Goldmann, Lewis and Matthews. The opinion of the court was delivered by Goldmann, P.J.A.D. Matthews, J.A.D. (dissenting in part).
Defendant appeals from County Court convictions of uttering loud and offensive language in public (N.J.S.A. 2A:170-29(1)) and of disturbing a place of assembly (N.J.S.A. 2A:170-28). He received concurrent 30-day jail sentences.
On February 7, 1969 defendant attended a high school basketball game, anticipating some form of confrontation between black students and the administration, and intent on obtaining pictures and tape recordings of the events. During the pre-game activities the mayor announced that if anyone should show disrespect for the flag by refusing to stand during the national anthem, spectators would be barred from
future sports events. Defendant shouted that it was illegal and unconstitutional to force anyone to stand during the ceremonies. He admits that disputes immediately flared up between himself and nearby spectators. At this point a plainclothes detective mounted the bleachers and sat next to defendant. The detective testified that nearby fans had requested defendant to be quiet; they wanted to watch the game, and some of them began to move away and express displeasure with defendant's mouthings. Defendant then gestured obscenely and loudly uttered a lewd chant: " , , Gestapo, , ," patently indecent language which need not be reproduced here. The detective then arrested defendant and quietly led him out of the gymnasium.
Defendant was charged as a disorderly person for uttering loud and offensive language in public, N.J.S.A. 2A:170-29(1), and for disturbing a place of assembly, N.J.S.A. 2A:170-28. After conviction in the municipal court, the matter was appealed to the County Court where, after a trial, the judge found defendant guilty on both charges.
On appeal defendant contends that the conviction under N.J.S.A. 2A:170-28 was erroneous both because the factual context of the case is not covered by that statute and because his conduct is protected by the "free speech" provisions of the First Amendment.
N.J.S.A. 2A:170-28 defines a disorderly person as anyone who "by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, including schools, churches, libraries and reading rooms * * *." The arresting officer testified that defendant was making obscene gestures, uttering obscene language, and visibly disturbing the nearby spectators. An accompanying officer testified that numerous persons moved away from defendant. Defendant denied creating a disturbance, but the trial judge found sufficient evidence to warrant a conviction.
Defendant first urges that the conviction violates his constitutional right to free speech. He argues that the offending
conduct must have been his initial retort to the mayor and, relying on Garner v. Louisiana , 368 U.S. 157, 82 S. Ct. 248, 7 L. Ed. 2d 207 (1961), contends that the State may act to limit speech only in the narrowest of circumstances. We are not concerned with what he said then, but with his obscene language and gestures that followed after the game began -- the real nub of the disorderly person charge.
While it must be conceded that the State may not unreasonably restrict personal freedoms -- see, for example, State v. Caez , 81 N.J. Super. 315 (App. Div. 1963) -- it is equally apparent that the State may protect its citizens, in the exercise of their right to peaceable assembly, from riotous or potentially dangerous disturbances. In any event, the long line of cases attempting to delineate the permissible limits of restriction are neither consistent in theory nor particularly reconcilable in practice. Moreover, it might here be noted that defendant's reliance on Garner is misplaced, for the holding in that case, a conviction of sit-in demonstrators for "breach of the peace," rested on the lack of adduced evidence that any "disturbance" had in fact occurred.