State v. Linares

Schaller, J., concurring.

I agree with the result reached by the majority that General Statutes § 2-ld (a) (2) (E) is unconstitutionally overbroad and that § 2-ld (a) (2) (C) passes constitutional muster. I write separately, however, because it is my firm belief that § 2-ld (a) (2) (C) implicates protected speech and therefore requires an analysis under the free speech provisions of the Connecticut constitution.

I

The majority holds that “[although we recognize that some noises can be communication, we conclude that ‘unreasonable noise’ as used in [§ 2-ld (a) (2) (C)] is not protected speech.” I respectfully disagree with this aspect of the majority opinion.

Recently, our Supreme Court addressed the issue of what constitutes protected speech. State v. Ball, 226 Conn. 265, 271, 627 A.2d 892 (1993). At issue in State v. Ball, supra, was the constitutionality of a statute proscribing persons from harassing or interfering with *675the lawful taking of wildlife. The court first held that first amendment scrutiny applies “ ‘to a statute regulating conduct which has the incidental effect of burdening the expression of a particular political opinion.’ ” (Emphasis added.) Id., quoting Arcara v. Cloud Books, Inc., 478 U.S. 697, 702, 106 S. Ct. 3172, 92 L. Ed. 2d 568 (1986). The court further noted that “ ‘[i]t is now settled that constitutionally protected forms of communication include parades, dances, artistic expression, picketing, wearing arm bands, burning flags and crosses, commercial advertising, charitable solicitation, rock music, some libelous false statements, and perhaps even sleeping in a public park.’ ” State v. Ball, supra, 272, quoting J. Stevens, “The Freedom of Speech,” 102 Yale L.J. 1293, 1298 (1993); General Statutes § 53a-183a. Because the statute at issue in Ball encompassed both communicative as well as noncommunicative conduct, the court concluded that the statute implicated protected speech.

A similar analysis applies to the present case. It is true that the proscription of § 2-ld (a) (2) (C) against unreasonable noise aims to eliminate intentional disruptions caused by high noise levels. Nevertheless, the statute has the “incidental effect of burdening the expression of a particular political opinion.” State v. Ball, supra, 271. The facts of this case exemplify the burden that the statute imposes. Here, a group of persons engaged in chanting in an effort to express their desire for greater lesbian and gay rights. A proscription against this activity, even if designed to prevent disruptive noise, clearly burdened the expression of a particular political opinion. For these reasons, I disagree with the majority opinion that § 2-ld (a) (2) (C) does not implicate protected speech.1

*676II

Because, in my view, the statute incidentally burdens protected speech, it is necessary to apply free speech scrutiny to the statute. As a threshold matter, I believe, as the defendant contends, that our state constitution encompasses a broader spectrum of speech protections than those afforded under the first amendment.

It is well established that states are free to interpret their own constitutions in such a way as to extend individual liberties beyond those set forth in the federal constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980); see also W. Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489 (1977). “Federal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982).

In certain contexts, this court and our Supreme Court have indeed construed the Connecticut constitution as expanding individual liberty beyond the bounds of its federal counterpart. See, e.g., State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992) (exclusionary rule provided by the state constitution affords a higher level *677of protection than the minimum standard provided by the federal constitution); State v. Miller, 29 Conn. App. 207, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1027 (1993) (exception to warrant requirement of state constitution for cases involving automobile searches is narrower than exception to federal constitution). Still unsettled in this state, however, is whether our free speech clauses offer adequate grounds from which to build a structure that extends beyond that of the first amendment.

Our Supreme Court recently employed several different tools in construing the Connecticut constitution. In State v. Geisler, supra, 685, the court suggested that an analysis of the state constitution include reference to (1) text, (2) holdings and dicta of the Supreme Court and the Appellate Court, (3) federal precedent,2 (4) sister state decisions, (5) historical considerations, “including the historical constitutional setting and the debates of the framers” and (6) “economic/sociological” considerations. In doing so, our courts have recognized that their interpretations must not restrict the civil liberties accorded to the national citizenry. Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977).

1 first turn to the text of our state constitution. The framers of our state constitution drafted its free speech provisions in considerably broader language than that of the first amendment. It is well established that “[ujnless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.” Stolberg v. Caldwell, 175 Conn. 586, 597-98, 402 A.2d 763 (1978), appeal dismissed sub *678nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981). I, therefore, give full attention to the fact that, in establishing speech freedoms, the framers of this state’s constitution chose language considerably different from the first amendment.

Article first, § 4, of the Connecticut constitution provides that “[ejvery citizen may freely speak, write and publish his sentiment on all subjects, being responsible for the abuse of that liberty.” (Emphasis added.) By contrast, the first amendment does not include language protecting free speech “on all subjects.” Article first, § 5, provides that “[n]o law shall ever be passed to curtail or restrain the liberty of speech or of the press.” (Emphasis added.) Unlike the first amendment which provides that “Congress shall pass no law” the use of “ever” in our state constitution offers additional emphasis to the force of the provision. Finally, article first, § 14, provides that citizens have a right, inter alia, “to apply to those invested with the powers of government, for redress of grievances ... by petition, address or remonstrance" (Emphasis added.) Again, our state constitution offers language, i.e., “remonstrance,” that sets forth free speech rights more emphatically than its federal counterpart. While I am not prepared to hold that these textual differences create an absolute right to free speech anywhere at any time, in my view, these differences warrant an interpretation separate and distinct from that of the first amendment.

The state contends that free speech rights in Connecticut should parallel those embodied in the first amendment. The state specifically relies on the limiting language of article first, § 4, that persons endowed with rights to speak freely are “responsible for the cdmse of that liberty. ” (Emphasis added.) I agree that this language indicates that free speech in Connecticut is not absolute. In fact, our Supreme Court, in State v. McGee, *67973 Conn. 18, 29, 46 A. 409 (1900), recognized this very principle. Still, however, this language does not require that our courts adopt interpretations of the first amendment in all cases implicating the Connecticut constitution.

New decisions have addressed the speech provisions of the Connecticut constitution. It is true that, in the final analysis, these few decisions have adopted the reasoning of federal cases interpreting the first amendment. See, e.g., Cologne v. Westfarms Associates, supra; Dydyn v. Department of Liquor Control, 12 Conn. App. 455, 531 A.2d 170, cert. denied, 205 Conn. 812, 532 A.2d 586 (1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1272, 99 L. Ed. 2d 483 (1988).3 Our courts have not, however, foreclosed the possibility of an independent interpretation in a different context. In fact, the two most recent cases considering our speech clauses are patently distinguishable from the present case.

Our Supreme Court in Cologne v. Westfarms Associates, supra, 50, decided “whether a court of this state may direct that the rights of free speech and petition in our state constitution may be exercised upon private property consisting of a large regional shopping center, contrary to the wishes of its owners.” (Emphasis added.) After an exhaustive review of the Connecticut constitution, the intent of its framers, and the decisional law of other jurisdictions, the court reasoned that “[ijt is not the role of this court to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication.” (Emphasis added.) Id., 65. Thus, the court held that under the Connecticut constitution, as under its federal counterpart, a per*680son does not have standing to invoke speech clauses against the owner of a private shopping mall.

In Dydyn v. Department of Liquor Control, supra, 458, this court addressed the issue of whether the department of liquor control can suspend permits to sell liquor when dancers perform “in various states of nudity” on the premises of the permittee. We held, inter alia, that under our state constitution the permit-tees were not entitled to any greater protection than is afforded under the first amendment. Id., 462-63.

Neither Westfarms nor Dydyn, however, addressed the issue of whether the state constitution extends the protections of the first amendment when persons want to express themselves on government property, specifically the gallery of the General Assembly. These decisions dealt with substantially different aspects of freedom of speech, namely, state action and obscenity. Furthermore, in Burns v. Barret, 212 Conn. 176, 561 A.2d 1378, cert. denied, 493 U.S. 1003, 110 S. Ct. 563, 107 L. Ed. 2d 558 (1989), our Supreme Court expressed a willingness to engage in an independent interpretation of the state constitution. In Bums v. Barret, supra, 178 n.l, the court stated that “[t]he defendant has not in his brief argued that the textual differences between our state and federal freedom of speech provisions are of any particular significance in this case.” This language indicates that the issue of whether speech can be afforded greater protection under the state constitution remains unsettled. See M. Margulies, “Connecticut’s Free Speech Clauses: A Framework and an Agenda,” 65 Conn. B.J. 437, 442 (1991). The party advocating such a course, however, must adequately research and present its claim under the state constitution. Burns v. Barret, supra.

Numerous other jurisdictions have interpreted similar state constitutional provisions as providing more *681expansive speech rights than the first amendment. For example, in Immuno AG. v. Moor-Janowski, 77 N.Y.2d 235, 248, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (1991), a decision involving the parameters of the libel doctrine, the New York Court of Appeals undertook an independent interpretation of article first, § 8, of the New York constitution. That section provides that “ ‘every citizen may freely speak, write and publish . . . sentiments on all subjects.’ ” Id., 249. Before redefining the libel doctrine, the court held that free speech under the New York constitution did not mirror federal law, “the [United States] Supreme Court fixing only the minimum standards applicable throughout the nation.” See also Spiritual Psychic Science Church v. Azusa, 39 Cal. 3d 501, 519, 703 P.2d 1119, 217 Cal. Rptr. 225 (1985) (interpreting article first, § 2, of the California constitution which provides, “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right”); People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 353 n.3 (Colo. 1985) (interpreting article second, § 10, which provides, “every person shall be free to speak, write or publish whatever he will on any subject, being responsible for the abuse of that liberty”). These decisions from our sibling states fortify the proposition that our courts should construe Connecticut’s free speech provision independent of federal law and, in certain cases, offer enhanced speech liberties.

Connecticut’s historical experience further bolsters the viability of an independent constitutional analysis of this state’s free speech rights. Before the 1818 Connecticut constitutional convention, civil liberties in Connecticut were in their infancy, particularly freedoms of speech and press. C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 97 (1982). “These were protected neither by stat*682ute nor by a well-articulated set of common law principles.” Id.4 Thus, the Connecticut constitutional convention “overrode the protestations of the Federalist old republicans who still clung to their faith in legislative supremacy and the common law to uphold [speech rights in Connecticut].” Id.

Moreover, in the years immediately preceding our constitution’s enactment, Connecticut citizens embraced a philosophy of greater tolerance, moving toward a more culturally diverse society. R. Purcell, Connecticut in Transition: 1775-1818 (Wesleyan Univ. Press 1963) pp. 311-35; W. Horton, “Annotated Debates of the 1818 Constitutional Convention” 65 Conn. B.J. SI-1, SI-4 (1991). This is particularly evident in the struggle to separate church and state. Between 1812 and 1818, the issue of church and state deeply divided political factions. R. Purcell, supra, pp. 320-21. The Federalists continued to support established institutions both religious and secular. Id. At the same time, the Tolerationists strongly advocated the separation of church and state and, as their party name suggests, a movement toward greater tolerance. Id. The Tolerationists gained a major victory with the election of Governor Wolcott in 1817 and, a year later, with the overwhelming placement of their representatives in both houses of the legislature. Id., p. 360. By 1818, it was apparent that the political tide in Connecticut had shifted in the direction of greater tolerance and cultural diversity.5 Ultimately, these views culminated *683in the enactment of the Connecticut constitution. I am convinced, therefore, that our constitution’s speech provisions reflect a unique historical experience and a move toward enhanced civil liberties, particularly those liberties designed to foster individuality.

In sum, from my review of the text and history of the Connecticut constitution and the case law of Connecticut and our sibling states, it is my opinion that the free speech clauses of the Connecticut constitution warrant an independent analysis and may, in certain cases, provide greater protection than that afforded under the first amendment. The next task is to discern the scope of the defendant’s rights to free expression in the gallery of the General Assembly.

Ill

In pursuing independent interpretation of our state constitution, courts may give due consideration to the more fully developed construction of its federal counterpart. In this regard, under the first amendment, the United States Supreme Court has fashioned the public forum doctrine to resolve free speech issues similar to the one before us. In Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45-46,103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the court set forth the doctrine in detail noting that this approach involves three forum categories: (1) the traditional public forum, a narrow classification involving streets, parks and sidewalks, (2) the limited public forum, an area other than a traditional public forum that the government has opened to the public, and (3) the nonpublic forum. Courts have strictly scrutinized content regulations affecting persons’ speech rights on traditional and limited public fora, while taking a more deferential approach to regulations affecting nonpublic fora. Id.; see also United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (characterizing *684sidewalk of post office as nonpublic forum and upholding regulation of speech related activities); D. Farber & J. Nowak, “The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication,” 70 Va. L. Rev. 1219 (1984) (discussing and criticizing present state of public forum analysis).

Although the United States Supreme Court first articulated the public forum analysis in the 1930s; Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939); only recently has the court invoked the doctrine with any regularity. D. Farber & J. Nowak, supra, p. 1221. Under the auspices of the United States Supreme Court, “[pjublic forum analysis appears to be increasing in importance.” Id. Criticism of this doctrine, however, is widespread. In fact, in United States v. Kokinda, supra, 741 (Brennan, J., dissenting), four justices of the court “questioned whether public forum analysis, as the court has employed it in recent cases, serves to obfuscate rather than clarify the issue at hand.” These members of the court were more inclined to decide the constitutionality of a regulation limiting speech related activities on a post office sidewalk in accordance with earlier case law, in particular, Grayned v. Rockford, 408 U.S. 104, 116, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). According to this precedent, “[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Id.

Commentators have'also criticized the public forum doctrine as rigid and categorical. D. Farber & J. Nowak, supra.6 “Classifying a medium of communication as a *685public forum may cause legitimate governmental interests to be thoughtlessly brushed aside; classifying it as something other than a public forum may lead courts to ignore the incompatibility of the challenged regulations with first amendment values.” Id., p. 1224. Ultimately, the doctrine yields “fragmented Courts and inconsistent opinions.” Id., p. 1222. Moreover, the doctrine has “clouded consideration of the compatibility of governmental regulation with first amendment values”; id., p. 1223; and “distracts attention from the [free speech] values at stake in a given case.” Id., p. 12247

Keeping in mind the current problems of federal constitutional interpretation, I would choose not to import the categorical public forum analysis to our state constitutional jurisprudence. The adoption of the public forum doctrine for purposes of analyzing our state constitution would likely confuse and hamper the development of free speech rights in this state. Instead, I find earlier federal precedent to be more appropriate for interpretations of Connecticut’s free speech clauses.8

*686This is not to say that free speech is absolute or that the nature of the forum is not an important factor in assessing the constitutionality of a government restriction. Rather, my concern is that the rigid public forum doctrine would threaten to obscure interpretations of this state's free speech provisions. On the basis of the free speech clauses of the Connecticut constitution, therefore, I view the issue before this court as whether “the manner of expression is basically incompatible with the normal activity of a particular place at a particular time,” and, if so, whether the statute restricting expression does so without any reference to its message or content. See, e.g., Grayned v. Rockford, supra; United States v. Kokinda, supra (Brennan, J., dissenting).

IV

In the present case, the manner of expression is incompatible with the normal activity of the General Assembly. The statute restricts persons who, “with the intent to do so, disturb, disrupt or interfere with” the legislative process. Absent this provision, it is conceivable that members of the gallery might cripple the effective operation of the General Assembly. Furthermore, § 2-ld (a) (2) (C) operates without any reference to the content of the expression. Thus, I conclude that, under the Connecticut constitution, § 2-ld (a) (2) (C) is a reasonable, if not a necessary, restriction on expression.

*687The facts of this case exemplify the appropriateness of § 2-ld (a) (2) (C). Here, the defendant and her colleagues interrupted Governor O’Neill in midsentence when they chanted. The chanting was not a spontaneous reaction to something that the Governor said, but rather it was wholly unrelated to his speech. The chanting was prolonged, lasting nearly one minute and generating enough noise to drown out the governor for approximately thirty seconds. It is clear that the General Assembly cannot effectively carry out its duties when spectators in the gallery express themselves in this manner. In fact, without a regulation of some kind, unreasonable noise in the General Assembly could become so frequent and so boisterous as to undermine entirely the function of our legislature. It follows that § 2-ld (a) (2) (C) restricts activity incompatible with the normal function of the General Assembly and that the restriction is content-neutral. In short, § 2-ld (a) (2) (C) passes state constitutional muster.9

I concur with the result reached by the majority.

The analysis in State v. Ball, 226 Conn. 265, 267 n.2, 627 A.2d 892 (1993), with respect to the issue of protected speech is based on the first amendment to the United States constitution. The court in Ball did not consider *676the issue under the Connecticut constitution. In this case, I do not consider whether the scope of protected speech is broader under our state constitution. Because the statute implicates free speech rights under the federal counterpart, it is unnecessary to address the same issue under the state constitution. “Federal law, whether based upon statute or constitution, establishes a minimum national standard for the exercise of individual rights . . . .” Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984).

See State v. Miller, 29 Conn. App. 207, 222, 614 A.2d 1229 (1992) (decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law), quoting Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977).

But see Dow v. New Haven Independent, Inc., 41 Conn. Sup. 31, 43-45, 549 A.2d 683 (1988) (Berdon, J., stating that “[i]t is clear that the state constitution not only protects opinion to the same extent as the federal constitution, but goes further”).

The first amendment was not applicable to the states until the next century. See Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 309 (1925).

The New York Court of Appeals has articulated the importance of its state’s cultural diversity when considering the extent to which the New York constitution affords greater speech protections than the first amendment to the United States constitution. See Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (1991); Beach v. Shanely, 62 N.Y.2d 241, 255-56, 465 N.E.2d 304, 476 N.Y.S.2d 765 (1984) (Wachler, J., concurring).

See also United States v. Kokinda, 497 U.S. 720, 741-42 n.1, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (Brennan, J., dissenting) (citing numerous authorities for proposition that present public forum analysis is unsound); L. Tribe, American Constitutional Law (2d Ed. 1988) p. 993 (“an excessive focus on the public character of some forums, coupled with inadequate *685attention to the precise details of the restrictions on expression, can leave speech inadequately protected in some cases, while unduly hampering state and local authorities in others”).

Another commentator has addressed the issue of public forum analysis under the Connecticut Constitution. M. Margulies, “Connecticut’s Free Speech Clauses: A Framework and an Agenda,” 65 Conn. B. J. 437, 449-50 (1991). Professor Margulies has urged that Connecticut courts construe our state constitution in light of earlier United States Supreme Court decisions. Id., citing Grayned v. Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). As did the four dissenting justices in United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990) (Brennan, J., dissenting), Professor Margulies advocates a return to a more fact-specific inquiry, focusing on the previously stated test in Grayned. Under this approach, the nature of the forum remains a factor in the analysis but not necessarily the determinative one.

In undertaking the difficult task of independent state constitutional analysis, “let us welcome assistance whatever its auspices, confident that our traditional learning in the common law will enable us to meet the challenge.” E. Peters, “State Constitutional Law: Federalism in the Common Law Tra*686dition,” 84 Mich. L. Rev. 583, 593 (1986). Assistance may very well be found in federal constitutional precedent. Furthermore, a dissenting opinion of the United States Supreme Court will criticize the majority holding as straying from precedents. See, e.g., United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990). “Some of the barely unsuccessful dissenting opinions of the United States Supreme Court Justices might usefully be incorporated into state constitutional doctrine as well.” E. Peters, supra; see, e.g., State v. Miller, 29 Conn. App. 207, 229, 617 A.2d 170 (1992) (accepting principles set forth in Justice Harlan’s dissenting opinion in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), as consistent with principles of warrant requirement of article first, § 7).

Because federal constitutional law establishes a minimum national standard with respect to individual rights; Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982); my conclusion that General Statutes § 2-ld (a) (2) (C) is valid under the state constitution necessarily leads to the same conclusion under the first amendment.