(dissenting). I disagree with both the majority's analysis and conclusion ¿nd therefore dissent. The majority bases its conclusion upon Miller's right to *597compulsory process. The sixth amendment to the United States Constitution guarantees the accused a right to compulsory process — the right to subpoena witnesses on the accused's behalf. It is a mechanism used to compel the testimony of a person whose identity is known. This right is distinguished from the accused's right to discovery.
Miller's appeal does not implicate her right to compulsory process, but rather her right to discover the identity of witnesses she alleges are transaction witnesses possessing evidence that is material and relevant to her defense. Seeking to identify the names of these witnesses has always been analyzed under the due process right of the constitution and not the right to compulsory process. Pennsylvania v. Ritchie, 480 U.S. 54, 56 (1987). Accordingly, Miller's right to discover the identity of these witnesses should be analyzed as part of her due process right to a fair trial.
While there is no general constitutional right to discovery in a criminal case, Weatherford v. Bursey, 429 U.S. 545, 549 (1977), the due process provision of the fourteenth amendment entitles a defendant to discover the identity of transaction witnesses if the defendant can make a showing that the witnesses possess evidence that is relevant and material to the issue of guilt. United States v. Valenzuela-Bernal, 458 U.S. 866, 867 (1982). Because the state has acknowledged that it did not know the names of the patients who were in the clinic at the time of the offense, I will not address whether Miller had made sufficient demand for discovery upon the state. I do note, however, that demand for discovery must first be made and refused before any due process rights are implicated. See Ritchie, 480 U.S. at 59.
The majority concedes that the evidence adequately demonstrates each of the elements of the offense charged *598except whether Miller's conduct tended to create or provoke a breach of the peace. Majority opinion at 580-81. However, there unquestionably is a conflict between Miller's testimony and the testimony of the clinic director and the arresting officer regarding Miller's conduct while in the clinic. The issue, therefore, is whether these patients could have offered any evidence relevant and material to the issue of whether Miller's conduct tended to create or provoke a breach of the peace within the meaning of sec. 943.145(2), Stats.
In its analysis of this issue, the majority erroneously focuses on whether Miller's confrontation with clinic patients disturbed the patients, rather than the operation/administration of the clinic itself or the clinic staff. The majority also erroneously assumes that the patients' reactions to Miller's literature and "counseling" efforts are relevant to the question whether Miller's conduct tended to create or provoke a breach of the peace.
The actual disruption of the clinic's operation/ administration is uncontroverted by Miller's testimony. Furthermore, Miller's testimony proves that her conduct, was disruptive. Miller acknowledged that she was delivering antiabortion literature containing graphic depictions of aborted fetuses and dead babies to patients of a clinic offering abortion services. She also testified that she knew she did not have permission to be on the clinic's private property and that the clinic director would call the police to have her removed from the premises. Miller's admissions that she was on the abortion clinic's private property without permission while delivering graphic antiabortion literature to clinic patients in an attempt to persuade them not to seek abortion services offered by the clinic illustrates that Miller's conduct disrupted the clinic's operation/administration. This disruption is sufficient evidence for conviction *599under sec. 943.145(2), Stats. See State v. Elson, 60 Wis. 2d 54, 66, 208 N.W.2d 363, 370 (1973).
The majority notes that the patients may be able to corroborate Miller's contention that she remained in the clinic for only six minutes and not twelve to twenty minutes as the clinic director testified. Additionally, the patients may be able to corroborate Miller's contention that she left without the director twice having to demand that she leave the clinic. I respectfully suggest that neither of these facts is relevant or material to the offense charged. Whether Miller was there for twenty minutes or six minutes, and whether she was asked to leave or simply knew she should not be in the clinic conducting these activities is irrelevant to Miller's guilt or innocence. Even if the patients corroborated Miller's version of the events that occurred, it would not provide a defense to the offense charged.
Under the majority's analysis, we must look to the subjective reactions of the patients who were actually in the clinic at the time Miller engaged in the relevant conduct. Even if we were required to examine Miller's conduct in terms of its effect on the clinic patients, the subjective reaction of any particular patient is irrelevant. The language in sec. 943.145(2), Stats., is substantially similar to the language of the disorderly conduct statute, and therefore it should be subject to the standards set out in City of Oak Creek v. King, 148 Wis. 2d 532, 545, 436 N.W.2d 285, 290 (1989). Our supreme court held in Oak Creek that an actual disturbance is not necessary for conviction under sec. 947.01, Stats. Oak Creek, 148 Wis. 2d at 545, 436 N.W.2d at 290. "The law only requires that the conduct be of a type which tends to cause or provoke a disturbance, under the circumstances as they then existed." Id. (emphasis added). Thus, the conduct should be examined under an objective stan*600dard; that is, whether the conduct was of a type that would tend to disturb a reasonable person who was in the clinic at the time. Viewed objectively, there can be little doubt that distributing graphic pictures of aborted fetuses to pregnant women either contemplating or seeking abortion services is disruptive conduct.
Because the state does not contend that the clinic patients were disturbed, an analysis using this objective standard is unnecessary. The patients' subjective reactions are not relevant to the question whether Miller's conduct tended to create or provoke a breach of the peace relating to the clinic's operation; therefore, the evidence sought fails to meet the materiality and relevancy requirements of Valenzuela-Bernal, 458 U.S. at 867.
I further note that the majority has suggested that the clinic patients are entitled to no "testimonial privacy" under Wisconsin law. I disagree. The peculiar facts of Jenkins v. Metropolitan Life Ins. Co., 173 N.E.2d 122 (Ohio 1961), cited by the majority, make its application to the present case questionable. Even if this case is applicable, it is unnecessary to address the majority's contention that a patient's mere physical presence in the physician's office is not within the medical privilege. We are not dealing with a patient's presence in a physician's office; we are dealing with the presence of a patient seeking specific medical services/treatment in a clinic providing only those specific services at that time. Patients seeking an abortion are entitled to confidentiality of their identities as part of their medical records by virtue of sec. 905.04(2), Stats. The majority relies on the following language: "The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are . . . not privileged from disclosure, so long as the subject communicated is not *601stated." 8 Wigmore on Evidence § 2384 at 846 (McNaughton rev. 1961) (emphasis in original). Here, the very presence of patients in the abortion clinic identifies "the subject communicated." While it is possible that the right of confidentiality granted medical records may have to give way to properly implicated due process considerations, Miller has not demonstrated that her due process rights have been implicated. Therefore, there is no need to weigh Miller's due process rights against the patients' right of confidentiality.
I suspect that Miller is not interested in obtaining material and relevant evidence, but rather in chilling the state's prosecution of her unlawful conduct by forcing the public disclosure of the names of people seeking the services of this clinic. Such disclosure would have a chilling effect on the exercise of the right to obtain medical reproductive treatment. Because I conclude that Miller has failed to demonstrate that the patients possess any evidence relevant or material to her defense, she has not established a due process right to an in camera investigation as required by the majority. Miller simply has not discharged her burden of demonstrating that these patients possess evidence relevant to her guilt or innocence.
By concluding that Miller has failed to adequately demonstrate the need for the evidence possessed by the patients, I do not wish to create the impression that Miller's right to express her firm belief in the rightness of her cause is in any way diminished. The first amendment of our constitution guarantees that Miller may publicly demonstrate, protest and persuade others as to the rightfulness of her viewpoint. Nothing must ever infringe upon these rights, provided they are exercised on public property.
*602By the same token, the patients and clinic operators are entitled to be free from receiving unwanted messages on private property. Our constitutional free-speech protections do not extend to protect speech activities on the premises of a private medical clinic. State v. Horn, 139 Wis. 2d 473, 475-76, 407 N.W.2d 854, 855 (1987). Miller's right to free speech ends when that speech is delivered on the private property of one who does not desire to hear the defendant's message. Rowan v. United States Post Office, 397 U.S. 735, 737 (1970). We must with equal vigor protect the right of those who do not wish to be confronted in the sanctity of their private property with a message that is both offensive and disruptive. Id.
Because I conclude that Miller has not demonstrated a need for the evidence possessed by the patients, and in consideration of the patients' physician-patient privilege, I would affirm the trial court.