(dissenting). I respectfully dissent for the following reasons.
First, I dissent because the newly formulated definition of an unlawful assembly proposed in the majority opinion and endorsed in the concurrence is not tenable as a matter of statutory construction, wholly departing as it does from the statutory terms appearing in G. L. c. 269, §§ 1 and 2. Moreover, the new formulation intermixes the two different crimes of riot and unlawful assembly set forth in these laws. See part I, infra.
Second, I dissent because the majority formulation (also accepted by the concurrence) would lead to unconstitutional over-breadth and vagueness in law enforcement in the constitutionally protected sphere of free assembly. The majority formulation, I believe, lacks constitutionally requisite narrow and precisely drawn objective law enforcement criteria and standards and does not remove the “threat” to the right of free assembly.
While “the text of the relevant statute, read literally, [on its face may be] void for vagueness both on notice and on discretionary enforcement grounds,” a “narrowing construction [may] alleviate[ ] both of these difficulties.” Chicago v. Morales, 527 U.S. 41, 61 n.31 (1999). A court’s “power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined.” Smiley v. Kansas, 196 U.S. 447, 455 (1905). But, in order to obviate void for vagueness problems, the narrowing construction must itself meet constitutional measure. In *592this case, any narrowing construction of the unlawful assembly statutes in G. L. c. 269, §§ 1, 2, must meet “the more important aspect of the vagueness doctrine . . . [and a] principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352, 358 (1983), quoting from Smith v. Goguen, 415 U.S. 566, 574 (1974). In my opinion, the majority formulation does not do this. Rather, the majority formulation of what would be an unlawful assembly, subject to arrest and prosecution, rests not on objectively discernible fact-based criteria and standards, yielding minimal guidelines for law enforcement, but on theoretically presumed, common states of mind and common intents, which common states of mind are to be subjectively ascribed by law enforcement to ten or more assemblers, and which may subjectively seem to an arresting officer as portending “inchoate violence” (see ante at 586 n.8) — all this, even though nothing objectively criminal or violent has happened in the assembly. This lack of precision and lack of objective law enforcement criteria and standards would, I submit, sanction the arrest and prosecution of citizens gathered in an assembly in an unconstitutionally “standardless sweep [that] allows policemen, prosecutors, and juries to pursue their [own] personal predilections.” Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting from Smith v. Goguen, 415 U.S. at 575. This is the very harm that the void for vagueness doctrine is designed as a constitutional bulwark against. See part II, infra.
“[I]mprecise laws can be attacked on their face under two different doctrines. First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when ‘judged in relation to the statute’s plainly legitimate sweep.’ Broadrick v. Oklahoma, 413 U.S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358 (1983).” (Emphasis supplied). Chicago v. *593Morales, 527 U.S. at 52. Where a facial constitutional challenge to a statute is posed because of overbreadth or void-for-vagueness, there is in the First Amendment area a “departure from traditional rules of standing .... [so] that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression” (emphasis supplied). Broadrick v. Oklahoma, 413 U.S. at 613.1
Third, I dissent because the majority affirms the defendant’s conviction (as would the concurrence), notwithstanding the defendant’s objection to a jury instruction, which jury instruction it is acknowledged by all opinions herein is completely different from the new formulation and, as delivered in the defendant’s trial, was based on a facially unconstitutional reading of the unlawful assembly statute — a reading of the statute to which the defendant had raised a constitutional challenge at the onset of the criminal prosecution.2 See part HI, infra.
Finally, in part IV, infra, in contrast to the majority’s defini*594tian, I state an alternative formulation of the offense of unlawful assembly, which is drawn from within the terms of G. L. c. 269, §§ 1, 2, but which is narrowed and based on objective law enforcement standards so as to meet constitutional measure.
I
On the statutory front, I dissent because the majority’s redefinition of the crime of unlawful assembly is a rewriting that is without source in the precise statutory language set forth in G. L. c. 269, § 2, and the relating counterpart, G. L. c. 269, § 1. In a process of importation of the elements of riot into the offense of unlawful assembly, parts of the language in G. L. c. 269, §§ 1, 2, are rendered mere surplusage. Indeed, rather than turning to the terms setting forth the offense of unlawful assembly appearing in these two sections, the majority opinion crafts a new unlawful assembly crime by incorporating the elements from the crime of riot. This is achieved through quotations taken from cases involving riots, not unlawful assemblies, e.g., Commonwealth v. Runnels, 10 Mass. 518, 519 (1813); Commonwealth v. Gibney, 84 Mass. 150, 152 (1861); Commonwealth v. Frishman, 235 Mass. 449 (1920); and Ela v. Smith, 71 Mass. 121, 135 (1855).3 The end result is that the majority *595redefines what would be an unlawful assembly by riot-related elements. According to the majority, ante at 585-586,
“an ‘essential element’ of both ‘riot’ and ‘unlawful assembly’ is ‘the intent to commit an act of violence.’ See Commonwealth v. Frishman, 235 Mass. at 451, 455.”
The majority, thus,
“conclude[s] that the term ‘unlawful assembly’ should be defined, for the purposes of G. L. c. 265, § 2, as any gathering otherwise meeting the requirements of that provision, the members of which have formed a common intent to ‘engage[ ] in a common cause . . .to be accomplished[4] with violence and in a tumultuous manner’ (Commonwealth v. Gibney, 84 Mass. at 152) or ‘through force and violence’ (Commonwealth v. Frishman, 235 Mass. at 352, 355), that is, where there is an ‘imminent danger . . . [of] violence.’ Ela v. Smith, 5 Gray at 135.” (Emphasis supplied.)
Ante at 585. This reconstruction, incorrectly I believe, merges the different crime of common-law riot with that of unlawful assembly5 — even though it is clear from G. L. c. 269, § 2, and *596§ 1, that riot is a separate crime from unlawful assembly.6 It is, I believe, a mistake to say that a riot and an unlawful assembly are synonymous. Indeed, this leads to an underinclusive effect on law enforcement because persons assembled, who stand together in violation of a criminal statute or ordinance, may not be engaged in a riot, but may nonetheless be engaged in an unlawful assembly. See the formulation infra, which includes violation of a criminal law or ordinance as constituting an unlawful assembly.
Thus, as a matter of statutory construction, I dissent from this formulation, which not only departs from the language of G. L. c. 269, §§ 1,2, but also makes two different crimes — riot and unlawful assembly — into virtually the same crime.7
II
On the constitutional front, the majority’s reformulation is destructured from the archstone of free assembly guaranteed by art. 19 of the Massachusetts Declaration of Rights and the First Amendment to the United States Constitution (and addressed in precedent of the Supreme Judicial Court and the United States *597Supreme Court). Accordingly, I dissent as a matter of both State and Federal constitutional law.
Any analysis of the constitutional challenge that brought this case before the court on appeal from a conviction of unlawful assembly by a citizen under G. L. c. 269, § 2, must begin with the overarching principles of government in the Massachusetts and Federal Constitutions. “The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” United States v. Cruikshank, 92 U.S. 542, 552 (1875). “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. . . . [T]he right is one that cannot be denied without violating those fundamental principles of liberty and justice which he at the base of ah civil and political institutions De Jonge v. Oregon, 299 U.S. 353, 364 (1937). “The right [of assembly] is indubitable. The importance to the public welfare of this constitutional guaranty has been recognized and scrupulously upheld by the courts.” Commonwealth v. Surridge, 265 Mass. 425, 427 (1929). Our State courts have written that from as far back as the battle for independence in the late eighteenth century, “[i]t is hard to overestimate the historic significance and patriotic influence of the public meetings held in all the towns of Massachusetts . . . .” Wheelock v. Lowell, 196 Mass. 220, 227 (1907).8
I believe that the unconstitutional overbreadth and, even more pronouncedly, void for vagueness problems in the reading by the majority and concurrence lie in the lack of enunciation — with the great and heightened degree of specificity that is *598constitutionally required9 — of objective, fact-based, law enforcement criteria and narrow, clear, and definite criminal law standards, which would affirmatively guide enforcement actions by, and negatively limit the unfettered discretion of, police officers — who, after all, will be the enforcers of the unlawful assembly criminal law, as the issuers of dispersal commands, which are the initiating predicate to arrest and prosecution. Without objective law enforcement standards, there is an unconstitutional “entrusting of] lawmaking to the moment-to-moment judgment of the policeman on his beat.” Chicago v. Morales, 527 U.S. at 60, quoting from Kolender v. Lawson, 461 U.S. 360. “A vague law impermissibly delegates basic policy matters to policemen, judges and juries . . . .” Commonwealth v. Gallant, 373 Mass. 577, 580 (1977), quoting from Grayned v. Rockford 408 U.S. 104, 108-109 (1972).
Instead of objective criteria for law enforcement action in this highly protected constitutional sphere of expression and assembly, there is a predominately subjective state of mind focus in the majority’s definition of unlawful assembly. This wide swath and standardless domain within which arrests could be made and criminal prosecutions could be instituted brings with it the unacceptable risk of trenching upon protected rights of the people to assemble peacefully in a democratic society such as ours.
The formulation by the majority and concurrence would allow for arrests and prosecution if a government official somehow subjectively discerned “a common intent [shared among ten or more assemblers] to ‘engage[] in a common cause . . . to be accomplished with violence.’ ” Ante at 585. This latter attribute is referred to at another point in the majority opinion *599as “inchoate violence,”10 ante at 586 n.8, something I have not known in the criminal law. In any event, the vagaries inherent in defining the crime of unlawful assembly, as the majority and concurrence would, by a nonobjectively measurable “common intent,” and a nonobservable “common cause,” which might supposedly be internally shared by more than ten persons assembled and which, an arresting officer subjectively thinks, may inchoately portend a future violent status that has not yet happened in the assembly, would stifle constitutionally protected expression, and would grant close to limitless and ad hoc discretion to government officials under criminal law to arrest and seize the participants of one assembly, but not to arrest and seize the participants of a different assembly.11 Such police actions, as would be sanctioned by the subjective state of mind *600vagaries in the majority’s formulation (without objectively based law enforcement criteria and standards), present a substantial risk of content-laden abridgement in constitutionally protected forums of democratic assembly and have the danger of chilling the right of assembly in our democracy. It is important to note that, under the proposed majority formulation, arrests would be authorized, notwithstanding that the gathered assemblers have not done anything that is in violation of any law or ordinance and have not acted in a manner that objectively manifests riotous or tumultuous effects in the assembly (which are two objectively measurable elements which, I submit are required by G. L. c. 269, §§ 1, 2).
Given the vagaries in the formulation of the offense of unlawful assembly, the concurrence, ante at 590 n.4, would mine from hidden crevices in the majority opinion — crevices so hidden that I do not see them within the majority’s holding — *601what the concurrence chisels into a supplemental definitional “requirement” of imminent violence/actual violence/probable cause for violence/and. overt acts.12 Indeed, the concurrence acknowledges that, “[a]bsent such a requirement [as the concurrence would propose] police would be afforded too much discretion in enforcing that provision.” (See ibid., reproduced in the margin below.) Respectfully, I am perplexed as to the proposition in the concurrence that the majority construction of unlawful assembly under G. L. c. 269, §§ 1,2, can only withstand constitutional scrutiny if read as incorporating elements suggested in a “savings clause” in the concurrence — a most unusual methodology for constitutional analysis. The concurrence, then, is not really concurring at all, but rather is engaged in secondary engrafting to shore up by a “concurring” bracing wall a perceived and acknowledged void for vagueness deficiency in the majority formulation.13 See, e.g., ibid.
Equally problematic is that certain of the premises set forth in the concurrence (and its supplemental “requirement”) flow from inaccurate descriptions of the issues presented, type of statutes involved, and the ultimate holdings of the United States *602Supreme Court in three decisions that are much cited in the concurrence (as well as in the majority). The three cases are Cox v. Louisiana, 379 U.S. 536 (1965) (Cox I); Cox v. Louisiana, 379 U.S. 559 (1965) (Cox II); and Edwards v. South Carolina, 372 U.S. 229 (1963) (Edwards).
Cox I, Cox II, and Edwards are cited, discussed and quoted from in the concurrence (and in the majority) as if these three constitutional precedents involved the criminal offense of unlawful assembly statutes. None of the cases did.14 In Cox I, the Supreme Court considered the conviction of a civil rights leader under a breach of the peace statute. The Court held that the breach of the peace statute was unconstitutional on its face because the statute had been construed by the State court in such a vague manner that it potentially reached demonstrators *603not engaged in an assembly that manifested riotous effects. Specifically, the Court held:
“The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. . . . “[T]he conviction under this statute must be reversed as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly. Maintenance of the opportunity for free political discussion [and assembly] is a basic tenet of our constitutional democracy. As Chief Justice Hughes stated in Stromberg v. California, 283 U.S. 359, 369 [1931]: ‘A statute which upon its face, and as authoritatively construed, is so vague and indefinitie as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.’ ”
Cox I, 379 U.S. at 551-552. (Of interest, and in comparison to Cox II, to be noted is that, in the case before us, the Commonwealth concedes that the assembly was not tumultuous; furthermore, the defendant was acquitted of disorderly conduct and of obstructing a public passage. See note 8, supra.) In short, Cox I does not stand for the unlawful assembly analysis proposed in the majority and concurring opinions.
Similarly in error, Cox II is cited and described in the concurrence, ante at 588 n.3, as if it involved a statute restraining an assembly. Cox II is not that at all. More accurately described, Cox II involved a Louisiana law, which tracked a Federal statute, prohibiting picketing near a courthouse to obstruct or impede the administration of justice. In Cox II, the Supreme Court never referred to the law as an assembly restricting statute. Rather, contrary to the concurrence description, the Supreme Court described the statute as follows.
“This [courthouse picketing] statute was passed by Louisiana in 1950 and was modeled after a bill pertaining to the federal judiciary, which Congress enacted later in 1950, 64 Stat. 1018, 18 U.S.C. § 1507 (1958 ed.). Since that time, Massachusetts and Pennsylvania have passed *604similar statutes. Mass. Ann. Laws, c. 268, § 13A; Purdon’s Pa. Stat. Ann., Tit. 18, § 4327. The federal statute resulted from the picketing of federal courthouses by partisans of the defendants during trials involving leaders of the Communist Party.”
Cox II, 379 U.S. at 561. I fail to understand the alchemy by which the concurrence takes a courthouse picketing statute (similar to the courthouse picketing law which remains on the books in Massachusetts in G. L. c. 268, § 13A)15 and transforms it into an assembly restraint statute.
The majority and the concurrence frequently cite Edwards as support for their construction of the Massachusetts unlawful assembly statute. But Edwards does not offer such support. To the contrary — and significantly — in Edwards, the Supreme Court held unconstitutional a breach of the peace statute, which had been construed by the Supreme Court of South Carolina in a manner closé to that which the majority and concurrence would propose here. Specifically, the Supreme Court of South Carolina included in its construction of the offense the following language, part of which echoes the construction proposed in this case.
“In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence . . . , it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. . . .” (Emphases supplied.)
*605Edwards, supra at 234.
Accepting this State court decision as “binding,” the United States Supreme Court held in Edwards that “[t]he Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views. . . . [T]he courts of South Carolina have defined a criminal offense so as to permit conviction of the petitioners if their speech ‘stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds [set forth in the State court’s construction] may not stand.’ ” Edwards, supra at 237-238, quoting from Terminiello v. Chicago, 337 U.S. 1, 5 (1949). Again, I emphasize that in this case, as in Edwards, there was no tumultuous conduct, no disorderly conduct and no obstruction of a public passage way. See note 8, supra.
With these constitutional cases placed in the appropriate context and for the reasons stated above, I believe the “savings clause” in the concurrence, ante at 590 n.4 — which seeks, in turn, to shore up the majority formulation — is fundamentally flawed and does not save the majority formulation from being unconstitutionally void for vagueness.
in
Apart from these statutory and constitutional issues, I also dissent from the affirmance of the particular conviction on appeal in this case. Even if one were to accept (and I do not) that the proposed redefinition meets constitutional measure, that redefinition is worlds apart from, and bears no similarity to, the actual jury instruction given at trial, and upon which the defendant’s conviction rested.16
I also disagree with the suggestion in the concurrence that the *606issue involving the jury instruction is not before us.17 The defendant objected to the jury instruction as an unconstitutional reading of the statutory elements of proof, and the defendant argued that one of the elements necessary for conviction of the crime of unlawful assembly required that the Commonwealth must prove that the assembly was one that is riotous and tumultuous (this is consistent with what I believe is the proper construction of the term “unlawful assembly” in G. L. c. 269, §§ 1, 2, see discussion in part IV, infra). Given the foregoing, I fail to see how the defendant’s convictions can be affirmed — as both the majority and concurrence would do.
On this point, because the unconstitutional definition of unlawful assembly in the jury instruction was not narrowly circumscribed by the offense elements I address in part IV, infra, I believe that reversal is warranted, even under the narrower reading which I would propose lies within the interstices of G. L. c. 269, §§ 1,2 — a construction to which I now turn.
rv
In contrast to the formulation advanced by the majority and *607concurrence, I believe that the definitional elements of the crime of unlawful assembly fit more tightly within the extant black letter terms of G. L. c. 269, §§ 1, 2. Consistent with the terms in these two sections, I believe the crime of unlawful assembly has the following elements: (1) there was an assembly of ten or more persons; (2) in the place of a city or town; (3) the assembly was unlawful by virtue of being held in violation of criminal law or ordinance,18 or the assembly was unlawful by virtue of objectively observable tumultuous or riotous effects19; (4) a police command was given to disperse; and (5) the defendant, having received the command, failed to disperse.
This formulation has objective, fact-based law enforcement criteria and standards against which a police officer may objectively determine whether there are legally sustainable grounds for a dispersal order, which if not followed would lead to arrest and prosecution. Further, with respect to legal and constitutional standards, tying, as I would, the offense elements to a violation of any criminal law or ordinance — or to objectively observable riotous or tumultuous effects — would render the statute “sufficiently narrowly and precisely drawn to *608ensure that it reach only [conduct] which the State has a justifiable and compelling interest in regulating.” Commonwealth v. A Juvenile, 368 Mass. at 587 (authority to arrest “disorderly persons” does not extend to protected “expressive conduct”). See Commonwealth v. Welch, 444 Mass. 80, 99-100 (2005) (criminal harassment statute cannot be applied to otherwise qualifying acts that fall within protection of First Amendment).
This statement of definitional elements for unlawful assembly also honors the interrelated sections of G. L. c. 269, as enacted by the Legislature. As was noted by the Supreme Judicial Court in Commonwealth v. Spearin, 446 Mass. 599, 605 (2006), in G. L. c. 269, “[§ ] 1 . . . must be read in conjunction with § 2,” as well as with the other sections contained in c. 269. Indeed, from the text of these sections themselves it is clear that the Legislature intended G. L. c. 269, § 2, to be read in conjunction with G. L. c. 269, § l.20 The interweaving of §§ 1 and 2 is evident in that the “whoever” (as an assembler in § 2, refuses to depart upon police command, and is subject to criminal prosecution) has as its antecedent that the “whoever” be one of the more than ten persons in § 1 who “are unlawfully, riotously or tumultuously assembled.” If § 2 is not so construed in synthesis with its § 1 antecedent to mean that the § 2 putative “whoever” violator is one who under § 1 is “unlawfully, riotously or tumultuously assembled,” then the criminal offense elements in § 2 turn in on themselves in a redundancy, viz., a criminal unlawful assembly is a criminal unlawful assembly. *609This runs counter to the canon that “effect is given to both the specific and general words [of a statute] by treating the specific words as indicating a class” within the broader group defined by the general words. Commonwealth v. Krasner, 358 Mass. 727, 733 (1971) (Spalding, J., dissenting).
V
The defendant preserved a constitutional facial challenge to G. L. c. 269, § 2, and § 1. The facially unconstitutional reading of these laws (which the defendant had challenged) was incorporated in instructions provided to the jury. In addition to preserving appellate rights by leveling the facial constitutional challenge,21 the defendant also objected to those jury instructions. For these reasons, I dissent from the affirmance of the judgment and would instead reverse the conviction. See Commonwealth v. A Juvenile, 368 Mass. at 584-585. In addition, I dissent from the broadly brushed redefinition of the crime of unlawful assembly set forth in the majority opinion and in the concurrence. I believe the crime of unlawful assembly under G. L. c. 269, §§ 1,2, follows the offense elements set forth in part IV of this dissent.
In the First Amendment area of expression and assembly, “attacks on overly broad statutes [may be leveled] with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. at 612.
Based on the foregoing principles of constitutional adjudication, I depart from the conclusion in the concurrence, ante at 586-587, that “[t]he defendant chanced much by presenting only a facial challenge . . . [because a] court will not pass on [the] validity of ‘hypothetical applications’ of a law subject to only [a] facial challenge . . . [and] [w]here a constitutional construction of a challenged statute is possible, a facial challenge must be rejected.” First, this case does not present a “ ‘hypothetical application ]’ of a law.” The defendant was really convicted under an unconstitutional construction of the law. Second, it is not so that, where a different constitutional construction is possible from that which governed a prosecution, a facial challenge is pretermitted. If that were so, a facial challenge to an unconstitutional statute would always be doomed by a potential construction brooding out in the omnipresent, but not existing in statute or case law, and not incorporated in the legal instructions governing a trial.
I reject the suggestion in the concurrence that the defendant’s facial constitutional challenge and related objection to the jury instruction — which *594instruction incorporated the constitutionally challenged reading of the unlawful assembly law — are not before this court, and that the defendant’s conviction may be sustained because of a failure to preserve appellate rights. To the contrary, as explained in notes 1, supra, and 16, 17, and 21, infra, of the dissent, the defendant preserved both a facial constitutional challenge to the statute and a jury instruction challenge for appellate review. The emphasis on this procedural point relating to the preservation of appellate rights is the only real difference between the majority and the concurrence.
In Commonwealth v. Frishman, 235 Mass. 449 (1920), a riot case, not an unlawful assembly case, the question presented was whether participants in an unlawfully constituted parade (the parade was conducted without the necessary permits and was thus unlawful, id. at 453, 454) were properly convicted of riot, when a stabbing took place during the course of the parade. The majority’s citation to, and quotation from, Frishman suggesting that the case supports that an “essential element” of unlawful assembly is “the intent to commit an act of violence” is simply incorrect. Ante at 585-586. In the cited passage, the reporter’s notes — not the opinion of the court — state that for the separate crime of riot, “the essential element was that there must be the violence and the intent to commit an act of violence” (emphasis supplied). Id.at 451. Similarly, Commonwealth v. Runnels, 10 Mass. 518, 519-520 (1813), *595was a riot case, not an unlawful assembly case. The question in Runnels was whether an indictment was proper where not every act in the indictment was separately alleged to have been done “with force and arms” and where the indictment did not specifically allege that the acts had been done “to the terror of the people.” Id. at 519. Finally, Ela v. Smith, 5 Gray 121, 135 (1855), was a case involving a threatened riot, not an unlawful assembly case either. In Ela, the court considered the construction of statutes “by which authority is given to certain civil officers to call out the organized militia of the Commonwealth to aid in preserving the public peace and enforcing the laws.” Id. at 134. That is, the court is concerned with whether the statutory prerequisite for the mayor’s calling of the militia, that a “tumult, riot or mob shall be threatened,” was present in this case. Id. at 135. At no point in the Ela opinion does the court seek to identify what might constitute an unlawful assembly within the meaning of the statutory precursor to G. L. c. 269, §§ 1, 2.
Note the futuristic “inchoate” nature of the majority’s definition, including ante at 586 n.8 — a point further addressed below. See notes 10 and 11, infra, and accompanying text.
General Laws c. 269, § 2, with reference back to § 1 (see part TV, infra), makes clear that there are two separate crimes —riot and unlawful assembly — and speaks in the disjunctive in defining these two separate criminal acts.
“Whoever, being present and being so commanded to assist in arresting such [I] rioters or [2] persons so unlawfully assembled, or in suppress*596ing such [1] riot or [2] unlawful assembly, refuses or neglects to obey such command, or, if required by such magistrate or officer to depart from the place, refuses or neglects so to do, shall be considered one of the [i] rioters or [2] persons unlawfully assembled, and shall be [subject to criminal prosecution and punishment]” (emphases supplied).
Indeed, the crimes of riot and unlawful assembly have been separate statutory crimes in the Commonwealth since the mid-eighteenth century, see, e.g., St. 1786, c. 38, §§ 1, 2.
The Model Penal Code notes that “many jurisdictions” — listing Massachusetts among them, with citation to G. L. c. 269, § 2 — maintain riot and unlawful assembly as separate crimes. Model Penal Code § 250.1 commentary (1980).
Apart from statutory construction overlap, there is another critical difference. The crime of riot is not entitled to constitutional protections under art. 19 of the Massachusetts Declaration of Rights or the First Amendment to the United States Constitution. A riot is an act of violence, not expressive conduct. In contrast, an assembly of citizens gathered to address public issues is protected by these constitutional guarantees. It may be that the majority’s interweaving of the two crimes also accounts for certain vagaries in its constitutional analysis, as the majority begins to speak of “inchoate” crimes of violence and common intent to commit future acts of violence (see note 10, infra), in connection with its definition of unlawful assembly.
Given the history of the enactment of art. 19 and the First Amendment to preserve and protect the right of assembly, it does not escape comment that the assembly at which the defendant (along with twenty-three other persons) was arrested and which led to the defendant’s conviction was held to protest the involvement of the United States in the Iraq war — an issue of intense national debate.
Further, that the defendant was acquitted on two other charges, disturbing the peace, G. L. c. 272, § 53, and obstructing a public passageway or sidewalk in violation of a municipal ordinance, casts some light on the nature of the assembly as not being disruptive. Indeed, the Commonwealth’s brief concedes that the defendant “was not alleged to have been part of a ‘tumultuous or riotous’ assembly.”
“[A]ny statute which regulates speech [or the right to assemble as expressive conduct] requires the strictest of our scrutiny because ‘the line between speech [and expression by assembly] unconditionally guaranteed and speech [and assembly] which may be legitimately regulated, suppressed, or punished is finely drawn.’ ” Commonwealth v. A Juvenile, 368 Mass. 580, 584 (1975), quoting from Speiser v. Randall, 357 U.S. 513, 525 (1958). “Where a statute’s literal scope ... is capable of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. at 573.
In addition to a “savings clause” suggested by the concurrence, ante at 590 n.4, and addressed below, it is suggested by the majority, ante at 586 n.8, that a jury instruction would also save, and somehow clarify, the vague definition endorsed in the opinions, including further instruction concerning what “inchoate violence” is. The proposed jury-based savings clause in the majority states:
“Whether, in any particular case, an assembly was on the verge of rioting or violence or had formed a common intent to engage in violence at the time § 2 was invoked by police potentially may raise a difficult question of fact for the jury. . . . Thus, in cases where inchoate violence forms the basis for an alleged violation of § 2, the jury charge must emphasize the necessity of a finding of a reasonable belief on the part of police based on specific facts and actions of the assembly that a common intent to commit violence had been formed and that violence was imminent.”
But a jury instruction delivered during a criminal prosecution — after arrests have ended an assembly — does not serve to save the original constitutionally protected right to assemble and express views in a public forum on the streets of the Commonwealth. This proposed jury-based savings clause (as the other savings clause proposed by the concurrence, ante at 590 n.4, and discussed infra) is too little, and comes too late, to save the flaws in the construction by the majority and the concurrence.
In March, 1966, a United States Senate subcommittee hearing on migrant labor laws was convened in California, which directed an inquiry into the arrests of migrant grape pickers who were engaged in demonstrations and picketing. The following colloquy between Senator Robert F. Kennedy and a sheriff who had ordered arrests of the demonstrators is of interest.
Sheriff Galyen: “Well, if I have reason to believe that there’s going to be a riot started and somebody tells me that there’s going to be trouble if you don’t stop them, it’s my duty to stop them.”
*600Senator Kennedy: “Then do you go out and arrest them?”
Sheriff Galyen: “Yes.”
Senator Kennedy: “And charge them?”
Sheriff Galyen: “Charge them.”
Senator Kennedy: “What do you charge them with?”
Sheriff Galyen: “Violation of unlawful assembly.”
Senator Kennedy: “Senator, could I finish my questioning here? This is the most interesting concept, I think, that you suddenly hear or you talk about the fact that somebody makes a report about somebody going to get out of order, perhaps violate the law, and you go and arrest them, and they haven’t done anything wrong. How can you go arrest somebody if they haven’t violated the law?”
Sheriff Galyen: “They’re ready to violate the law.”
Senator Kennedy: “Can I suggest in the interim period of time, the luncheon period of time, that the sheriff and the district attorney read the Constitution of the United States?”
Amending Migratory Labor Laws: Hearings on S. 1864, S. 1866, S. 1867, and S. 1868 Before the Subcomm. on Migratory Labor of the Senate Comm, on Labor and Pub. Welfare, 89th Cong. 629-630 (March 16, 1966) (statement of Sheriff Galyen, Kern County, California).
Without extended discussion, I would simply note we are, most assuredly, not talking about either a conspiracy or a joint venture crime, as to which the existence of an overt act is an essential element. Hence, where guaranteed rights of the people to assemble are at issue, the vagaries inherent in references to common states of mind and a common intent shared by a group of citizens gathered together, such as proposed in the formulation of the majority and the concurrence, are not constitutionally “fixed” either by referencing one overt act by one assembler or by the carrying over of the overt act predicate for crimes that have nothing to do with rights of assembly.
For ease of reference, I reproduce in full one such “engrafting” part of the concurrence, ante at 590 n.4, which states as follows.
“The reference to “acts” ... as the requisite basis for a finding of probable cause to believe that a gathering has formed a collective intent to engage in imminent violence is an important part of the majority’s formulation of the elements of the offense described in § 2. Absent such a requirement, police would be afforded too much discretion in enforcing that provision. It is only when an assembly either engages in actual violence or commits overt acts that make it plain that such violence by the group is imminent that police may issue a valid dispersal order, at least under § 2.” (Emphases supplied.)
In addition to repeated citations to, and quotations from, this trilogy of cases throughout the majority and concurrence, I note, in particular, that the reservations expressed in the concurrence, ante at 590 n.4, and the “savings” clause restructuring of the majority formulation proposed there, relate back to, and resonate from, one footnote in the majority opinion, ante at 586 n.8. That footnote, in turn, purports to rest on the holdings in Cox I and Edwards. Because, as further discussed herein, neither of these two cited Federal cases, nor the Massachusetts case, Commonwealth v. A Juvenile, 368 Mass. 580 (1975) (offense of disorderly conduct), involve unlawful assembly statutes, the implication in the majority opinion that limiting language in that footnote (and cross-referenced in the concurrence) comes from the cited precedents of the United States Supreme Court or our Supreme Judicial Court in connection with the construction of unlawful assembly and dispersal statutes is simply not supportable.
For ease of reference, I reproduce the pertinent part of the majority opinion, ante at 586 n.8, which states as follows:
“To the extent that cases concerning unlawful assembly can be read as requiring only a fear that participants will engage in riotous or violent conduct, decisions from the United States Supreme Court as well as the Supreme Court Judicial Court indicate that, in order to meet constitutional standards protecting the right to peaceably assemble and freedom of speech, some actually threatening conduct or an actual act or acts of violence or riotous behavior must be shown to support the dispersal order and a conviction under the statute; in other words, subjective fear on the part of witnesses or police officers is not enough, nor is loudness enough. See Edwards v. South Carolina, supra; Cox v. Louisiana, 379 U.S. at 547-548 (1965). Cf. Commonwealth v. A Juvenile, 368 Mass. at 596-597, 599.” (Emphasis original.)
The Supreme Court upheld the facial validity of the statute in Cox II, supra at 564, that prohibited picketing near a courthouse so as to obstruct or impede the administration of justice, but held there was a due process violation because government officials had granted permission for the defendant and the other demonstrators to stand across the street from the courthouse. Id. at 568-571.
The jury instruction, upon which the defendant was convicted, simply quoted parts of G. L. c. 269, §§ 1,2, and directed the jury that a guilty verdict was returnable so long as the Commonwealth proved (1) “[t]hat ten or more persons, whether armed or not, were unlawfully assembled in a city”; (2) “[t]hat a city police officer commanded the defendant to immediately and peaceably disperse”; and (3) “[t]hat the defendant refused or neglected to do so.”
The above quoted open-ended jury instruction upon which the defendant was convicted mirrored the Commonwealth’s proposed instruction. That is to *606say, at the District Court trial, and in the appeal to this court, the Commonwealth advanced a reading that a conviction under G. L. c. 269, § 2, is sustainable merely on proof that the persons assembled “are engaging in acts the officers know to be unlawful.” Such a reading leaves wholly undefined the sources for such deemed knowledge, and does not link this “presumed” knowledge of a police officer (who decides solely in his or her discretion to arrest a person engaged in an assembly) either to any objective criteria (i.e., the turbulent and riotous nature of the assembly) or to a defined body of criminal offense prohibitions (the general laws or local ordinances).
I disagree with the concurrence that there is some flaw in the defendant’s compilation of the record appendix before this court, which includes the jury instructions. The docket shows that the instructions given to the jury were provided by the clerk to the defendant for compilation of the appendix. At oral argument there was no dispute by the Commonwealth, or the defendant, that these were the written instructions given to the deliberating jury.
The concurrence, ante at 587 n.l, would ignore the written jury instructions on the basis that the written copy may not have been “the instructions that the trial judge intended to give at trial. . . [because] [i]t is frequently the case that errors, omissions, or amplifications that depart from the judge’s written text find their way into an oral charge.” This proposition is incorrect. Even if the judge might have delivered oral jury instructions that were not in haec verba with the written instruction, the written instructions are jury instructions. To state the obvious, if there is error in the written jury instructions, there is error. And there was error. See note 16, supra, which quotes the jury instruction.
The violation of a criminal law or ordinance may, separate from any violation of the unlawful assembly statute, give rise to probable cause for an arrest, based on the particular law or ordinance violated.
It does not escape my attention that the definition I propose includes the terms “riotous effects.” This, notwithstanding that, for the reasons already stated, I think the majority is incorrect in incorporating the elements of riot into the definition of unlawful assembly. But, there are differences between the terms riot and riotous. Conduct involving the more serious crime of riot differs from conduct involved in an unlawful assembly that objectively has riotous or tumultuous effects and characteristics. According to 8 Oxford English Dictionary 699 (1978), a “riot” is “[a] violent disturbance of the peace by an assembly or body of persons; an outbreak of active lawlessness or disorder among the populace; a hostile attack or encounter,” manifesting “[vjiolence, strife, disorder, tumult, especially on the part of the populace.” According to this dictionary’s definitions, a thing that is “riotous” is of a lesser nature, defined as “noisy, tumultuous, unrestrained.” Id. at 700.
Turning from the dictionary to the Model Penal Code, the Code also describes unlawful assembly as the less serious common-law offense and riot as the greater offense, as follows: “Common-law riot was one of a series of related offenses against the public peace. The least serious crime in this sequence was unlawful assembly .... Riot occurred where the persons assembled actually committed an unlawful act of violence or performed a lawful act in a violent and tumultuous manner. . . .” Model Penal Code § 250.1 commentary (1980).
The Supreme Judicial Court in Commonwealth v. Spearin, supra at 603-606, determined that an inmate of a house of correction could not be convicted as a joint venturer of destruction of a building while unlawfully assembled, G. L. c. 269, § 7, because G. L. c. 269, §§ 1 and 7, did not apply to conduct occurring in a correctional facility, but only to conduct occurring in a city or town. In reaching this determination, the court defined the G. L. c. 269, § 7, criminal offense by looking to § 1 (as I would). The court reasoned that “[u]nder G. L. c. 269, §§ 1 and 7, persons engaged in an unlawful, riotous, or tumultuous assembly, who destroy or damage property, are subject to criminal penalties and tort liability.” Id. at 604. This conjunctive reading of § 1 and § 7 in Spearin, in which § 7 has as its antecedent the § 1 terms, would, I submit, also apply to § 2. It would mean, as I propose, that a § 2 criminal offense of failure to follow a dispersal command has its antecedent in § 1, i.e., that the dispersal command issue in connection with an “unlawful[ ], riotous[ ], or tumultuous[ ] assembly]” as set forth in § 1.
As the majority notes, the defendant’s appeal from his conviction is based exclusively on a direct constitutional challenge to G. L. c. 269, § 2. See Commonwealth v. LaBella, 364 Mass. 550, 553 (1974). The defendant perfected this appeal challenging the constitutionality of G. L. c. 269, § 2, on its face by advancing the issue in a pretrial motion to dismiss the complaints (see Mass. R.Crim.P. 13[c], 442 Mass. 1517 [2004]; Commonwealth v. Chou, 433 Mass. 229, 238 [2001]), and by objecting to the jury instruction — again challenging the constitutionality of the statute, as defined in that instruction.