OPINION OF THE COURT BY
ABE, J.
The following facts led to defendants’ arrest and charge for disorderly conduct in violation of HES § 772-2.1
On October 17,1966, President Johnson was scheduled to deliver a foreign policy speech at an outdoor area near the Kennedy Theater at the East-West Center, on the University of Hawaii campus. As expected, a crowd started to gather hours before the time scheduled for the President’s arrival. Within the crowd were numerous persons holding signs indicating their approval or disapproval of President Johnson and the United States policy relating to Vietnam. Particularly conspicuous was a large [181]*181effigy apparatus consisting of two man-size figures hanging from a crossbar.
As the crowd grew prior to the arrest, a group of eighteen “pro-Johnson” demonstrators carrying signs was seen weaving its way through the “anti-Vietnam” faction which was standing in the crowd with its protest signs and there was a “jockeying” for position between the two groups. By that time the crowd was solidly packed and it was difficult for anyone to move about.
The “anti-Vietnam” demonstrators were not received in a very gracious manner by some persons who were present. One such unidentified person was seen tearing down a sign held by an “anti-Vietnam” demonstrator. Another person was observed trying to rip a portion of a twenty-foot banner which read, “You are the Agressor.” He released the banner and caused no more trouble upon being told by a police officer that he would be arrested if he did not do so. Only four specific statements which indicated anger felt by unidentified individuals viewing the “anti-Vietnam” materials were testified to by the State’s witnesses out of the several thousand persons massed together.2 There were also “mumblings” and “comments” such as “commies” and “pinkies” made by unidentified persons.
On cross-examination State witnesses admitted that these alleged statements and comments were made in a moderate tone of voice. There were no threats to fight or any fighting, nor were there any signs of violence or disturbance. The 130 Honolulu police officers on the site had no problem controlling the crowd and keeping order. The officer in charge felt confident that he could “handle the situation if anything [developed].”
[182]*182The arrest of defendant Butler occurred in the following fashion as described by one of the State witnesses:
“Q. Now, taking from there, Sgt. Kanekoa, what if anything happened when you walked up to Dr. Butler?
“A. I approached Mr. Butler and asked him to please remove those effigies, and he looked at me and he says, ‘What?’ and he said, ‘I will not/ and he walked to the effigies which was about six feet away from him.
********
“A. He walked to the effigies and held on to one of the poles. I followed him and I again asked him to remove those effigies. He asked me why? I told him that these effigies were causing disturbance among the people there, and I asked him for the third time to remove those effigies, and he still refused.
“I told him that if he does not comply that he would be arrested, and he answered me, ‘Go ahead and arrest me — what do you want to arrest me for?’ I told him that I would arrest him for disorderly conduct. And then he looked at the crowd and he says, ‘I am not disorderly; the police are disorderly.’
“Q. When he told that to you, was he facing you?
“A. No, he was facing the crowd.
“Q. Could you demonstrate to the jury how he made that statement?
“A. (Demonstrating) Well, as I was facing him he turned to the crowd, and he used his hand as a gesture and he said, ‘I am not disorderly; the police are.’
“Q. What if anything happened after that?
“A. Then I warned him again to remove those effigies, and I still received a negative answer, and I arrested Mr. Butler for disorderly conduct.”
[183]*183The arrest of defendant Sarant occurred in a similar fashion:
“Q. What if anything did you do when you approached George Sarant?
“A. I told him, ‘Sarant, I am going to get the pole for evidence,’ and he told me by what law? I told him that we were going to need it as evidence as Dr. Butler was arrested.
“As I reached over to retrieve the pole, Mr. Sarant brushed my hands aside.
“Q. Did George Sarant say anything at that time?
“A. Yes.
“Q. What if anything did he say?
“A. He said, ‘people, look, look — police state— Gestapo.’
“Q. Did you have any reply to that?
“A. Yes.
“Q. What did you say?
“A. I told him to cease his actions — if he doesn’t hand the pole over to me, I would have no other alternative but to arrest him.
“Q. And what if anything did you do?
“A. I reached over for the pole again, stepping forward to retrieve the pole.
“Q. What if anything happened?
“A. He put his hand out and stopped me.
“Q. When you say he put his hand out, how did he do that?
“A. Placed his hand against my chest.
“Q. And what if anything happened?
“A. I placed him under arrest.
“Q. You placed who under arrest?
“A. Mr. George Sarant.
[184]*184“Q. Por what did you place Mm under arrest?
“A. Por being a disorderly person.”
********
At tbe close of tbe prosecution’s case, tbe defendants moved for judgments of acquittal on the ground that tbe evidence adduced was insufficient as a matter of law to prove a charge of disorderly conduct. Tbe court reserved its decision on tbe motion. This motion was renewed after tbe close of tbe defendant’s case, but tbe court continued to reserve its decision on tbe motion.
Tbe jury found tbe defendants guilty of disorderly conduct. Thereafter, tbe defendants again moved for judgments of acquittal. The motions were denied. Tbe trial court adjudged tbe defendants guilty and tbe defendants appealed.
Tbe State concedes that tbe activities engaged in by tbe defendants were lawful at tbe time tbe request was made to remove tbe effigies; however, tbe State contends that the responses to tbe police requests constituted tbe disorderly language and conduct from which a breach of tbe peace might have followed as the direct result.
Our examination of the State’s evidence compels us to conclude that a conviction for disorderly conduct cannot be sustained.
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OPINION OF THE COURT BY
ABE, J.
The following facts led to defendants’ arrest and charge for disorderly conduct in violation of HES § 772-2.1
On October 17,1966, President Johnson was scheduled to deliver a foreign policy speech at an outdoor area near the Kennedy Theater at the East-West Center, on the University of Hawaii campus. As expected, a crowd started to gather hours before the time scheduled for the President’s arrival. Within the crowd were numerous persons holding signs indicating their approval or disapproval of President Johnson and the United States policy relating to Vietnam. Particularly conspicuous was a large [181]*181effigy apparatus consisting of two man-size figures hanging from a crossbar.
As the crowd grew prior to the arrest, a group of eighteen “pro-Johnson” demonstrators carrying signs was seen weaving its way through the “anti-Vietnam” faction which was standing in the crowd with its protest signs and there was a “jockeying” for position between the two groups. By that time the crowd was solidly packed and it was difficult for anyone to move about.
The “anti-Vietnam” demonstrators were not received in a very gracious manner by some persons who were present. One such unidentified person was seen tearing down a sign held by an “anti-Vietnam” demonstrator. Another person was observed trying to rip a portion of a twenty-foot banner which read, “You are the Agressor.” He released the banner and caused no more trouble upon being told by a police officer that he would be arrested if he did not do so. Only four specific statements which indicated anger felt by unidentified individuals viewing the “anti-Vietnam” materials were testified to by the State’s witnesses out of the several thousand persons massed together.2 There were also “mumblings” and “comments” such as “commies” and “pinkies” made by unidentified persons.
On cross-examination State witnesses admitted that these alleged statements and comments were made in a moderate tone of voice. There were no threats to fight or any fighting, nor were there any signs of violence or disturbance. The 130 Honolulu police officers on the site had no problem controlling the crowd and keeping order. The officer in charge felt confident that he could “handle the situation if anything [developed].”
[182]*182The arrest of defendant Butler occurred in the following fashion as described by one of the State witnesses:
“Q. Now, taking from there, Sgt. Kanekoa, what if anything happened when you walked up to Dr. Butler?
“A. I approached Mr. Butler and asked him to please remove those effigies, and he looked at me and he says, ‘What?’ and he said, ‘I will not/ and he walked to the effigies which was about six feet away from him.
********
“A. He walked to the effigies and held on to one of the poles. I followed him and I again asked him to remove those effigies. He asked me why? I told him that these effigies were causing disturbance among the people there, and I asked him for the third time to remove those effigies, and he still refused.
“I told him that if he does not comply that he would be arrested, and he answered me, ‘Go ahead and arrest me — what do you want to arrest me for?’ I told him that I would arrest him for disorderly conduct. And then he looked at the crowd and he says, ‘I am not disorderly; the police are disorderly.’
“Q. When he told that to you, was he facing you?
“A. No, he was facing the crowd.
“Q. Could you demonstrate to the jury how he made that statement?
“A. (Demonstrating) Well, as I was facing him he turned to the crowd, and he used his hand as a gesture and he said, ‘I am not disorderly; the police are.’
“Q. What if anything happened after that?
“A. Then I warned him again to remove those effigies, and I still received a negative answer, and I arrested Mr. Butler for disorderly conduct.”
[183]*183The arrest of defendant Sarant occurred in a similar fashion:
“Q. What if anything did you do when you approached George Sarant?
“A. I told him, ‘Sarant, I am going to get the pole for evidence,’ and he told me by what law? I told him that we were going to need it as evidence as Dr. Butler was arrested.
“As I reached over to retrieve the pole, Mr. Sarant brushed my hands aside.
“Q. Did George Sarant say anything at that time?
“A. Yes.
“Q. What if anything did he say?
“A. He said, ‘people, look, look — police state— Gestapo.’
“Q. Did you have any reply to that?
“A. Yes.
“Q. What did you say?
“A. I told him to cease his actions — if he doesn’t hand the pole over to me, I would have no other alternative but to arrest him.
“Q. And what if anything did you do?
“A. I reached over for the pole again, stepping forward to retrieve the pole.
“Q. What if anything happened?
“A. He put his hand out and stopped me.
“Q. When you say he put his hand out, how did he do that?
“A. Placed his hand against my chest.
“Q. And what if anything happened?
“A. I placed him under arrest.
“Q. You placed who under arrest?
“A. Mr. George Sarant.
[184]*184“Q. Por what did you place Mm under arrest?
“A. Por being a disorderly person.”
********
At tbe close of tbe prosecution’s case, tbe defendants moved for judgments of acquittal on the ground that tbe evidence adduced was insufficient as a matter of law to prove a charge of disorderly conduct. Tbe court reserved its decision on tbe motion. This motion was renewed after tbe close of tbe defendant’s case, but tbe court continued to reserve its decision on tbe motion.
Tbe jury found tbe defendants guilty of disorderly conduct. Thereafter, tbe defendants again moved for judgments of acquittal. The motions were denied. Tbe trial court adjudged tbe defendants guilty and tbe defendants appealed.
Tbe State concedes that tbe activities engaged in by tbe defendants were lawful at tbe time tbe request was made to remove tbe effigies; however, tbe State contends that the responses to tbe police requests constituted tbe disorderly language and conduct from which a breach of tbe peace might have followed as the direct result.
Our examination of the State’s evidence compels us to conclude that a conviction for disorderly conduct cannot be sustained.
Evidence that defendants argued with tbe police in an insolent and rude manner and that they refused to obey orders did not constitute disorderly conduct without additional evidence showing that a breach of peace was likely to occur. Thompson v. City of Louisville, 362 U.S. 199, 206 (1960). By touching tbe arresting officer Sarant did not commit tbe offense because tbe evidence fails to show that tbe touching was done in a violent, threatening or fighting manner. Also, we believe that tbe evidence was insufficient to show that a breach of the peace was [185]*185imminent. Although there were sporadic acts demonstrating disagreement on the part of those not sympathetic to the views of the “anti-Vietnam” demonstrators, evidence fails to show any violence or real threat of violence, any loss of control of the crowd or any fear in the minds of the policemen in charge that the situation would become uncontrolled. The most that can be said of the evidence in the appeal record here is that the defendants’ conduct generated some mutterings of anger by some persons in the assembled audience.
Further, we believe that the legislature did not intend the actions of the defendants complained of and proven at the trial to constitute the crime of disorderly conduct. Otherwise it would be of little value to hold that one has a constitutional right to dissent peacefully and lawfully if it can be done only on pain of arrest and trial.
The United States Supreme Court held in Terminiello v. Chicago, 337 U.S. 1 (1949), that a speech which merely “stirred people to anger, invited public dispute, or brought about a condition of unrest” may not stand, and stated at page 4:
“[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 * * * is * * * 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. * * * There is no room under our Constitution for a more restrictive view. For the alter[186]*186native would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”
James A. King (Bouslog & Symonds of counsel) for defendants-appellants.
Dermis A. Ing, Deputy Prosecuting Attorney, City and County of Honolulu (John U. Peters, Prosecuting Attorney with him on the brief), for plaintiff-appellee.
Richard P. Schulze, Jr. (Michael R. Sherwood with him on the brief), for American Civil Liberties Union, amicus curiae.
Terminiello was followed recently in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). There, the court stated that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
The appeal record here shows no more than that the defendants’ conduct caused some persons in the assembled crowd to utter angry remarks. We cannot say from the evidence adduced that the defendants went beyond the permissible bounds of free speech defined in Terminiello and Tinker and, therefore, we hold they did not commit the offénse of disorderly conduct.3
We hold that the State failed to marshal sufficient evidence to sustain a charge of disorderly conduct, and the trial judge erred in not having entered judgments of acquittal upon the conclusion of State’s case.
Reversed and remanded with directions to vacate the judgments of guilt and to enter judgments of acquittal.