The opinion of the court was delivered by: CONABOY
We consider herein Petitioner's claim that Title 18 Pa. C.S.A. § 5503(a)(3), a portion of the Pennsylvania Disorderly Conduct Statute, is violative of the 1st and 14th Amendments to the United States Constitution for reasons of overbreadth and vagueness. Although not currently incarcerated, Petitioner faces the prospect of ten (10) to thirty (30) days in the Cumberland County Jail should her current appeal to the Pennsylvania Superior Court fail. She seeks, therefore, a writ of habeas corpus from this Court on the constitutional grounds alluded to previously.
This claim arose from Petitioner's arrest on October 1, 1979 for violation of the statute in question. She was convicted in the Court of Common Pleas of Cumberland County and appealed on the aforementioned constitutional grounds to the Pennsylvania Superior Court. That Court, per its opinion of September 3, 1982, ruled that the statute was constitutional and cited Pennsylvania decisional law
in support of its ruling. Thereafter, Petitioner attempted to challenge the constitutionality of the statute by requesting allowance of appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court declined to hear this appeal on January 18, 1983.
Petitioner then filed a second appeal in the Pennsylvania Superior Court. This second appeal did not raise a constitutional issue, but alleged violations of the Pennsylvania Sentencing Code. While this second appeal was pending, Petitioner filed an application for a writ of habeas corpus in this Court in which she resumed her claim of a constitutional defect in the statute. Following a recommendation of a United States Magistrate, we dismissed Petitioner's action without prejudice due to our perception that the pendency of her second appeal to the Pennsylvania Superior Court precluded, for the time being, federal habeas corpus relief. On July 5, 1984, the Court of Appeals for the Third Circuit reversed our judgment of dismissal. 744 F.2d 297. This reversal was predicated on the fact that the Pennsylvania Supreme Court, by its denial of certiorari on Petitioner's federal constitutional claim, had effectively foreclosed any hope Petitioner had of succeeding on this theory at the state level. Moreover, since Petitioner's remaining appeal to the Pennsylvania Superior Court had no constitutional aspect, the outcome thereof would shed no light on her claim that the statute which she was convicted under was constitutionally defective. Therefore, the Court of Appeals for the Third Circuit remanded this case to us for a determination as to the constitutionality of Title 18 Pa. C.S.A. § 5503 (a)(3).
Petitioner attacks Title 18 Pa. C.S.A. § 5503(a)(3) on four (4) grounds: A) that it is unconstitutionally vague and overbroad on its face since it is not limited to "fighting words" as defined by the United States Supreme Court; B) that the term "obscene" as used in the statute is unconstitutionally vague and overbroad; C) that Petitioner's speech was neither obscene nor did it constitute "fighting words"; D) that the State courts erred in finding that the Petitioner's words created a clear and present danger of disorder. We consider these grounds seriatim.
We note, initially, that even fundamental rights, one of which is the freedom of expression as guaranteed by the First Amendment, may be abridged when a state can demonstrate a compelling interest in doing so. Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972); Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Skinner v. Oklahoma, 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942). We note, too, that all powers not delegated expressly to the United States are retained by the various states pursuant to the Tenth Amendment. Salient among these retained powers is the police power, that broad authority of the states to regulate the conduct of their citizens. This authority is so extensive that the public safety, health, morality, peace and quiet, and law and order do not exhaust its scope. Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954). Thus, one may readily see that a citizen who challenges the constitutionality of a state statute enacted to implement this broad-based police power must carry a substantial burden.
Since Petitioner contends that one of her fundamental rights, the right to freely express herself, has been abridged by a statute which is defectively vague and overbroad on its face, we are compelled to examine the statute without reference to Petitioner's conduct. Even if we assume, arguendo, that the statute was constitutionally applied to Petitioner, she may still prevail by showing that the statute is susceptible to unconstitutional application to others. Thornhill v. Alabama, 310 U.S. 88, 98, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). This idea of allowing a litigant to assert the rights of others is, of course, somewhat unusual since the general precept is that constitutional rights are personal and may not be asserted vicariously. McGowan v. Maryland, 366 U.S. 420, 429-30, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961). However, due to the perception that First Amendment rights are especially delicate, an exception has been carved out to allow litigants "to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). It is plain, therefore, that Petitioner's challenge to the facial validity of the statute compels us to analyze it without reference to the conduct she manifested.
We must now determine whether the challenged statute is so facially vague and overbroad as to be unconstitutional.
The doctrine of vagueness
. . . requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact to prevent arbitrary and discriminatory enforcement. Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First ...