300 N.Y. 391 | NY | 1950
Defendant was convicted of the offense of disorderly conduct (Penal Law, § 722) in the Court of Special Sessions of the City of Syracuse. The conviction was affirmed by the Onondaga County Court and the case is here by permission of a Judge of this court.
On the evening of March 8, 1949, defendant, Irving Feiner, a student at Syracuse University, was addressing a group of people on South McBride Street, near Harrison Street, in the city of Syracuse. A complaint concerning the gathering was received over the telephone by the police department and two officers, Flynn and Cook, were dispatched to the scene to investigate. That was about 6:30 p.m. Officer Flynn, an acting sergeant, arrived in a police car about twelve or thirteen minutes later and found officer Cook already there in another police car. They observed a crowd of approximately seventy-five or eighty people, both colored and white, gathered near defendant, who was standing on a large wooden box, situated between the sidewalk and a parked automobile on South McBride Street. The automobile was about forty or forty-five feet from the corner and the crowd extended to about twenty or twenty-five feet from the corner. The crowd covered an area of about fourteen by thirty-five feet.
Defendant was speaking into a hand microphone which was attached to loud-speakers on the automobile. Between five and ten associates of defendant were present. They distributed circulars and helped set up the sound amplification apparatus. Defendant was exhorting his listeners to attend a meeting to be held that night in the Syracuse Hotel. In the course of his remarks, defendant “ called Mayor Costello [of Syracuse] a champaign [sic] sipping bum and President Truman a bum. He referred to the American Legion as Nazi Gestapo agents — he also said the fifteenth Ward was run by corrupt politicians and that horse rooms were operating.”
Officer Flynn further observed that there was ‘ ‘ angry muttering ” throughout the crowd and he had trouble getting through it. The crowd was restless. There was some pushing and shoving. They were milling around back and forth. Remarks were being made in the audience both for and against the speaker. ‘ ‘ Some were calm and some were not — they were discussing the speech pro and con.” There was, however, no disorder. After telephoning the police station from a nearby store, Flynn returned to the police cars with Cook and then they crossed the street and mingled with the crowd.
Defendant was speaking in a loud, high-pitched voice and was appealing to the colored people in particular. Defendant said that the Negro people did not have equal rights and that they should rise up in arms and fight for them. Flynn got the “ impression ” that defendant was trying to arouse the Negro people against the whites. Defendant’s statement' that the Negro people should rise up in arms and fight “ stirred up a little excitement ” and the crowd “ seemed to mill around a little then.” One man approached the officers and said “ if you don’t get that ‘ son of a bitch ’ off,' I will go ovér and get him off there myself. ’ ’ Other persons made remarks about the police force not being able to handle the crowd and that “ they did not see why they had to put up with that kind of stuff in the neighborhood.”
At this point, Flynn “ figured it had gone far enough ”. The crowd was “ getting to the point where they would be unruly.” Although there had been no actual disturbance, Flynn said, “ we stepped in to prevent it from resulting in a fight.” ‘ Flynn approached the defendant, not for the purpose of arresting him, but to get him to break up the congregation. He asked defendant to get down off the box but the latter “ just looked, and
On his case, in addition to character witnesses from the faculty of Syracuse University, defendant introduced evidence controverting the officers’ testimony concerning the size and temperament of the crowd, the degree of obstruction of the sidewalk and street, the substance of the talk, and defendant’s response to the officer’s request. Portions of this testimony corroborated elements of the People’s case; portions were not believed by the Trial Judge.
On the evidence, the Special Sessions Judge found defendant guilty of disorderly conduct under section 722 of the Penal Law. In section 722, the Legislature has enumerated certain acts which, if committed with intent to provoke a breach of the peace, or which, even without such intent, may reasonably occasion a breach of the peace, render the actor guilty of disorderly conduct. The section provides in part as follows:
“ Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
“ 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;
“ 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others;
“ 3. Congregates with others on a public street and refuses to move on when ordered by the police; * *
Defendant was charged with and found guilty of a violation of subdivision 2 of section 722, but it is settled that the iudg
In finding the defendant guilty, the court, in an oral decision addressed to defendant, said: “ * * * You had a perfect right to appear there and to use that implement, the loud speaker. You had a right to have it in the street. There is no question about that. * * * ” The court further assumed that defendant had a legal right to refer to Mayors Costello and O’Dwyer, President Truman and the American Legion in abusive and disrespectful terms. The Trial Judge then reviewed the evidence, pointing out the size of the crowd gathered by defendant, the blocking of the sidewalk, the necessity for pedestrians to walk out on the roadway and the unrest and hostility engendered in a portion of the crowd. He continued:
“ Now, under those circumstances I think the officers were fully justified in feeling that a situation was developing which could very, very easily result in a serious disorder. I think the officers were very patient up to that time. I think that on the basis of the evidence here that you deliberately agitated and that in every way that you could, you goaded these officers to action. * * *
“ * * * I think they [the police officers] had every reason in the world to believe, on the basis of the facts that they have testified to, that something serious was about to happen. And then the Officer asked you to get down off the box, and he asked you again, and then one of the Officers says he took you by the arm or reached for you. Three times you had to be requested to get off the box. I think that all those facts that have been testified to here are sufficient to sustain the charge of Disorderly Conduct. * * *
“ I find on the facts that you are guilty as charged in the Information and Warrant.”
The findings contained in the decision of the Trial Judge sufficiently establish that defendant, under section 722 and our cases construing it, was guilty of disorderly conduct — putting aside, for the moment, constitutional objections to the conviction.
The statement made by the Trial Judge to defendant that “ on the basis of the evidence here * * * you deliberately agi
Defendant’s main contention on this appeal is that his conviction of the offense of disorderly conduct violates the right of freedom of speech guaranteed by our Federal and State Constitutions. We assume that the constitutional question was properly raised below, even though defendant’s attorney did not specifically move on the record to dismiss on that ground, for both courts below considered it.
It is perhaps laboring the obvious and oft-repeated to state that the constitutional guarantee of freedom of speech is not an absolute right to be indiscriminately exercised under all circumstances and conditions. Social welfare requires, in certain instances, reasonable regulation of freedom of speech ivhich, unrestrained, would produce calamitous or undesirable results — mot only for the locality and public order but also, in the long run, for the individual involved. The preservation of order and the prevention of disturbance are of prime importance to the State. As was said in Cox v. New Hampshire (312 U. S. 569, 574 [Hughes, Ch. J.]): “Civil liberties, as guaranteed by the Constitution, imply the existence of an
In the instant case, we have a situation in which-on a public street a portion of defendant’s audience became enraged and •aroused at his utterances. Others were sympathetic and were present for the specific purpose of .assisting and applauding the efforts of the defendant. The crowd became restless and potentially unruly. It filled the sidewalk and' spilled out into the adjacent thoroughfare obstructing or impeding both pedestrian and vehicular traffic. An imminent danger of a breach of the peace, of a disturbance of public order, perhaps even of riot, was threatened. Defendant, at the very least, knew of the condition and was heedless of the potential evil consequences. More, as found by the trial court, .he deliberately continued in a vein calculated to precipitate those consequences. We do not ■ think, under those circumstances, that defendant had a constitutional right to disregard the police officer’s word of warning with impunity and to continue to blare out his provocative utterances over loud-speakers to a milling, restless throng composed of hostile and sympathetic listeners. Where both the audience and the speaker are inevitably proceeding toward an eruption of civil strife — where, indeed, both seem to be working up to a pitch where serious disorder might well be expected — the power and duty of the State to punish the speaker who refuses to desist after appropriate warning is clear.
Justice Robebts stated the relevant considerations well in Cantwell v. Connecticut (310 U. S. 296, 308) as follows: “ The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood
In the instant case, there is no indication that the action of the police officer was taken as a subterfuge or excuse for suppression of defendant’s views and opinions. The courts below have found, and we are bound by the finding, that the officer was motivated solely by a proper concern for the preservation of order and the protection of the general welfare, in the face of an actual interference with traffic and an imminently threatened disturbance of the peace of the community.
We are well aware of the caution with which the courts should proceed in these matters. The intolerance of a hostile audience may not, in the name of order, be permitted to silence unpopular opinions. (49 Col. L. Rev. 1118.) The Constitution does not discriminate between those whose ideas are popular and those whose views arouse opposition or dislike or hatred — guaranteeing the right of freedom of speech to the former and withholding it from the latter. We recognize, however, that the State must protect and preserve its existence, and, unfortunate as it may be, the hostility and intolerance of streei audiences and the substantive evils which may flow therefrom, are practical facts of which the courts and the law enforcement officers of the State must take notice. Where, as here, we have a combination of an aroused audience divided into hostile camps, an "actual interference with traffic and a speaker who is deliberately agitating and goading the crowd and the police officers to action, we think a proper case has been made out, under our State and Federal Constitutions, for punishment.
Defendant’s principal, but mistaken, reliance is upon the recently decided case of Terminiello v. Chicago (337 U. S. 1, 5). There the Supreme Court reversed the conviction of the defend
We conclude that defendant was properly convicted of the offense of disorderly conduct and that his conviction, under the circumstances, does not infringe upon his constitutional right to freedom of speech.
The judgment should be affirmed.
Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.
Judgment affirmed.