Fuller v. Scott

328 F. Supp. 842, 1971 U.S. Dist. LEXIS 12786

• Court: District Court, M.D. North Carolina
• Decided: June 21, 1971
• Docket: No. C-249-D-69
• Status: Published

Opinions

PER CURIAM.

A divided Court (Jones, D. J., dissenting) on February 23, 1971, entered a declaratory judgment and opinion (see Appendix) in this case holding unconstitutional portions of Article 36A, Chapter 14 of the North Carolina General Statutes, entitled Riots and Civil Disorders (the Act). Injunctive relief was not awarded. Following the entry of the judgment and opinion in this case, opinions of the Supreme Court of the United States were distributed in the following cases:¹ Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

The defendants, on March 3,1971, filed a motion, including a brief citing the foregoing decisions, to amend the judgment of February 23, 1971, and for stay of the judgment. The plaintiffs timely filed a response to the defendants’ motion and a brief in support of the response. Even though the parties stipulated that the Court might decide the motion on briefs without oral argument, the Court deemed it advisable to have the parties present oral argument. The hearing on the motion was held on May 21, 1971.

It is against the background of Younger v. Harris, supra, and the other cases decided on the same day by the Supreme Court that we must now consider the defendants’ motion to amend the judgment of this Court entered February 23, 1971. As stated in Fuller et al. v. Scott et al. (See Appendix), this Court was of the opinion that Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), reh. den. 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887, gave full dimension to the concept of federal review of state penal statutes attacked on their face as abridging freedom of speech.

As we interpreted Dombrowski, Zwickler and Cameron, abstention was improper when (1) from the complaint it appeared that the state statute was facially so vague or overbroad that its application unduly hindered rights of free speech and the statute did not reasonably appear susceptible of a limiting state court construction, or (2) the state statute, though constitutional on its face, was alleged to have been applied arbitrarily or in bad faith in such manner as to accomplish the same result.

Upon considering the complaint, stipulations and contentions of the parties in the subject case, we arrived at the conclusion that certain sections of the statutes complained about were unconstitutionally vague and overbroad; that these sections involved first amendment rights; and that the questioned sections, in part, did not reasonably appear susceptible of a limiting state court construction. We refused to abstain or to consider the questions moot. The opinion and judgment more specifically develop the majority and minority views in this respect. Younger and the companion cases decided by the Court on February 23, 1971, as we interpret them, suggest a different result, that is, that abstention was demanded under the facts before us.

A major portion of the Court’s opinion in Younger, written by Justice Black, deals with the comity doctrine and he admonishes that it is best to adhere to the concept that “the National Government will fare best if the states and their institutions are left free to perform their separate functions in their separate ways.” Justice Black cites Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926), for language restricting the rule expressed in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). He went on to say:

“In Fenner v. Boykin (cite omitted) suit had been brought in the federal District Court seeking to enjoin state prosecutions under a recently enacted state law that allegedly interfered with the free flow of interestate commerce. The Court, in a unanimous opinion made clear that such a suit, even with respect to state criminal proceedings not yet formally instituted, could be proper only under very special circumstances :

“ ‘Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, and following cases have established the doctrine that when absolutely necessary for the protection of constitutional rights courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done except under extraordinary circumstances where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the State and must decide when and how this is to be done. The accused should first set up and rely on his defense in the state courts, even though this involves a challenge to the validity of some statute, unless it plainly appears that this course would not afford adequate protection.’ Id., at 243-244, 46 S.Ct. 493.

“These principles made clear in the Fenner case have been repeatedly followed and reaffirmed in other cases involving threatened ' prosecutions." (cites omitted) 401 U.S. at 45-46, 91 S.Ct. 751. (Emphasis added.)

The opinion in Younger cites with approval the decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), but emphasizes that in Dombrowski there were substantial allegations and offers of proof of threats made without expectation of securing valid convictions, planned arrests and seizures to harrass the plaintiffs, the use at public meetings of photocopies of records illegally seized and threats to use other copies for obtaining grand jury indictments. Taking issue with the District Court’s decision in Younger, enjoining further prosecution of Harris, Justice Black wrote:

“The District Court, however, thought that the Dombrowski decision substantially broadened the availability of injunctions against state criminal prosecutions and that under that decision the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a statute is found ‘on its face’ to be vague or overly broad, in violation of the First Amendment.” 401 U.S. at 50, 91 S.Ct. at 753. (Emphasis supplied)

He says that the broad statements in Dombrowski which seem to extend the rule were unnecessary to the decision in that case, and to the extent that the lower court relied upon those statements, it was in error. Thus, it appears that in addition to facial unconstitutionality of a statute, not susceptable of a limiting state court construction, involving fundamental constitutional rights, federal courts must abstain unless there is a showing of bad faith or harrassment. Further, there must be a showing that the enforcement of the statute will result in irreparable harm that is both great and immediate. .A “chilling effect” on first amendment rights, referred to in Dombrowski, will not by itself justify intervention.

Our judgment of February 23, 1971, granted only declaratory relief. The complaint did, however, ask for injunctive relief. Samuels v. Mackell, supra, holds that interference with criminal prosecutions by declaratory judgments is subject to the same restrictions curbing federal interference by injunction.

Plaintiffs, Fuller, Greyson, and Behcler, were charged in warrants issued November 26, 1969, with violating §§ 14-288.2, 14-288.4 and 14-288.5 of the Act in controversy. No warrant was issued for plaintiff Dobbins or Lee. Officials of the University of North Carolina, by complaint filed November 26, 1969, sought and secured injunctive .relief in state court against all the plaintiffs in this suit and others. The injunctive relief in general prohibited the defendants therein named from disrupting the operation of the University. At the February 23, 1971, Term of the Superior Court of Orange County, a voluntary dismissal of the state court action awarding the injunctive relief was entered, and subsequently the criminal proceedings were resolved in favor of Fuller, Greyson, and Behcler.²

Neither by the evidence nor in argument of counsel is there any showing of a bad faith use of the Act or that it has been used in a threatening or harassing manner against these plaintiffs or anyone else. Indeed, a voluntary dismissal was taken in the state court suit for injunctive relief, which relief had been granted pursuant to § 14-288.1 of the Act. There is no evidence that any of the plaintiffs have been arrested or threatened since the charges on November 26, 1969, or for that matter prior to on or about November 26, 1969, when they were charged with violating the Act. If the plaintiffs had alleged that they had been prosecuted in bad faith under the Act or that through the provisions of the Act they had been subjected to harassment, and the Court could so find these allegations true, then there would be merit to their contentions. We find an insufficient showing in the record that the plaintiffs have suffered or will suffer irreparable harm that is “both great and immediate” if relief by this Court is not granted. Hence, we must vacate the judgment of February 23, 1971, and dismiss the action.

A judgment consistent with this opinion will be entered.

Before CRAVEN, Circuit Judge, and JONES and GORDON, District Judges.

APPENDIX

OPINION OF THE COURT'

GORDON, District Judge.

FACTS

Pursuant to 28 U.S.C. § 2281, et seq., a three-judge court was convened to hear the plaintiffs attack upon the constitutionality of North Carolina General Statutes §§ 14-288.1 through 14-288.19, Riots and Civil Disorders. Jurisdiction is present under 28 U.S.C. § 1343(3), (4) and 42 U.S.C. § 1983.

The plaintiffs allege that parts of the Statute, commonly. referred to as the “Riot Control Act,” are vague, and over-broad, and have been applied toward them with bad faith, all in such a way as to offend the First Amendment guaranty of free speech and the due process clause of the Fourteenth Amendment. To this effect, they seek a declaratory judgment and injunctive relief.

At the hearing, stipulations of facts were presented in lieu of oral testimony. They reveal that early in November, 1969, a labor dispute arose between Saga Food Service, Inc., a food caterer under contract to provide dining services at the University of North Carolina at Chapel Hill, and certain of its hourly employees. A strike was called and picket lines were established near Chase and Lenoir Halls, which housed the two Saga facilities then remaining open. Picketing continued through November up until the time with which we are concerned here.

Affidavits reflect¹ that on November 25, 1969, a group of 25-35 Negroes, many wearing shirts inscribed with “Malcolm-X,” arrived at Lenoir Hall and joined in the picketing. Inferentially, the plaintiffs or some of them were among this group. Later, after a period of peaceful picketing, a disturbance ensued. Plaintiffs Fuller, Graysen, and Behcler, who were affiliated neither with the University nor Saga were arrested and charged under §§ 14-288.2, 14-288.4 and 14-288.5 of the North Carolina General Statutes.² (See Appendix A)

On November 26, 1969, the defendants, William C. Friday, President of the Consolidated University of North Carolina, and J. Carlyle Sitterson, Chancellor of the University of North Carolina at Chapel Hill, filed an action in the General Court of Justice, Superior Court Division, Orange County, seeking to enjoin these plaintiffs, one George Vlasits, and “Doe One to Doe Five Hundred”— being unnamed persons similarly situated to those persons named — from coming onto the Chapel Hill campus. Application for injunctive relief was made pursuant to G.S. 14-288.18. Later that day, the late Judge Leo Carr granted a preliminary injunction ex parte without notice to the plaintiffs (See Appendix B) .

The present complaint which was filed in this Court on December 2, 1969, sought an ex parte restraint upon the State injunction. Motion for temporary injunction was denied that day by the Honorable Edwin M. Stanley, United States District Judge. On December 5, 1969, the Fourth Circuit Court of Appeals affirmed Judge Stanley’s denial, observing:

“The ex parte order of the state court purports to run against named individuals and 500 unnamed persons and broadly prohibits entry upon the grounds and even streets adjacent to the campus of the University of North Carolina at Chapel Hill. Despite our concern with the unusual breadth of the state court order, considerations of federalism and respect for the state courts of North Carolina compel our denial of the motion. We are influenced in our decision by the fact that the state restraining order is returnable on December 6, 1969, at which time both sides will have the opportunity to argue the merits of the matter to the state judge. Such a procedure is far better than an ex parte proceeding before either state or federal courts.”

Counsel for the plaintiffs stated to the Court that when they arrived in Graham, North Carolina, on December 6, 1969, the date which Judge Carr first set for the show cause hearing, they found the courthouse locked.³

Subsequently, all criminal actions were terminated against the plaintiffs with findings of not guilty.

DISCUSSION

I. ABSTENTION

Three cases, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), reh. den. 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887, give full dimension to the concept of federal review when state penal statutes are justifiably attacked on their face as abridging freedom of speech. When it is alleged that a statute is facially so vague or over-broad that its application and very existence unduly hinder rights of free speech and the statute does not reasonably appear susceptible of a limiting state court construction, abstention is improper.

“If the rule were otherwise, the contours of regulation would have to be hammered out case by case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. (Cite omitted) By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Dombrowski, supra, 85 S.Ct. at 1121, 14 L.Ed.2d at 29.

Abstention also is improper when a statute, though constitutional on its face, is alleged to have been arbitrarily applied in such a manner as to accomplish the same unconstitutional result.

It is concluded that portions of the North Carolina Riot Act are not susceptible of a limiting state court construction so as to modify or avoid the federal constitutional question, making this case one in which abstention would be improper.

II. MOOTNESS

The defendants, citing Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), claim the present question is now moot because plaintiffs have been absolved from liability under the Statute and because the “Saga” strike has been terminated.

Golden involved a New York Statute prohibiting the circulation of anonymous, political handbills. The plaintiff, whose state conviction was overturned on appeal by reason of state law, challenged the Statute’s constitutionality in federal court. Initially, a three-judge court dismissed his claim, holding that they should abstain. In Zwickler v. Koota, supra, the Supreme Court reversed the “abstention” and remanded for a decision on whether the plaintiff had stated a claim coming within the definition of a case or controversy. The three-judge court found the issue to be alive and rendered judgment in favor of the plaintiff. Again, on appeal, this time as Golden v. Zwickler, the Supreme Court reversed, finding the question moot for reasons that the congressman, against whose campaign plaintiff distributed handbills, had been appointed to the State Supreme Court for a term of fourteen years and because the plaintiff’s liability under the Statute had been removed. Although the plaintiff had alleged that he wished to pass anonymous literature in future elections, the only evidence in the record was that Zwiekler’s sole concern was “literature relating to the congressman and his record.” It was thus wholly conjectural that another occasion would arise when he would be prosecuted for passing out the handbills referred to in his complaint. The Court said:

“The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every ease whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (Emphasis added)

The facts and circumstances in Golden are substantially different from those we consider here. There, the Statute being questioned was narrowly drawn, clearly worded, and precise in meaning. Here, in places, the wording is so vague and fuzzy that men of ordinary understanding must necessarily guess as to its meaning and differ as to its application. Because of this, a person reading the Statute and unable to ascertain the conduct prohibited, might refrain from exercising his rights of free expression and “free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser.” Dombrowski, supra, 85 S.Ct. at 1121, 14 L.Ed.2d at 28.

In Golden, the sole issue related to one man’s political attack on another man. When the man being attacked was removed from the political scene, the issue withered. Here, there are plaintiffs who seek to protest issues, not a particular man nor a particular strike. The strike merely presented an opportunity to voice opinions about issues to which plaintiffs are committed. As it is alleged in the complaint:

“The plaintiffs and members of the class they represent have been and are attempting through peaceful, lawful and nonviolent means to secure equal opportunity in the fields of employment, housing, education, voting, public accommodations and services in Chapel Hill and Orange County, North Carolina; and have been and are attempting to secure the equal protection of the laws for all citizens of Chapel Hill and Orange County.”

The issues here are real and continuing. They were not eradicated by settlement of the Saga Food strike. The practical likelihood of repetition lends a true sense of “immediacy and reality” to this situation.

The complaint further alleged:

“In their constant efforts to achieve these constitutionally protected goals, plaintiffs, and members of their class, have been attempting to fully and vigorously exercise rights of freedom of speech, press, assembly, association, and to petition government for a redress of grievances, which rights are secured to them under the First and Fourteenth Amendments to the United States Constitution.”

The defendants in their answer allege that the plaintiffs are “engaged in going about the State fomenting strife and disruption and injesting themselves into any and all disputes, school integration troubles, strikes, and all types of revolutionary pursuits; * * *”

Professor Wright observes,

“It has been suggested by distinguished scholars that there may be a difference between a suit for a declaration about the legal consequences of past conduct and a suit in which a declaration is sought about the legal consequences of future conduct. The latter situation, it is said, is ‘doubly contingent,’ since the future conduct may not take place and if it does the other party may not challenge it. Of course, a court should not ‘express legal opinions on academic theoreticals which might never come to pass.’ But the number of contingencies that can be found in a particular situation seems largely a verbal matter, and the practical likelihood that the contingencies will occur and that the controversy is a real one should be decisive in determining whether an actual controversy exists.” Wright, Law of Federal Courts, 1970, 447-448. (Emphasis added)

Again in Dombrowski,5 the Court stated:

“But the allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.” 85 S.Ct. p. 1120, 14 L.Ed.2d p. 28 (Emphasis added)

In Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968), the petitioners sought review of an injunction prohibiting them from holding a rally. Although the injunction had expired, the Court held their claim was not moot. They had sought to continue their activities which included holding rallies, and the source of their protest— racial supremacy — remained a continuing and vital grievance.

Recently, in Korn v. Elkins, 317 F. Supp. 138 (D.Md., Sept. 17, 1970), a three-judge district court considered the constitutionality of action by the University of Maryland when it censored the picture of a burning American flag from the cover of a student publication. Although the publication had gone to press, the question was not moot. That court observed:

“The within case poses a justiciable controversy which is not rendered moot by the fact that the issue in question of Argus has been published, since there is a continuing problem in connection with future issues of Argus, and whether those issues will be permitted by the University officials to contain contents identical or similar to the excised portions of the December, 1969, issue.”

Mootness is integrally a part of the concept of case or controversy related to standing to sue. See Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958). The record in this case shows circumstances of immediacy, reality, and irreparable injury such that the question should not be considered moot.

III. MERITS

The plaintiffs have challenged this Statute as being unconstitutionally vague and overbroad. Although a Statute, clearly worded, as the one in Golden, might be overbroad only, i e., encompassing within its prohibitions conduct that is protected by the Constitution, a Statute that is vague must necessarily contain infirmities of overbreadth. Though distinguishable by definition, the practical effect encircles both concepts. A Statute so ineptly worded that men of common intelligence cannot agree as to what conduct is prohibited is one that particularly lends itself to a sweeping application by authorities who also must guess as to its meaning.

In United States v. Matthews, 136 U.S.App.D.C. 196, 419 F.2d 1177 (1969), Judge McGowan observed:

“The elements of that concept [vagueness] are differentiable. One is that the legislative proscription may, as a matter of rhetoric, be so fuzzy or opaque as unfairly (a) to provide the accused with inadequate advance notice of what conduct on his part will expose him to criminal sanctions, or (b) to enable the jury to convict him without itself having a very clear idea or just what he was supposed not to do. The other central aspect of the vagueness doctrine is the concern that the legislature, in seeking to make some acts illegal, will sweep too broadly in its definitional efforts and thereby bring within its net constitutionally protected activity which, although legally immune in theory, will in fact be deterred by the prospect of criminal prosecution.” At 1180.

(A) Riot

Here, in examining the definitional attempts of the North Carolina legislature, the two concepts of importance are “riot” and “disorderly conduct.” Riot is defined by North Carolina General Statute § 14-288.2 as a “public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.” The key words are “three persons,” “violent conduct,” and “clear and present danger of injury or damage.” These are not words so slippery and imprecise to the man of common understanding that he would have to guess at their meaning. Nor is the prohibition overbroad. “ [I]t is axiomatic that violent acts are not accorded protection under the First Amendment, even though they also constitute expressive or communicative conduct.” Abernathy v. Conroy, 429 F.2d 1170 (4th Cir. July 21, 1970). A public disturbance involving three or more people, no matter how noisy or boisterous, cannot, under the statutory definition, be a riot unless it also involves violence or the threat of immediate violence which poses a clear danger to persons or property.

It is also a crime under this sub-section to “incite or urge another” to engage in a riot when as a result of such urging “a riot occurs or a clear and present danger of a riot is created.”

There is no doubt that North Carolina has a vital interest in prohibiting the advocacy of imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). This sub-section could not reasonably be used to procure the conviction of one who merely advocates violence in futuro, but is limited in applicability to one whose actions actually result in injury or damage to persons or property or create a clear and present danger of such injury or damage.

We think North Carolina General Statute § 14-288.2 is clearly valid.

(B) Disorderly Conduct

North Carolina General Statute § 14-288.4 defines “disorderly conduct” in several ways.

“Disorderly conduct is a public disturbance caused by any person who:

“(1) Engages in fighting or in violent, threatening, or tumultuous behavior;

“(2) Makes any offensively coarse utterance, gesture, or display or uses abusive language, in such manner as to alarm or disturb any person present or as to provoke a breach of the peace;

“(3) Wilfully or wantonly creates a hazardous or physically offensive condition ; or

“(4) * * *

“(5) * * *

“(6) * * * ” (Emphasis added)

Taking the definitions in order, it becomes necessary to decide whether the series of words contained in North Carolina General Statute § 14-288.4(1) reading “[ejngages in fighting or in violent, threatening, or tumultuous conduct” is impermissibly vague. One with less than common intelligence would understand what “fighting,” and “violence” mean. “Threatening,” as used within the context of the Statute quite evidently does not mean a promise of vindication to be carried out sometime in the future, but conduct portending immediate violence. “Tumult,” to quote from Webster and Abernathy, is defined as the “[disorderly agitation or milling about of a crowd, usually with uproar and confusion of voices” and connotes noisy conduct of some sort. These terms are not vague or opaque. They are, however, subject to attack as prohibiting conduct that by the First and Fourteenth Amendments is immune from regulation. Although, as mentioned earlier, a state may regulate and forbid conduct that carries the threat of imminent violence, this Statute would also regulate conduct that is noisy only. “Noisy conduct is not always a proper subject for state regulation, even if it frightens or enrages some people.” Abernathy, supra. So far as this Statute attempts to prohibit noisy conduct that is free from the threat of imminent violence and does not come within an area of state interest free from conflict with the First and Fourteenth Amendments, it is overbroad.

Reading the word “tumultuous” out of North Carolina General Statute § 14-288.4(1) renders the section valid and constitutional.

Analyzing the second definition under disorderly conduct, North Carolina General Statute § 14-288.4(2), one must also consider the statutory definition of “Public Disturbance” contained in North Carolina General Statute § 14-288.1(8). Read together, the two provide that any person who commits “[a]ny annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access” by making as provided in North Carolina General Statute § 14-288.4(2), “any offensively coarse utterance, gesture, or display or [using] abusive language, in such manner as to alarm or disturb any person present or as to provoke a breach of the peace” shall be guilty of disorderly conduct.

Exactly what constitutes “alarming” or “disturbing” conduct or what constitutes an “offensively coarse utterance” or the “bounds of social toleration” or “gesture” or “display” or “abusive language” is more often than not a matter of pure subjectivity. What is offensive or disturbing to a member of one church or political party or race might not be so to the member of another. These are words so imprecise that men of common understanding cannot help but disagree as to their meaning. They establish no standard of guilt so that a person desiring to protest issues could read them and know with reasonable assuredness what limitations to place upon his methods and the extent of his expression.

In sweeping so definitionally broad, this provision also gathers within its ambit constitutionally protected freedoms. Not all words or conduct which offends, disturbs, incites, or provokes to resentment a number of people gathered in the same area are susceptible of regulation. Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970); Terminiello v. Chicago, 337 U. S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1948), reh. den. 337 U.S. 934, 69 S.Ct. 1490, 93 L.Ed. 1740; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).

“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, 315 U.S. [568] 571, [572], 62 S.Ct. 766, [769,] 86 L.Ed. [1031] 1034 (1942), 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. (Cites omitted) There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”

******

“The right to speak freely and to promote diversity of ideas and programs is * * * one of the chief distinctions that sets us apart from totalitarian regimes.” Terminiello v. Chicago, 337 U.S. 4, 69 S.Ct. 896, 93 L.Ed. 1134.

We hold North Carolina General Statute § 14-288.4(2) unconstitutionally overbroad in violation of the First Amendment.

The third definition under this subsection, North Carolina General Statute, § 14-288.4(3), declares guilty of disorderly conduct any person who causes a public disturbance by wilfully or wantonly creating a “hazardous or physically offensive condition.” The prohibiting reach of these words is also open to reasonable debate. To a person desiring the public forum for the purpose of expressing an idea or espousing a viewpoint, or to a law enforcement officer eager to maintain order and prevent public discord, it would be exceedingly difficult to determine where, in the presence of debate, argument, or anger, a “hazardous or physically offensive” condition existed. A speaker challenging tradition or offering an unpopular idea for the public’s examination might be stopped or arrested because of crowd reaction that falls short “of a serious substantive evil * * * [rising] far above public inconvenience, annoyance, or unrest.” Because of this, persons might refrain from expressing ideas and forego their First Amendment rights.

North Carolina General Statute § 14-288.4(3) is void for vagueness and offends against the First Amendment.

North Carolina General Statute § 14-288.4(4) is clear, precise and not over-broad. Although more traditionally denominated “trespass” we do not doubt the power of the state to call it disorderly conduct and forbid it. The same may be said of North Carolina General Statute § 14-288.4(5) and (6). These sections are constitutional.

North Carolina General Statute § 14-288.5 provides among other things that if a law enforcement officer reasonably believes an assemblage of three or more persons is violating provisions of the “Disorderly Conduct” section, he may issue a command to disperse.

Since we have struck out the over-broad definitions of disorderly conduct, supra, we are enabled to hold it constitutional. Where there is no violence, nor imminent threat of violence, and words do not fall within that small class which are intended to provoke retaliation from a reasonable man, the officer cannot act under this subsection to disperse or arrest merely because the group becomes noisy, or because its ideas and manner of protest alarm or disturb listeners or because a “physically offensive” condition is thereby deemed to exist.

The plaintiffs have issued here a broadside attack upon most of the Riot Control Act. This Statute, as can be seen in the appendix, is not a short one. In the complaint it occupies nine and one-half legal sheets with typing single spaced. It occupies almost the same number of pages in the official publication containing North Carolina’s General Statutes. The defendants contend that the plaintiffs have no standing to question provisions other than those under which they were-charged. Charges were based on Sections 14-288.2, 14-288.4 and 14-288.5, the sections discussed earlier in this opinion.

The Riot Control Act of 1969 appears to have been a carefully drafted and considered piece of legislation. Facially it would seem to be constitutional, and it carries the presumption of constitutionality, as do all state statutes. But courts do not sit to render advisory opinions, and we think our decision should be limited to those parts of the statute presented to us in a factual context. Moreover, there is always the danger that a facially constitutional statute may be applied unconstitutionally. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In declining to pass upon the constitutionality of the statute, we do not mean to intimate any doubt as to its validity.

As to enjoining the State of North Carolina from prosecuting future cases under the statutes we have declared invalid, what was said by the court in Gregory v. Gaffney, 322 F.Supp. 238 (W.D.N.C. Jan. 20, 1971) also applies here. There is no “suggestion that the state might disregard our declaration of unconstitutionality unless enjoined.” We decline therefore to issue an injunction.

(C) State Court Restraining Order

In their complaint, plaintiffs asked for both preliminary and permanent injunctions restraining the State of North Carolina from enforcing the State court order prohibiting plaintiffs from going onto the campus of the University of North Carolina or its adjacent streets. Plaintiffs reason that the State restraining order is void as being over-broad and that it was issued ex parte, without notice to the plaintiffs or any of their representatives. The order in question expired February 23, 1970, when the defendants dismissed their civil action in the State court. Since the State order no longer affects plaintiffs and the order is being questioned collaterally, there is no need to discuss it at length.

As dictum, we do observe that on a writ of certiorari to the Maryland Supreme Court, the United States Supreme Court said in Carroll v. President and Commissioners of Princess Anne, supra:

“We need not decide the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified. The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.”

JUDGMENT

For the reasons stated in the Opinion of the Court, it is ordered, adjudged and decreed:

1. That the word “tumult,’’contained within the provisions of North Carolina General Statute § 14-288.4(1), as there used, is uneonstitútionally overbroad.

Since the North Carolina legislature has expressly stated that the various portions of this Act be severable, Sessions Laws of North Carolina — 1969, Chapter 869, § 9, p. 975, the word “tumult” is hereby severed so that North Carolina General Statute § 14-288.4(1) reads:

“(1) Engages in fighting or in violent, threatening, or tumultuous behavior; * * *”

2. That North Carolina General Statute § 14-288.4(2) is unconstitutional and thereby invalid for reasons of vagueness and overbreadth;

3. That North Carolina General Statute § 14-288.4(3) is unconstitutional and thereby invalid for reasons of vagueness and overbreadth; and

4. That North Carolina General Statute § 14-288.5 be limited in application such that the definitions of “disorderly conduct” as it is there used do not include those declared invalid by this Judgment.

1 . By coincidence, the decision in each of these cases was entered by the Supreme Court on February 23, 1971, the date of the entry of the judgment and opinion in the subject case.

2 . Paragraph 11 of the stipulations filed with the Court on September 23, 1971, recite that “all criminal proceedings against these plaintiffs resulted in verdicts of ‘not guilty’ or were otherwise terminated in their favor.” It is unclear to the Court the exact manner in which these cases were terminated, but it is known that the strike which triggered the difficulty was over.

1 . The parties stipulated that affidavits might be treated as depositions, cross-examination being waived.

2 . The parties do not stipulate to plaintiffs’ conduct. Plaintiffs allege that at all times they acted in a peaceful and orderly manner in the attempt to protest racial discrimination in Chapel Hill and Orange County. Law enforcement officers of the Campus Security Force, Chapel Hill Police and North Carolina Highway Patrol state by affidavit that the plaintiffs verbally abused several officers, that one of the plaintiffs and other members of the group threatened officers with bricks, and that the group blocked paths of ingress and egress at Lenoir Hall. In the parking lot adjacent to Lenoir Hall a white student was assaulted by a group of Negroes, but there is no indication whatever that • any of the plaintiffs was involved in the assault.

3 . Judge Carr on December 1, 1969, had issued an Order delaying the hearing on his restraining order from December 6, 1969, to December 9, 1969. He also provided that the forum would be changed to the Courthouse at Hillsborough, North Carolina, and that the hearing and all further developments would be conducted by Judge Coy E. Brewer. The reasons for this change are not shown by the record nor were they developed at the hearing. It is known to the Court that about this time Judge Carr was physically ill and passed away a few months later. On December 9, 1969, the parties agreed to continue the injunction. It was dissolved when the action was dismissed on February 23, 1970.

5 . Although Dombrowski spoke only to the problem of abstention, the principles enunciated there must be understood to underlie the necessity of federal review whenever a person’s right of free speech is unduly obstructed by a state’s penal statute.