State v. McHugh

ENTRY_ORDER.91-280; 161 Vt. 574; 635 A.2d 1200

[Filed 09-Nov-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 91-280

                             OCTOBER TERM, 1993


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 2, Chittenden Circuit
                                   }
 Paul M. McHugh                    }
                                   }          DOCKET NO. 1558-4-90CnCr


              In the above entitled cause the Clerk will enter:

      The State charged that defendant Paul McHugh "corruptly endeavored to
 obstruct . . . justice" by picketing the residence of Judge Matthew Katz in
 an attempt to influence his judicial decisions in pending criminal proceed-
 ings involving defendant and others.  13 V.S.A. { 3015.(FN1)  The trial court
 granted defendant's motion to dismiss, ruling that the statute as applied
 infringed the First Amendment right to free speech.  We affirm.

      On April 5, 1990, defendant and several members of Operation Rescue
 were on the public sidewalk at the residence of Judge Katz protesting his
 failure to release other members of the group on bail.  Defendant carried
 handbills urging "people of God" to maintain "prayer vigils" at the site
 until Judge Katz should "repent . . . or immediately remove himself from all
 further rescue trial proceedings."  The demonstration was confined to the
 sidewalk in front of the residence.  There was no disorderly conduct, no
 obscenity, and no trespass.

      As a general matter, peaceful picketing and leafletting are protected
 speech activities.  United States v. Grace, 461 U.S. 171, 176 (1983).
 Public streets and sidewalks are traditional public fora for purposes of
 free expression and do not lose that status in residential areas.  Frisby
 v. Schultz, 487 U.S. 474, 480 (1983).  Speech in these areas may be regu-
 lated by a content-neutral regulation that is narrowly drawn to serve a
 significant government interest.  Id. at 481.

 

      We agree with the trial court that Vermont's obstruction-of-justice
 statute is content neutral when applied to picketing or leafletting, see
 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)
 (regulation content neutral if "justified without reference to the content
 of the regulated speech"), and that, with respect to picketing, its purpose
 in protecting the integrity of the judicial system is significant.  See Cox
 v. Louisiana, 379 U.S. 559, 562 (1965) (state may regulate picketing near
 courthouse to assure fair and orderly administration of justice).  The issue
 here is whether the "omnibus clause" of 13 V.S.A. { 3015 is sufficiently
 narrowly tailored to proscribe the actions of defendant without infringing
 constitutionally protected speech.

      Drawing on case law construing the nearly identical omnibus clause of
 the federal obstruction-of-justice statute, 18 U.S.C. { 1503,(FN2) the State
 contends that Vermont's statute requires defendant to have both a specific
 intent to impede or obstruct the administration of justice and also the
 capacity to obstruct, thus creating a "limited standard of culpability"
 that narrows the coverage of the statute.  United States v. Jeter, 775 F.2d 670, 679 (6th Cir. 1985).  If an actor's conduct is "corrupt," as the
 statute requires, the conduct cannot be constitutionally protected.  Indeed,
 the State argues that the statute "covers all interferences with the admin-
 istration of justice regardless of the means employed," even if those means
 are merely acts of expression.

      This reasoning subordinates First Amendment rights to the interests
 served by the statute.  According to the test of narrowness articulated in
 Frisby, a content-neutral statute that targets speech activity in a public
 forum must be drafted so as to "eliminate[] no more than the exact source of
 the 'evil' it seeks to remedy."  Frisby, 487 U.S.  at 485.  The problem in
 this case, as the trial court recognized, is that the "evil" of picketing a
 judge's residence is not the only speech activity potentially restricted by
 the State's interpretation of the omnibus clause of 13 V.S.A. { 3015.  All
 speech intended to influence judicial decisionmaking, whether by demon-
 stration, radio call-in, letter, editorial, or otherwise, could run afoul of
 the standard of culpability the State advocates.  The State's application of
 the statute is, thus, overbroad.  See Grayned v. City of Rockford, 408 U.S. 104, 114-15 (1972) (statute overbroad that "sweeps within its prohibitions
 what may not be punished under the First . . . Amendment[]"); cf. City of
 Houston v. Hill, 482 U.S. 451, 462-63 (1987) (statute making it illegal to
 "in any manner oppose, molest, abuse, or interrupt" police officer in
 execution of officer's duty was overbroad; "[t]he freedom of individuals
 verbally to oppose or challenge police action without thereby risking arrest
 is one of the principal characteristics by which we distinguish a free
 nation from a police state").

 

      What is more, the line is not clear between speech activity that is
 "corrupt" and that which is not.  Speech that is critical of the judicial
 system is always intended, to one degree or another, to influence decision-
 making.  Yet, the very same activity could amount to obstruction in one case
 and not in another, depending on the State's determination of the actor's
 intent and capacity.  This leaves a subjective determination of culpability
 to government officials and provides no "reasonable opportunity [for a
 person of ordinary intelligence] to know what is prohibited, so that he may
 act accordingly." Grayned, 408 U.S.  at 108; see also City of Houston, 482 U.S.  at 465 ("Although we appreciate the difficulties of drafting precise
 laws, we have repeatedly invalidated laws that provide the police with
 unfettered discretion to arrest individuals for words or conduct that annoy
 or offend them."); Aubrey v. City of Cincinnati, 815 F. Supp. 1100, 1104
 (S.D. Ohio 1993) (where minister's "John 3:16" banner was taken away,
 Cincinnati Reds' policy allowing only banners that are in "good taste" at
 World Series game was unconstitutionally overbroad and vague, "leav[ing] too
 much discretion in the decision maker").

      As defendant points out, a municipal ordinance specifically prohibiting
 picketing in front of a single residence has passed constitutional scrutiny.
 See Frisby, 487 U.S.  at 486.  Significantly, federal statutes include not
 only the omnibus obstruction-of-justice provision that closely parallels
 Vermont's, 18 U.S.C. { 1503, but also a more specific provision prohibiting
 picketing or parading near a United States court or a federal judge's
 residence.  18 U.S.C. { 1507; see Cox, 379 U.S.  at 562 ("A narrowly drawn
 statute such as [18 U.S.C. { 1507] is obviously a safeguard both necessary
 and appropriate to vindicate the State's interest in assuring justice under
 law.").

      Affirmed.


                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [ ]  Publish
                                    _______________________________________
 [x]  Do Not Publish                Denise R. Johnson, Associate Justice




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                                   Footnotes

FN1.    13 V.S.A. { 3015 states, in pertinent part: "Whoever corruptly . . .
 obstructs or impedes, or endeavors to obstruct or impede the due adminis-
 tration of justice, shall be imprisoned not more than five years or fined
 not more than $5,000.00, or both."

FN2.    18 U.S.C. { 1503 states, in pertinent part: "Whoever corruptly . . .
 obstructs, or impedes, or endeavors to influence, obstruct, or impede, the
 due administration of justice, shall be fined not more than $5,000 or
 imprisoned not more than five years, or both."