Do ‘disturbing the peace’ laws trump the First Amendment?
Q: Two of about a dozen protesters were arrested for 415 section 2, ‘disturbing the peace’, while peacefully protesting.The incident occurred between the hours of 6pm and 8pm.We arrived for our court date only to find no charges had been filed.A week after that we received a notice by the arresting deputy that he was rescheduling our court date, now set for a later date.Does CA penal code 415 trump the First Amendment?
A: California Penal Code Section 415 has been construed narrowly so as to prohibit certain speech and still be consistent with the First Amendment. Below is an excerpt from the California Supreme Court interpreting section 415, subdivision 2 (disturbing another person by loud and unreasonable noise), which seems to be the subdivision that would be at issue in your case:In re Brown, the California Supreme Court stated: “[w]e conclude that section 415 cannot, consistent with First Amendment rights, be applied to prohibit all loud speech which disturbs others even if it was intended to do so.
We do not hold, however, that section 415 may never be applied to loud shouting and cheering. There is a fundamental difference between loud communications and the use of loud shouting and cheering, not to inform or persuade, but to disrupt lawful endeavors. Loud shouting and cheering designed to disrupt rather than communicate may be prohibited generally . . . . ‘[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ The use of the human voice to disturb others by the mere volume of the sound when there is no substantial effort to communicate or when the seeming communication is used as a guise to accomplish the disruption may be prohibited consistent with First Amendment guarantees.
We are satisfied that loud shouting and cheering constitute the loud ‘noise’ prohibited by section 415 only in two situations: 1) where there is a clear and present danger of imminent violence and 2) where the purported communication is used as a guise to disrupt lawful endeavors.” 9 Cal. 3d 612, 621 (1973) (quoting Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949).