A QC has told five senior judges that an accused must cause fear and alarm to be guilty of breach of the peace.
People can be arrested for a breach of the peace for different reasons
The claim came in a hearing into a series of appeals which could define the crime of breach of the peace.
It is the most common non-motoring offence brought before Scottish courts and is part of Scottish Common Law.
Breach of the peace has become a flexible charge, leading to criticism that it is a catch-all offence for police when none other is available.
It was established before acts of parliament shaped Scotland's legal system.
Common law offences can be reinterpreted by judges' decisions as there is no statutory definition.
Range of offences
Over the years, breaches of the peace have varied from shouting in the street to what amounts to stalking.
Each year more than 15,000 people are charged with breach of the peace.
They included three anti-Trident protesters who argued they were taking part in non-violent action when arrested.
On Tuesday, five people involved in separate cases are appealing against convictions dating back to 1999.
Jane Tallents, 45, from Helensburgh, was arrested and charged with breach of
the peace during an anti-nuclear protest at Holyrood in April 2001.
The then presiding officer, Sir David Steel, ordered the chamber to be cleared after
the protesters unfurled banners, sang slogans and tied themselves to furnishings.
Ms Tallents' lawyer, Margaret Scott QC, told judges that her client's conviction should be quashed because there was no evidence that she had caused fear or alarm to anyone.
She said: "There was no reasonable risk of any serious disturbance or
violence or fear or alarm, except the annoyance of Sir David Steel, who was
Law 'an ass'
Scottish Socialist Party leader Tommy Sheridan has been arrested and acquitted on breach of the peace charges following a demonstration.
Mr Sheridan said: "The whole definition has to be tightened. We've got laws in this country that go back centuries and some of those laws stand us in good stead, some of them are simply an ass now.
"One of them is breach of the peace - it's far too broad and it is penalising those that are involved in peaceful protest."
The eventual ruling by the five judges will provide a more specific definition of breach of the peace to provide guidance for courts hearing future cases.