broad a be used that such a law could noted needs no ‘does not demonstration. by discriminatory enforcement “harsh and government by clearly de- provide for officials, par- against prosecuting local laws, by fined rather for but dis- to merit their groups deemed ticular opinions of a the moment-to-moment pleasure.” policeman on his beat.’ Although a number of 213, 15 Id. 382 86 S.Ct. Thornhill, first cases, including involve L.Ed.2d raise issues and therefore also amendment issues,22 Pennsyl- Many have been made on the comments Giaccio statutes, first vagrancy L.Ed. vania, abuses conduct laws of disorderly cousins to City of (1966), 2d and Shuttlesworth us, put. type now before are 211, 15 Justice Birmingham, Frankfurter, dissenting in v. New Winters clearly establish (1965), York, 507, 54Ó, defect for it is a distinct constitutional stated: statute, ar- vagueness, to sanction en- by courts law bitrary administration by.them- These statutes are a class selves, in of the familiar abuses personnel. forcement In the Court view Giaccio put. Definite- they to which are Pennsylvania gave struck a statute 'which designedly ness is so as to allow avoided impose court jurors unguided discretion men large, the net to be cast at to enable acquitted misdemeanor defendants. costs caught vaguely are undesirable who presented; issue first amendment was No police proseсution, al- eyes so simply held that a statute particu- chargeable not with though virtually vague to be could as standardless short, ‘vagrancy In these lar offense. judicially not enforced consistent with statutes,’ against ‘gangs’ are and laws Shuttlesworth, process. a convic- due the statute fenced in the text of Alabama, Birmingham, tion ordi- under give subject matter so as provided “unlaw- nance which that was to be avoided. notice of conduct upon any person ful for to stand or loiter commentator, comprehensive One any street or . after hav- sidewalk . study vagrancy, disorderly conduct ing requested by any police officer been statutes, noted habitual drunkenness first Although was move on” reversed. for such diverse such laws are utilized background amendment issues lurked persons purposes banishing unwanted worker), (Shuttlesworth rights was a civil investigating community, from the the did not resolve the on free Court case detaining past criminality, suspected of assembly grounds. Court or The in future thought likely engage persons police criminality, punishing affronts possibility of upon focused instead the 360, Bullitt, (1963) ; Baggett Amsterdam, supra, U.S. v. 377 21. See note at 220- 5 1316, 12 L.Ed.2d 377 221. 84 S.Ct. fir., Button, 22. E. 371 U.S. N.A.A.C.P. v. 405, 415, 433, 328, L.Ed.2d 418 83 S.Ct. 9

652 dignity temporarily and disposing of var- 518, 92 1103, 31 at S.Ct. L.Ed.2d 408 415, ious problem-creating individuals such as phrase 417 (1972), “opprobrious the short, mentally alcoholics and the ill.23 or words language” abusive in a “breach of such “garbage pail laws function peace” as ordinance were to be held both law”, dumping criminal a convenient impermissibly vague. overbroad and The ground for perceived thought to comprehensive social ills case, most how- ever, have no other immediate solution.24 is Papachristou Jacksonville, v. 405 156, 839, 92 S.Ct. 31 terms, In its last two States United (1972), where Douglas, writing for Justice vigorously applied has Court, a unanimous struck a Jacksonville vagueness doctrine to a these number of vagrancy ordinance.26 Court ex- Euclid, kinds of In Palmer statutes. v. plicitly recognized both for the rationales 544, 1563, 402 U.S. 29 L.Ed.2d 91 S.Ct. void-for-vagueness doctrine: (1971) (per curiam), 98 the Court reversed void-for-vagueness, This “suspicious person a conviction under a both give sense that it ‘fails ground appellant ordinance” on the person of ordinary fair intelligence no- given was not sufficient notice of what tice that contemplated his Cincinnati, proscribed.25 was In Coates v. statute,’ forbidden United States 611, 1686, 29 L.Ed.2d Harriss, 612, 617, v. S.Ct. (1971), the Court held that an ordinance 989, 98 L.Ed. and because it made a criminal for offense encourages arbitrary and erratic arrests persons “three or more to assemble . . . Alabama, and convictions. Thornhill v. . . and sidewalks . 88, 1093; 736, 310 U.S. L.Ed. there conduct in a manner an- themselves ” Herndon Lowry, 301 U.S. persоns noying passing L.Ed. 1066. was not but uncon- overbroad also ‍​​‌​‌​​‌​​​​​‌​​‌​​‌​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌​​‌​​​‌‌​‍stitutionally vague. Since conduct these When fundamental others, annoys “ people annoy some does long-established principles of constitutional intelligence ‘men of common neces- applied are ordi law sarily guess at mean- [the ordinance’s] nance, there escape is no con from the ” ing.’ S.Ct. at clusion the ordinance is likewise void (quoting Connally from v. General vagueness. prefatory Since lan Co., Construction 269 U.S. guage ordinance, containing (1926)). 70 L.Ed. specifically mens rea for enumerated Likewise, Wilson, Gooding prohibited acts, impermissibly itself Foote, Vagrancy-Type 23. Law and Its Ad- drunkards, night walkers, common ministration, 104 U.Pa.L.Rev. thieves, pilferers pickpockets, or traders lewd, property, in stolen wanton las- keepers persons, gambling civious 24. Id. places, brawlers, сommon railers wandering jjersons strolling or around punished “[a]ny person 25. The ordinance place place without lawful who wanders about the streets or other purpose object, loafers, or habitual dis- ways or is found who abroad orderly persons neglecting persons, all night late unusual or hours with- habitually spend- lawful ing business any visible out or lawful business by frequenting their time houses of give satisfactory who does not account fame, gaming places houses, ill of himself.” beverages where sold or alcoholic are 2d at 99-100. served, able to habitu- work but ordinance, ally living upon earnings Jacksonville classic of their genre, provided: wives or minor children shall deemed Rogues vagabonds, per- vagrants and, upon or dissolute conviction go begging, Municipal punished sons who about common shall be gamblers, persons juggling provided use who D offenses. Class gаmes plays, unlawful common at 112. 31 L.Ed.2d cials, against particular groups to part ordinance can stand.27 deemed vague, of the no displeasure.’ merit their prefatory is “with defective public purpose to cause incon- and intent 31 L.Ed.2d recklessly or alarm venienceannoyance that Anchor- 120. We therefore hold added). (emphasis create thereof.” a risk age (mm), Code of Ordinances § Cincinnati, supra, specifically de Coates v. entirety, its and is void “annoying” to uncon clared the word instruc- superior remand to court with “incon stitutionally vague and the words ap- judgment tions to enter in favor of are no less so. The venience” and “alarm” pellants as declaring the ordinance drafted with peppered rest of is also the ordinance unconstitutional. “threatening” “tumult indefinite words— BOOCHEVER, participating. behavior”, noise”, J., not “of uоus “unreasonable lang coarse”, and fensively “abusive OPINION uage”.28 be phrase “tumultuous ON PETITION FOR havior”, example, might encompass REHEARING ranging from actual violence to manner; speaking Although City Anchorage did not a loud excited arresting responsive par- or otherwise depending on the officer’s tem file a brief case, perament, pro we ticipate appeal from the of this have everything most obscenity file a granted City permission peti- the mildest to vocative insult to Supreme might language”.29 rehearing pursuant be termed tion for “abusive City petition Rule ar- 35. In sum, does ordinance fail Supreme gues that United States the recent give adequate notice of what conduct opinion Kentucky, in Colten v. prohibited, particularly subject but it is As abuse of uneven enforcement. mis- (1972), demonstrates that we were points Papachristou: Douglas оut Justice taken in our conclusion that entire “disorderly conduct” ordinance generally implicated by Those the im- disagree. vague. was overbroad and We precise poor terms of the ordinance— people, nonconformists, dissenters, idlers violating Colten had been convicted —may required comport themselves Kentucky disorderly conduct which life-style according ap- deemed provided part: in relevant propriate by police disorderly (1) person guilty A con- Where, here, the courts. there are if, public in- duct with intent cause no governing standards the exercise of alarm, convenience, annoyance or ordinance, granted by the discretion thereof, recklessly creating a risk he: permits encourages scheme arbitrary discriminatory enforce- other (f) Congregates with ment con- of the law. It furnishеs a comply place and refuses venient tool for ‘harsh discrimina- police to dis- with lawful order of tory by prosecuting enforcement offi- perse .... ordinance, 29.Similarly, Subsection whether unclear prohibits lodging privately-own- in various “threatening” word is limited to threats of consent, properties violence, ed without the owner’s physical “of- immediate whether provisions is otherwise Its are not valid. encompass fensively coarse utterances” vague, pro- and since themselves more than the Court’s definition is not entitled hibited conduct to consti- just obscenity, what an “unreason- protection prob- tutional might noise” able be. presented. lem is Regarding phrase specifically, the last Gooding Wilson, see 31 L.Ed.2d 408 at 415 Kentucky allegation that he ing light in of Colten’s of the prefatory An- the statute because to that of the was arrested under quite similar statute only he long of his hair and beard and because can Colten chorage ordinance.1 by noting just participated that in a demonstration. had distinguishable from Marks Commonwealth, declaratory at Colten 467 S.W.2d an action for v. case is the latter it a Surely a statute which makes construction limiting no judgment in which public place in gather consider- criminal act to a requested or ordinance was of the on, obey police order to move However, perplexing opin- refuse to a Colten is a ed. arbitrary possibility raises at least the ion, of United States out of the mainstream discriminatory enforcement.3 precedents, most of Supreme Court Court, by its effects cited were not year-old did not refer to The Court vagueness and doc- on the Cincinnati, holding v. 402 U.S. Coates extremely un- considered must be trines (1971), 29 L.Ed.2d certain. Cincinnati, Ohio, ordinance which where a persons for “three or more the made it a crime support of its conclusion that In any statute, ... of the side- Kentucky applied, was not un to assemble conduct them- constitutionally en . . . and there vague, the court relied walks rationale, tirely annoying not selves a manner on the lack-of-notice ” added) by (emphasis simply vagueness passing the “root of the ing fairness”, vague- face for rough a idea of and was declared invalid on its doctrine is he stated: understood that The Court that Colten should have ness overbreadth. after could be convicted under the statute is uncon- opinion In our this ordinance disobeyed police he a order to move on.2 vague subjects stitutionally because it assembly The Court made no mention the exercise of the 92 S.Ct. 1953. standard, possibility enforcement .... of uneven an unasсertainable which, Papa- annoys people does just four months earlier in some Conduct Thus, Jacksonville, annoy the ordinance City christou v. not others. S39, requires in the sense that it vague, 31 L.Ed.2d to an explicity recognized a to conform his conduct (1972), person had been Court, comprehensible normative opinion, imprecise in a unanimous as the but standard, rather in the sense that alternate rationale for the doc but specified all. arbitrary at trine. The failure to mention the standard of result, particularly “men intelli- enforcement rationale is strik a of common As Commonwealth, any police requested by 1. See Colten v. S.W. to move officer (Ky.1971). Birmingham 2d 374 on.” Because the ordinance Kentucky and the are similar driving procession Colten was a holding effect, seems Shuttlesworth automobiles a had formed after opinion in inconsistent with thе Court’s Airport. Lexington demonstration Shuttlesworth, Colten. the Court stopped The lead vehicle was stated: police and the driver a citation issued Literally read, therefore, the second expired plates. because the automobile had part says per- of this that a attempted Colten to converse with the son stand on a sidewalk officers about his friend’s citation Birmingham whim of allegedly was arrested after he refused city. police officer of that The con- obey request police to leave. provision vice broad a stitutional of so S.Ct. 1953. needs no It “does not demonstration. by clearly provide government 3. Nor did the court mention de- Shuttlesworth Birmingham, laws, rather fined but opinions where the the moment-to-moment policeman (citation reversed a conviction under on his beat.” Birmingham, omitted) Alabama ordinance which provided that Id. at was unlawful “for person upon any to stand or loiter at 179. street city having or sidewalk of the after been necessarily guess its mean- Chicago, Terminiello gence (citation omitted). re- ing.” peated by the in Edwards Court v. South L.Ed.2d at Id. Carolina, Kentucky 217. Both the statute considered (1963): in Colten and the ordinance stuck Cincinnati public as- purported in Coates to restrict speech of [though not ab- [F]reedom sembly. If cannot constitution- Cincinnati pro- ... is solute] [nevertheless] ally assembly “annoying” that is restrict against censorship punishment, tected or Kentucky allowed passers-by, how can be likely produce unless shown a clear “public assembly that causes outlaw present danger of a serious substan- annoyance”? public tive evil that rises above in- far pre- backdrop of against the Considered convenience, annoyance, or unrest. . . precedents, Supreme vious Court (emphasis added). is- Court’s treatment of the overbreadth Although signify Terminiello and Edwards held vague. in Colten is The sues public annoy- that mere inconvenience or statute, Kentucky limited as fol- ance are justify insufficient evils to limit- by Appeals, Kentucky lows Court of freedoms, ing first amendment Colten does was not overbroad: distinguish either.4 The Court did not ' construed, reasonably As the statute following highly refer relevant lan- prohibit does not the lawful exercise of guage from Coates: think that right. constitutional We decisions establish Our that mere statute, plain meaning in of the re- animosity intolerance or cannot be the quiring proscribed conduct be abridgement basis for of these consti- public incon- done “with intent to cause freedoms, tutional venience, alarm, [citations omitted] annoyance reck- The First аnd Fourteenth Amendments thereof,” lessly creating a risk is that permit do not State make criminal predominant specified intent must be the right assembly the exercise of the of intent. Predominance can be deter- simply may because its exercise “an- be mined either from the fact that no noying” people. to some And bona fide intent to exercise a constitu- addition, prohibition, such a in contains right appears tional to have existed or discriminatory obvious invitation to (2) from the fact that the interest to be against enforcement those whose associa- by particular advanced exercise of a together “annoying” tion is because their right insignificant constitutional ideas, lifestyle, their physical ap- or their inconvenience, comparison with the an- pearance majority is resented noyance or alarm caused the exercise. citizens, (footnotes their fellow omit- 467 S.W.2d 377. The ted) case mentioned the Court Cox Louisiana, opinion reference to the of the Ken- questionable, tucky Appeals provides Court of little ad- however, part whether the latter ditional interpreting aid in Kentucky court’s construction can be opinion. opinion That contains squared following with the language from require number of statements which ex- Kentucky court, quoting 4. The after from the interest which the seeks individual Edwards, through make an did effort to deal with to advance exercise of freedom language: speech comparison the inconsistent is minuscule public’s being pro- [W]e do not believe that the evil must with the interest consequences be one that rises far above inconveni- tected from the of that ence, annoyance exercise, public’s or alarm where the interest should particular right speech prevail pub- though exercise even the harm the might exposed falls far below the level of minimum lic than to is no more annoyance. social value. We think it is matter inconvenience or balancing of interests that where 467 S.W.2d example, citing an planation. defining right ob- of a il- For conduct. To case, “peaceably” argued: sufficiently lustrate: If is a scenity the court precise word the First Amendment’s redeeming If value the lack of social guarantee right assembly, of free- upon is a basis “nonpeaceably” should be considered too required yield dom vague in a describing the kind of contemporary stand- protection prohibited assemble ? [sic] seem morality ards of ... would protect- being S.W.2d at 378. answer public’s that the interest inconvenience, annoyance court’s question “yes” ed rhetorical must be if give over claimed word fails to citizens prevail alarm should notice of prohibited what right speech arbitrary utter that has no social or licenses en- ; clearly forcement prohibited zones of con- value. duct greater clarity must be defined with This is an non 467 S.W.2d 377. obvious than rights. are constitutional sequitur. For court has declared while sum, speech protected, In that is not Colten seems difficult obscene recon long cile in letter with a speech spirit decision has held that non-obscene line of Supreme cases, is not without social value entitled to con- Court which were not re reason, by protection. pre- opinion.6 stitutional ferred to in the the Court above, however, sumably, is that As noted officials can- the Court -em phasized principled reviewing not make distinctions as to it what was thе Ken speech tucky lacks “social value” more than statute as construed the state they applied specific can decide what is “offen- court and as facts Kentucky sive.” The court’s Notwithstanding any treatment of Colten’s case.7 dis noteworthy: Supreme issue also comfiture we about have Marks, opinion, declaratory Court’s a judg

It is true that the statute does not at- action, clearly distinguishable. ment For perfection tain in preciseness, idealistic example, alleged vagueness regarding the precise fully but it is as some of the statute, Kentucky the Court stated: Rights. the Bill We do defining prohibited Any person conceive group who stands in a precise conduct must be more along highway po- than the a where the California, 15, Wg 5. See Cohen v. 403 U.S. need not Constitution. lament 1780, 25, S.Ct. 29 L.Ed.2d we do us the not have before details of (1971). annoying. to be сonduct found It is the its ordinance on face that sets Among conspicuous the more omissions the standard of conduct and warns were five decisions handed down in the against transgression. The details of years: Papachristou last two v. Jackson- more could no serve to vali- offense ville, 31 L.Ed. date this than ordinance could the de- (1972) ; Gooding Wilson, 2d 110 v. charged tails an under an offense 92 S.Ct. 31 L.Ed.2d 408 suspending unconditionally (1972) ; Cincinnati, ‍​​‌​‌​​‌​​​​​‌​​‌​​‌​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌​​‌​​​‌‌​‍Coates v. 402 U.S. assembly speech. free 611, 91 S.Ct. 1686 29 L.Ed.2d (emphasis added). (1971) ; Euclid, Palmer 1686, 1689, 402 U.S. (1971) ; 29 L.Ed.2d 98 (1971). In California, Cohen v. words, protect other first amendment freedoms, the Court has allowed “vicari- not, itself, adequate- statutes; 7. This factor ous” does assaults on invalid a de- ly distinguish prior Supreme Colten fendant need not that his show precedents. protection pre- Court succintly As the court was itself entitled noted as a requisite successfully Coates Cincinnati: attack an over- vague generally The ordinance before us broad or makes statute. See Note, crime out of what under Constitu- First Amendment Overbreadth Doctrine, tion cannot be a crime. 83 Harv.L.Rev. aimed directly activity protected violation investigating a traffic are lice an the attention engage seeks to Inquiry Concerning Lyle re In Arthur ROS ON, Judge. should under- District issuing a summons officer under would be convicted that he

stand No. 1552. Kentucky’s (f) of subdivision Court Alaska. on. obey order to move fails to if he Aug. 25, 1972. Marks, the oth- hand, was Anchorage ordinance er was question face

attacked on

whether, of the or- reading under a fair

dinance, susceptible to unconsti- was applications, par- whether

tutional application Regard- infirm.

ticular was issue, ap-

ing Colten was the overbreadth Kentucky Ap-

pealed after placed judicial on the

peals gloss had prevented the Court asserted

statute which applica-

any overbroad unconstitutional

tion : Kentucky

As the statute was construed court, however, a crime

by the state no there is bona where

committed a constitu- intention exercise

fide event, by defini- tional —in

tion, infringes protected the statute where the interest or conduct —or clearly outweighs the inter- collective

so the latter sought to be asserted that

est be deemed insubstantial. City Marks, since the limiting con- appearance,

made no no such was

struction of the

requested or considered.

This to a final leads consideration: ‍​​‌​‌​​‌​​​​​‌​​‌​​‌​‌‌‌‌​‌​​‌‌‌‌‌‌​​‌‌​​‌​​​‌‌​‍City this court no as

Since the offered legal author either in the form of

sistance gloss that

ity suggested judicial in a enabled this court to inter

would have way con

pret ordinance in such avoided, pitfalls would

stitutional particularly position to

City in a weak position further

urge rehearing. That authority by the that the

undermined fact City distinguishable. by the

now cited petition rehearing is therefore

denied.

BONEY, BOOCHEVER, J., J.,C. participate

did in decision on rehear-

ing.

Case Details

Case Name: Marks v. City of Anchorage

Court Name: Alaska Supreme Court

Date Published: Jun 23, 1972

Citation: 500 P.2d 644

Docket Number: 1568

Court Abbreviation: Alaska