State v. Linares

630 A.2d 1340, 32 Conn. App. 656, 1993 Conn. App. LEXIS 389

• Court: Connecticut Appellate Court
• Decided: July 23, 1993
• Docket: 10910
• Status: Published

Opinions

Dupont, C. J.

The defendant appeals from a judgment of conviction of General Statutes § 2-ld (a) (2) (C) and (E).¹ The conviction resulted from a plea of nolo contendere pursuant to General Statutes § 54-94a² after her motion to dismiss the information, which charged violations of subparagraphs (C) and (E) in the conjunctive, was denied. She claims, on appeal and in her motion to dismiss, that her state and federal constitutional rights of free speech were abridged by enforcement of § 2-ld (a) (2) (C) and (E) and that the subparagraphs of which she was convicted were unconstitutional under both the federal³ and the state constitutions⁴ because they are vague on their face and as applied to her on the particular facts of this case, and because they are overbroad.

If the defendant is correct in her assertion that both subparagraphs are overbroad or vague under either constitution, we need not address her claim that the statute abridges her right of free speech under either constitution because the conclusion that both subparagraphs are constitutionally infirm would require us to set aside her conviction. We, therefore, first consider the constitutionality of the subparagraphs of the statute under decisional law relating to the constitutional claims of vagueness and overbreadth.

The warrantless arrest of the defendant arose from an incident that occurred on February 7, 1990, in the gallery of the House of Representatives in the state cap-ítol building. The trial court, in a written memorandum of decision, found certain facts on the basis of its review of video and audio tapes of the occurrence. The court determined that the defendant and others were attending the state of the state address of then Governor William A. O’Neill to the legislature. During the governor’s speech, the defendant and others unfurled a banner that read “We Demand Lesbian And Gay Rights, Bill,”⁵ and shouted, “gay rights, lesbian rights.” The defendant and others were promptly and peacefully removed from the gallery by the capítol police and later arrested. The chanting and the removal of the defendant interrupted the governor’s speech for approximately two minutes.

The court concluded as a matter of law that the gallery of the House is a limited public forum, and that the statute is directed toward behavior, not the content of the expression. The court did not deal specifically with the two independent subparagraphs, but lumped them together in its determination that the defendant’s first amendment rights were not violated and that the statute was not void for vagueness or overbreadth. Consequently, the court denied the defendant’s motion to dismiss.

The defendant’s plea of nolo contendere was not an express admission of guilt but a consent to be punished as though she was guilty. State v. Godek, 182 Conn. 353, 363-65, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). No evidentiary hearing was requested or held by the trial court prior to the plea.⁶ Here, the defendant pleaded nolo contendere to two subparagraphs of the General Statutes, was automatically found guilty of both and fined $90.⁷ Conjunctive pleading is a legitimate practice of charging a single offense by one or more specified means, which is allowed by Practice Book § 618. There can be two means by which one crime is committed. State v. Cofone, 164 Conn. 162, 166, 319 A.2d 381 (1972).

The defendant claims, on the basis of Brown v. K.N.D. Corporation, 205 Conn. 8, 529 A.2d 1292 (1987), that our standard of review in this case requires that we conduct a de novo review of the record to make an independent determination of the facts. The defendant claims that Brown applies not only to civil but to criminal cases.⁸ Brown held that an independent appellate determination in first amendment freedom of expression cases is required if first amendment rights are not vindicated in the trial court and the defendant is punished for the exercise of them. We need not decide if Brown applies to criminal cases allegedly involving freedom of speech, as well as to civil defamation cases, because here the facts are not in dispute, and an independent review by us would not result in different findings. Both the state and the defendant implicitly agree that the facts, as given by the state, are sufficient to support the defendant’s conviction had she been tried, if the statute is constitutional. See State v. Ball, 226 Conn. 265, 268 n.3, 627 A.2d 892 (1993).

Relatively few decisions involving statutes that allegedly regulate protected speech rest directly on the proscriptions of the first amendment or of state constitutional proscriptions, but instead turn on constitutional due process considerations. A statute may be unconstitutionally vague or overbroad even though no activities prohibited by it are specifically protected by either constitution. That is so because a vague or over-broad statute, whether or not it involves protected speech, violates the due process clauses of both constitutions.⁹ An analysis of a statute that implicates first amendment rights to determine if it is vague or over-broad may, however, indirectly lead to the protection of free speech as guaranteed by the state and federal constitutions.

To determine whether a statute with several subparts can survive a facial challenge because it is claimed to be overbroad or vague when measured against the first amendment, we first review the entire statute¹⁰ in order to determine whether it does implicate free speech. “For first amendment purposes, facial constitutional scrutiny of a criminal statute is warranted if the statute makes unlawful ‘a substantial amount of [allegedly] constitutionally protected conduct’ even if other parts of the statute may have a legitimate application.” Id., 271. Even if only one subparagraph of a statute facially involves protected speech, the statute implicates the first amendment. Id., 272.

There is no decisional guidance for reviewing this statute because it has not been interpreted by a Connecticut court nor has anyone, to the knowledge of the parties, been arrested pursuant to it.¹¹ General Statutes § 2-ld (a) (2) prohibits a person who intends to disturb, disrupt or interfere with any session, meeting or proceeding of the General Assembly whether within or outside the presence of the General Assembly from (A) engaging in violent, tumultuous or threatening behavior or (B) using abusive or obscene language or making an obscene gesture or (C) making unreasonable noise or (D) refusing to comply with a lawful order of the police or a member of the office of the state capi-tel security to disperse or (E) performing any other act that disturbs, disrupts or interferes with such a session, meeting or proceeding. The first portion of the statute defines the requisite intent to interfere with the legislative process, and the remainder contains five specific prohibited ways of interfering, disturbing or disrupting the legislative process. Although the defendant is charged only with those subparagraphs that prohibit making unreasonable noise and performing any other act that disturbs, disrupts or interferes with a legislative proceeding, we examine all of the subparagraphs to determine if one or more facially prohibit expressive conduct or speech rather than disruptive behavior. Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972).

The only subparagraph of the statute that facially relates to speech is (B), which prohibits obscene language. All of the remaining subparagraphs involve conduct. The question is whether any one of them implicates the communicative aspects of the prohibited conduct. Conduct can be expressive and communicate an idea. Speech and conduct may coalesce in one act. Spence v. Washington, 418 U.S. 405, 409-11, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). A statute that makes it a criminal offense to refuse to comply with a lawful order of the police to disperse is not unconstitutional as violative of the first amendment. Colten v. Kentucky, supra. Chanting words may be noise or speech, and unfurling a banner with words on it may be conduct involving speech. We conclude that one or more of the subparagraphs implicates the first amendment.

That determination has a clear impact on the defendant’s claim that subparagraphs (C) and (E) are unconstitutionally void because they are vague. When a statute involves the possibility of an infringement on free speech, its meaning on its face must be capable of precise ascertainment in order to survive a void for vagueness challenge. Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964); State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987). If a statute is challenged for the same reason but does not involve the first amendment, the determination of constitutionality is dependent on the statute’s applicability to the particular facts. State v. Proto, supra, 697.

When the first amendment is implicated, the defendant may challenge the validity of the statute’s application to marginal situations on the ground of vagueness even though his own conduct may fall within the statute’s proscription. State v. Pickering, 180 Conn. 54, 58 n.3, 428 A.2d 322 (1980). This principle means that although a statute operates constitutionally as applied to the particular defendant, if it operates unconstitutionally as to another set of circumstances or theoretical defendants because of its potential application to protected speech it will be held unconstitutional. State v. Sul, 146 Conn, 78, 81, 147 A.2d 686 (1958). In this case, therefore, we first test subparagraphs (C) and (E) of the statute by their words alone, without regard to the defendant’s particular conduct.

If a statute has been previously construed, in a decision of an appellate court, that judicial construction can be used to clarify the statute so that it is no longer vague. State v. Proto, supra, 698. Legal dictionaries, treatises and dictionary definitions may also be used to save a statute from being constitutionally void for vagueness. Id., 699. General Statutes § 2-1 (d) (a) (2) has never been construed and we, therefore, have no gloss in which to interpret its words. The statute itself does not define “disturb,” “disrupt,” “interfere” or “unreasonable.” Dictionary definitions, however, clarify the meanings of these words. “Disrupt” means “to upset the order of,” or “throw into confusion or disorder”; “disturb” means “to break up or destroy the tranquility or settled state of”; “interfere” means “impede.” American Heritage Dictionary (1981). “Unreasonable” is defined as “not governed by or predicated upon reason” or “exceeding reasonable limits.” Id. Some of these words when used in another statute, General Statutes § 53a-181a, have been found not to be void for vagueness. State v. Anonymous, 6 Conn. Cir. Ct. 667, 298 A.2d 52 (1972). “Violent, tumultuous or threatening behavior,” “abusive or obscene language or making an obscene gesture” were found to be terms that persons of ordinary intelligence could understand. Id., 669-70; see also State v. Lo Sacco, 12 Conn. App. 481, 490-91, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987).

In this case, the defendant claims that the statute is both overbroad and vague on its face. These doctrines are so closely related that sometimes they are impossible to separate. The methodology of the analyses are, however, distinguishable, and it is possible for a statute to be void for vagueness, although not void for over-breadth. A statute is overbroad, in terms of the first amendment, if it sweeps within its ambit conduct that is protected by the first amendment and if there is a realistic danger that it can interfere with the first amendment protection of others not before the court. A statute is unconstitutionally vague if it is drawn without clarity enough to apprise the average person and those who enforce the law with sufficient notice of what conduct is criminal. Smith v. Goguen, 415 U.S. 566, 575, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

Before discussing whether subparagraphs (E) and (C) are unconstitutionally void or overbroad, we note the purpose of General Statutes § 2-ld (a). It is, of course, imperative that our legislature be able to perform its function without disruption, and that citizens have the freedom to challenge their legislators. A governmental body may restrict activity in its buildings. Act-Up v. Walp, 755 F. Sup. 1281 (M.D. Pa. 1991). The question, here, however, is whether the statute has accomplished that purpose without violating the due process provisions of either the state or federal constitutions.

The trial court found that the words “making unreasonable noise” are content-neutral because they are directed toward disruptive behavior rather than speech. A restriction must be justifiable without regard to the content of the speech involved. Here, the statute is content-neutral because it restricts all of the expressive conduct proscribed by it, without regard to the substance of the expression. Even a statute that involves speech by specific persons, namely people opposed to hunting, thereby implicating the substance of the regulated speech, can be content-neutral. State v. Ball, supra, 275. The statute here is not limited to particular speech in any way and, we, therefore, agree with the trial court and also conclude that it is content-neutral.

The trial court found that the gallery of the House of Representatives is a limited public forum. The status of the gallery is dependent on whether it consists of public property that the state has made available for use by the public for expressive activity. Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983); Act-Up v. Walp, supra. The gallery was open to the public on the day of the governor’s speech but communicative activity was restricted to reasonable approval or disapproval by the public and the elected members of the legislature were aware that the public was present, observing the session. Act-Up v. Walp, supra, 1288. The court correctly determined that the gallery was a limited public forum. The prohibition against excessive noise is a reasonable restriction to impose on the public and the statute is sufficiently limited to further the state’s significant interest in conducting legislative sessions without disruption, disturbance or interference. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649-51, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981). Ordinarily, these principles are discussed in the context of cases involving only claimed first amendment violations, rather than claims that a particular statute is void for vagueness. See id.; Perry Education Assn. v. Perry Local Educators’ Assn., supra.

In Grayned v. Rockford, supra, however, the principles are discussed in the context of a case in which the claim was that a particular statute was vague and over-broad on its face, without any claim that the statute was vague or overbroad as to the particular defendant, and without any claim that the statute violated the first amendment. We have noted these cases in order to set the background for our discussion of the claim that the statute is facially overbroad and vague.

Subparagraph (E) prohibits the performance of any acts that disturb, disrupt or interfere and is a catchall for whatever the other subparagraphs failed to prohibit. In analyzing whether a statute is overbroad, we must decide whether it restricts a significant number of instances of constitutionally protected speech, and whether its application to other persons is substantial. If it can be applied to a number of other persons and situations to inhibit free speech, it is facially invalid even if it can have some legitimate applications. Houston v. Hill, 482 U.S. 451, 458-59, 107 S. Ct. 2502, 96 (1987). Subparagraph (E) sweeps into its prohibitions conduct that is constitutionally protected. For example, a legislator who filibusters is intentionally engaging in an act that disrupts a legislative proceeding, as is a spectator in the gallery who cheers or boos. Subparagraph (E) is similar to the ordinance in Houston v. Hill, supra, that was held by the United States Supreme Court to be unconstitutional because of over-breadth. There, the language found to be overbroad was a prohibition of activities that “ ‘in any manner . . . interrupt any policeman.’ ” Subparagraph (E) prohibits “performing any other act which disturbs, disrupts or interferes with any . . . session . . . .” We discern no meaningful difference between the two statutes, and hold that subparagraph (E) is unconstitutional as over-broad. The proscriptions of subparagraph (E) are unlimited and cannot be made to conform to due process requirements. See State v. Schriver, 207 Conn. 456, 468, 542 A.2d 686 (1988). Because we conclude that the subparagraph is void because of its overbreadth, we need not consider whether it is void for vagueness.

We next analyze subparagraph (C)to determine whether it is void for vagueness or overbreadth. Sub-paragraph (C) prohibits “making unreasonable noise,” which is specific behavior. Noise can implicate protected speech when it involves communication. Again, because we are dealing with a statute that allegedly implicates the first amendment, we first examine the words of the statute rather than the particular conduct of the defendant. The words are not overbroad because they do not proscribe other conduct that enjoys first amendment protection, nor do they present a realistic danger that the first amendment rights of others not before the court will be affected.

As previously noted, “unreasonable” defines the prohibited noise as noise that exceeds reasonable limits. The words of subparagraph (C) are not vague because the average person can understand the prohibition and law enforcement officials are not tempted to enforce the subparagraph arbitrarily and discriminately. The conduct prohibited is not couched in terms so vague that the prohibition can only be the subject of a guess. State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986). The statute gives fair warning and guarantees that there will not be standardless enforcement. State v. Schriver, supra, 460.

“Unreasonable noise” is facially concerned with the volume and timing of speech not its content, and it is constitutionally permissible to prohibit it. 2 A.L.I. Model Penal Code and Commentaries (1980) § 250.2, p. 346; State v. Anonymous, supra; State v. Martin, 532 P.2d 316 (Alaska 1975); People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978); People v. Bakolas, 59 N.Y.2d 51, 449 N.E.2d 738, 462 N.Y.S.2d 844 (1983); Commonwealth v. Mastrangelo, 489 Penn. 254, 414 A.2d 54 (1980). The purpose of the restriction is the elimination of excessive noise, not the suppression of particular speech. Carew-Reid v. Metropolitan Transportation Authority, 903 F.2d 914, 917 (2d Cir. 1990); see also note, “Carew-Reid v. Metropolitan Transportation Authority: Free Expression Sound and Fury,” 11 Pace L. Rev. 643, 655 (1991).

The United States Supreme Court has held that an ordinance prohibiting the wilful “ ‘making of any noise . . . which disturbs or tends to disturb the peace or good order of [a] school session’ ” is neither unconstitutionally void nor overbroad. Grayned v. Rockford, supra, 108. Subparagraph (C) prohibits intentionally “making unreasonable noise.” The ordinance in Grayned and sub-paragraph (C) are very similar. Indeed, the latter establishes a quantum of noise, “unreasonable,” whereas the former does not. We hold that subparagraph (C) survives the defendant’s facial due process constitutionality attack. The subparagraph gives fair notice that it applies to the intentional disruption of the activities of the legislature.

The defendant also claims that subparagraph (C) is void for vagueness as applied to her. She does not deny that she and others were chanting words that caused the governor to stop his speech, that the chanting began in the middle of sentences, that the words of the chant were unrelated to the content of the speech, and that the speech was interrupted for a period of up to two minutes. Nor does she deny that she intended to attract the attention of the legislature to the cause of gay and lesbian rights.

The defendant argues that as applied to her “making unreasonable noise” can be criminalized only if the words she used that constituted the “noise” incite imminent lawless action or are “fighting words.” Basically, the defendant contends that it was the unpopularity of the cause of gay and lesbian rights that provoked her arrest, rather than the “noise.”¹² Subparagraph (C) focuses on the intent of the defendant as well as the causal connection between that intent and the disruption itself. The defendant has, by pleading nolo contendere, agreed that she had the requisite intent to disrupt. The governor’s speech was in fact interrupted and the noise blanketed the words of the governor so that he could not be heard. It was not the particular words used that caused the governor to stop speaking but the volume of the noise. The subparagraph is not void for vagueness as applied to the defendant. See State v. Cavallo, supra, 667-70; see also State v. Duhan, 194 Conn. 347, 359, 481 A.2d 48 (1984).

We must next consider whether subparagraph (C) involves the regulation of protected speech. The state argues that “making unreasonable noise” is not speech at all and that, therefore, the state and federal constitutional guarantees of freedom of expression are not involved. A statute will not violate the first amendment even though it restricts speech as long as the restrictions are reasonable as to time, place and manner, are content-neutral, are narrowly tailored to serve a significant government interest and leave open ample alternative channels for communication. Ward v. Rock Against Racism, 491 U.S. 781, 789, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989).

Constitutionally protected speech includes many things other than thoughts expressed in words. Protected speech can be parades, music, solicitation and receipt of funds, and the use of an amplifier to increase the volume of music electronically. J. Stevens, “The Freedom of Speech,” 102 Yale L.J. 1293, 1298 (1993); see International Society for Krishna Consciousness, Inc. v. Lee, U.S. , 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992); Carew-Reid v. Metropolitan Transportation Authority, supra. We know of no case, however, nor have the parties cited one, that holds that a blanket prohibition against “making unreasonable noise” prohibits speech that is protected by the first amendment. Although we recognize that some noises can be communication, we conclude that “unreasonable noise” as used in this statute relates to behavior and is not protected speech. The purpose of the prohibition is to prevent the disruption of the legislative process, and requires an intent to disrupt. The focus of the subparagraph is not the expression of an idea or any form of communication but the prohibition of noise so unreasonable as to disrupt.

The words of the chant in this case implicated free speech for purposes of determining an overbreadth or void for vagueness claim. That does not mean, however, that the statute inhibited or prevented freedom of expression protected by the state and federal constitution. Prohibiting a person from intentionally disrupting the legislative process by making unreasonable noise is not to be equated with a prohibition of expounding or communicating ideas. “Unreasonable noise,” in this context, has only slight social value and any benefit to be derived from that excessive noise is outweighed by the social interest in maintaining order in the legislature. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 2d 1031 (1942); State v. Lo Sacco, supra, 487.

There is not an endless variety of conduct that can be labelled speech, and thereby gain constitutional protection simply because the person engaging in the conduct claims that she intended to express an idea. Wisconsin v. Mitchell, U.S. , 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993). Because subparagraph (C) does not involve protected speech, we need not analyze either the federal or state constitutional provisions that guarantee freedom of expression.¹³

We have found subparagraph (C) to be constitutional and subparagraph (E) to be unconstitutional. We must next decide whether the conjunctive nature of the information charging the plaintiff with a violation of § 2-ld (a) (2) (C) and (E) requires that the entire conviction under § 2-ld (a) be set aside.

The defendant pleaded nolo contendere to two sub-paragraphs of the same statute, was found guilty and fined. If she had been charged in the conjunctive, had been found guilty by a general verdict of a jury and on appeal one subparagraph was held unconstitutional, the entire conviction would have to be set aside. Strom-berg v. California, 283 U.S. 359, 368, 51 S. Ct. 532, 75 L. Ed. 1117 (1931). This is so because the general verdict of guilty makes it impossible to know whether the jury found her guilty of the unconstitutional or the constitutional portion of the statute. A defendant would be wrongfully convicted if convicted under a statutory alternative for which there was no evidence. State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987). A judgment cannot be supported unless there is sufficient evidence to establish guilt under each statutory provision upon which the trier may have relied. State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). A conviction must be set aside if one of the alternate grounds supporting the verdict is unconstitutional or if one is not sufficiently supported by the evidence. Id., 667 n.22; State v. Marino, 190 Conn. 639, 651, 462 A.2d 1021 (1983); see Leary v. United States, 395 U.S. 6, 30, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).

All of these involved cases occurred after a trial, where it was impossible to know which of the more than one statutory alternative or subparagraph provided the finding of guilt, or where every one of the alternatives could provide the finding of guilt. In a case where the finding of guilt follows a plea, however, the rationale for setting aside the conviction is no longer present. It is clear that here there was a finding of guilt as to both of the subparagraphs, and it is not a matter of conjecture as to which of them caused the finding of guilty. See State v. Eason, 192 Conn. 37, 42, 470 A.2d 688 (1984).

At the time of sentencing, the defendant had pleaded nolo contendere to two subparagraphs of the statute and the trial court had concluded that both subpara-graphs were constitutional. The trial court’s sentencing, therefore, was based on convictions of both subpara-graphs. Because we set aside the conviction of the defendant under subparagraph (E), the defendant must be resentenced. See State v. Hanson, 210 Conn. 519, 531, 556 A.2d 1007 (1989).

The judgment of conviction under General Statutes § 2-ld (a) (2) (C) is affirmed, the judgment of conviction under General Statutes § 2-ld (a) (2) (E) is reversed and the case is remanded with direction to render judgment resentencing the defendant accordingly.

In this opinion Heiman, J., concurred.

1 General Statutes § 2-ld (a) provides in pertinent part: “A person is guilty of interfering with the legislative process when he . . . (2) Alone or in concert with others, with intent to do so, disturbs, disrupts or interferes with, or attempts to disturb, disrupt or interfere with, any session, meeting or proceeding of the general assembly or either house thereof or any committee of the general assembly or either house thereof, whether within or outside the presence of said general assembly, either house thereof or any such committee by (A) engaging in violent, tumultuous or threatening behavior; or (B) using abusive or obscene language or making an obscene gesture; or (C) making unreasonable noise; or (D) refusing to comply with a lawful order of the police or a member of the office of state capítol security to disperse; or (E) performing any other act which disturbs, disrupts or interferes with any such session, meeting or proceeding . . . .”

2 General Statutes § 54-94a provides in pertinent part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion ... to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue tó be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion ... to dismiss. . . .”

Practice Book § 815 (8) provides that a motion to dismiss may be made when the uneonstitutionality or invalidity of a governing statute is claimed.

3 The defendant relies on the first and the fourteenth amendments to the federal constitution. The first amendment to the United States constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The fourteenth amendment to the United States constitution provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

4 The provisions of the Connecticut constitution on which the defendant relies are as follows:

Article first, § 4: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

Article first, § 5: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”

Article first, § 8: “No person shall . . . be deprived of life , liberty, or property without due process of law . . . .”

Article first, § 14: “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.”

5 The use of the comma before the word “Bill” could indicate that the thrust of any intent of the defendant to disrupt or disturb was directed towards “Bill” O’Neill, then governor, rather than the legislature. Neither the defendant nor the state has attached any significance to the placement of the comma.

6 This case differs from State v. Ball, 226 Conn. 265, 269, 627 A.2d 892 (1993), in that the state in Ball did request a hearing to show its governmental interest in the purposes of the Connecticut Hunter Harassment Act. Furthermore, on the basis of the facts of the present case, a hearing was not necessary to determine the governmental interest in preventing interference in the legislative process.

7 A violation of General Statutes § 2-ld (a) (2) is a class A misdemeanor, for which the maximum sentence is a fine in an amount not to exceed $2000 and a term of imprisonment not to exceed one year. See General Statutes §§ 53a-28, 53a-42 and 53a-36.

8 We could find no case in any jurisdiction that decides this issue and the defendant cites none. In Commonwealth v. A Juvenile, 368 Mass. 580, 334 (1975), however, an appellate court made its own inferences from the only evidence, a juvenile court report, introduced at the trial court level, on a motion to dismiss based on the alleged unconstitutionality of a statute involving speech.

9 The due process provisions of the state and federal constitutions have a similar meaning. State v. Pickering, 180 Conn. 54, 55-56 n.1, 428 A.2d 322 (1980).

10 If one or more subsections of a statute are held invalid, the validity of other sections of the same statute are not affected. General Statutes § 1-3; State v. Golino, 201 Conn. 435, 442, 518 A.2d 57 (1986).

11 The statute was enacted in 1973. The doctrine of desuetude, the concept that a statute may be void because of its lack of use, is founded on the constitutional concept of fairness embodied in federal and state constitutional due process and equal protection clauses. See Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961). “The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the many years that they have been on the statute books bespeaks more than prosecutorial paralysis.” Id., 502. Each statute must be judged in terms of whether the defendant had fair notice that she might be prosecuted pursuant to it. Commission of Legal Ethics v. Printz, 416 S.E.2d 720 (W.Va. 1992). Determinative factors in the application of the doctrine are whether the statute involves traditional criminal behavior, whether it has been openly, notoriously and pervasively violated without prosecution for a long period of time, and whether there has been a conspicuous policy of nonenforcement. Id., 726-27. Here, the defendant did not raise the doctrine at the trial level, although she mentions the doctrine in her appellate brief. We, therefore, have no basis on which to determine the applicability of the doctrine in this case.

12 Connecticut passed legislation in 1991 to prohibit discrimination based on sexual orientation. General Statutes §§ 46a-81a through 46a-81r.

13 It is now well settled that our state constitution may provide greater rights than the federal constitution. State v. DeFusco, 224 Conn. 627, 632, 620 A.2d 746 (1993); State v. Oquendo, 223 Conn. 635, 649, 613 A.2d 1300 (1992); State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992); State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990); Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); State v. Miller, 29 Conn. App. 207, 221, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 617 A.2d 170 (1992). Because we conclude that subparagraph (C) does not involve protected speech and subparagraph (E) is void for overbreadth, we need not determine if the state constitution affords greater free speech protection than the federal constitution.