Wednesday's Weird But True Legal Cases - Vol XXIV

Today's Weird (but true) legal case follows the same theme as last Wednesday's offering - when is the First Amendment trumped by a municipality's need for order at a sporting event. Thanks to all those who wrote in about last week's case and inspired me to look for similar situations arising in other jurisdictions.

In State v. Morgulis, 166 A.2d 136 (Superior Ct. App Div 1970) a New Jersey appellate court considered a matter in which an attendee at a High School basketball game expressed himself and as a result was convicted of "uttering loud and offensive language in public" and "disturbing a place of assembly" thus earning himself concurrent thirty day jail sentences.

The facts recited by the Court in its decision include that:

On February 7, 1969 defendant attended a high school basketball game, anticipating some form of confrontation between black students and the administration, and intent on obtaining pictures and tape recordings of the events. During the pre-game activities the mayor announced that if anyone should show disrespect for the flag by refusing to stand during the national anthem, spectators would be barred from future sports events. Defendant shouted that it was illegal and unconstitutional to force anyone to stand during the ceremonies. He admits that disputes immediately flared up between himself and nearby spectators. At this point a plainclothes detective mounted the bleachers and sat next to defendant. The detective testified that nearby fans had requested defendant to be quiet; they wanted to watch the game, and some of them began to move away and express displeasure with defendant's mouthings. Defendant then gestured obscenely and loudly uttered a lewd chant: “_____, _____, Gestapo, _____, _____,” patently indecent language which need not be reproduced here. The detective then arrested defendant and quietly led him out of the gymnasium.

Following the defendant's conviction in municipal court he appealed to County Court where after a trial he was found guilty on both charges. On appeal to the Superior Court, Appellate Division, the defendant argued that his conduct was protected by the First Amendment's right to freedom of expression. In so doing, he argued "that the offending conduct must have been his initial retort to the mayor and, relying on Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961), contends that the State may act to limit speech only in the narrowest of circumstances."

In stating the law in NJ, the court noted that,

While it must be conceded that the State may not unreasonably restrict personal freedoms, it is equally apparent that the State may protect its citizens, in the exercise of their right to peaceable assembly, from riotous or potentially dangerous disturbances. In any event, the long line of cases attempting to delineate the permissible limits of restriction are neither consistent in theory nor particularly reconcilable in practice. Moreover, it might here be noted that defendant's reliance on Garner is misplaced, for the holding in that case, a conviction of sit-in demonstrators for ‘breach of the peace,’ rested on the lack of adduced evidence that any ‘disturbance’ had in fact occurred.

In light of the above, the court affirmed the conviction, explaining that:

While it is obviously less forceful to argue that ‘order’ must be maintained at a basketball game, surely the municipality is entitled to exercise some degree of supervisory control over the more disruptive elements at an interscholastic event. We find that the State presented sufficient competent and credible evidence to indicate that the Totality of defendant's conduct in the bleachers was loud, offensive, disruptive and disturbing to the neighboring spectators. Certainly, the constitutional provisions guaranteeing freedom of speech do not extend to intemperate and intentional offensiveness which impinges on the rights of others. Moreover, defendant's conviction under N.J.S.A. 2A:170-28 does not rest so much on what he said or on when he chose to say it, but rather on the allegedly abusive and disruptive character of his intentional outburst.

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