dissenting:
In my opinion, the Georgia courts and the district court below correctly found tht the hostility toward petitioners among Bowen Homes residents which erupted in the incidents of April 22,1981 was generated principally by petitioners’ abrasive and abusive behavior toward the residents, *732their children and their property, rather than by the political beliefs which petitioners espoused. Accordingly, since the emergency situation perceived by police officers at the scene was provoked by petitioners’ unprotected conduct, rather than their protected speech, I believe the exacting scrutiny employed by the majority is an inappropriate standard of constitutional review in this case. See United States v. O’Brian, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 (1968). Furthermore, I am satisfied that the officers properly appraised the situation as presenting a clear and present danger of unmanageable disorder and violence. It seems unrealistic in a situation such as this to prohibit police intervention prior to the occurrence of serious acts of violence, as the majority seems to suggest (Ante, pp. 730-731). See Washington Mobilization Committee v. Cullinane, 566 F.2d 107,120 (D.C.Cir.1977).
The majority stresses that the angry reactions of the residents toward petitioners were virtually indistinguishable from the reactions of spectators in cases such as Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), and Gregory v. City of Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1968), in which “the Court held that such danger provided an insufficient basis for governmental restriction of protected speech.” (Ante, p. 731). Those cases, however, are clearly distinguishable. Cox involved a civil rights demonstration in which a group of negro students marched to the courthouse in Baton Rouge, Louisiana where they assembled across the street to protest segregation and the arrest and imprisonment of fellow demonstrators. The defendants were arrested and convicted, not for refusing to obey an order to disperse, but for disturbing the peace. In holding that this action violated the defendants’ First Amendment rights, the Supreme Court specifically found that there was “no indication that the mood of the students was ever hostile, aggressive, or unfriendly”, and that the entire meeting from the beginning until its dispersal by teargas was “orderly and not riotous.” 379 U.S. at 547, 85 S.Ct. at 460. The Court also rejected the contention that the convictions were justified because of fear of violence among spectators, noting that the reactions of white citizens were not violent, and were restricted to small groups totaling between 100 and 300. Significantly, those individuals were separated from the demonstrators by 75 to 80 armed policemen who clearly could have handled the crowd. Id. at 550, 85 S.Ct. at 462.
The majority particularly emphasizes the similarities between the instant facts and those in Gregory v. City of Chicago, supra. (Ante, p. 731 n. 5). In Gregory, police concern over impending civil disorder resulting from the unruly reactions among spectators to a civil rights demonstration led police to demand that the demonstrators, upon pain of arrest, disperse. Although the protestors were arrested when the command was not obeyed, they were charged and convicted for disorderly conduct. In reversing their convictions, the Supreme Court emphasized that there was no evidence that the demonstrators’ conduct was disorderly. Most importantly, the Court also rejected the theory that the demonstrators were convicted not for the manner in which they conducted their march but rather for their refusal to disperse when requested to do so by the police. As the Court noted,
“However reasonable the police request may have been and however laudable the police motives, petitioners were charged and convicted for holding a demonstration, not for refusal to obey a police order.*
Also in contrast with the situations in Cox and Gregory is the fact that petitioners in this case never applied for a permit to assemble or gave police or municipal officials any advance warning of their activities in Bowen Homes. When petitioners’ aggressive and inconsiderate behavior produced an agitated, angry crowd of *733about 200 residents, only a handful of police officers were available to attempt to maintain order. Petitioners were arrested only after the officers on hand reasonably determined that they could not adequately protect petitioners under the circumstances, and after petitioners refused to heed numerous police requests to disperse. As distinguished from Cox and especially Gregory, petitioners were prosecuted specifically for their refusal to obey such reasonable requests to disperse.
The majority holds that the state failed to prove that it achieved its interest in preventing imminent violence by suitably narrow means. Remarking that the statute under which petitioners were charged was “designed to facilitate police response during fires and criminal investigations”, the Court suggests that petitioners could have been arrested rather for trespassing or reckless conduct. The question of whether O.C.G.A. § 16-10-30 was intended to encompass incidents such as the one involved here is, of course, a question of Georgia law. Because the Georgia Supreme Court has concluded that § 16-10-30 was properly applicable under the circumstances of this case, Sabel v. State, 250 Ga. 640, 300 S.E.2d 663 (1983), it seems inappropriate for this Court now to impose its view that the statute was “intended for a different purpose.” (Ante, p. 731). Accordingly, I find it immaterial that petitioners arguably could have been charged for other infractions. The majority suggests that the officers, alternatively, should have taken the petitioners into temporary protective custody without subjecting them to prosecution. Given the emergency situation confronting the officers, which was provoked by petitioners’ conduct, and the fact that petitioners refused to comply with repeated police requests that they disperse 1, I would not hold that prosecution of petitioners under § 16-10-30 was beyond the valid police power of the State of Georgia. As the Supreme Court stated in Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940):
“When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat of public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” (emphasis added).
Because none of the other grounds raised by petitioners merit reversal of the district court, I respectfully dissent.
The trial judge charged solely in terms of the Chicago ordinance. Neither the ordinance nor the charge defined disorderly conduct as the refusal to obey a police order." 394 U.S. at 112, 89 S.Ct. at 947.
. The majority states that the police failed to offer protection to petitioners and that the threat by Officer Kelly — that he would "kick [appellant Hill’s] ass if he didn’t get out of there” — contributed to the hostility of the crowd. (Ante, p. 730 and n. 7.) There was no evidence that Officer Kelly made such a statement except the testimony of defendant Hill. Moreover, I find no basis for the majority’s finding that the alleged statement by Officer Kelly contributed to the hostility of the crowd. Even if the making of such a statement by Officer Kelly is accepted as fact, it must be remembered that the remark came after police had reasonably evaluated the situation as beyond their ability to control, and after repeated police requests to disperse, directed to petitioners both collectively and individually, were ignored. Furthermore, as the majority acknowledges, petitioners failed to respond even to this strong demand by Officer Kelly. Petitioners' disregard of such requests and demands is plainly proscribed by O.C.G.A. § 16-10-30.