State v. Zwicker
164 N.W.2d 512, 41 Wis. 2d 497 (1969)
Rule of Law:
Wisconsin's disorderly conduct statute is constitutional and proscribes conduct that is violent, abusive, indecent, profane, boisterous, or unreasonably loud, or similar thereto, when such conduct tends to cause or provoke a disturbance, without abridging First and Fourteenth Amendment rights to free speech and assembly.
Facts:
- On February 17, 1967, university officials established rules for anticipated demonstrations, including a prohibition against taking signs into campus buildings.
- On February 21, 1967, Chief Hanson informed Zwicker and other demonstrators of the rule against signs in campus buildings before they entered.
- Zwicker and 60-70 others entered a university building and took positions in a corridor; approximately ten to fifteen minutes later, signs appeared among the demonstrators, and Zwicker raised a sign, allegedly telling others to do so, and refused to put it down when asked.
- When officers attempted to remove Zwicker, he “went limp,” and other demonstrators physically prevented his removal, leading to 40-50 additional signs appearing and rendering the situation uncontrollable by police.
- On October 18, 1967, approximately 200 persons entered a university building, filling a corridor and making passage difficult, with some individuals having to walk over seated demonstrators.
- Robert Weiland blocked a business office door by sitting and joining arms with others, refused to move when asked, and attempted to strike an officer.
- Michael Oberdorfer struck officers, spat at an officer several times, and used vulgar and abusive language.
- William Simons used a bullhorn to lead chants, advised demonstrators to block entry/exit, told them to 'shove the cops out,' 'lock their arms and legs together,' and 'kick policemen between the legs,' and used vulgar language.
- Gregor Sirotof threatened to kill an officer and spat upon him while using vulgar and abusive language, also advising others to kick police.
Procedural Posture:
- Defendants (Zwicker, Weiland, Oberdorfer, Simons, Sirotof) were convicted of disorderly conduct under Wis. Stat. § 947.01 in their respective trial courts.
- The defendants appealed their convictions to the Wisconsin Supreme Court, seeking reversal.
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Issue:
Does Wisconsin's disorderly conduct statute, Wis. Stat. § 947.01, violate the First and Fourteenth Amendments by being unconstitutionally vague or overbroad, or as applied to the conduct of student demonstrators?
Opinions:
Majority - Connor T. Hansen, J.
No, Wisconsin's disorderly conduct statute, Wis. Stat. § 947.01, is not unconstitutionally vague or overbroad, nor was it unconstitutionally applied to the appellants' conduct. The court affirmed the constitutionality of the statute against challenges of vagueness and overbreadth, relying on its prior ruling in State v. Givens and the United States Supreme Court's affirmance in Zwicker v. Boll. The court reiterated that the statute's design is to proscribe 'substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons,' not merely to punish unpopular views. It clarified that the statute does not prohibit activities intertwined with protected freedoms unless they are carried out in a 'violent, abusive, indecent, profane, boisterous or unreasonably loud, or conduct similar thereto, and under circumstances in which such conduct tends to cause or provoke a disturbance.' The court found that constitutionally protected rights like free speech are not absolute and must be balanced against public order. Applying this standard, the court concluded that Zwicker's deliberate defiance of a known rule by displaying a sign, his going limp during arrest, and his actions in inciting others, along with the other defendants' conduct of blocking passageways, using abusive language, spitting, and physically assaulting officers, went beyond the bounds of constitutionally protected speech and assembly. The court also found no prejudicial error in the jury instructions, distinguishing the cases from Terminiello v. Chicago by noting that the juries were correctly instructed on the two essential elements of disorderly conduct: the nature of the conduct itself and its tendency to cause a disturbance.
Concurring-in-part-and-dissenting-in-part - Wilkie, J.
Yes, for defendant Zwicker, the disorderly conduct statute as applied was unconstitutional due to erroneous jury instructions, while the convictions of the other defendants (Weiland, Oberdorfer, Simons, and Sirotof) were valid. Justice Wilkie concurred with the majority's interpretation that disorderly conduct requires two elements: first, the conduct must be one of the six types specifically proscribed by the statute (e.g., violent, abusive, profane) or similar thereto; and second, it must tend to cause or provoke a disturbance. However, he dissented regarding Zwicker's conviction, arguing that the jury instruction given in Zwicker's case erroneously omitted the first element by stating, 'Conduct is disorderly, although it may not be boisterous or unreasonably loud, if it is of a type which tends to disrupt good order and provoke a disturbance.' This instruction, he contended, would allow conviction for peaceful, constitutionally protected acts if they merely tended to cause a disturbance, thereby making the statute vague and overbroad. He found Zwicker's specific actions—holding a sign in violation of a university rule, going limp, and questioning university authority—were not 'violent, abusive, indecent, profane, boisterous, [or] unreasonably loud' nor similar thereto, and thus were constitutionally protected. In contrast, the conduct of the other defendants (using profanity, spitting, blocking doors, striking officers) clearly fell within the proscribed types, making the instructional error non-prejudicial for them. Justice Wilkie warned that the majority's affirmance of Zwicker's conviction effectively removed the first element from the statute, potentially branding any participant in a peaceful demonstration as guilty if a disturbance by others might follow.
Analysis:
This case clarifies the application of disorderly conduct statutes in the context of public demonstrations and free speech. It reinforces that while freedom of speech and assembly are fundamental, they are not absolute and do not shield conduct that disrupts public order through specific harmful actions. The court's emphasis on a two-part test—requiring both a specific type of offensive conduct and a tendency to cause a disturbance—provides a framework for balancing First Amendment rights with governmental interests in maintaining order. Future cases will likely refer to this standard when evaluating the constitutionality and application of similar public order statutes, particularly in distinguishing protected expression from unprotected disruptive behavior.
