City of Whitefish v. O'SHAUGHNESSY

No. 84-544

I N THE SUPRFl4E COURT O THE STATE O M N A A
F F OTN

1985

C I T Y O WHITEFISH,
F

P l a i n t i f f and R e s p o n d e n t ,

-vs-

BRIAN J. 0 ' SHAUGHNESSY,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f F l a t h e a d ,
The H o n o r a b l e James M. S a l a n s k y , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For A p p e l l a n t :

N e i l E. H a l p r i n a r g u e d , M i s s o u l a , Montana

F o r Respondent:

L e i f B. E r i c k s o n a r g u e d , W h i t e f i s h , Montana

Submitted: May 2 , 1985

Decided: J u n e 26, 1985

Filed:
'
-'
rrlN "$;cjfj'3

Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

The appellant, Brian OIShaughnessy, was charged with two
counts of disturbing the peace. A Whitefish City Court
convicted him on both counts. On appeal the District Court
convicted him on one count of disturbing the peace. He was
sentenced to five days in jail and fined $350. This appeal
followed and is the second time this matter has been before
this Court.
The following issues are presented for this Court's
consideration:

1. Whether the appellant's behavior constituted
disturbing the peace when, allegedly, a breach of peace must
contain a threat of violence or pose a threat of a violent
response and, allegedly, neither threat was present in this
instance.

2. Whether section 7-32-4302, MCA, which empowers
cities and towns to prevent and punish disturbances of the
peace, section 45-8-101(1), MCA, which defines the offense of
disorderly conduct, and Whitefish Municipal Ordinance
9.64.010, which defines the offense of disturbing the peace,
are unconstitutional for vagueness and overbreadth.
3. Whether the sentence imposed on the appellant was
excessive in light of a similar state statute with a maximum
penalty less than that imposed in this instance.
The appellant appealed to the District Court of the
Eleventh Judicial District. The District Court dismissed the
appeal from the City Court judgment on December 5, 1983.
The appellant appealed to this Court. This Court
vacated the District Court order dismissing the appeal from
City Court.
Trial was then had at District Court on September 17,

1984. A six person jury convicted the appellant of one count
of disturbing the peace. A p p e l l a n t was t h e n sentenced to

five days in jail and fined $350. This appeal followed.

I n p a r t , t h e p a r t i e s set f o r t h d i f f e r e n t versions of t h e

facts. Both d o a g r e e t h a t t h e a p p e l l a n t had j u s t c l o s e d h i s

r e s t a u r a n t and b a r a t a b o u t 2:00 a.m., F e b r u a r y 22, 1 9 8 3 , and

was p r o c e e d i n g w i t h a f r i e n d and a n employee t o w a r d s a n o t h e r

restaurant. While w a l k i n g , the appellant and h i s friends

w e r e a p p r o a c h e d by a p a t r o l c a r o p e r a t e d by O f f i c e r Merkley

of t h e W h i t e f i s h P o l i c e Department. The p a r t i e s set f o r t h

different versions of the f a c t s a s t o what then occurred.

The a p p e l l a n t , Brian O I S h a u g h n e s s y , a d m i t s t h a t h e and

his f r i e n d s w e r e engaged i n a c o n v e r s a t i o n t h a t was l o u d e r

than normal. As O f f i c e r Merkley's patrol car approached,

a p p e l l a n t waived a t t h e o f f i c e r and t h e y t h e n engaged i n a

conversa t i o n . During the conversation the officer told

a p p e l l a n t t o " h o l d it down." According t o t h e a p p e l l a n t , a t

t h e c l o s e o f t h e c o n v e r s a t i o n h e a p p r o a c h e d t h e o f f i c e r and

said, in a friendly way, "Give me five, [f. 'er]. " The

officer then arrested the appellant.

The r e s p o n d e n t , City of Whitefish, a l l e g e s t h a t Officer

Merkley had h e a r d l o u d h o l l e r i n g from a b l o c k o r more away

and thought that a fight or argument was going on. The

o f f i c e r a p p r o a c h e d a p p e l l a n t and t o l d him t o " h o l d i t down"

and d i d s o b e c a u s e t h e r e w e r e a number o f a p a r t m e n t s i n t h e

area. The a p p e l l a n t t h e n t o l d t h e o f f i c e r t h a t h e c o u l d n o t

hold it down b e c a u s e it was such a " b e a u t i f u l day." The

o f f i c e r a s k e d t h e a p p e l l a n t t h r e e t o f i v e t i m e s t o " k e e p it

down" and warned appellant of a possible arrest for

d i s t u r b i n g t h e peace.

The r e s p o n d e n t a l l e g e s t h a t t h e a p p e l l a n t g o t i n t o t h e

back of the patrol car and was asked t o get out. After

removing h i m s e l f he g o t i n t o t h e p a t r o l c a r a g a i n and was

asked t o g e t o u t . Then t h e a p p e l l a n t wanted t o s h a k e h a n d s
with the officer but the officer refused. Appellant then

said, " W e l l , [m.f.], I w i l l h o l l e r and y e l l when and w h e r e v e r

5: want if I want to . . ." T h i s was s a i d "visually" and

directly t o the officer. The a p p e l l a n t was t h e n a r r e s t e d .

The respondent alleges that the appellant continued t o be

v u l g a r and t h r e a t e n i n g a f t e r t h e a r r e s t , and b e f o r e a f e m a l e

employee w o r k i n g a t t h e d e s k a t t h e p o l i c e s t a t i o n .

As t o the f i r s t issue, t h e a p p e l l a n t argues t h a t he d i d

n o t t h r e a t e n v i o l e n c e and t h e r e was no t h r e a t o f a v i o l e n t

r e s p o n s e s o t h e r e c o u l d b e no b r e a c h o f p e a c e . The f a c t s a r e

t o the contrary. The j u r y found t h a t t h e a p p e l l a n t s t a t e d

"We1 1, [m. f . ] . . ." , and that this statement was made

willfully, maliciously, visually, and directly to the

officer, and t h a t the l a n g u a g e used constituted "fighting"

words.

While t h e r e c o r d d o e s n o t c o n t a i n a c h a r g i n g i n s t r u m e n t ,

it is clear that the appellant was charged under the

following ordinance:

"Whitefish Municipal Ordinance, 9.64.010. No
person within t h e municipality, o r within t h r e e
miles o f t h e m u n i c i p a l l i m i t s , s h a l l w i l l f u l l y and
m a l i c i o u s l y d i s t u r b t h e p e a c e and q u i e t o f a n y
s t r e e t , n e i g h b o r h o o d , f a m i l y , o r p e r s o n by l o u d ,
-
t u m u l t u o u s n o i s e , o r by t u m u l t u o u s o r o f f e n s i v e
c o n d u c t , o r by u s i n g o f f e n s i v e , l o u d r a d i o o r
t e l e v i s i o n s e t s , o r by t h r e a t e n i n g , q u a r r e l i n g ,
scolding, ha l l o o i n g , hollering, challenging t o
fight, o r fighting, o r by c u r s i n g , swearing,
u t t e r i n g obscene, profane, v u l g a r , o r indecent
language i n t h e presence o f any person o r p e r s o n s ,
o r by commiting a n y o b s c e n e , v u l g a r , i n d e c e n t , o r
lewd a c t i n a n y p u b l i c p l a c e , o r i n v i e w o f any
pprson o r persons."

The r e c o r d shows t h a t t h i s breach. o f p e a c e c h a r g e i s n o t

b a s e d on t h e " l o u d n o i s e " o f t h e a p p e l l a n t and h i s f r i e n d s

while t h e y were talking before the police o f f i c e r arrived.

The D i s t r i c t C o u r t i n s t r u c t e d t h e j u r y on t h i s p o i n t :

"The two o f f e n s e s o f d i s t u r b i n g t h e p e a c e w i t h
which d e f e n d a n t i s c h a r g e d d o n o t i n v o l v e t h e
allegations that he made loud noises. "
( I n s t r u c t i o n No. 10. )
 The District Court specifically instructed the jury on
the law set forth in the ordinance under which appellant was
charged :
"No person within the municipality sha 11 will fully
and maliciously disturb the peace and quiet of any
street, neighborhood, family, or person by loud,
tumultuous noise, or by tumultuous or offensive
conduct, or by threatening, quarreling, scolding,
hallooing, hollering, challenging to fight, or
fighting, or by cursing, swearing, uttering
obscene, profane, vulgar, or indecent language in
the presence of any person or persons."
(Instruction No. 5.)
The District Court specifically instructed the jury on
the definitions of "willfully" and "maliciously":
"The word 'willfully,' when applied to the intent
with which an act is done or omitted and as used in
my instructions, implies simply a purpose or
willingness to commit the act or to make the
omission in question. The word does not require in
its meaning any intent to violate law, as to injure
another, or to acquire any advantage. (Instruction
No. 6.)
"The words 'malice' and 'maliciously' mean a wish
to vex, annoy, or injure another person, or an
intent to do a wrongful act.
"If you find that the defendant's conduct was not
malicious--in other words, not done with the intent
of annoying or injuring another person, then you
must find the defendant not guilty as charged."
(Instruction No. 7. )
The District Court also specifically instructed the jury
that the words and language of the defendant must have been
"fighting words":
"You are instructed that the words and language of
the defendant must have been of such nature that
men of common intelligence would understand would
be words likely to cause an average person hearing
such words to fight. Threatening profane, and
obscene words, said without a disarming smile, are
general ly considered to be ' fighting words. ' "
(Instruction No. 9. )
On appeal from a jury trial in a criminal case, the
evidence is viewed most favorable to the State, State v.
Meader (1979), 184 Mont. 32, 43, 601 P.2d 386, 392. The
State's version of the offensive remarks is the one we must
consider. The charge and conviction have to do with the
appellant's offensive statement t o t h e police o f f i c e r , that

is, " W e l l , [m. f . ] , I w i l l h o l l e r and y e l l when and w h e r e v e r

I want to . . . I' Here, t h e j u r y was i n s t r u c t e d a s t o t h e

required elements of t h i s offense--willful and m a l i c i o u s - - a n d

the jury heard testimony that the appellant made the

o f f e n s i v e r e m a r k s " v i s u a l l y " and d i r e c t l y t o t h e o f f i c e r . In

a d d i t i o n t h e j u r y was i n s t r u c t e d t h a t it must f i n d " f i g h t i n g "

words t o c o n v i c t . F o r o u r p u r p o s e s t h e s t a t e m e n t made w i l l

b e r e f e r r e d t o w i t h t h a t c o n t e x t in. mind.

The r i g h t t o f r e e s p e e c h i s C o n s t i t u t i o n a l l y p r o t e c t e d .

C o n g r e s s s h a l l make no law a b r i d g i n g t h e freedom o f s p e e c h .

U.S. C o n s t . amend. I . The s t a t e s a r e bound by t h e g u a r a n t e e s

o f t h e F i r s t Amendment t h r o u g h t h e d u e p r o c e s s c l a u s e o f t h e

F o u r t e e n t h Amendment. Gitlow v. New York (1925) , 268 U.S.

652, 45 S.Ct. 625, 69 L.Ed. 1138. Our law in Montana

p r o v i d e s t h a t no law s h a l l b e p a s s e d i m p a i r i n g t h e freedom o f

s p e e c h and e v e r y p e r s o n s h a l l be f r e e t o speak whatever he

w i l l on a n y s u b j e c t , b e i n g r e s p o n s i b l e f o r a l l a b u s e o f t h a t

liberty. 1972 Mont. C o n s t . , a r t . 11, § 7.

The r i g h t t o f r e e s p e e c h , however, i s n o t a b s o l u t e . In

C h a p l i n s k y v. New Hampshire ( 1 9 4 2 ) , 315 U.S. 568, 62 S.Ct.

766, 86 L.Ed. 1031, where a person had been taken into

c u s t o d y by a t r a f f i c o f f i c e r and w h i l e b e i n g e s c o r t e d t o c i t y

h a l l had, upon m e e t i n g a c i t y m a r s h a l l , s a i d "You a r e a God

damned r a c k e t e e r ... a damned F a s c i s t . . ." The Supreme

Court s t a t e d :

" A l l o w i n g t h e b r o a d e s t s c o p e o f t h e l a n g u a g e and
p u r p o s e o f t h e F o u r t e e n t h Amendment, i t i s w e 1 1
understood t h a t t h e r i g h t o f f r e e speech i s n o t
a b s o l u t e a t a l l t i m e s and u n d e r a l l c i r c u m s t a n c e s .
T h e r e a r e c e r t a i n w e l l - d e f i n e d and n a r r o w l y l i m i t e d
c l a s s e s of s p e e c h , t h e p r e v e n t i o n and p u n i s h m e n t o f
which has never been thought to raise any
C o n s t i t u t i o n a l problem. These i n c l u d e t h e lewd and
obscene, the profane, the libelous, and the
i n s u l t i n g o r ' f i g h t i n g ' words--those w h i c h by t h e i r
very utterance i n f l i c t i n j u r y o r tend t o i n c i t e an
immediate b r e a c h o f p e a c e . I t h a s been w e l l
o b s e r v e d t h a t s u c h u t t e r a n c e s a r e no e s s e n t i a l p a r t
 of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit
that may be derived from them is clearly outweighed
by the social interest in order and morality."
Chaplinsky, 315 U.S. at 573.
Chaplinsky was specifically reaffirmed in Gooding v.
Wilson (1972), 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408,
wherein it was noted that a state has the power
constitutionally to punish "fighting" words under carefully
drawn statutes not susceptible of application to protected
expression. Gooding specifically reaffirmed Chaplinsky,
however, the statute in Gooding was ruled overbroad.
This Court holds that the jury properly found that the
appellant's speech was "fighting" words, and that by
definition a threat of violence or threat of violent response
was present.
As to issue two, whether section 7-32-4302, MCA, which
empowers cities and towns to prevent and punish disturbances
of the peace, section 45-8-101(1), MCA, which defines the
offense of disorderly conduct, and Whitefish Municipal
Ordinance 9.64.010, which defines the offense of disturbing
the peace, are unconstitutional for vagueness and
overbreadth, the statutes and ordinance allegedly in issue
read as follows:
"7-32-4302.
. -- -- - - - Control of disturbances of
- - -

the peace. Within theVcity or town and
within 3 miles of the limits thereof, the
city or town council has power to prevent
and punish intoxication fights,. . .
riots, loud noises, disorderly conduct,
obscenity, and acts or conduct calculated
to disturb the public peace or which are
offensive to public morals."
Section 45-8-101, MCA provides:
"Disorderly conduct. (1) A person
commits the offense of disorderly conduct
if he knowingly disturbs the peace by:
" (a) quarreling, challenging to fight,
or fighting;
" (b) making loud or unusual noises;
 " (c) u s i n g t h r e a t e n i n g , profane, or
abusive language ;

"(2) A person convicted of t h e offense
of d i s o r d e r l y conduct s h a l l be f i n e d n o t
t o e x c e e d $100 o r b e i m p r i s o n e d i n t h e
c o u n t y j a i l f o r a t e r m n o t t o e x c e e d 10
days, o r both."

See also Whitefish Municipal Ordinance, 9.64.010.,

supra.

The primary concern h e r e i s whether the s t a t u t e s and

o r d i n a n c e a r e u n c o n s t i t u t i o n a l l y vague o r o v e r b r o a d . Also,

more specifically in this case, whether the statutes and

ordinance w e r e used o r could be used a s a v e h i c l e t o punish

or prohibit protected speech or chill the right to free

speech.

Before any d i s c u s s i o n of the constitutionality of the

statutes, it i s i m p o r t a n t t o n o t e i n t h i s c a s e t h a t s e c t i o n

45-8-101, MCA, Disorderlx conduct, is not properly before

this Court. The appellant was not charged under this

statute . Also, section 7-32-4302, MCA, Control -
of

d i s t u r b a n c e s - -e p e a c e ,
of t h i s only p e r i p h e r a l l y involved i f ,

a s i n t e r p r e t e d by r e s p o n d e n t , it i s n o t i n i t s e l f a c r i m i n a l

statute. It can be interpreted as s i m p l y empowering the

r e s p o n d e n t t o p a s s a law on t h e s u b j e c t .

The right to freedom of speech is not absolute and

certain t y p e s of s p e e c h may b e r e g u l a t e d if the regulating

statutes are designed properly. A statute may be held

u n c o n s t i t u t i o n a l i f it i s vague o r o v e r b r o a d . 1 2 A.L.R. 3rd.

1448. Vagueness and o v e r b r e a d t h a r e r e l a t e d c o n c e p t s o f t e n

spoken o f t o g e t h e r . A s t a t u t e must h e drawn w i t h s u f f i c i e n t

clarity and definiteness to inform persons of ordinary

i n t e l l i g e n c e what a c t i o n s a r e p r o s c r i b e d ( v a g u e n e s s ) and it

cannot be s u s c e p t i b l e o f reaching c o n s t i t u t i o n a l l y protected

a c t i v i t y ( v a g u e n e s s and o v e r b r e a d t h ) .
 The elements of the void-for-vagueness doctrine were

assembled i n Grayned v . City of Rockford ( 1 9 7 2 ) , 408 U.S.

1 0 4 , 92 S.Ct. 2294, 33 L.Ed.2d 222. It i s a basic principle

o f due p r o c e s s t h a t a n e n a c t m e n t i s v o i d f o r v a g u e n e s s i f i t s

prohibitions are not clearly defined. Vague laws offend

s e v e r a l important values. F i r s t , w e assume t h a t man i s f r e e

t o s t e e r between l a w f u l and u n l a w f u l c o n d u c t , and w e i n s i s t

that laws give the person of ordinary intelligence a

r e a s o n a b l e o p p o r t u n i t y t o know what i s p r o h i b i t e d , s o t h a t h e

may a c t a c c o r d i n g l y . Vague l a w s may t r a p t h e i n n o c e n t by n o t

providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented, laws must

p r o v i d e e x p l i c i t s t a n d a r d s f o r t h o s e who a p p l y them. A vague

law impermissibly delegates basic policy matters to

p o l i c e m e n , j u d g e s , and j u r i e s f o r r e s o l u t i o n on an - - and
ad hoc

s u b j e c t i v e b a s i s , w i t h t h e a t t e n d a n t d a n g e r s o f a r b i t r a r y and

discriminatory application. Third, where a vague statute

a b u t s upon s e n s i t i v e a r e a s o f b a s i c F i r s t Amendment f r e e d o m s ,

it operates to inhibit the exercise of those freedoms.

Uncertain meanings inevitably lead citizens to steer far

wider of the unlawful zone than if the boundaries of the

f o r b i d d e n a r e a s w e r e c l e a r l y marked. Grayned, 408 U.S. at

1 0 8 , 109.

The Supreme C o u r t a l s o d e f i n e d o v e r b r e a d t h i n Grayned.

A c l e a r and p r e c i s e e n a c t m e n t may n e v e r t h e l e s s b e " o v e r b r o a d "

if in its reach it prohibits constitutionally protected

conduct. The c r u c i a l q u e s t i o n h e r e i s w h e t h e r t h e o r d i n a n c e

sweeps within its prohibitions what may not be punished

constitutionally. Grayned, 408 U.S. a t 1 1 4 , 115.

Several cases with facts approaching those in the

instant c a s e have been heard by t h e U n i t e d S t a t e s Supreme

Court. Those c a s e s h a v e h e l d t h a t f o r a n o r d i n a n c e o r law t o

be constitutional, the statute regulating speech must be
facially limited to or construed narrowly and limited to

words w i t h a n a t u r a l t e n d e n c y t o c r e a t e a t h r e a t o f v i o l e n c e .

I n C h a p l i n s k y v. New Hampshire, s u p r a , where t h e p e r s o n

a r r e s t e d f o r s a y i n g "You a r e a God damned r a c k e t e e r . . ." t o
a c i t y m a r s h a l l , t h e c o n v i c t i o n was a f f i r m e d . The s t a t u t e i n

q u e s t i o n was:

"No p e r s o n s h a l l a d d r e s s any o f f e n s i v e , d e r i s i v e o r
a n n o y i n g word t o any o t h e r p e r s o n who i s l a w f u l l y
i n a n y s t r e e t o r o t h e r p u b l i c p l a c e , n o r c a l l him
by any offensive or derisive name . . ."
C h a p l i n s k y , 315 U.S. a t 569.

However, the highest court of New Hampshire narrowly

c o n s t r u e d t h e s t a t u t e a s o n l y a p p l y i n g t o words t h a t had a

d i r e c t tendency t o v i o l e n c e . With t h e s c o p e l i m i t e d by t h e

c o u r t s o f N e w Hampshire, t h e U n i t e d S t a t e s Supreme C o u r t h e l d

t h a t it d i d n o t contravene t h e C o n s t i t u t i o n a l r i g h t t o f r e e

expression. C h a p l i n s k y , 315 U.S. a t 573.

I n Gooding v . W i l s o n , s u p r a , t h e C o u r t h e l d t h a t where a

person said, "White s o n o f a b i t c h , 1'11 k i l l you ... you

son o f a b i t c h , I ' 11 choke you t o d e a t h . . ." t o officers.

The c o n v i c t i o n was o v e r t u r n e d . The s t a t u t e i n q u e s t i o n was:

"Any p e r s o n who shal.l., w i t h o u t p r o v o c a t i o n , u s e t o
or of another, and in his presence ...
o p p r o b r i o u s words o r a b u s i v e l a n g u a g e , t e n d i n g t o
cause a breach o f t h e peace. " .. Goodin%, 315
U.S. a t 519

The U n i t e d S t a t e s Supreme C o u r t i n Gooding s t a t e d t h a t

it does not matter that the words used might have been

constitutionally prohibited under a proper narrowly and

precisely drawn statute. If the statute has not been

narrowly construed to be limited in application as in

Chaplinsky and is capable of prohibiting or punishing

p r o t e c t e d s p e e c h i t i s u n c o n s t i t u t i o n a l b e c a u s e it i s e a s i l y

s u s c e p t i b l e t o improper application. Gooding, 405 U.S. at

524, 528.

I n Lewis v. C i t y o f New O r l e a n s ( 1 9 7 4 ) , 415 U.S. 1 3 0 , 94

S.Ct. 970, 39 L.Ed.2d 214, where a p e r s o n was a r r e s t e d f o r
s a y i n g , "you God damn m. f . police. . ." t o a police officer,

t h e c o n v i c t i o n was o v e r t u r n e d . The s t a t u t e i n q u e s t i o n was:

" I t s h a l l b e u n l a w f u l and a b r e a c h o f t h e p e a c e f o r
any p e r s o n w a n t o n l y t o c u r s e o r r e v i l e o r t o u s e
obscene o r opprobrious language toward o r w i t h
r e f e r e n c e t o a n y member o f t h e c i t y p o l i c e w h i l e i n
t h e a c t u a l performance o f h i s duty." Lewis, 415
U.S. a t 132.

The Supreme Court found that this statute was

s u s c e p t i b l e o f applica.tion t o protected speech. I t was h e l d

c o n s t i t u t i o n a l l y o v e r b r o a d and f a c i a l l y i n v a l i d . L e w i s , 415

U.S. a t 134.

Recently, i n Wurtz v . Risley (9th C i r . 1 9 8 3 ) , 719 F.2d

1438, part of a Montana intimidation statute, 5
45-5-203 (1)( c ) , MCA ( 1 9 8 1 ) , was h e l d void f o r overbreadth.

The Ninth Circuit, citing Gooding, held that statutes

punishing expressive conduct must be carefully drawn or

a u t h o r i t a t i v e l y construed t o punish only unprotected speech

and not be susceptible of application to protected

expression. Wurtz, 719 F.2d a t 1 4 4 1 .

The p a r t i c u l a r o r d i n a n c e i n i s s u e i n t h e p r e s e n t c a s e i s

d i s t i f i g u i s h a b l e from s e v e r a l o f t h e s t a t u t e s c o n s t r u e d by t h e

United States Supreme C o u r t in the c a s e s mentioned above.

T h i s o r d i n a n c e r e q u i r e s t h e e l e m e n t s w i l l f u l and m a l i c i o u s .

I n a d d i t i o n , t h e D i s t r i c t C o u r t t o o k many m e a s u r e s t o i n s u r e

t h a t t h e a p p e l l a n t was c o n v i c t e d f o r e x p r e s s i v e c o n d u c t o n l y

i f it i n c l u d e d t h e r e q u i r e d e l ~ m e n to f v i o l e n c e .

Speaking t o t h e q u e s t i o n o f overbreadth doctrine, the

U n i t e d S t a t e s Supreme C o u r t i n B r o a d r i c k v . Oklahoma (1973),

413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830, 842,

d e l i n e a t e d i m p o r t a n t l i m i t a t i o n s on i t s u s e :

" [ f ]a c i a l overbreadth adjudication i s an
exception t o our t r a d i t i o n a l r u l e s of
practice and ... its function, a
l i m i t e d one a t t h e o u t s e t , a t t e n u a t e s a s
t h e otherwise unprotected behavior t h a t
i t f o r b i d s t h e S t a t e t o s a n c t i o n moves
from ' p u r e s p e e c h ' toward c o n d u c t and
t h a t conduct--even i f expressive--falls
 within the scope of otherwise valid
criminal laws that reflect 1-egitimate
state interests in maintaining
comprehensive controls over harmful,
constitutionally unprotected conduct.
Although such laws, if too broadly
worded, may deter protected speech to
some unknown extent, there comes a point
where that effect--at best a prediction--
cannot, with confidence, justify
invalidating a statute on its face and so
prohibiting a State from enforcing the
statute against conduct that is
admittedly within its power to
proscribe ... "
We affirm the narrow construction on the part of the
District Court in construing the Whitefish Ordinance through
its instructions, which required that not only must t h ~
defendant have willfully and maliciously disturbed the peace
by uttering the language in question, but that the words and
language of the defendant must have been of such a nature
that men of common intelligence would understand that the
words were likely to cause an average person to fight and
with the further instruction that threatening, profane and
obscene words, said without a disarming smile, are generally
considered to be "fighting words." Because we construe the
Whitefish Ordinance narrowly as only applying to words that
have a direct tendency to violence and which are willfully
and maliciously uttered, we conclude that the Ordinance is
not unconstitutional for vagueness and overbreadth.
Section 7-5-109, MCA, provides that a local government
may fix penalties for the violation of an ordinance which do
not exceed a fine of $500 or 6 months' imprisonment or both
the fine and imprisonment. Whitefish has enacted a "general
penalty" ordinance under which appellant was sentenced. This
"general penalty" ordinance is within the limits of section
7-5-109, MCA.
The judgment is affirmed.
We c o n c u r : /
Mr. Justice William E. Hunt, Sr., dissenting:

I dissent and would reverse.
Appellant was convicted of one count of disturbing the
peace. Cities and towns in Montana are empowered to prevent
and punish disturbances of the peace by 5 7-32-4302, MCA,
which defines "disturbances of the peace" as follows:
". . .
intoxication . . . fights, riots, loud
noises, disorderly conduct, obscenity, a.nd acts or
conduct calculated to disturb the public peace or
which are offensive to public morals."
According to S 45-8-101 (I), MCA, "A person commits the
offense of disorderly conduct if he knowingly disturbs the
peace by:
(a) quarrelling, challenging to fight or fighting;
(b) making loud or unusual noises;
(c) using threatening, profane, or a.husive
language . . .."
Appellant was charged and convicted of violating
Whitefish Municipal Ordinance 9.64.010 which provides:
"No person within the municipality, or within three
miles of the municipal limits, shall willfully and
maliciously disturb the peace and quiet of any
street, neighborhood, family, or person by loud,
tumultuous noise, or by tumultuous or offensive
conduct, or by using offensive, loud radio or
television sets, or by threatening, quarreling,
scolding, hallooing, hollering, -challenging to
fight, or fighting, or by cursing, swearing,
uttering obscene, profane, vulgar, or indecent
language in the presence of any person or persons,
or by committing any obscene, vulgar, indecent, or
lewd act in any public place, or in view of any
person or persons."
Many courts, including the United States Supreme Court,
have held that a.n act constitutes a disturbance of the peace
or breach of the peace only if it poses an immediate threat
of violence or would tend to provoke violence from others.
 Of the several events that occurred surrounding this
arrest it is quite probable that a lawful arrest could have
resulted if for the proper reasons. Here, though, the record
shows that the defendant was arrested and convicted solely on
the basis of an expression which the peace officer took
personally. When an officer of the law, as a public servant,
approaches a citizen and the latter becomes irate for some
reason and unleashes some verbal abuse, no arrest should be
made on that basis alone. A public servant, particularly an
officer of the law, who is not at times (rightfully or
wrongfully) the subject or object of someone's aggravation is
simply not doing his or her job. A policeman meeting an
intoxicated citizen has a reasonable expectation of some
conflict. A policeman in the performance of his duty should
be able to take an insult with a proverbial "grain of salt."
When grounds for arrest exist but no arrest occurs until the
arresting officer is insulted i-t is a strong indication that
the arrest is for a personal reason rather than for the
public good. Here the defendant who had apparently been
drinking gave no indication of committing violence although
he was sounding off with abusive and offensive language.
While I agree with the majority that the right to free
speech is not absolute, that right is so important that there
should be great care in respecting it even when the language
contains words that reasonable people find to be offensive
and unacceptable. Intoxicated people do not often speak with
eloquence but are more likely to express themselves in
language that is base and coarse. Those in authority should
be very careful about taking such remarks personally and
careful about exercising their power as a weapon of
retribution.
 Appellant's conduct on the night in question did not
pose a threat of violence to the members of the Whitefish
community, nor did it pose a threat to the police officers
involved.
In Chaplinsky v. New Hampshire (1942), 315 U.S. 568,
573, 62 S.Ct. 766, 770, 86 L.Ed. 1031, 1036, the Court, in

upholding the conviction for breach of the peace by the lower
court, construed the applicable statute narrowly, limiting
its application to instances of actual immediate threats of
violence:
"The test is what men of common intelligence would
understand would be words likely to cause an
average addressee to fight . . ..
Such words, as
ordinary men know, are likely to cause a
fight .. ..Derisive and annoying c r o d can be
lrrs
taken as coming within the purview of the statute
as heretofore interpreted only when they have the
characteristic of plainly tending to excite the
addressee to a breach of the peace ...
. The
statute, as construed, does no more than prohibit
the face-to-face words plainly likely to cause a
breach of the peace by the addressee . . ."
In Terminiello v. Chicago (1949), 337 U.S. 1, 4, 69
S.Ct. 894, 896, 93 L.Ed. 1131, 1134, reh. denied 337 U.S.
934, 69 S.Ct. 1490, 93 I,.Ed. 1740, the Court held that, for
an utterance to constitute a beach of the peace, it must pose
a threat far above mere public annoyance or unrest:
". .
. freedom of speech, though not absolute ...
is nevertheless protected against censorship or
punishment, unless shown Likely to produce a clear
and present danger of a serious substantive evil
that rises far above public inconvenience,
annoyance, or unrest."
There is nothing in the record to show that appellant's
conduct would "1ikel.y produce a clear and present danger of a
serious substantive evil."
The Minnesota Supreme Court, faced with this same
question and a similiar statute, said in Matter of the
Welfare of S.L.J. (Minn. 1978), 263 NW.2d 412, 419-420:
 "Having narrowly construed S 609.72, subd. 1 ( 3 ) , we
must now determine whether the words 'fuck you
pigs' were 'fighting words.' The real test is
whether, under the facts and ci.rcumstances of this
case, appellant's mere utterance of these vulgar,
offensive, insulting words would '"tend to incite
an immediate breach of the peace," ' Lewis v. City
of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970,
972, 39 L.Ed.2d 214, 218; are 'inherently likely to
provoke violent reaction,' Cohen v. California, 403
U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284,
291; or 'havCe1 an immediate tendency to provoke
retaliatory violence or tumultuous conduct by those
to whom such words are addressed,' State v. Hipp,
298 Minn., 81, 87, 213 N.W.2d. 610, 614. The
specific facts of the case are also important
because, as in Lewis, whether words are 'fighting
words' depends on the circumstances surrounding
their utterance.
"Under this test, appellant's conviction for
disorderly conduct cannot stand. While it is true
that no ordered society would condone the vulgar
language used by this 14-year-old child, and as the
court found, her words were intended to and did
arouse resentment in the officers, the constitution
requires more before a person can be convicted for
mere speech. In this case, the words were directed
at two police officers sitting in their squad car
from a distance of 15 to 30 feet by a small,
14-year-old child who was on her way home when she
turned to the officers and made her statement.
With the words spoken in retreat from more than 15
feet away away rather than eye-to-eye, there was no
reasonable likelihood that they would tend to
incite an immediate breach of the peace or to
provoke violent reaction by an ordinary, reasonable
person. Thus, the state has failed to prove that
under these circumstances the words uttered by
appellant were 'fighting words' and both her
conviction for disorderly conduct and the finding
of delinquency based on the conviction must be
reversed."
The facts in this case, while stronger perhaps than in
the Minnesota case still fall far short of being "fighting
words," sufficient to incite violence.
Further, I would reverse because I cannot agree that the
Whitefish ordinance by itself, would pass a constitutional
analysis under any current United States Supreme Court
decision. This Court now states that it "narrowly
construes" the ordinance. Narrow construction does bring an
overly broad ordinance within the Constitution, but not
without a proper analysis and guidance to the public as to
how the ordinance is to be construed. It is doubtful whether
the ordinance in issue here can be legitimately narrowly
construed by this Court without rewording the entire
ordinance.
I would reverse.