(concurring) .
I concur in the majority opinion that Article 472a of the Texas Penal Code is constitutional.
The plaintiff contends that the statute is overbroad. Thus the issue is whether the language of the statute given its normal meaning is so broad that its sanction may apply to conduct protected by the constitution. For a determination of this question the statute must be examined to ascertain whether pure speech or assembly — a mere taunting of police or mere presence in a crowd— could constitute an offense under it.
*996The Texas Legislature was concerned that pure speech or assembly should not be an offense. It carefully defined the term “interfere” in such a manner that a reasonable reading makes physical interference a necessity. Thus an essential prerequisite for prosecution under this statute is physical interference or incitement to commit physical interference. Similar statutes requiring physical interference have been held not over-broad and constitutional by the federal courts.
In the recent case of Landry v. Daley (Landry I) 280 F.Supp. 938 (N.D.I11. 1968) a three-judge court had before it the Illinois “Resisting Arrest” statute, Ill.Rev.S.tat. ch. 38 sec. 31-1 which provided :
A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined * * *.
The Court held the statute constitutional declaring at 959:
“The gist of the offense is ‘resisting’ or ‘obstructing’ the valid acts of a peace officer * * *. These terms are alike in that they imply some physical act or exertion. Given a reasonable and natural construction, these terms do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent, or delay the performance of the duties, such as going limp, forcefully resisting arrest, or physically aiding a third party to avoid arrest.”
In National Mobilization Committee to End War in Viet Nam v. Foran, 411 F. 2d 934 (7th Cir. 1969) the Court held constitutional the 1968 Civil Disorders and Riot provisions of the Criminal Code (18 U.S.C. §§ 231, 232, 2101 and 2102 which contained a similar provision Sec. 231(a) (3). At 938 the Court said with reference to the construction of statutes:
“It is a truism that statutes should be narrowly construed in order to sustain their constitutionality.”
Crucial on this question is Section 1 of Art. 472a which defines “interfere” as doing one of the following: (1) “obstruct passage or free movement” (2) “materially delay” or (3) “prohibit, by direct or devious means.” Clearly “obstruct” and “prohibit” go to physical acts. The remaining question with reference to the definition of “interfere” is whether or not “materially delay * * * by devious means” could mean pure speech or pure assembly.
The emergency clause (permitting suspension of the rules) of the bill which became Article 472a shows that the Legislature was concerned primarily with the physical safety of the police. It reads: “Section 6. The urgent need to strengthen law enforcement and to provide a measure of protection to those persons engaged in the protection of life and property during emergency situations, the importance of this legislation and the crowded condition of the calendars create an emergency * * * ” Acts of 1969, 61st Legis., p. 1952, ch. 654.
Further, a reasonable reading of “materially delay * * * by devious means” would indicate a legislative concern with such things as “going limp”, “physically aiding a third party to avoid arrest”,1 hidden traps and obstacles rather than with words.
Once it is established that the only time the statute can be applied to speech or assembly is when it is intertwined with physical interference or when speech incites others to physically interfere, the question then becomes whether this type of speech or assembly is constitutionally protected. The law is clear that under such circumstances it is not protected.
*997As stated in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968):
“A governmental regulation is sufficiently justified * * * if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
The objective of the Texas statute, the protection of the police, is a substantial state interest, the limitations on speech and assembly are only incidental and “no greater than is essential to the furtherance of that interest.”
In all other respects the majority opinion is adopted.
. Landry I, 280 F.Supp. at 959.