CALOGERO, C. J., concurring.

The writer feels it is appropriate to deal with an issue this Court did not reach in the majority opinion. Specifically, I am of the opinion that it is this Court's constitutional duty to address the trial court's declaration that Title 13:1055 of the Baton Rouge Code of Ordinances is unconstitutionally vague and overbroad. Since, however, a majority of this Court disagrees with this view, I concur specially to discuss those issues which are, after all, the basis of this Court's jurisdiction over this case.

I. Why the Trial Court's Ruling Declaring the Ordinance Unconstitutional Should be Addressed

This Court entertains this case in the exercise of its appellate jurisdiction, invoked by the City of Baton Rouge pursuant to Article V, § 5 (D)(1) of Louisiana's 1974 Constitution since it involves review of a trial court's determination that a municipal ordinance is unconstitutional. "The distinction between supervisory and appellate jurisdiction is a continuation of existing terminology, 'supervisory' referring to the court's discretionary jurisdiction under which it has the power to select the cases it will hear, and 'appellate' contemplating cases in which a party as a matter of right can demand that the court hear a case." Lee Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 795 (1977) ( emphasis added). As then-Chairman (now Justice) Dennis put it during the constitutional convention,

Subparagraph (D) [of Article V] provides for cases which are appealable of right to the Supreme Court. The Supreme Court by virtue of its supervisory jurisdiction can hear any case that it chooses that arises in the Louisiana court system, however, Subparagraph (D) says that it must hear these kind of cases. It must grant the appeal and hear the case described in Subparagraph (D) . . . ."

State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts, August 15, 1973 at 51.

The traditional rule in Louisiana was that when a case fell within the Supreme Court's appellate jurisdiction, this Court was entitled to review only those issues which had invoked its appellate jurisdiction and no others. See State v. Verret, 87 So.2d 297 (La. 1956); City of New Orleans v. Levy, 64 So.2d 798 (La. 1953); State v. Bonner, 190 So. 625 (La. 1939); City of New Orleans v. New Orleans Butchers' Co-op. Abbatoir, 96 So. 113 (La. 1923); Town of Ruston v. Fountain, 42 So. 644 (La. 1906); State v. Marshall, 24 So. 186 (La. 1898); State v. Zurich, 21 So. 977 (La. 1896); Municipality No. 3 v. Blanc, 1 La.Ann. 385 (La. 1846). The Supreme Court's jurisdiction in such matters was exclusive, with review of any other issues presented by the case being conducted in the proper circuit or appellate tribunal after the Supreme Court had completed its appellate review. Id.

This approach continued to be the rule until the Louisiana Constitution of 1921 was amended by La.Acts. 1958, No. 561. That amendment added the following language to the final paragraph of Article VII, § 10 of the 1921 Constitution, the section addressing the Supreme Court's appellate and supervisory jurisdiction:

If a case is appealed properly to the Supreme Court on any issue, the Supreme Court has appellate jurisdiction over all other issues involved in the case.

The meaning of this amendment to the 1921 Constitution was explained by this Court in Tucker v. New Orleans Laundries, Inc., 127 So.2d 182, 183 (La. 1961):

The purpose of this provision is to prevent a division of appellate jurisdiction in any one appeal between this court and a court of appeal. What the provision means is that if an appeal is properly made to this court because the case falls within one of the categories stipulated in Article 7, Section 10, the whole appeal is before this court, and not just the issue which gives us appellate jurisdiction.

Accord, Broussard v. National Food Stores of La., Inc., 246 So.2d 838 (La. 1971) ( collecting cases).

Louisiana's 1974 Constitution generally continued this rule in Article V, § 5 (F), which provides as follows:

(F) Appellate Jurisdiction; Civil Cases; Extent. Subject to the provisions in Paragraph (C), the supreme court has appellate jurisdiction over all issues involved in a civil action properly before it.

See also Hargrave, supra, at 803. Under the current constitutional scheme, therefore, this Court may exercise appellate jurisdiction over all issues in a civil action "properly before it," which includes, as this Court has recognized, cases in which a supervisory writ has been granted. See Board of Comm'nrs of the Orleans Levee District v. Connick, 94-3161, p. 2 (La. 1995); ___ So.2d ___, citing Daily Advertiser v. Trans-La, 612 So.2d 7, 15 n 14 (La. 1993) ( citations omitted).

However, this provision expressly applies only to "civil actions," i.e. to "[e]very action other than a criminal action." Black's Law Dictionary, P. 312 (Rev. 4th ed., 1968) ( citations omitted). The language of Article V, § 5 (F) must be read in contrast to its predecessor in the 1921 Constitution, the last paragraph of Article VII, § 10, which applied to cases "appealed properly to the Supreme Court on any issue." Applying the interpretative maxim of expressio unius est exclusio alterius, I conclude that the practice of extending appellate jurisdiction to all issues in a criminal case properly before this Court is not sanctioned by the 1974 Constitution. Indeed, any argument that the broad rule of the 1921 Constitution, encompassing both criminal and civil actions, is retained in the face of the more specific language of Article V, § 5 (F) of the 1974 Constitution would render the latter superfluous.

It is not my view, however, that this Court is entirely without authority to address the nonconstitutional issues encompassed by the trial court's ruling. Rather, the 1974 Constitution grants this Court plenary power of discretionary review in the exercise of its supervisory jurisdiction. La.Const. Art. 5, § 5 (A). The fact that this case has come to us under the rubric of an appeal does not prevent this Court from treating the City of Baton Rouge's pleadings regarding the nonconstitutional issues as an application for supervisory writs, granting the same and resolving those issues. Compare State v. Peacock, 461 So.2d 1040 (La. 1984); State v. Alfred, 337 So.2d 1049 (La. 1976). The distinction, however, is that in the absence of a corollary provision to Article V, § 5 (F) in the criminal arena, any jurisdiction this Court exercises over the nonconstitutional issues in this case is discretionary supervisory jurisdiction and not "mandatory appellate jurisdiction." Hargrave, supra, at 799.

In the exercise of its discretion, this Court has traditionally shown some reluctance in exercising its supervisory jurisdiction until all mechanisms of judicial review available in lower courts are exhausted. See State v. Wimberly, 414 So.2d 666, 670 (La. 1982) ( on rehearing), quoting State ex rel. City of New Orleans v. The Judge of the Sixth District Court, 32 La.Ann. 549 (La. 1880). See also Albert Tate, Supervisory Powers of the Louisiana Courts of Appeal, 38 Tul.L.Rev. 429 (1964); Comment, Supervisory Powers of the Supreme Court of Louisiana over Inferior Courts, 34 Tul.L.Rev. 165 (1959). While admittedly the nonconstitutional issues presented by this case are res nova, not yet having been passed upon by any appellate court of this state, nonetheless the question of the preemptive reach of LSA-R.S. 14:143 is of such importance to the functioning of the criminal justice process statewide that I agree that it is prudent for this Court to entertain the issue at this time.

This does not mean, however, that this Court is free to pretermit consideration of the trial court's declaration that the municipal ordinance is unconstitutional. I believe that this Court must attempt to give some meaning to the language of our 1974 Constitution, and that the aforementioned discussion of the pertinent constitutional provisions reveals a design wherein, in criminal matters, "mandatory appellate jurisdiction" must be exercised in priority to "discretionary supervisory jurisdiction." Since I am of the view that it is unwise to consider the distinctions drawn in the language of our Constitution meaningless, I feel that it is appropriate to reach the constitutional issues presented by this case, and proceed now to do so.

II. The Constitutional Issues in the Trial Court

Shelton Ross's motion to quash, aside from alleging the nonconstitutional issues discussed in the opinion of the Court, also alleged that the ordinance was "unconstitutional for being overly broad, and vague under the Federal and State Constitutions." In the hearings on the motion the defense argued that the language of the ordinance, in particular the phrase "remains in a public place," is unconstitutionally vague because it fails to give adequate notice of exactly what conduct is prohibited. In addition, the defense also contended that the ordinance is unconstitutionally overbroad since it unjustifiably criminalizes a number of "constitutionally protected" activities.

In response to the defense's constitutional arguments, the city prosecutor rejoined that the ordinance clearly and distinctly criminalizes only solicitation for illegal activities, and does not address "constitutionally protected" activities. The city prosecutor also argued that the phrase "remains in a public place" is susceptible to a common understanding, and therefore not unconstitutionally vague. Based on the foregoing arguments, the city prosecutor maintained that the ordinance was constitutional.

Citing LSA-R.S. 14:11, the trial court interpreted the word "intentional" in the ordinance to require a showing of only "general" criminal intent to prove a violation of the ordinance. After examining the effect of this intent requirement in light of the range of activities purportedly reached by the ordinance, the trial court concluded that the ordinance was unconstitutionally overbroad. In addition, the trial court, focusing upon the phrase "remains in a public place," ruled that the ordinance was unconstitutionally vague.

I now review the trial court's determination that the ordinance is unconstitutional. In so doing I begin with the trial court's finding that the ordinance is unconstitutionally vague, in violation of the defendant's right to due process under Article I, § 2 of the Louisiana Constitution of 1974 and the Fourteenth Amendment to the United States Constitution. After the vagueness claim has been addressed, I will move on to the contention that the ordinance impermissibly infringes upon rights of free speech and assembly guaranteed by Article I, §§ 7 and 9 of the Louisiana Constitution of 1974, and the First and Fourteenth Amendments to the United States Constitution.

III. The Construction of Title 13:1055 of the Baton Rouge Code of Ordinances

It is necessary, however, before I proceed further, that I place a proper construction upon the ordinance. This threshold procedure is required because the core of the defendant's unconstitutionality claims, i.e. vagueness and overbreadth, is directed at the manner in which the City of Baton Rouge has articulated its definition of criminal activity in the ordinance. In addition, as the ensuing discussion will reveal, the nature of the offense with which Ross is charged also presents certain analytical difficulties which can be alleviated by a definitive construction of the ordinance.

A. Criminal Solicitation and Free Speech and Assembly

The ordinance under which Ross is charged is peculiar in that it does not directly punish drug trafficking, but rather penalizes the defendant who "intentionally solicits, induces, entices, or procures another to engage in" illegal drug activities. Thus, Ross is charged not with engaging personally in drug trafficking, but rather with soliciting others to do so. It is the nature of the offense with which Ross is charged, criminal solicitation, which makes an analysis of the ordinance in the free speech and assembly context difficult.

Criminal solicitation falls within that family of common law offenses known as "inchoate offenses," those offenses such as attempt or conspiracy which are incipient to the completion of an actual offense. 3 Coke, Institutes of the Laws of England, P. 66 (1797); 2 Sir James Fitzjames Stephen, A History of the Criminal Law of England, Pp. 221-240 (1883). See LSA-R.S. 14:26-28.1; Sidney M. Blitzer, Jr., Comments: Conspiracy, 28 La.L.Rev. 534, 543 (1968); Commonwealth v. Anderson, 650 A.2d 20, 23 (Pa. 1994); People v. Guerra, 708 P.2d 1252, 1256 (Cal. 1985); People v. Austin, 637 N.E.2d 585, 587 (Ill.App. 1994). In other words, an inchoate offense is committed when one has advanced a certain distance towards the commission of a separate proscribed offense, although the ultimate criminal purpose is not yet (and may never be) accomplished. 21 Am. Jur.2d, Criminal Law, § 162 ("Solicitation is a substantive crime in itself, not an abortive effort to commit the crime solicited"). See also Billy J. Tauzin, Impossible Attempts, 26 La.L.Rev. 426 (1966); State v. Richards, 426 So.2d 1314 (La. 1982); State v. Harper, 17 So.2d 260 (La. 1944). "Inchoate crimes are designed to inhibit criminal conduct before it goes too far or to punish criminal conduct . . . when . . . it misfires." Alston v. State, 643 A.2d 468, 475 (Md. App. 1993). See also State v. Pacheo, 882 P.2d 183, 186 (Wash) ( En Banc); State v. Clason, 1994 WL 654637, *9 (Neb. App. 1994).

Inchoate offenses therefore differ from other penal laws, which typically do not implicate free speech and assembly concerns unless they directly target expressive conduct, e.g. "obscenity" ordinances. Compare Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). This is because inchoate offenses are by their nature incomplete and therefore lack a readily discernible corpus delicti; they consist solely of conduct or "overt acts" which on their face may appear innocent, but which when combined with the requisite criminal intent constitute a prosecutable violation of the criminal law. See 4 Blackstone, Commentaries on the Laws of England, Pp. 78-79 (Bernard C. Gavit ed., 1941); State v. Richards, 426 So.2d 1314 (La. 1982); Moffett v. State, 618 P.2d 1223 (Nev. 1980); State v. Taft, 102 S.E.2d 152 (W.Va. 1958); State v. Quick, 19 S.E.2d 101 (S.C. 1942); State v. Rider, 1 S.W. 825 (Mo. 1886). When, as in the instant case, the "overt acts" involved include constitutionally protected speech or conduct, this Court has a constitutional duty to ensure that those rights are not impermissibly infringed. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2638, 37 L.Ed.2d 446 (1973). "In other words, the [ordinance] must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression." Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1972).

The determination of whether an ordinance establishing an inchoate offense invades constitutionally protected interests must necessarily, as the trial court below realized, revolve around the element of criminal intent required by the statute. Only by requiring that the municipality prove that the overt acts of the defendant were performed "for the purpose of a criminal or unlawful object" does the ordinance clearly distinguish speech and conduct which may be properly proscribed from that which may not, i.e. distinguish "criminal solicitation" from peaceful expression.State v. Slutz, 30 So. 298, 299 (La. 1901). An ordinance may not constitutionally prohibit Ross from hanging around on a street corner and conversing with acquaintances alone, but when such speech and conduct is linked to an intent to further a specific criminal purpose I have no trouble with concluding that the resulting combination is one which is traditionally and justifiably punishable under the criminal law. See Medina v. California, 505 U.S. ___, 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353 (1992), citing Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977) ("[h]istorical practice is probative" of the constitutionality of a penal law).

B. Interpretation of the Ordinance

1. Basic Principles of Interpretation

In an analysis of the ordinance, I am guided by basic precepts of statutory construction, which apply in a like manner to the construction of municipal ordinances. Landry v. Parish of East Baton Rouge, 352 So.2d 656, 661 (La. 1977); Everhardt v. City of New Orleans, 217 So.2d 400, 401 (La. 1968), appeal dismissed, 395 U.S. 212, 89 S.Ct. 1725, 23 L.Ed.2d 214 (1969). The primary goal in construing a statute or ordinance is to effectuate the intent of the legislative body; in so doing, I proceed under the assumption that the ordinance is valid, and note that the burden of proving any constitutional defects is upon the party alleging the ordinance's unconstitutionality. Moore v. Roemer, 567 So.2d 75, 78 (La. 1990); State v. Griffin, 495 So.2d 1306, 1308 (La. 1986). In construing a penal ordinance, I apply (by analogy) the rules of interpretation provided by Louisiana's Criminal Code, namely that "all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." LSA-R.S. 14:3; State v. All Pro Paint Body Shop, Inc., No. 93-KA-1316, 639 So.2d 707, 712 (La. 1994);State v. Azar, 539 So.2d 1222, 1224 (La. 1988), cert denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989). I also note, however, that any doubt as to the ordinance's effective reach should be resolved in favor of the defendant. State v. Freeman, 411 So.2d 1068 (La. 1982); State v. Brown, 378 So.2d 916 (La. 1979).

Furthermore, I observe that "[w]henever it is possible, [Louisiana] courts have the duty to interpret statutes in a manner consistent with" our state and federal constitutions. State v. Cinel, 94-KA-0942 (La. 1994), 646 So.2d 309, 313 ( citations omitted). Thus, a statute which is unconstitutional on its face may be preserved by a constitutional construction, provided that the saving construction of the statute is a plausible one. See Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 3988 (1987).

2. The Penal Provision of the Ordinance

I now turn these principles toward subsection (b) of the ordinance, the subsection which describes the proscribed activity. A person violates the ordinance if that person "intentionally solicits, induces, entices, or procures another to engage in" illegal drug activities.

The City used the word "intentional," thus specifically writing an intent element into the ordinance. To violate the ordinance, one must "intend" to solicit or procure another person to engage in drug trafficking activities. Given that the ultimate goal of the ordinance, as suggested by its language and expressed orally and in brief by the city prosecutor, is to target illegal drug activity at an early stage in the distribution process, I interpret the intent requirement to extend to the illegal drug activity resulting from the solicitation or procurement. In other words, a defendant charged under this ordinance must possess the requisite intent both to solicit another and, by means of the solicitation, to secure that other's participation in illegal drug activities. Accord, Wayne R. LaFave Austin W. Scott, Jr., Criminal Law, P. 418 (1972) ("it is necessary that the solicitor intend to achieve [the proscribed] result through the participation of another"). Finally, since solicitation by its very nature cannot occur in a vacuum, the speech and conduct utilized by a defendant to relay the criminal goal to the person being solicited are "overt acts" in furtherance of the criminal purpose; these "overt acts," when combined with the requisite criminal intent, comprise the speech and conduct effectively criminalized by the ordinance.

A question remains as to the exact level of criminal intent required by the ordinance. Louisiana criminal law recognizes two distinct levels of criminal intent: "specific" and "general" intent. LSA-R.S. 14:10. "Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10 (1); State v. Daniels, 109 So.2d 896 (La. 1959). Thus, if the ordinance requires a "specific" criminal intent, only if Ross actually intends for his conduct to result in another person becoming involved in drug trafficking is he in violation of the ordinance. In other words, Ross must possess a subjective or actual intent to bring about the "prescribed criminal consequences," in this case the solicitation of another for criminal activity.

"General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." LSA-R.S. 14:10 (2); State v. Chism, 436 So.2d 464 (La. 1983). The objective nature of general criminal intent is what distinguishes it from specific criminal intent, since "general intent exists when from the circumstances the prohibited result may reasonably be expected to flow from the offender's voluntary act, irrespective of any subjective desire on his part to have accomplished such result."State v. Elzie, 343 So.2d 712, 714 (La. 1977) ( emphasis added); LSA-R.S. 14:10 (2). See also Ronald N. Boyce Rollin M. Perkins, Criminal Law and Procedure, P. 497 (7th ed. 1989), citing 1 Austin, Jurisprudence, P. 424 (5th ed. 1888) ("a result is intended if it is contemplated as a probable consequence, whether it is desired or not").

Specific criminal intent, therefore, addresses itself to the actual thoughts of the defendant, while general criminal intent focuses upon the objective activity of the defendant and its probable consequences. Andre' Douget, Comment, The Louisiana Criminal Code and Criminal Intent: Distinguishing Between Specific and General Intent, 46 La.L.Rev. 1061 (1986). Thus, if the ordinance requires only a general criminal intent, Ross may be convicted if, although subjectively he had no desire to solicit another for drug purposes, nonetheless the trial court decides that a reasonable person observing the defendant's objective speech and conduct would conclude that illegal drug activity would result therefrom. In this case the trial court found that LSA-R.S. 14:11, see Note 6, supra, mandated that the ordinance be construed to require only a "general criminal intent," and found that such an intent requirement was insufficient to protect the defendant's constitutional rights. In reviewing this decision, it first be determined which level of criminal intent the City-Parish expected to apply; if it was a specific criminal intent, the construction of the ordinance is at an end. If it was general criminal intent, however, it will be necessary to inquire further to determine if that level of intent satisfies the demands of the free speech and assembly provisions of Louisiana and federal constitutions.

3. Construction of the Intent Requirement

Criminal solicitation, such as that punished by the ordinance, was "an offense known to the ancient common law." State v. Slutz, 30 So. 298, 299 (La. 1901). See Rex v. Higgins, 102 Eng.Rep. 269, 276 (1801) ("A solicitation or inciting of another, by whatever means it is attempted, is an act done; and that such an act done with a criminal intent is punishable by indictment has been clearly established"). At the common law, criminal solicitation, like the other inchoate offenses, required a "specific intent." See State v. Reagan, 111 Ill.App.3d 945, 64, Ill.Dec. 506, 509, 444 N.E.2d 742, 745 (Ill.App. 1982), aff'd, 457 N.E.2d 1260 (Ill. 1983) ("[t]he intent requirement necessary to commit a completed offense differs from the specific intent necessary to commit [an] inchoate offense"). Accord, State v. Ray, 882 P.2d 1013, 1018 (Mont. 1994); State v. Harmon, 516 A.2d 1047, 1054 (N.J. 1986); Commonwealth v. Shea, 496 N.E.2d 631, 636 (Mass. 1986); People v. Johnson, 637 P.2d 676, 679 (Cal. 1981) Gallegos v. People, 411 P.2d 956, 959 (Col. 1966) ( En Banc). In the early jurisprudence of this state, when a common law designation of a crime was used in a penal statute, the applicable rule of interpretation was that "the common-law elements of the crime must be used." State v. Bellard, 23 So. 504, 506 (La. 1898). Accord,State v. Berger, 101 So. 124, 125 (La. 1924); Kraemer, supra, 22 So. at 255-256. See also Robert H. Marr, The Criminal Jurisprudence of Louisiana, P. 22-26 (1906) (discussing the Crimes Act of 1805 and its effect upon Louisiana criminal jurisprudence). However, even prior to the comprehensive codification of Louisiana's criminal statutes in 1942, if a statute defining a common law crime altered the common law definition of that crime, a reviewing court was bound by the parameters of the crime as expressed in the statute. State v. Cooley, 146 So. 19, 20 (La. 1933) (arson); State v. Snowden, 140 So. 9, 9-11 (La. 1932) (burglary); State v. Ward, 86 So. 552, 553 (La. 1920) (burglary).

In 1942, Louisiana's Criminal Code was substantially codified and placed into the form in which it is known today. See, generally, La.Acts. 1942, No. 43, § 1; Dale E. Bennett, The Louisiana Criminal Code: A Comparison With Prior Louisiana Criminal Law, 5 La.L.Rev. 6 (1942). This Court has previously found that in the course of this codification the legislature, by means of the statutory language employed, transformed a number of crimes which were "specific intent" crimes at the common law into "general intent" crimes. See Chism, supra, 436 So.2d at 468 ("The Louisiana offense of accessory after the fact deviates somewhat from the original common law offense in that it does not require that the defendant actually know that a completed felony has occurred . . . rather, it incorporates an objective standard"); State v. Raymo, 419 So.2d 858, 860 (La. 1982) ("Louisiana . . . has deviated from the early common law rule that forgery required an intent to defraud a particular person"). However, this Court has also recognized that in the 1942 codification the legislature retained a number of crimes "as defined at the common law." State v. Gyles, 313 So.2d 799, 800 (La. 1975). Accordingly, when dealing with such offenses "[t]he historical basis of Louisiana's criminal law in the common law makes appropriate resort to common law principles for aid in interpreting legislative intent." State v. Taylor, 463 So.2d 1274, 276 (La. 1985) ( citation omitted). Accord,Gyles, supra (murder); State v. Langford, 483 So.2d 979, 985 n 11 (La. 1986) (theft); State v. Fulghum, 138 So.2d 569, 585 (La. 1962), appeal dismissed, 371 U.S. 5, 83 S.Ct. 82, 9 L.Ed.2d 50 (1962) (murder).

LSA-R.S. 14:11, see Note 6, supra, mandates that "in the absence of qualifying provisions" the word "intentional," which the ordinance I consider employs, connotes a "general criminal intent." However, this Court has in the past read the phrase "qualifying provisions" broadly, to include the context and purpose of the legislative enactment and, as the preceding paragraph reveals, whether the prescribed offense traces a direct and unvarying line to common law origins. See State v. Fuller, 414 So.2d 306 (La. 1982); State v. Dyer, 388 So.2d 374 (La. 1980); State v. Fluker, 311 So.2d 863 (La. 1975). Thus, I examine the ordinance to discern whether the ultimate purpose of the ordinance requires a specific intent element, or whether the City of Baton Rouge intended to incorporate the common law definition of criminal solicitation, including its specific intent element, into the ordinance.

The ordinance is designed to deter and strike at criminal solicitation in "public places," and therefore is focused upon an objective manifestation of criminal activity. The ordinance serves a dual purpose in that it seeks not only to obviate future criminal activity, but also is clearly aimed at "sweeping the streets clean" so that security and aesthetic concerns of the general public will be assuaged. As such, it is plain that a general criminal intent requirement, i.e. an objective standard, would more completely facilitate the achievement of the ordinance's objective.

Furthermore, I note that this ordinance does not on its face or accompanying legislative commentary express any intention to incorporate elements of the common law crime of criminal solicitation. By coincidence or design, the ordinance's language substantially deviates from LSA-R.S. 14:28, the State criminal solicitation offense, which the official comments reveal is "similar to the common law crime of solicitation." LSA-R.S. 14:28, Reporter's Comment. See also Henry Morrow, The Louisiana Criminal Code of 1942 — Opportunities Lost and Challenges Yet Unanswered, 17 Tul.L.Rev. 1, 9 (1942). In sum, there is simply no evidence that the City of Baton Rouge intended that common law principles assist the construction of the ordinance.

As a matter of simple statutory construction, I am not free, in the absence of "qualifying provisions," to stray from the dictate of LSA-R.S. 14:11. In this case the express language and purpose of the ordinance do not compel a conclusion that anything other than general criminal intent is required to establish a violation of the ordinance. A showing of constitutional necessity is required before departing from what I consider to be a fairly simple and straightforward reading of the City-Parish Council's design in implementing the ordinance. In other words, the real question is whether anything in the state or federal constitutions requires me to read a "specific intent" requirement into this ordinance.

4. Constitutional Analysis of the Intent Requirement

Article I, §§ 7 and 9 of the Louisiana Constitution of 1974 read as follows:

§ 7. Freedom of Expression

Section 7. No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.

§ 9. Right of Assembly and Petition

Section 9. No law shall impair the right of any person to assemble peaceably or to petition government for a redress of grievances.

In interpreting Louisiana's constitutional provisions, "it is the understanding that can reasonably be ascribed to the electorate that controls." Radiophone, Inc. v. City of New Orleans, 93-WA-0962, 630 So.2d 694, 698 (La. 1994) ( citations omitted). Thus, [w]hen a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be applied as written without further interpretation in search of its intent." Succession of Lauga, 624 So.2d 1156, 1165 (La. 1993) ( citations omitted). In addition, "[e]very provision must be interpreted in light of the purpose of the provision and the interests it furthers and resolves." Id.

The text and avowed purposes of Article I, §§ 7 and 9 of Louisiana's constitution shed no light on this issue. §§ 7 speaks in terms of a "freedom of speech" and an individual's "responsibility for abuse of that freedom." §§ 9 addresses the right of a person to "assemble peaceably." The ordinance in this particular case is, as this Court has noted, aimed at activity which is traditionally criminal in nature; Louisiana's constitutional provisions, on the other hand, speak of expansive rights which are limited by a hazy notion of individual responsibility and civility. When considering the particular questions raised herein, therefore, the express terms of Louisiana's 1974 Constitution give no guidance on where the line between the freedom of expression and the government's authority to proscribe criminal conduct should be drawn, and in this Court's jurisprudence the issue is res nova. Therefore, as this Court has at other times in the much-litigated First Amendment context, I look to federal constitutional jurisprudence to guide my consideration of corollary state constitutional provisions. See Note 13, supra.

"The application of first amendment principles to criminal defendants who incite or solicit others, or agree among themselves to commit specific, serious crimes in a non-political context has not been much explored" by the United States Supreme Court. Edward L. Barrett, Jr., William Cohen, Jonathan D. Varat, Constitutional Law, P. 1241 (8th ed. 1989). Nevertheless, the Supreme Court has established relevant principles of constitutional law in three distinct areas of First Amendment jurisprudence, namely those cases dealing with obscenity, political agitation, and political association and assembly. I now turn to these three discrete lines of Supreme Court jurisprudence to assist in interpreting the scope of Louisiana's state constitutional provisions.

In the area of obscenity, the Supreme Court has utilized the term "scienter" to describe the requirement for knowledge of particular facts, e.g. that a certain container being shipped across state lines contains pornography, which is necessary to preserve a statute which implicates "protected" expression. See United States v. X-Citement Video, Inc., ___ U.S. ___, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Osborne v. Ohio, supra, at 115, 110 S.Ct. at 1699; New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). The Court has consistently utilized a "background presumption of evil intent" to find that statutes aimed at regulating obscenity must require an actual knowledge of the gravamen of the offense to impose criminal culpability; an intention to engage in a (perhaps superficially innocent) course of conduct which is likely to lead to a particular societal harm, e.g. the propagation of child pornography, is simply insufficient in light of the applicable First Amendment interests. X-Ray, supra, at ___, 115 S.Ct. at 468, citing Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); United States v. United States Gypsum Company, 438 U.S. 422 (1978);Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). The Court has expressly noted that "the presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct.X-Ray, supra, at ___, 115 S.Ct. at 468. See also Smith v. California, 361 U.S. 147, 80 S.Ct. 399, 4 L.Ed.2d 383 (1959), re'hg denied, 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383 (1960).

Although this line of jurisprudence expressly addresses itself only to "obscenity," it directly speaks to what sort of intent requirement will save a statute which, while legitimately proscribing certain "unprotected" speech or conduct, impacts significantly upon "protected" speech or conduct. These cases stand for the simple proposition that some element of subjective knowledge, i.e. "scienter," limits an obscenity statute's reach to specific "unprotected" speech or conduct.

The Supreme Court has also addressed itself to the criminalization of political speech advocating unlawful conduct, a manner of speech which, when deprived of its political character, is indistinguishable from criminal solicitation. In Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1830, 23 L.Ed.2d 430 (1969) ( per curiam) ( footnote omitted), the Court declared that such speech could not be proscribed "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

The Brandenburg standard only permits prohibition of such speech when the speaker's exhortations are "intended to produce and likely to produce imminent disorder." Hess v. Indiana, 414 U.S. 105, 109, 94 S.Ct. 326, 329, 38 L.Ed.2d 303 (1973). This formulation thus contains an element of the familiar "specific intent," namely that the speech criminalized be spoken with "a specific intent to bring about immediate illegal results." Socialist Workers' Party v. Hardy, 480 F. Supp. 941, 946 (E.D.La. 1977), aff'd 607 F.2d 707 (5th Cir. 1979). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), re'hg denied, 459 U.S. 898, 103 S.Ct. 199, 74 L.Ed.2d 160 (1982); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949).

Admittedly, this approach considers the "reasonable probable effect" of the speech sought to be regulated, but even if the speech leads to unlawful conduct it cannot be criminalized "unless the defendant had the specific intent to [incite such conduct] in his mind." Debs v. United States, 249 U.S. 211, 216, 39 S.Ct. 252, 254, 63 L.Ed. 566 (1919). Compare State v. Douglas, 278 So.2d 485, 487 (La. 1973) (the proscribed speech must result from "a willful, intentional 'endeavor' to gain as an immediate result, and specifically from that speech," the lawless conduct). Thus, like the requirement of "scienter" in the obscenity context, when dealing with inflammatory political speech the Supreme Court has found that an actual subjective intent to produce future criminal consequences is required to transform "protected" into "unprotected" and legitimately proscribable speech.

The third line of jurisprudence relevant to this inquiry deals with freedom of association, particularly political association. The United States Supreme Court has noted on a multitude of occasions that "the First Amendment 'restricts the ability of the State to impose [culpability] on an individual solely because of his association with another when the individual lacks the specific intent to further any illegal aims that may be promoted by other members of a group." Lyng v. International Union, 485 U.S. 360, 366 n 5, 108 S.Ct. 1184, 1190 n 5, 99 L.Ed.2d 380 (1988), quoting NAACP v. Claiborne Hardware Co., supra at 925-926, 102 S.Ct. at 3432. Accord, United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); United States v. Robel, 389 U.S. 258, 262, 88 S.Ct. 419, 422, 19 L.Ed.2d 408 (1967); Elfbrandt v. Russell, 384 U.S. 11, 15, 86 S.Ct. 1238, 1240, 16 L.Ed.2d 321 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 511, 84 S.Ct. 1659, 1666, 12 L.Ed.2d 992 (1964); Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796 (1943). "In these cases it has been established that 'guilt by association alone, without (establishing) that an individual's association poses the threat feared by the Government,' is an impermissible basis upon which to deny First Amendment rights." Healy v. James, 408 U.S. 169, 186, 92 S.Ct. 2338, 2348, 33 L.Ed.2d 266 (1972), quoting Robel, supra, at 265, 88 S.Ct. at 424.

Thus, the Supreme Court has consistently required showings of "scienter" or "specific intent," i.e. subjective or actual criminal intent, of legislation which significantly impacts upon protected expression and peaceable assembly. In addition, I note the plethora of state jurisdictions which have concluded that criminal solicitation statutes or ordinances must contain a "specific intent" requirement to survive First Amendment scrutiny. See Wyche v. State, 619 So.2d 231, 236 (Fla. 1993); City of Akron v. Roland, 618 N.E.2d 138, 143-144 (Oh. 1993); Seattle v. Slack, 784 P.2d 494, 497 (Wash. 1989) ( En Banc); People v. Superior Court, 758 P.2d 1046, 1050 (Cal. 1988) ( In Bank); People v. Bright, 520 N.E.2d 1355, 1359 (N.Y. 1988); State v. Cook, 678 P.2d 987, 989 (Ariz. 1984); Milwaukee v. Wilson, 291 N.W.2d 452, 458 (Wis. 1980); State v. Bloss, 613 P.2d 354, 357-358 (Haw. 1980); Williams v. Osmundson, 281 N.W.2d 622, 626 (Iowa 1979); Lambert v. City of Atlanta, 250 S.E.2d 456, 458 (Ga. 1978); State v. Armstrong, 162 N.W.2d 357, 361 (Minn. 1968); Coleman v. City of Richmond, 364 S.E.2d 239, 243 (Va.App. 1988), re'hg denied, 368 S.E.2d 298 (Va.App. 1988); State v. Evans, 326 S.E.2d 303, 307 (N.C. App. 1985); South Bend v. Bowman, 434 N.E.2d 104, 107 (Ind. App. 1982); Short v. City of Birmingham, 393 So.2d 518, 522 (Ala.Cr.App. 1981); In re D., 557 P.2d 687, 690 (Or.App. 1976), review denied, 278 Or. 1 (1977), appeal dismissed, 434 U.S. 914, 98 S.Ct. 385, 54 L.Ed.2d 271 (1977).

These intent requirements serve to differentiate "protected" from "unprotected" speech, i.e. "to distinguish between conduct calculated to cause harm and conduct that is essentially innocent."Bright, supra, 520 N.E.2d at 1359. I take this jurisprudence to suggest, at a minimum, that a criminal solicitation ordinance which imperils constitutionally protected speech and assembly must contain a requirement of subjective criminal intent to survive constitutional scrutiny. Compare Ex Parte Grossman , 267 U.S. 87, 108, 45 S.Ct. 332, 333, 69 L.Ed. 527 (1925) ("[t]he language of the Constitution cannot be interpreted safely except by reference to the common law"). Therefore, I conclude, as a matter of Louisiana constitutional law, that the considerations broached above force me to construe the ordinance as requiring a specific criminal intent, as defined by Louisiana law, to solicit or procure others for illegal drug activities. I also conclude that the trial court erred in failing to give the ordinance a saving construction where such was possible. Now, armed with this construction, I proceed to a determination of the ordinance's constitutionality.

IV. The Defendant's Constitutional Claims

A. Is the Ordinance Unconstitutionally Vague?

Ross challenges the ordinance as unconstitutionally vague. Vagueness is a doctrine rooted in the due process guarantees of Article I, § 2 of the Louisiana Constitution and the Fourteenth Amendment of the United States Constitution. There are two prongs of a vagueness analysis: first, a challenged provision must give "actual notice" of what activities are criminalized sufficient to allow a reasonable person to distinguish legitimate from criminal activity; and second, that came provision should "establish minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1859, 75 L.Ed.2d 903 (1983), quoting Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). See also State v. Barthelemy, 545 So.2d 531, 532-533 (La. 1989); State v. David, 468 So.2d 1126, 1128-1129 (La. 1984), cert denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1985). Because of the nature of the void-for-vagueness doctrine, it is a specie of "facial" challenge; if a statute or ordinance is unconstitutionally vague, it is universally unenforceable, and therefore subject to complete invalidation. See Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971); State v. Azar, 539 So.2d 1222 (La. 1989), cert denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989).

Regarding the core penal provision of the ordinance, the prohibition against "intentional solicitation" of another for illegal drug activity, I find that the construction of the ordinance imposing an element of specific criminal intent obviates any vagueness concerns raised by Ross. United States v. Screws, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) ( plurality opinion) ("The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid"). Subsection (b) of the ordinance lucidly sets forth the extent of the proscribed activities; furthermore, Subsection (d) of the ordinances makes it clear that "merely remain[ing] in a public place without also intentionally soliciting . . . or procuring another to engage" in illegal drug activities does not violate the ordinance. "[W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the [ordinance] prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law." Screws, supra, at 102, 65 S.Ct. at 1036.

Counsel for Ross raised in oral argument the fact that the term "loitering" has been found by a number of courts to be inherently vague. While I do not concede counsel's proposition, even if I assume that the term "loiter" is inherently vague it does not affect my opinion on this issue. The term "loitering" as used in the ordinance is merely classificatory, providing a nomenclature by which the ordinance may be referred to and discussed in an abbreviated manner. The ordinance could have been called "Ordinance X," which is surely inherently vague; this would not mean that the body of the ordinance fails to give sufficient notice of what activity is criminal or fails to establish minimum guidelines for law enforcement officers.

The trial court expressly found the phrase "remains in a public place," in subsection (b), the penal provision of the ordinance, to be unconstitutionally vague. "Public place" is generally defined in subsection (a)(5) of the ordinance as "an area generally visible to public view." This Court has previously been called upon to interpret statutes that proscribe conduct which occurs in a "public place," and on those occasions this Court has not found the phrase's supposed "vagueness" to be an obstacle to its application. See State v. Muller, 365 So.2d 464, 466-467 (La. 1978) ( on rehearing); State v. Christine, 118 So.2d 403, 405-406 (La . 1960), citing Nelson v. Natchez, 19 So.2d 747 (Miss. 1944) . I note that police officers in particular have an understanding of the distinction between "public" and "private" places, since the constitutional propriety of much of their conduct depends upon this distinction. See, e.g., California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See also Note 18, infra. For these reasons, I find that the term "public place" as defined in the ordinance is not unconstitutionally vague.

The trial court appeared to focus upon the ambiguous temporal aspect of the verb "remains" in reaching its conclusion that the ordinance was unconstitutionally vague. I disagree with the trial court's emphasis upon the amount of time one must "be" in a public place to "remain" there, and the resulting conclusion, for three reasons. "First, the court notes that whether the statutory language of [an] . . . ordinance prohibits 'remaining' or 'being' on the streets is insignificant because 'remain' and 'to be' are generally given synonymous interpretations at the enforcement level for the obvious reason they have as a practical matter . . . no intelligible difference in meaning, and a judicial determination on this ground as to the validity of an ordinance is mere semantics and untenable." Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1252 (M.D.Pa. 1975), aff'd, 535 F.2d 1245 (3d Cir. 1976), cert denied, 429 U.S. 964, 97 S.Ct. 394, 50 L.Ed.2d 333 (1976). Second, "Webster's Third New International Dictionary (Unabridged Ed. 1961) reveals that the root meaning of 'remain' is 'to stay,' and makes no reference to a time requirement." Hernandez v. State, 783 5.W.2d 764, 765 (Tx.App. 1990). Third, no other court which has examined the question has found the term "remains" or any of its derivatives to be unconstitutionally vague. See State in the interest of J.A.V., 558 So.2d 214, 216 (La. 1990); Williams v. Osmundson, supra, at 627; Hernandez, supra, 783 S.W.2d at 765;State v. Belcher, 776 P.2d 811, 812 (Ariz. App. 1989), denial of habeas corpus aff'd, Belcher v. Crist, 953 F.2d 1386 (9th Cir. 1992); Bykofsky, supra, 401 F. Supp. at 1252; Hurley v. Hinckley, 304 F. Supp. 704, 711 (D.Mass. 1969), aff'd, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). In sum, I find that the term "remains" is a concept so ingrained in the vernacular that "men of common intelligence [need not] guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed.2d 322 (1926).

Thus, regarding the first prong of the void-for-vagueness test, while "there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, [this ordinance is] set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." United States Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 578-579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). As far as the second prong, i.e. that the ordinance establish sufficient guidelines to limit the discretion of law enforcement personnel, I find that "[a]ny discretion possessed by police to determine whether a crime has occurred is merely a question of probable cause to arrest and not a flaw in the definition of the crime itself."Superior Court, supra, 758 P.2d at 1057. For these reasons I think that the trial court erred in finding the ordinance unconstitutionally vague.

B. Does the Ordinance Violate the Free Speech and Assembly Provisions of the State and Federal Constitutions?

In this case the City of Baton Rouge has charged Ross with remaining in a public place and "intentionally" soliciting another to engage in illegal drug activities. In the course of his overbreadth challenge Ross argues that the ordinance is unconstitutional insofar as it penalizes a number of constitutionally protected activities.

"As a general rule, the First Amendment [of the federal Constitution and Article I, §§ 7 and 9 of the Louisiana Constitution of 1974] provide that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." DeSalvo v. State, 624 So.2d 897, 899 (La. 1993), cert denied, ___ U.S. ___, 114 S.Ct. 1067, 127 L.Ed.2d 389 (1994), citing Police Dep't of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). However, "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." Cinel, supra, at 312, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Overbreadth analysis exists because, in cases where the point of demarcation between regulation of "protected" and "unprotected" speech is hazy, the risk that arbitrary, vindictive, or selective enforcement of the provision may have a "chilling effect" upon rights of speech and assembly warrants an exception to the general rule that courts review legislative acts only "as applied" to the parties before them. Lawrence Tribe, American Constitutional Law, Pp. 1022-1023 (2d ed. 1988). See also Secretary of State of Maryland v. Joseph H. Munson, Co., Inc., 467 U.S. 947, 965, 104 S.ct. 2839, 2851-2852, 81 L.Ed.2d 786 (1984) (overbreadth appropriate where there is "no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits").

There are two salient aspects to an overbreadth challenge. The first is that it is a "facial" challenge; a reviewing court does not examine the challenged statute or ordinance "as applied" to the parties before it, but rather "tests the constitutionality of the legislation in terms of its potential applications." Geoffrey R. Stone et alia, Constitutional Law, P. 1039-1040 (1986). Thus, overbreadth allows "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite specificity." Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). See also NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 338-339, 9 L.Ed.2d 405 (1963); Note, The First Amendment Overbreadth Doctrine, 83 Har.L.Rev. 844 (1970). The second, and far more significant, aspect of the overbreadth doctrine is that, if applicable, the offensive legislation is voided "on its face," i.e. in its entirety, regardless of whether constitutional applications of the legislation exist. See Board of Airport Comm'ners v. Jews for Jesus, 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); City of Houston, Texas, supra.

As has already been noted, the jurisprudence reveals a bifurcation between speech which is protected from governmental regulation and speech which may legitimately be limited or even prohibited, i.e. "unprotected" speech. Ross argues that the ordinance is unconstitutional "because criminal liability for drug loitering is indistinguishable from and in fact defined in terms of constitutionally protected conduct." City of Tacoma, supra, 827 P.2d at 1381. The defendant's argument dissipates in the light of a proper construction of the ordinance.

"[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge;" rather, the potentially impermissible applications of a challenged statute or ordinance must be "substantial" when compared to the activities which it may properly proscribe. Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984). See also Broadrick, supra, at 615-616, 93 S.Ct. at 2917. When the ordinance is viewed in light of the construction placed upon it, I find that any overbreadth is insubstantial. "By requiring specific intent and overt acts, the ordinance does not then reach into the arena of constitutionally protected First Amendment conduct." City of Tacoma, supra, 827 P.2d at 1384. The ordinance as construed simply does not reach constitutionally protected activity. Id, at 1380.

The ordinance prohibits any speech or conduct which the speaker engages in with the specific intent to induce others to engage in illegal drug activities. This category of speech is clearly "unprotected." See Giboney v. Empire Storage Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 691, 93 L.Ed. 834 (1950) ("[i]t has never been deemed an abridgement of freedom of speech . . . to make a course of conduct illegal merely because it was conduct in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed"). Criminal speech and conduct such as this may be prohibited "even though intertwined with expression and association." Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965).

While I clearly endorse the propriety of the ordinance's purpose, I nonetheless recognize that since the ordinance addresses itself to the communicative impact of public speech and assembly there is bound to be some incidental impact upon "protected" speech and assembly. The test for determining the constitutionality of such a regulation is that set out in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), re'hg denied, 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188 (1969):

we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. . . .

In this case, the ordinance's goal is the eradication of drug trafficking from the public places of Baton Rouge, and I find that interdicting drug distribution networks through the criminalization of public solicitation of illegal drug activities is a historically accepted and reasonable exercise of the City-Parish's delegated police power. In particular, I find the words of the New York Supreme Court of Appeals, written in 1969, persuasive on this point:

It appears that the Legislature in enacting the statute before us sought to prevent generally idle and dissolute persons engaged in the unlawful traffic of narcotics, from drawing together for that purpose in places frequented by other citizens, thereby endangering public health, morals, and tranquility. This protection of innocent citizens from drug users is a very crucial problem. As has recently been pointed out by several newspaper articles, in some of our poorer urban areas where drug use is high, innocent citizens are often beaten, robbed, and even murdered by drug addicts. It is completely reasonable and proper for the Legislature to protect these citizens from accidentally stumbling into the midst of such miscreants in the common areas. . . .

People v. Pagnotta, 253 N.E.2d 202, 206 (N.Y. 1969) ( citations omitted). See also Bykofsky, supra, 401 F. Supp. at 1258 ("[t]he Borough has a legitimate interest in the reasonable control of its streets"). These sentiments are at least as valid now as they were in 1969.

Based upon the foregoing, I conclude that the City of Baton Rouge has a substantial, if not compelling, interest in combatting drug trafficking, and that the ordinance is a constitutionally proper way for it to attack this problem. With the underlying purpose of the ordinance in mind, I find that the City's design does not include the deliberate suppression of any "protected" expression. Finally, I find that the ordinance, which penalizes only those who engage in speech or conduct specifically designed to procure others for illegal drug activity, is "narrowly tailored to prohibit only" the targeted unlawful conduct, and that therefore any collateral and/or marginal impact upon legitimate expression is no greater than required to achieve the ordinance's intended goal.City of Houston, supra, at 465, 107 S.Ct. at 2511. For these reasons, I adjudge that the ordinance "as applied" to Shelton Ross is not in violation of Article I, §§ 7 and 9 of the Louisiana Constitution of 1974, or the First Amendment of the United States Constitution.

It must be noted that when an ordinance such as this is challenged on overbreadth grounds, the proper procedure is to evaluate the constitutionality of the legislation based upon its effective reach as construed, i.e. to look at the speech or conduct actually penalized. The police may arrest a murderer while he is standing on a soap box in a public forum making a political speech to a peacefully assembled political organization; however, it simply does not follow from this that the statute forbidding murder in any way infringes upon freedoms of speech and assembly. The gist of the defendant's arguments in this case are directed not at the scope of the ordinance and its impact upon "free expression," the proper subject of overbreadth analysis, but rather to questions of probable cause and evidentiary sufficiency which implicate constitutional provisions unrelated to Article I, §§ 7 and 9 of the Louisiana Constitution of 1974 and the First Amendment of the United States Constitution.

I recognize that the nature of criminal solicitation in particular and inchoate offenses in general is such that there may be more opportunity for abuse in the enforcement of such an ordinance. However, "the fact that a law may be improperly applied or even abused does not render it constitutionally invalid." City of Milwaukee, supra, 291 N.W.2d at 458. Rather, any contention that constitutional privacy or due process guarantees have been violated "can be adequately dealt with in the course of prosecution of individual cases on their individual facts; these concerns are not an adequate predicate for finding that the [ordinance] is invalid on its face." Superior Court, supra, 758 P.2d at 1054.

Ross also alleged that subsection (c) of the ordinance impermissibly criminalizes a number of innocent activities. However, the express language of that subsection reveals that the enumerated activities are not in themselves proscribed, but are merely "[a]mong the circumstances which may be considered in determining whether [a] person intends" to solicit others for illegal drug activities. This subsection is not a penal provision; instead, by its own language it merely creates guidelines to assist municipal law enforcement personnel in their inquiries. The focus of overbreadth is the extent to which the challenged statute or ordinance proscribes constitutionally protected expression; since subsection (c) merely clarifies the penal provision of subsection (b) but does not itself forbid protected speech or conduct, I find subsection (c) irrelevant to the defendant's overbreadth challenge.

I conclude that the ordinance is not unconstitutionally overbroad since it does not impermissibly impinge upon rights of "free expression" guaranteed by the Louisiana and federal constitutions. In my opinion, the trial court erred when it determined otherwise.

V. Conclusion

Based upon the preceding analysis, I conclude that the trial court erred in finding Title 13:1055 of the Baton Rouge Code of Ordinances to be unconstitutionally vague and overbroad. Once construed to contain a requirement of specific criminal intent, the ordinance sufficiently distinguishes between "protected" and "unprotected" constitutional speech and conduct to preclude the overbroad regulation of "protected" activities. In addition, the specific intent requirement, insofar as it clarifies which speech and conduct is regulated by the ordinance, renders the defendant's claims of vagueness insubstantial.

I reiterate in closing my view that the Louisiana Constitution of 1974 requires that, in a criminal case, issues of mandatory appellate jurisdiction should be decided prior to any consideration of nonconstitutional issues entertained under this Court's supervisory jurisdiction. Accordingly, I present this special concurrence to the opinion of the Court, of which I am also the author.

For these reasons, I respectfully concur.