Court Upholds ‘Disturbing the Peace’ Ordinance

The Court of Appeals affirms defendant’s conviction of disturbing the peace for threatening the parent of a child involved in a bus stop altercation with his child, in violation of Va. Beach City Code § 23-10, which is not unconstitutionally vague or overbroad.

Overbreadth

The ordinance at issue provides that it shall be unlawful “for any person to disturb the peace of others by violent, tumultuous or obstreperous conduct or by threatening, challenging to fight, assaulting, fighting or striking another.”

Defendant disagrees with the characterization of the Virginia Beach ordinance as a fighting words statute. He maintains a substantial amount of constitutionally protected speech may be described by those terms, including such speech act as flag-burning or wearing a jacket emblazoned with the words “F—k the Draft.” Since these famous examples of protected political speech acts could be defined as “tumultuous” or “obstreperous,” defendant argues the Virginia Beach ordinance goes beyond prohibiting well-defined, narrowly limited classes of speech and regulated precisely the type of conduct the First Amendment shields, which makes the ordinance unconstitutionally overbroad.

We disagree that a substantial amount of constitutionally protected speech is implicated by the ordinance. Instead, we find that plain language of § 23-10 is unambiguous and prohibits only conduct or speech which is violent or inductive of violence. The ordinance is a breach of the peace ordinance directed solely at constitutionally unprotected actions and speech. By its plain meaning, much of the ordinance’s language clearly prohibits violent, constitutionally proscribable acts such as assaulting, fighting or striking another and violent conduct, and true threats and fighting words.

Since the activities encompassed by the ordinance are not protected by the First Amendment, Va. Beach City Code § 23-10 falls within the scope of valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Because the ordinance does not reach constitutionally protected conduct, it is constitutionally sound and not overbroad.

Vagueness

The ordinance also is not unconstitutionally void for vagueness. Defendant’s argument does not focus on his own conduct, but poses hypotheticals about the ordinance’s applicability to other others in other circumstances.
Defendant does not claim that when he beat on the door of the child’s home and told his mother, “I’ll kill you and your whole family,” his actions fell outside the ordinance’s prohibition of violent conduct and threats. Neither does defendant argue that the ordinance failed to give him sufficient notice that his conduct was prohibited, or that he was subject to arbitrary and discriminatory enforcement of that ordinance.

Conviction affirmed.

Wright v. City of Virginia Beach (Malveaux) No. 1399-16-1, Aug. 1, 2017; Va. Beach Cir.Ct. (Shockley) Roger A. Whitus, APD, for appellant; Kathleen A. Keffer, Ass’t City Att’y, for appellee. VLW 017-7-180(UP), 9 pp.