COMMONWEALTH vs. A JUVENILE.

HENNESSEY, J. In this case we conclude, in a result which is required by relevant decisions of the United

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States Supreme Court, that the "idle and disorderly persons" provision of G. L. c. 272, Section 53, cannot constitutionally be the basis for criminal convictions for the use of offensive and abusive language.

The case comes to this court by a report from the Boston Juvenile Court, Appellate Division, which had before it an appeal from a finding that the juvenile involved was a disorderly person within the meaning of Section 53. [Note 1] The case was reported in accordance with G. L. c. 278, Section 30A, and G. L. c. 119, Section 56. [Note 2]

As reported by the judge of the Juvenile Court the questions for our determination are (1) whether the court should grant the defendant's motion to dismiss filed on appeal with the Appellate Division, and (2) what standards should apply in considering offenses involving the use of language and related conduct under a disorderly person complaint pursuant to c. 272, Section 53. More broadly stated, the issue is whether the offense of being an idle and disorderly person under Section 53 in so far as it encompasses speech or expressive conduct is violative of the First Amendment to the United States Constitution as made applicable to the States through the Fourteenth Amendment. The claim raised is that the disorderly person provision of Section 53 is unconstitutionally overbroad

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with respect to protected First Amendment expression. In addition, the provision is challenged on its face as being void for vagueness.

We state the facts of this case as taken from the report, which incorporates a statement of particulars as filed by the Commonwealth in the trial court. At approximately 4:30 P.M. on March 20, 1974, the defendant while in Jordan Marsh Company, a Boston department store, for reasons not disclosed, began yelling at a saleswoman using such phrases as "f...... a......" and the like. He continued his tirade when a female security guard employed by the store arrived, calling her, among other things, a "f...... a......" and a "f...... pig." Apparently, the store employees were unable to control the situation and the defendant continued his onslaught of abusive speech. A crowd of approximately 100 shoppers gathered. When asked by the security guard to leave the store, the defendant, in response, gestured by raising the third finger of his hand, symbolizing what he was verbally expressing. Finally, and it is not clear from the record how, the defendant was escorted from the store. But the defendant did not remain outside; rather he returned once again to assail the employees with his offensive screams and gestures. All told the defendant's activities in the store went on for forty minutes.

The defendant was adjudged delinquent on a complaint charging him with being a disorderly person. The record does not reveal whether the adjudication was based on the defendant's speech, including his offensive and coarse words, or was based on his purely physical conduct in refusing to leave and returning to the store. Therefore, in so far as the finding may have been based entirely or in part on the speech involved, this court is required to review the case as implicating free speech rights. See Bachellar v. Maryland, 397 U.S. 564, 569-571 (1970).

We can infer (and indeed we probably understate the case) that the defendant's outcries were unpleasant to the

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ears of the saleswoman, the security guard, and the crowd of shoppers congregated in the busy downtown store. We can also infer that at least the store employees were involuntarily present during all of this episode. Thus, even were the shoppers free to avert their eyes and close their ears (see Cohen v. California, 403 U.S. 15, 21-22 [1971]), this was clearly not the case with the store employees who could not be expected to abandon their respective counters. To a large degree these employees were captive to the defendant's speech. However, the issues we must consider are whether the defendant's words and conduct, to the extent that they were expressive, were first, as a statutory matter, criminal under Section 53 and if so, second, whether those words and conduct may, consonant with our Federal and State Constitutions, be the subject of criminal sanctions in the manner provided for by the disorderly person provision of Section 53.

As will be seen at the conclusion of this opinion, we have answered the first reported question (whether the complaint should have been dismissed) in the affirmative; we have answered the second question by a definition as to the conduct which may be constitutionally proscribed under a charge of being an idle and disorderly person as we have construed that term. As will further be made clear, the effect of our decision is that convictions may no longer be constitutionally obtained under Section 53 for the offense of being an idle and disorderly person in circumstances where the use of offensive and abusive language is relied on as proof of the offense. We emphasize that our holdings are required by decisions of the United States Supreme Court which have defined the scope of First Amendment protection in the area of offensive speech. [Note 3]

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1. Idle and Disorderly Person. In reviewing the crime of being a disorderly person under Section 53, we, as is required by the First Amendment, start out with the primary postulate that any statute which regulates speech requires the strictest of our scrutiny because "the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn." Speiser v. Randall, 357 U.S. 513, 525 (1958).

This court will consider the facial validity of the Section 53 disorderly person offense despite the fact that the defendant's

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speech might be of the class properly the subject of State regulation, for "[i]t matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute." Gooding v. Wilson, 405 U.S. 518, 520 (1972). See generally, Bigelow v. Virginia, 421 U.S. 809, 815-818 (1975), and cases cited therein. Thus if a law is found deficient as unconstitutionally overbroad in its potential application to protected speech, it may not be applied even to the person raising the challenge though that person's speech is arguably unprotected by the First Amendment. This follows since "[t]he statute, in effect, is stricken down on its face." Coates v. Cincinnati, 402 U.S. 611, 620 (1971) (White, J., dissenting). See generally, note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970).

Review by this court of the constitutional validity of the Section 53 disorderly person provision is not limited to the textual wording of that section, since we may also consider the authoritative construction given that statute by this court. See Winters v. New York, 333 U.S. 507, 514 (1948); Commonwealth v. Brasher, 359 Mass. 550, 553 (1971). It is clear that in Alegata v. Commonwealth, 353 Mass. 287, 302 (1967), we have authoritatively construed the disorderly person provision of the statute. In that case the provision was challenged on vagueness grounds. By judicial construction, we attempted to give additional definitional content to the term "idle and disorderly persons." In doing so, we drew on a long common law and statutory history. Given that history and relying on the pattern of legislative revisions, we engrafted onto Section 53 the Model Penal Code definition of the offense of disorderly conduct. See Am. Law Inst., Model Penal Code, Section 250.2 (Proposed Official Draft, 1962), which provides: "A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or

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threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. `Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access," quoted in Alegata v. Commonwealth, 353 Mass. at 304 (1967).

There is little doubt that the defendant's activities, as a statutory matter, constituted a crime under this definition. There is also little doubt that our limiting construction in the Alegata case was intended to cure any vagueness in the provision of Section 53 relating to disorderly persons. Nevertheless, in the context of the Alegata case we were not called on further to express an opinion as to the constitutional restraints on the State's power to make criminal the use of words so as to be charged as a disorderly person under Section 53. However, developments in the area of constitutional adjudication with respect to offensive speech and the First Amendment require that we once again review that aspect of Section 53 to determine its constitutional validity.

We state the general principles to be applied. First, if "idle and disorderly persons" is, per se or as construed, "susceptible of application to protected expression," it is unconstitutionally overbroad. Gooding v. Wilson, 405 U.S. 518, 523 (1974). [Note 4] Second, unless the words "idle and disorderly persons" or our construction thereof are

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sufficiently definitive to inform those who are subject to its sanctions what conduct on their part will render them liable to its penalties, the provision is void for vagueness. Connally v. General Constr. Co. 269 U.S. 385, 391 (1926).

Applying these principles, we hold that, despite the construction given the term "idle and disorderly persons" in the Alegata case, the offense of being a disorderly person in so far as it encompasses speech or expressive conduct is not sufficiently narrowly and precisely drawn to ensure that it reach only that speech which the State has a justifiable and compelling interest in regulating, [Note 5] and is therefore overbroad. However, we conclude that as reaching to conduct (other than expressive conduct), the Section 53 "idle and disorderly persons" provision is neither unconstitutionally overbroad nor vague.

2. The Overbreadth Issue. In 1967, when Commonwealth v. Alegata, supra, was decided there was little if any express constitutional doctrine relative to what in its broadest sense may be termed offensive speech. However, since the date of the Alegata case there have been numerous United States Supreme Court decisions concerning convictions for offensive speech. These convictions were obtained under statutes regulating disorderly persons or breaches of the peace as well as statutes and ordinances relating generally to the use of, e.g., abusive, offensive, profane or opprobrious language. See, e.g., Coates v. Cincinnati, 402 U.S. 611 (1971) (illegal for three or more persons to assemble on sidewalks and

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conduct themselves in a manner annoying to persons passing by); Papachristou v. Jacksonville, 405 U.S. 156 (1972) (statute regulating, among others, disorderly persons); Gooding v. Wilson, 405 U.S. 518 (1972) (use to another of opprobrious words or abusive language tending to cause a breach of the peace); Colten v. Kentucky, 407 U.S. 104 (1972) (disorderly person to, inter alia, congregate with others and refuse to comply with a lawful order to disperse); Cohen v. California, 403 U.S. 15 (1971) (maliciously and wilfully disturbing the peace by offensive conduct); Rosenfeld v. New Jersey, 408 U.S. 901 (1972) (disorderly person to use indecent, profane, or offensive language in public place); Brown v. Oklahoma, 408 U.S. 914 (1972) (prohibition on obscene or lascivious language or words in any public place or in the presence of females); Lewis v. New Orleans, 408 U.S. 913 (1972), and 415 U.S. 130 (1974) (breach of the peace wantonly to curse or revile or use obscene or opprobrious language to a police officer). For respective statutes involved in Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Rosen v. California, 416 U.S. 924 (1974); Karlen v. Cincinnati, 416 U.S. 924 (1974), see appendix to dissenting opinion of Douglas, J., 416 U.S. at 929 (1974). [Note 6] See also Wiegand v. Seaver, 504 F. 2d 303 (5th Cir. 1974), cert. den. app. dism. 421 U.S. 924 (1975). Cf. Walker v. Dillard, 523 F. 2d 3 (4th Cir. 1975).

While the circumstances of the cases collected above may have differed, to a large extent the epithets spoken in these cases were of the genre and parlance of the words spoken in this case. What is most significant,

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however, is that in all of these cases except one, [Note 7] and often over vehement dissenting opinions, each conviction involving the use of words similar to those spoken by the defendant herein, was reversed on the grounds that the respective statute by its proscription of offensive speech was unconstitutionally overbroad, or unconstitutionally vague, or suffered from a combination of both of these constitutional infirmities.

From the reasoning of these recent Supreme Court cases it would seem that in order to satisfy present constitutional standards, a statute seeking to regulate what we have broadly termed offensive speech will stand only if that statute, in the words of Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942), is so narrowly drawn as to be limited to "`fighting' words." Vulgar, profane, offensive or abusive speech is not, without more, subject to criminal sanction [Note 8] for "the First and Fourteenth

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Amendments must be taken to disable the States from punishing public utterance of . . . unseemly expletive[s] in order to maintain what they regard as a suitable level of discourse within the body politic." Cohen v. California, 403 U.S. 15, 23 (1971). In the words of the court, it is to be observed that "one man's vulgarity is another's lyric" (id. at 25), and the State may not, consistent with the First Amendment, make any single "four-letter expletive" a criminal offense [Note 9] (id. at 26). Thus "so long as the means are peaceful, the communication need not meet standards of acceptability." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). And the means are presumed peaceful unless the words used constitute fighting words.

The Supreme Court, perhaps because of the inherent definitional difficulty involved, and, unlike the methodology of the obscenity cases, has articulated neither a per se standard nor any specific example of fighting words. However, certain cases do provide some insight as to the

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minimum requirements that an offensive speech statute must meet in order to ensure that the statute is limited to fighting words and thus reaches only speech not protected by the First Amendment. Fighting words as referred to in the relevant constitutional decisions are limited to "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. at 572 (1942). The words must be "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20 (1971). In order to be personally abusive the words must be "directed to the person of the hearer" in the sense that they are a face to face personal insult. Cantwell v. Connecticut, 310 U.S. 296, 309 (1940). Finally, the determination of whether words are personally abusive may not rest on subjective perceptions since an "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Independent Community Sch. Dist. 393 U.S. 503, 508 (1969).

In the court's opinion, the Section 53 disorderly person offense clearly does not fall exclusively within and is broader than this narrow definition of fighting words. Both the statutory crime of being a disorderly person as it has existed for centuries [Note 10] and our authoritative construction

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thereof, specifically Am. Law Inst., Model Penal Code, Section 250.2 (Proposed Official Draft, 1962), as adopted in Alegata v. Commonwealth, 353 Mass. 287, 302-304 (1967), encompass more than fighting words. [Note 11] Therefore, we are compelled to conclude that the disorderly person provision in so far as it relates to speech and expressive conduct is unconstitutionally overbroad as "susceptible of application to protected expression." Gooding v. Wilson, 405 U.S. 518, 523 (1972). [Note 12]

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We reach this conclusion because our statute could indisputably be found susceptible of application to the type of speech and expressive conduct found protected in such cases as Cohen v. California, supra, Gooding v. Wilson, supra, Rosenfeld v. New Jersey, supra, and Lewis v. New Orleans, 408 U.S. 913 (1972). Indeed, virtually every definitional word in this court's limiting construction has been found lacking in the requisite specificity to survive a challenge on First Amendment overbreadth grounds. These words include "public inconvenience, annoyance or alarm" (Coates v. Cincinnati, 402 U.S. 611 [1971]); "offensively coarse utterance" (Cohen v. California, 403 U.S. 15 [1971]); and "abusive language" (Gooding v. Wilson, 405 U.S. 518 [1972]).

The United States Supreme Court has recognized in its decisions that the State has a valid interest in regulating certain types of speech, but it has also made clear that this end may not be achieved by a statute with as broad a potential sweep as the disorderly person provision of Section 53. As Mr. Justice Harlan has stated in Cohen v. California, 403 U.S. 15 (1971), a case involving offensive speech, "[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections." Id. at 21. "That the air may at times seemed filled with verbal cacophony is, in this sense, not a sign of weakness but of strength." Id. at 25. See Abrams v. United States, 250 U.S. 616, 630-631 (1919) (Holmes, J., dissenting); Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

The question remains, however, whether despite our finding that the definition of a disorderly person adopted in Alegata v. Commonwealth, 353 Mass. 287 (1967), is constitutionally untenable in so far as it reaches protected

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speech, we should further attempt to refine and narrow that definition. It is clear that the doctrine of "[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Cox v. New Hampshire, 312 U.S. 569, 575-576 (1941).

Given the historical background of the offense of being a disorderly person, it would not be sufficient for this court without more simply to construe the phrase "idle and disorderly persons," or the terms "makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present" as limited to fighting words, since such terms "plainly . . . [have] a broader sweep than the constitutional definition of `fighting words' announced in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), and reaffirmed in Gooding v. Wilson [, 405 U.S. 518 (1972)]." Lewis v. New Orleans, 415 U.S. 130, 132 (1974). [Note 13] We do not perceive that Section 53 was ever limited to fighting words, [Note 14] nor do we deem it proper for this

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court to seek to infer from the simple words "idle and disorderly persons" under what circumstances and precisely how and subject to what penalties the Legislature would seek to regulate speech as fighting words "inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20 (1971). As Justice Qua stated in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945), this court is under a duty "to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions." Cf. Commonwealth v. Horton, 365 Mass. 164 (1974). For us to seek to construct from the phrase "idle and disorderly persons" an entirely new scheme for proscribing certain kinds of words would be the judicial legislating against which Justice Qua warned. This we decline to do.

3. The Vagueness Issue. [Note 15] From the decision in Alegata v. Commonwealth, 353 Mass. 287 (1967), it may be inferred that the statutory phrase "idle and disorderly persons" in the absence of this court's authoritative construction would be unconstitutionally vague. However, as we said in Alegata, "Interpreting the statute, as we do, as embracing conduct of this sort [in accordance

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with Section 205.2], it aims at activities which intentionally tend to disturb the public tranquility, or alarm or provoke others. . . . So interpreted the statute charges an offence which is not void for vagueness" (emphasis added). Id. at 304.

Nevertheless, the defendant argues here that the prefatory language of Am. Law Inst., Model Penal Code, Section 250.2 (Proposed Official Draft, 1962), which is the basis of our narrowing construction, is itself unconstitutionally vague. That preface provides, "A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he engages in the conduct set forth in subsections (a) and (c). The defendant points out that certain of the words used in the preface, i.e., inconvenience and annoyance, have been found vague in other cases. However, as the Commonwealth reasons, those words do not stand alone but are rather to be considered in reference to the specific conduct set forth in subsections (a) and (c). [Note 16] As we stated in the Alegata case, the preface merely defines the requisite intent to commit a criminal act; the specific offenses are delineated in subsections (a) and (c) which relate to conduct. [Note 17] These sections provide: "(a) engages in fighting or threatening, or in violent or tumultuous behavior; or . . . (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." So construed, the type of conduct which the disorderly person provision of Section 53 reaches is that conduct which by

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its very nature involves the use of physical force or violence or any threat to use such force or violence if that threat is objectively possible of immediate execution. Cf. Commonwealth v. Tarrant, 367 Mass. 411 (1975); Commonwealth v. Delgado, 367 Mass. 432 (1975). Also covered is "tumultuous behavior," which, while perhaps not physically violent, may nevertheless be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance. Conduct which creates a condition of physical menace to others is also reached, examples of which as described in the Am. Law Inst., Model Penal Code (Tent. draft No. 13, 1961) commentary would be the throwing of "`stink bombs', the strewing of garbage, nails, or other noxious substances in public passageways, turning off the lights in a theatre," and like conduct creating a hazard to the public safety.

On this basis we reaffirm our holding in Alegata v. Commonwealth, supra, that the disorderly person provision of Section 53, as authoritatively construed by this court, is "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties" (Connally v. General Constr. Co. 269 U.S. 385, 391 [1926]), and is therefore not void for vagueness. [Note 18] Accordingly, we believe that the Section 53 disorderly person provision may be validly applied to conduct as defined in the Alegata case and herein.

However, in order to ensure that the statute as limited not be susceptible of application to conduct which is expressive and therefore protected by the First Amendment, we further construe the section to relate exclusively to activities which involve no lawful exercise of a First Amendment right. In this regard the intent to cause, or reckless disregard of, public inconvenience, annoyance, or

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alarm must be assessed in terms of whether the conduct was engaged in with intent to exercise a First Amendment right and whether the interest to be advanced is insignificant in comparison to the inconvenience, annoyance, or alarm caused. Cf. Colten v. Kentucky, 407 U.S. 104, 109, 111 (1972).

We take this opportunity to observe that, despite our finding that the Section 53 offense of being an idle and disorderly person is not void for vagueness, other parts of the statute are constitutionally suspect. The statute is archaic. In its laconic provisions it covers a multitude of crimes, some of which are completely alien to modern times, others of which may in the future be subject to the type of challenges raised here. Indeed, c. 272, Section 53, is the mirror image of the city ordinance found void on its face in Papachristou v. Jacksonville, 405 U.S. 156 (1972). The ordinance in Papachristou is quoted in 405 U.S. at 156-157. Compare G. L. c. 272, Section 53, set out in full in n. 1, supra.

The ordinance in Papachristou was found facially void for vagueness "both in the sense that it `fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617 [1954], and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 [1940]. Herndon v. Lowry, 301 U.S. 242 [1937]," quoted in 405 U.S. at 162. In the absence of our limiting constructions thereof, the same could be said of Section 53 in its entirety.

In a series of cases we have attempted to save by judicial construction the bare bones of Section 53. See, e.g., Alegata v. Commonwealth, 353 Mass. 287 (1967) (idle and disorderly person); Thomas v. Commonwealth, 355 Mass. 203 (1969) (night walker); Commonwealth v. Jarrett, 359 Mass. 491 (1971) (disturbers of the peace); Commonwealth v. Brasher, 359 Mass. 550 (1971) (stubborn children). However, at some point the

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foundation of the statute may be insufficient to support the weight of added judicial construction on judicial construction.

4. To summarize, we hold that the idle and disorderly person provision of Section 53 as it presently stands cannot be validly applied against persons for the use of offensive and abusive language. However, the provision as construed by this court in Alegata v. Commonwealth, 353 Mass. 287 (1967), and as construed in the instant case, may validly be applied to conduct which involves no lawful exercise of a First Amendment right.

As to the questions reported, the first question is answered in the affirmative; the motion to dismiss should be granted since the adjudication of delinquency challenged may have been based on the speech involved. The second question is answered by the analysis of the statute in this opinion; the standards to be applied are as defined in this decision.

So ordered.