State v. Brahy

529 P.2d 236, 22 Ariz. App. 524

• Court: Court of Appeals of Arizona
• Decided: December 12, 1974
• Docket: 1 CA-CR 691
• Status: Published

Opinions

OPINION

OGG, Judge.

Appellant-defendant Christine Virginia Brahy challenges the constitutionality of A.R.S. § 13-371 as impinging upon her First Amendment rights; on this basis she seeks to set aside her conviction for disorderly conduct. The statute reads:

“Article 15. Disorderly Conduct

§ 13-371. Disturbing the peace; methods ; punishment

A. A person is guilty of a misdemeanor who maliciously and wilfully disturbs the peace or quiet of a neighborhood, family or person by:

1. Loud or unusual noise.

2. Tumultuous or offensive conduct.

3. Threatening, traducing, quarreling, challenging to fight or fighting.

4. Applying any violent, abusive or obscene epithets to another.

B. A person who violates this section shall be punished by a fine not exceeding two hundred dollars, or by imprisonment in the county jail for not to exceed two months.”

The complaint charged defendant with violating § 13-371, subsection A(4) in that she maliciously and wilfully disturbed the peace and quiet of “the people at the airport by violent, abusive, obscene epithets to another.” The facts gleaned from the transcript are: Defendant sought to enter the boarding area at the Phoenix airport, but when she was told that her purse would have to be analyzed by the x-ray machine she turned around and left. Approximately 5 minutes later she returned and gave her bag to one of the women operating the x-ray machine. After walking through the magnetometer she was informed that a hand search of her purse was necessary because an object contained within it could not be identified by the x-ray procedure. Defendant then slammed her purse down on the table and went toward the boarding gate. Several minutes later, as she was returning toward the x-ray machine and table, she saw that her purse was being searched, and she began screaming from a distance of approximately 25 feet, “What are you fucking sons of bitches a-doing in my purse ?” The remarks were directed at the women assigned to check the purse. This was repeated six to eight times. Approximately 20 people were around the x-ray machine. The arresting officer tried to calm her, but the defendant said, “You fucking son of a bitch, I will spit in your face.” After spitting on the officer, defendant was placed under arrest. In a trial to the court defendant was convicted and now brings this appeal.

In the case of State v. Starsky, 106 Ariz. 329, 475 P.2d 943 (1970), our Arizona Supreme Court ruled upon the question presented in this appeal. The Court held that A.R.S. § 13-371 was not an unconstitutional infringement upon those rights guaranteed by the First Amendment. The Court of Appeals cannot overrule or modify a decision of our Supreme Court. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968); State v. Shahan, 17 Ariz.App. 148, 495 P.2d 1355 (1972). It is appellant’s position that State v. Starsky, supra, is no longer the law of Arizona because of subsequent United States Supreme Court decisions.

In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), and in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the United States Supreme Court struck down a portion of the “disturbing the peace” statutes in California and Georgia. The Court found the statutes- too broad when they included as a violation any conduct that was offensive to public sensibilities. The Court, however, did follow the guidelines of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and held that certain classes of speech such as profane, insulting or “fighting” words, which by their very utterance tend to incite an immediate breach of the peace, are not protected free speech under the First Amendment. The statute must be drawn or interpreted to include, as a violation, only those epithets amounting to “fighting words.”

We believe that our Arizona Supreme Court in Starsky narrowed the interpretation of A.R.S. § 13-371 to make it fall within the accepted guidelines of the Chaplinsky, Cohen and Gooding decisions and that this narrowed interpretation frees the statute from any constitutional infirmity. In Starsky the Court narrowed the definition of “disturbing the peace” through “offensive” conduct to mean wilfully and maliciously inciting others to violence or engaging in conduct likely to incite others to violence. In our opinion the conduct of the defendant in this case was likely to incite others to violence.

The utterances by the defendant in this case are not an essential part of the exposition of ideas and are of such slight social value that any benefit derived from them is clearly outweighed by the social interest in peaceful and nonoffensive conduct. A statement by the Court in Starsky has equal application here: “Actions such as these are not an exercise of rights but rather are an abuse of rights and entail a gross lack of understanding — or calloused indifference — to the simple fact that the offended parties also have certain rights under the same Constitution.” 106 Ariz. at 333, 475 P.2d at 946.

The judgment and sentence are affirmed.

STEVENS, J., concurs.