Breach of the Peace
BREACH OF THE PEACE
Breach of the peace statutes are today popularly called disorderly conduct statutes. The wording of breach of the peace or disorderly conduct statutes varies significantly from one city or state to another. Generally, such statutes are violated if a person commits acts or makes statements likely to promote violence or disturb "good order" in a public place. Under modern statutes, as under the older common law, it is possible to be guilty of committing a breach of the peace solely through the use of words likely to produce violence or disorder.
When a person is prosecuted for breach of the peace for his or her physical actions there is no significant first amendment issue. Thus, if a person commits a breach of the peace by punching or shoving other persons in public no First Amendment issue arises. However, if a mixture of expression and physical activity forms the basis for the prosecution, the court must ask whether the person is being punished for the physical activity alone. Thus, a person might be convicted of a breach of the peace for using soundtrucks or amplifiers if the statute punished any use of a sound amplification device, regardless of the message communicated.
When a person is accused of committing a breach of the peace by speaking to others, a court must determine whether the guarantees of freedom of speech and assembly have been violated. In addition, the court must determine whether the statute is tailored to avoid punishing constitutionally protected speech.
Although the Supreme Court has held that the First Amendment does not prohibit the punishment of fighting words, it has upheld few convictions for breach of the peace based solely upon verbal conduct. A considerable number of breach of the peace and disorderly conduct statutes have been held unconstitutional under the doctrine of vagueness and overbreadth.
A breach of the peace or disorderly conduct statute that can be constitutionally applied to persons who physically interfere with police officers engaged in police functions cannot constitutionally serve as the basis for punishing the use of insulting or annoying language to a police officer, short of actual interference with the officer's ability to perform police functions.
A person engaged in lawful speech in a public place may sometimes be confronted by a hostile audience. In such a situation the police must attempt to protect the individual speaker, or disperse the crowd, before ordering the speaker to cease his or her advocacy of the unpopular message. If it appears that the officers cannot otherwise prevent violence, they may order the speaker or speakers to cease their speech or assembly, and a refusal to comply can constitutionally be punished as disorderly conduct. Breach of the peace statutes may also be applied as consistent with the First Amendment to prohibit conduct that would interfere with the use of government property not traditionally open to speech. Thus, the state might prohibit activities near jails or school buildings if those activities interfere with the government's ability to operate the school or jail.
John E. Nowak
Monaghan, Henry P. 1981 Overbreadth. The Supreme Court Review 1981:1–40.