These same justices quoted with approval the following words of Judge McGowan, writing for the court in Williams v. District of Columbia,16 a case involving a construction of the District's disorderly conduct law:17

Apart from punishing profane or obscene words which are spoken in circumstances which create a threat of violence, the state may also have a legitimate interest in stopping one person from 'inflict [ing] injury' (Chaplinsky v. New Hampshire, 315 U.S. at 572) on others by verbally assaulting them with language which is grossly offensive because of its profane or obscene character.

The above views are consistent with considered dicta in Chaplinsky itself. There, in the course of its unanimous opinion sustaining the disorderly conduct conviction of a man for uttering "fighting" words 18 in a public place, the Supreme Court observed: 19

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

In the opinion of the Committee, the above quotations accurately express what is and ought to be prevailing constitutional doctrine. Accordingly, the Committee intends that the phrase "uses language that is abusive or obscene" in this paragraph be construed to reach not only those utterances likely to elicit a violent response from the addressee, but also that language which is "under 'contemporary community standards,' so grossly offensive to members of the public who actually overhear it as to amount to a nuisance." 20 In the event that a majority of the Supreme Court ultimately determines that such a construction would expand this provision bevond the parameters permissible under the First Amendment, the Committee would expect that the Court, under general principles of construction, would interpret the paragraph so as to confine it within the limits on the prohibition of abusive or obscene language (e.g., "fighting" words) as are deemed constitutionally mandated, rather than invalidate the entire paragraph.21

16 419 F. 2d 638 (D.C. Cir. 1969) (en banc).

17 Id. at 646. See also Rosenfeld v. New Jersey, supra note 15, at 905-906.

18 The words were "God damned racketeer" and "damned Fascist."

19 215 U.S. at 571-572 (footnotes omitted).

20 Williams v. District of Columbia, supra note 16, at 646. Examples of the kinds of enithets and profanities that should ordinarily be punishable under this formulation may be found in Lewis v. New Orleans, supra note 12, and Rosenfeld v. New Jersey, supra note 15. See also People v. Cuomo, 70 Misc. 2d 757, 335 N.Y.S. 2d 219 (1972) People v. Cecere, 70 Misc. 2d 510, 334 N.Y.S. 2d 83 (1972). Very likely, the words used in Chaplinsky, supra note 12, would not. under modern day community standards, be so grossly offensive as to constitute a violation of this subparagraph. Compare Cohen v. California, 403 T.S. 15 (1971). 21 See United States v. Thirty-Seven Photographs, 402 U.S. 363, 369-373 (1971).

22

The conduct element in the first clause is using language. Since no culpability standard is specified, the applicable state of mind is "knowing." The fact that the language was "abusive" or "obscene" is an existing circumstance as to which the applicable state of mind is "reckless." 23 Thus, it must be proved that the offender was aware of, but disregarded, a risk that the language was abusive or obscene.24 In determining whether the language used is abusive or obscene, the Committee intends that the standard of measure be the sensibilities of the "average person" 25 in the context of all the circumstances. Where, however, words are addressed to an individual as a representative of a particular group or class (e.g., a law enforcement officer) the average sensibilities of a member of that class or group should furnish the governing criterion.26

Culpability with regard to the second clause is essentially the same. Thus the offender must be aware that he is engaging in conduct and his state of mind must be at least "reckless" with respect to the fact that the conduct is "obscene."

The final element-that the conduct occur "in a public place"-is an existing circumstance. As no culpability standard is designated, the applicable state of mind which at a minimum must be shown is "reckless," i.e., the actor must have been aware of, but disregarded, the risk that he spoke or acted in a public place. The term "public place" is not defined in the proposed Code. It is intended, however, to include any location to which the public or a substantial group has access. Among the areas included are highways, public transportation facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood or street.27

Paragraph (4) punishes the obstruction of vehicular or pedestrian traffic, or of the use of a public facility. This provision reaches, among others, persons who, with the requisite intent, engage in unauthorized demonstrations in public thoroughfares or facilities, block ingress to or egress from a business or dwelling, or impede traffic on a highway. The conduct is the obstruction of traffic or the use of a facility and the culpability level is "knowing." 28 The facts that the traffic obstructed is pedestrian or vehicular and that the facility the use of which is obstructed is a "public" facility are attendant circumstances. The applicable state of mind that must be proved with respect to these elements is "reckless," 29 i.e., the offender must be shown to have been aware of, but to have disregarded, the risk that the circumstances were as they existed. The term "public facility" is broadly defined in section 111 and is self-explanatory. It should be emphasized, however, that the thrust of this paragraph is not the obstruction of the traffic or facility itself, but the doing so as a means of alarming, harassing, or annoying another person or persons.

22 See sections 303(b) (1) and 302 (b) (1).

23 See section 303 (b) (2).

24 Section 302 (c) (1).

25 See Miller v. California, 413 U.S. 15, 24 (1973); Williams v. District of Columbia, supra note 16, at 646.

26 Compare Mishkin v. New York, 383 U.S. 502, 508 (1966); see Lewis v. New Orleans, supra note 12, at 135 (Powell, J., concurring); contra, People v. Cuomo, supra note 20, at 221-222.

27 See Model Penal Code, § 250.2. See also In re Heal, 6 Misc. 2d 751, 164 N.Y.S. 2d 549 (1957); People v. Cecere, supra note 20; People v. Ripke, 115 N.Y.S. 2d 590 (1952). 29 See sections 303 (b) (1) and 302 (b) (1).

20 See section 303 (b) (2).

Paragraph (5) prohibits persistently following a person in or about a public place or places. When coupled with the requirement that the following of a person be with intent to alarm, harass, or annoy, or in reckless disregard of the fact that such effects result, it is clear that this paragraph does not prohibit, for example, the activities of a licensed private detective who "shadows" a person.30 The type of activity to which the paragraph applies would, however, embrace the persistent and overt following of an individual by a photographer seeking to elicit, by his presence, an expression of alarm or fright on the followed person's face.31

The conduct proscribed is following a person and, under the general principle of section 303 (b) (1), the culpability standard is "knowing, that is, the offender must be aware that he is following an individual. The elements of "persistently" and "in or about a public place or places" are existing circumstances and, under the general principles of section 303 (b) (2), the state of mind that must be proved is "reckless," that is, the offender must at a minimum be shown to have been aware of, but to have disregarded, the risk that his following was persistent and that he was following in a public place or places. The term "public place" is intended to have the same meaning as in paragraph (3), discussed herein.

Paragraph (6) punishes the soliciting of a sexual act, as defined in section 1646 (a) (1), when done in a public place and with intent to annoy, harass, or alarm, or in reckless disregard of the risk that the conduct in fact causes a person to be annoyed, harassed, or alarmed.

The conduct-solicits-like the conduct throughout this section, carries a culpability level of "knowing," 32 i.e., the offender must be aware that he is soliciting. The term "solicits" is not defined, except insofar as it does not mean the conduct defined in section 1003 (Criminal Solicitation).33 The term is intended to carry its dictionary meaning of "importune," "approach with a request or plea," or "try to obtain by asking for."

The elements of "sexual act" and "in a public place" are existing circumstances, as to which the state of mind that must be proved is "reckless," i.e., an awareness but disregard of the fact that the circumstances exist.34 The definition of "sexual act" in section 1646 (a) (1) is largely self-explanatory and is discussed in connection with that section. The term "public place" is intended to have the same meaning as in paragraph (3), discussed herein.

Paragraph (7) prohibits engaging, for no legitimate purpose, in any other conduct that creates a hazardous or physically offensive condition. This provision is designed to reach other types of conduct too numerous to specify, when performed with intent to annoy, harass, or alarm another, or in reckless disregard of the fact that another is so affected thereby. The kinds of activity which might come under this paragraph include the placing of dead animals, garbage, or glass in front of another's house or on the street, or the throwing of a "stink bomb." The provision is limited, however, to conduct that serves

30 See People v. Weiler, 179 N.Y. 46, 71 N.E. 462 (1904).

31 See Galella v. Onassis, 353 F. Supp. 196, 227 (S.D.N.Y. 1972) modified, 487 F.2d 986 (2d Cir. 1973).

32 See section 303 (b) (1).

See section 111.

34 See sections 303(b) (2) and 302 (c) (1).

Section 1862.

no legitimate purpose. Thus, for example, where physically offensive or even hazardous conduct is done as a protest against governmental action, it is not within this paragraph.35

The conduct within this subparagraph must be committed knowingly, i.e., the actor must be aware of what he is doing.36 The facts that the conduct is hazardous or physically offensive and that it is not for a legitimate purpose are existing circumstances. Accordingly, under the general principles of paragraphs 303 (b) (2) and 302 (c) (1), the applicable state of mind is "reckless," i.e., the offender must be cognizant of, but disregard, the risk that the circumstances exist. The mere fact that a person believes that his purpose is "legitimate" (providing he is aware of the risk that it may be viewed otherwise and his disregard of that risk constitutes a gross deviation from the standard of care a reasonable person would exercise under the circumstances) will therefore not insulate him from liability under this paragraph if in fact, his purpose is found to have been not legitimate. 3. Jurisdiction

There is Federal jurisdiction over this offense if committed within. the special jurisdiction of the United States. The special jurisdiction is defined in section 203 and includes the special territorial, special maritime, and special aircraft jurisdictions. The places encompassed include Federal enclaves, as well as various vessels and aircraft. The District of Columbia is not, however, within the special territorial jurisdiction, so that this section does not replace the specific disorderly conduct offenses in the District of Columbia Code.38

4. Grading

37

The offenses in this section are infractions, punishable by a maximum of five days in prison.

SECTION 1862. FAILING TO OBEY A PUBLIC SAFETY ORDER

1. In General and Present Federal Law

This section punishes persons who refuse to obey an order of a public servant to move, disperse, or refrain from activity in a particular place, where the order is lawful and reasonably designed to protect persons or property. There is no counterpart to this section. in current Federal law. Rather, the conduct proscribed constitutes a form of disorderly conduct which may be prosecuted in Federal enclaves under the Assimilative Crimes Act, 18 U.S.C. 13, utilizing the laws of the State or locality where an enclave is located. The section is derived from provisions of S. 1, as originally introduced in the 93d Congress, S. 1400, and the Final Report of the National Commission, all dealing with disobedience of a reasonable public safety order to move, disperse, or refrain from specified activity during and in the vicinity of a riot.39 This section generalizes from the riot situ

25 Compare. e.g., People v. Stover. 12 N.Y.2d 462. 191 N.E.2d 272, appeal dismissed for want of a substantial Federal question, 375 U.S. 42 (1963); People v. Mehdi, 29 N.Y.2d 824. 277 N.E.2d 673 (1971); DiDonna v. DiDonna, 72 Misc.2d 231. 339 N.Y.S.2d 592 (1972).

36 See sections 303 (b) (1) and 302 (b)(1).

See Johnson v. United States, 225 U.S. 405. 415 (1912). See also discussion infra of section 203 (b) in connection with section 1863 (Violating State or Local Law in an Enclave).

38 See 22 D.C. Code 1107, 1121.

30 See section 2-9B4 of S. 1, as originally introduced in the 93d Congress; see also section 1804 of S. 1400, and section 1804 of the Final Report.

ation to punish the failure to obey a lawful and reasonable order to move, disperse, etc., in any circumstances.

2. The Offense

The conduct in this section is "disobeying" an order to move, disperse, or refrain from specified activity in a particular place. The culpability standard is designated as "knowingly," i.e., the offender must be aware that he is disobeying an order to do one or more of the enumerated things. The elements that the order is from "a public servant," requires the person to "move, disperse, or refrain from specified activity" and is "lawful and reasonably designed to protect persons or property" are existing circumstances. With respect to the first two elements, no culpability standard is specifically designated. Therefore, by the operation of section 303 (b) (2), the applicable state of mind that must be proved is "reckless," i.e., an awareness but disregard of the risk that the person giving the order is a public servant 10 and that the order is to move, disperse, or refrain from specified activity. The remaining element that the order be lawful and reasonably designed for protection is preceded by the term "in fact." Hence, under the operation of section 303 (a) (2), no culpability need be shown as to this element.

In addition to its application to riots and like circumstances where violent activity is occurring, this section is designed to apply to everyday street encounters where public servants come upon situations presenting a danger to persons or property.41 For instance, if an officer encounters a group of youths taunting and throwing rocks at an animal and orders them to refrain from the activity and move, they would be guilty if they did not obey the order. Similarly, an individual engaging in general rowdy behavior in the street, thereby causing a danger to pedestrians and vehicular traffic, if ordered to cease the activity and move on would be guilty of an offense hereunder if he did not obey the order.

3. Jurisdiction

There is Federal jurisdiction over an offense described in this section in three situations: (1) where the offense is committed in the special jurisdiction of the United States; (2) where the public servant is a Federal public servant; and (3) where the offense obstructs, or would obstruct, a Federal function.

The special jurisdiction is defined in section 203 and includes the special territorial, special maritime, and special aircraft jurisdictions of the United States. In essence, these places cover Federal enclaves, vessels on the high seas, and certain aircraft while in flight. The application of this section to the special jurisdiction has the effect of unifying Federal law in this area, thereby rendering it unnecessary to rely, as presently is the case, upon the diverse enactments of the States and localities via the Assimilative Crimes Act.

The terms "public servant" and "federal public servant" are defined in section 111. Although in the context of this section the public servant almost always would be a law enforcement officer of the executive branch, the terms include persons, both elected and appointed, who are members of any branch of government and who are authorized to issue public safety orders. District of Columbia public servants are,

4 See section 302(c) (1).

41 Cf. People v. Todaro, 26 N.Y.2d 325, 258 N.E.2d 711 (1970).