Peter F. Comstock Ann Fetter Sue D. Gottfried Irwin R. Hogenauer and Selma Waldman v. United States

(concurring in part and dissenting in part).

I agree with that part of the majority opinion finding appellant Hogenauer guilty of contempt, but, as to the first portion of the opinion finding the Washington breach of the peace statute unconstitutional on its face, I must respectfully dissent. I summarize two reasons for my disagreement with the majority on the issue of constitutionality:

First, I cannot agree that the case of Ashton v. Kentucky, 384 U.S. 195 , 86 S.Ct. 1407 , 16 L.Ed.2d 469 , stands for the broad principle that “ ‘disturbance of the public peace,’ being imprecise, cannot serve to define, in terms of crime, an exception to the rights to speak, write or assemble.” (Maj. op. p. 1130) Second, I cannot agree with the suggestion of the majority in footnote 3 of the opinion that:

In Ashton v. Kentucky, supra, the Supreme Court held:

This language convinces me that the Court was concerned primarily with the uniquely inscrutable characteristics of English common law criminal libel. There is added support for this reading of the case in the closing paragraphs of the opinion in which Mr. Justice Douglas refers to Cox and Edwards (post) opinions in the following…

This appeal is taken from conviction under the Assimilative Crimes Act, 18 U. S.C. §§ 7, 13, of the crime of unlawful assembly as defined by Washington state law, R.C.W. 9.27.060(2). Appellants attack the Washington statute as unconstitutional.

Appellants do not contend that the conduct with which they are charged was constitutionally protected. 1 Whether *1129 Washington might, by a properly drawn statute, have made this conduct criminal is not in issue. Appellants contend that the statute under which they were charged and convicted is unconstitutional upon its face as overbroad. Despite its ancient origin 2 Washington state courts have not yet been called upon to construe it.

As applied to this case the relevant portion of the statute reads:

Appellants’ attack on the statute is leveled at its reliance on disturbance of the public peace as an element of the offense. They contend that in the absence of express language or an authoritative construction so limiting the phrase as to exclude constitutionally protected activities, “disturbance of the public peace” is so broad that it has a serious “chilling effect” on the exercise of First Amendment rights.

In our judgment the…

419 F.2d 1128 Peter F. COMSTOCK; Ann Fetter; Sue D. Gottfried; Irwin R. Hogenauer and Selma Waldman, Appellants, v. UNITED STATES of America, Appellee. No. 22631. United States Court of Appeals Ninth Circuit. Dec. 9, 1969, Rehearings Denied Jan. 15, 1970 and Jan. 19, 1970. Ronald Meltzer (argued), Francis Hoague, Michael Rosen, Seattle, Wash., for appellants. John M. Darrah (argued), Asst. U.S. Atty., Eugene ,G. Cushing, Stan Pitkin, U.S. Atty., Seattle, Wash, for appellee. Before BARNES and MERRILL, Circuit Judges, and McNICHOLS, * district judge. MERRILL, Circuit Judge. 1 This appeal is taken from conviction under the Assimilative Crimes Act, 18 U.S.C. 7, 13, of the crime of unlawful assembly as defined by Washington state law, R.C.W. 9.27.060(2). Appellants attack the Washington statute as unconstitutional. 2 Appellants do not contend that the conduct with which they are charged was constitutionally protected. 1 Whether Washington might, by a properly drawn statute, have made this conduct criminal is not in issue. Appellants contend that the statute under which they were charged and convicted is unconstitutional upon its face as overbroad. Despite its ancient origin 2…