People v. Huss

241 Cal. App. 2d 361, 51 Cal. Rptr. 56, 1966 Cal. App. LEXIS 1250

• Court: California Court of Appeal
• Decided: April 5, 1966
• Docket: Crim. 9930
• Status: Published

Opinions

FLEMING, J.

Five members of the American Nazi Party, wearing party uniforms, steel helmets, and swastika armbands, picketed a meeting held to celebrate the fifteenth anniversary of the independence of Israel. Public disorder resulted, and all five were arrested, convicted, and sentenced on charges of conspiracy and assault. Three defendants have appealed.

The anniversary meeting was scheduled for 8:30 p.m. in the Shrine Auditorium. At 7:30 that evening defendant Holstein notified the police that he and four other members of the American Nazi Party intended to picket the meeting at 8 o’clock. When defendants arrived on the scene, the doors of the Shrine on Royal Avenue had not been opened, and a large crowd had gathered on the sidewalk outside the auditorium. The crowd extended along the sidewalk of Royal to Jefferson Boulevard, the street bounding the auditorium on the south. Two traffic officers were funneling pedestrians onto the corner of Royal and Jefferson, and two plainclothes officers assigned to interview the pickets were standing at the curb outside the entrances to the auditorium.

Defendants parked their automobile on Jefferson near Royal and walked to the corner in a loose line, carrying signs which read: “American Nazi Party”, “Zionism is Treason”, “85% of the Atom Spies were Racial Jews”, “Communism is Jewish”, “ ‘Some call it Marxism, I call it Judaism,’ quote Rabbi Steven S. Wise”, “Citizens Read Protocols of the Learned Elders of Zion”, “Sig Heil, UAB,”, “Keep America White.” At the corner defendants got into picket formation and marched north on Boyal for approximately 65 feet. They then reversed direction, returned to the corner, and reversed direction again. Numerous witnesses testified the defendants were pushing and shoving their way through the crowd, although defendants denied this and the plainclothes officers assigned to interview them watched without taking action. On defendants’ third pass through the crowd, fighting broke out at both ends of the picket line, and general disorder ensued. All five pickets were arrested and charged with the felony of conspiracy to assault and to riot. (Pen. Code, § 182, subd. 1.) Four of them were also charged with specific felonious assaults on individual police officers and civilians.

Krauss, the picket leader, was convicted of conspiracy and of two assaults on uniformed police officers by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (b).) He was sentenced to state prison and has not appealed.

Holstein, second in the picket line, was convicted of conspiracy and of simple assault on William Mazzoni, a plainclothes officer. (Pen. Code, § 240.) Mazzoni was attempting to subdue another defendant when Holstein struck him in the jaw with his fist. Holstein was sentenced to a term in the county jail.

Huss, third man in line, was convicted of conspiracy, two assaults by means of force likely to produce great bodily injury (Pen. Code, §245), and simple assault on Mazzoni, the plainclothes officer (Pen. Code, §240). Huss struck Theda Moss with the pole supporting his sign and broke her wrist; he struck Stuart Klein repeatedly with his pole, inflicting a head wound which required several stitches. Officer Mazzoni was trying to stop Huss from strildng Klein when Huss 'turned and hit him. Huss was sentenced to state prison.

Beeves, the fourth picket, was convicted of conspiracy only (Pen. Code, §182, subd. 1). He was sentenced to state prison.

McLaughlin, the fifth picket, was convicted of conspiracy, assault by means of force likely to produce great bodily injury (Pen. Code, §245), and simple assault (Pen. Code, § 240). McLaughlin had struck Leon Hekier, a civilian, with his picket pole. At the time of his arrest McLaughlin also hit Thomas Gould, a plainclothes officer, in the mouth with his fist. McLaughlin was sentenced to state prison, and his appeal has been dismissed for failure to prosecute.

The conspiracy count, on which all defendants were convicted, charged a criminal agreement among them to go to the Shrine to commit the crimes of forcible assault, forcible assault on a police officer, assault, battery, and riot. Evidence relied upon by the prosecution to support the conspiracy charge included the use by the defendants of signs, slogans, and symbols known to and intended to provoke, incite, agitate, and inflame those in attendance at the celebration. Defendants argue that the court’s instructions on this aspect of the case misled the jury and infringed their right of free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution.

Count I in its relevant aspects charged a conspiracy to riot. The instructions defined riot to include the “use of force or violence, disturbing the public peace, ...” (Italics added.) Disturbing the public peace was defined thus: “Disturbance of the peace and breach of the peace are synonymous. It includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community; a disturbance of the public tranquility by any act or conduct inciting to violence or tending to provoke or incite others to break the peace-, a disturbance of public order by any act of violence or by any act likely to produce violence or which by, causing consternation and alarm, disturbs the paace and quiet of the community.” (Italics added.)

The court refused the defendants’ requested instruction that words of abuse or insult do not justify forcible assault and that one so assaulted may defend himself against the assault.

Defendants argue that the instructions defined disturbing the peace to include acts tending to provoke others to disturb the peace, and that consequently the jury was given the erroneous impression that it could consider defendants’ use of provocative slogans, symbols, and costumes as evidence of a conspiracy to riot. They contend the instructions suggested to the jury it could find defendants guilty of conspiracy to riot if defendants knew their signs would tend to arouse and inflame those at the Shrine—an error compounded by the court’s failure to instruct the jury that words of abuse do not justify forcible assault and that one so assaulted may defend himself.

Defendants rely on the case of Terminiello v. Chicago, 337 U.S. 1 [69 S.Ct. 894, 93 L.Ed. 1131]. Terminiello was convicted of disorderly conduct after speaking in an auditorium under the auspices of the Christian Veterans of America. Outside the auditorium an angry and turbulent crowd gathered to protest the meeting. The crowd hurled rocks through the windows, broke down doors, and threatened to get beyond police control while Terminiello vigorously condemned them. Terminiello’s speech, including his anti-Jewish epithets, provoked the audience to expressions of immediate anger, unrest, and alarm. The trial court instructed the jury it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about a condition of unrest, created a disturbance, or molested the inhabitants in the enjoyment of peace and quiet by arousing alarm.

Terminiello’s conviction was held to violate the constitutional guarantee of free speech. “The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand. ’ ’ (337 U.S. at p. 5.)

The prosecution challenges the applicability of Terminiello and in its brief squarely poses the legal issue between the parties to this case thus: “There emerges from this position [of defendants] the following legal proposition: That these five pickets had a constitutional right to dress in Nazi uniforms with helmets and swastika armbands, to go to the Shrine Auditorium carrying placards saying, ‘Zionism is Treason’, [etc.]; to march into a dense crowd they knew to be mostly Jewish, attending a celebration of the 15th Anniversary of Israel, and that the pickets had a right to do this regardless of the fact that it would inflame the crowd to violence. We are unable to agree that this is the law. ’ ’

The prosecution goes on to argue that this activity of the defendants “was a highly insulting and aggressive act that does not permit [them] to claim that when the expectable violence occurred they were merely acting in self-defense. ’ ’

Nonetheless, we think the existence of a constitutional right to speak, demonstrate, and picket on behalf of causes known to be highly offensive to those picketed was settled in Terminiello, where the court upheld such a right in sweeping terms and ruled that under the First Amendment it cannot be made an offense “merely to invite dispute, or to bring about a condition of unrest. ’’ (387 U.S. at p. 6.)

On provoking others the Supreme Court in Terminiello had this to say: “ [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, pp. 571-572 [315 U.S. 568 (62 S.Ct. 766, 86 L.Ed. 1031)], is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262 [62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346]; Craig v. Harney, 331 U.S. 367, 373 [67 S.Ct. 1249, 91 L.Ed. 1546]. 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.” (337 U.S. at pp. 4-5.)

Implicit in this view is the idea that free speech is a positive good, a constructive and dynamic element in our society which by its astringent quality scours rusty ideas and tests familiar conceptions to see whether they still hold water. Recent cases in the Supreme Court dealing with free speech have generally involved agitation on the side of the angels—attempts to broaden civil rights and to secure equal treatment for different races. (Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct. 680, 9 L.Ed.2d 697]; Cox v. Louisiana, 379 U.S. 536, 552 [85 S.Ct. 453, 13 L.Ed.2d 471].) Currently we tend to equate free speech with nobility of purpose, selfless idealism, humanitarian activity, and progress toward the betterment of man. The present case does not fit our accustomed pattern, for it takes an active imagination to discover any elevated or positive good in the provocative activities of the defendants—or indeed any real motive for their conduct other than mischief-making and quarrelsomeness. For this reason it is difficult to appreciate the connection between the elevated sentiments of the Supreme Court, traditionally associated with the laudable aspects of free speech, and defendants’ picketing at the Shrine.

We can perhaps acquire a more appropriate view of the relevancy of the First Amendment to this case if instead of thinking of free speech as a positive good—which it may or may not be in a given instance

*—we look on speech as a tool that is neutral, good or bad according to its use, and consider what restraints on bad speech are justifiable and feasible. When we look at speech with this in mind we immediately face two formidable difficulties inherent in the problem of restricting bad speech. One difficulty is that of boundaries—how determine what advocacy is permissible dissent and what is pernicious mischief beyond the pale. Is it beyond the bounds of propriety to advocate that Zionism is treason ? To advocate black supremacy ? Victory for the Viet Cong ? Dictatorship of the proletariat ? Communism ? Anarchism ? Civil disobedience ? Filthy speech? Narcotics for teenagers? Sexual promiscuity for grammar students ? In an attempt to suppress subversive, pernicious, and antisocial doctrines inevitably we find ourselves enmeshed in the task of establishing the boundaries for orthodox thought and drawing the line between the thinkable and the unthinkable.

The second difficulty is that of censors. Who is -to make the determination? Courts? Juries? Legislators? Police? Prevailing public opinion? Who has the final say when censors disagree ? Here again the problems proliferate.

Because of the difficulties in defining orthodoxy and determining who shall define it, it has always seemed preferable in the normal operation of our democratic society to put up with a considerable amount of bad speech in public places from demagogues and psychopaths rather than undertake to regulate the content of speech and determine which slogans and doctrines will be allowed the freedom of the market place. Speech is free under the First Amendment, not so much because free speech is inherently good as because its suppression is inherently bad. In the American garden we let a hundred flowers bloom, knowing that among them may be skunkweed and thistle, dandelion and poison oak. For us excess of speech involves a lesser evil than does restriction on its exercise. In our Eden, Satan and the Archangel Gabriel may both be heard.

The Terminiello case has been consistent^ followed by the United States Supreme Court since its rendition in 1949. (Edwards v. South Carolina, 372 U.S. 229, 237-238 [83 S.Ct. 680, 9 L.Ed.2d 697]; Cox v. Louisiana, 379 U.S. 536, 551-552 [85 S.Ct. 453, 13 L.Ed.2d 471]; Kunz v. New York, 340 U.S. 290 [71 S.Ct. 312, 328, 95 L.Ed. 267, 280].) California does not recognize the doctrine that fighting words or insulting language justify an assault (People v. Mueller, 147 Cal.App. 2d 233, 240 [305 P.2d 178]; Vaughn v. Jonas, 31 Cal.2d 586 [191 P.2d 432]), nor has it attempted to legislate against their use. lienee the question does not arise whether a suitable and narrowly-drawn statute could authorize the police to arrest pickets who display insulting and offensive signs. (Chaplinsky v. New Hampshire, 315 U.S. 568 [62 S.Ct. 766, 86 L.Ed. 1031]; Beauharnais v. Illinois, 343 U.S. 250 [72 S.Ct. 725, 96 L.Ed. 919].)

We conclude that here, as in Terminiello, the instructions unconstitutionally invaded the domain of free speech by suggesting to the jury it could infer a conspiracy to riot from defendants’ display of provocative signs and slogans which might incite others to break the peace. The jury was not told that those picketed had no right to break the peace or resort to violence because of antipathy towards defendants’ signs, slogans, symbols, and costumes, but rather the jury was advised that acts of the defendants which tended to incite others to break the peace could be construed as evidence of their conspiracy to riot.

The prosecution argues that on the facts of this case the jury could have found the defendants guilty on legitimate grounds encompassed in the instructions and could have inferred the existence of a conspiracy to assault and riot, not by reason of the party slogans and symbols which were used, but by other evidence in the case, such as the use of steel helmets, the purchase of poles suitable for use as clubs, and the defendants ’ pushing and shoving in the crowd outside the auditorium. This same argument was made in Stromberg v. California, 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484], where the trial court instructed the jury it could find the defendant guilty if she did an act for any one of three purposes, of which one was constitutionally protected. The California District Court of Appeal sustained the conviction, holding that despite the fact that one of the purposes charged could not constitutionally be punished, the other two could. The United States Supreme Court reversed: “We are unable to agree with this disposition of the case. The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. ... if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” (Pp. 367-368.) The Supreme Court in Terminiello followed this rule, saying, “As construed and applied it at least contains parts that are unconstitutional. The verdict was a general one; and we do not know on this record but what it may rest on the invalid clauses.” 337 U.S. at p. 5; cf. Shuttlesworth v. Birmingham, 382 U.S. 87, 92 [86 S.Ct. 211, 15 L.Ed.2d 176].) The same principle applies to the case at bench, and the conviction for conspiracy must be reversed.

Although we reverse the convidtion for conspiracy, a charge premised on the defendants’ advance intentions to assault and to riot, we find no infirmity, constitutional or otherwise, in the convictions of the defendants for the assaults which they committed after they arrived on the scene and the disorder had started. There was substantial evidence to show that at that time these defendants indulged in an excess of violence for which there was no sufficient legal excuse. (People v. Young, 136 Cal.App. 699, 703 [29 P.2d 440]; People v. Miller, 72 Cal.App.2d 602, 606 [165 P.2d 30]; People v. Moody, 62 Cal.App.2d 18, 22-23 [143 P.2d 978]; McLean v. Colf, 179 Cal. 237 [176 P. 169].)

The right of free speech on behalf of unpopular causes does not carry with it a license to make the streets ideological battlegrounds, to indulge in demonstrations based on strong-arm techniques, or to deny others the use of the streets for normal movement and passage. Free speech is not an absolute right but one subject to specified limitations. (Konigsberg v. State Bar of California, 366 U.S. 36, 49 ff. [81 S.Ct. 997, 6 L.Ed.2d 105], and cases there cited.) Use of the streets for picketing or demonstration involves not only questions of free speech but also questions of domestic tranquility. Picketing, though used to communicate ideas, is not speech, and therefore by itself not protected under the First Amendment. (Hughes v. Superior Court, 339 U.S. 460, 464-466 [70 S.Ct. 718, 94 L.Ed. 985]; Giboney v. Empire Storage & Ice Co., 336 U.S. 490 [69 S.Ct. 684, 93 L.Ed. 834]; Cox v. Louisiana, 379 U.S. 559, 578 [85 S.Ct. 466, 13 L.Ed.2d 487] [Black, J., concurring and dissenting].) The time, manner, and place for the expression of ideas in the streets, whether by speaking, demonstrating, or picketing, are subject to regulation and control by the police in the process of maintaining public order. (Cox v. New Hampshire, 312 U.S. 569, 574 [61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396]; Cox v. Louisiana, 379 U.S. 536, 554-555 [85 S.Ct. 453, 13 L.Ed.2d 471]; Cox v. Louisiana, 379 U.S. 559, 574 [85 S.Ct. 466, 13 L.Ed.2d 487].) Assaults committed in the course of picketing or of public demonstrations may, as here, be promptly and severely punished under the provisions of the Penal Code. (United Auto. Workers v. Wisconsin Employment Relations Board, 351 U.S. 266 [76 S.Ct. 794, 100 L.Ed. 1162]; Steiner v. Long Beach Local No. 128, 19 Cal.2d 676, 682 [123 P.2d 20].)

Defendants contend a reversal of their conviction on the conspiracy count entitles them to a new trial on the assault counts because the error on the one count necessarily prejudiced the fairness of their trial on the others. We do not agree. Each assault count was fully supported by the testimony of third-party police officers and the victim. We do not think the erroneous instructions on conspiracy produced a miscarriage of justice on the assault counts or that a different result on retrial is reasonably probable. (Cal. Const., art. VI, §4½; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243].)

The convictions for conspiracy under Count I are reversed. The convictions for assault under Counts IV, V, VI, and VII are affirmed.

Herndon, J., concurred.

Cf. Iago and Othello.