Jerry Wayne EANES v. STATE of Maryland.
No. 1, Sept. Term, 1989.
Court of Appeals of Maryland.
Feb. 8, 1990.
569 A.2d 604 | 318 Md. 436
Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.
Argued Before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, MCAULIFFE, ADKINS and BLACKWELL,* JJ.
ADKINS, Judge.
Section 121 of Article 27 (1987 Repl. Vol.) makes it unlawful for anyone to “wilfully disturb any neighborhood in [any Maryland] city, town or county by loud and unseemly noises....” In the case before us, we must decide whether this proscription is constitutional when used by the State to limit the volume level of speech protected by the first amendment to the United States Constitution.1 Before addressing this issue, however, we set out the facts in some detail.
This case arises in the context of an anti-abortion demonstration which took place in front of the Hagerstown Reproductive Clinic (Clinic) on 18 May 1988. The Clinic is located on West Washington Street, a congested, one-way, two-lane thoroughfare in Hagerstown. The building which houses the Clinic also houses two other businesses and at least one residential apartment. Across the street from the Clinic is a residential apartment building.
On the morning of 18 May, petitioner Jerry Wayne Eanes (Eanes) was part of a small group that had gathered in front of the Clinic to, in Eanes‘s words, “assemble [,] to speak out against abortion, to pass out gospel tracts [and] to try and talk to girls that are walking by [in order to explain the evils of abortion].” Eanes‘s primary method of opposing abortion, however, was “to preach the gospel of Jesus Christ.” Indeed, he asserted that his purpose was to preach to the entire neighborhood.2
Eanes and another man, Timothy Schuller, preached that morning between approximately 10:30 a.m. and 12:00 p.m. Each spoke for short periods of time at varying intervals. Each spoke unaided by any artificial amplification. People employed in the vicinity and local residents complained to the Hagerstown Police Department (Department) that they were being disturbed by the loudness of the preaching. At least one resident left her home and complained to the demonstrators. She requested that the noise level be reduced. The administrator of the Clinic left her office and complained directly to Eanes. She indicated to him that the noise was disrupting her work and rеquested that he quiet
After warning Eanes, Officer Feigly left the scene, although it appears from the record that other police officers remained in the area. He returned approximately forty minutes later in response to further noise complaints received by the Department. At that time he observed Eanes shouting in a loud voice. He then placed Eanes under arrest for disturbing the peace in violation of § 121.
On 2 August 1988, the District Court of Maryland sitting in Washington County (Glaser, J.) found Eanes guilty of disturbing the peace in violation of § 121. On 15 December 1988, Eanes obtained de novo review of his conviction before Judge Frederick C. Wright, III, of the Circuit Court for Washington County.
At that trial the State presented eleven witnesses who testified as to Eanes‘s conduct on 18 May: three residents, three local business people, one pedestrian, one police cadet, and three police officers. All generally characterized Eanes‘s preaching as very or extremely loud. His conduct was more specifically described as “screaming without screeching,” “shouting and screaming,” “yelling and screaming at the top of his voice.” Each of the first six witnesses listed above testified that they were disturbed in their homes or places of business and that it was the loudness and tone they found objectionable, not the message Eanes conveyed. One resident, unable to put her son down for his nap, testified that she and her child were forced to leave their apartment due to the noise. Another resident, in an apartment in the back of the building across the street from the Clinic, testified that her husband‘s sleep (he worked the night shift) was disrupted. Each of the three State‘s witnesses who were employed in the area testified that the volume level of Eanes‘s speech was so great that it interfered in some manner with their work.
Eanes, testifying in his own defense, did not, for the most part, dispute this evidence. He testified that in preaching in front of the Clinic, he raised his voice. When asked why he raised his voice, he replied:
Because I‘m speaking not just to the people in that building[.] I was speaking to the general people that were in that area, the bystanders, the people driving by, the people that I knew were going to be coming in.
Based on the evidence presented, Judge Wright found Eanes “guilty of willfully disturbing the peace and tranquility of that particular neighborhood during the morning of May the 18th ... by making loud and otherwise unacceptable[,] improper under the circumstances noises.”
II.
Eanes raises several constitutional challenges to his conviction. He insists that in Diehl v. State, 294 Md. 466, 451 A.2d 115 (1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 363 (1983), this Court definitively limited application of the statutory prohibition against “loud and unseemly noises” to speech that falls outside the protective reach of the first amendment; speech, for example, that advocates imminent, lawless action. Bereft of such a limitation, he argues, the statute is left unconstitutionally vague and overbroad. He concludes that even if § 121 is found to overcome those hurdles, it cannot, consonant with the first amendment, be enforced to limit the volume level of speech that is not artificially amplified.
The State, for its part, disputes each of these contentions. It takes the position that the provision at issue is a content-
III.
A.
We begin by disagreeing with Eanes‘s evaluation of Diehl. He reads that opinion much too broadly. We dealt there not with a conviction based on objectionable loudness, but with one based on allegedly objectionable content. As we shall explain, the Diehl limitation on which Eanes relies is only applicable when the prohibition against “loud and unseemly noise” seeks to regulate the content of speech.
Diehl involved a police officer, Gavin, who stopped an automobile for a traffic violation. Diehl, a passenger, left the vehicle but was ordered by Gavin to return to the car. Diehl responded by screaming, “‘Fuck you Gavin;’ ‘I know my rights;’ you can‘t tell me what to do....‘” 294 Md. at 468, 451 A.2d at 116. A crowd gathered. After Diehl refused a second time to get back in the car, Gavin arrested him for “‘screaming obscenities and ... drawing a crowd.‘” Id. at 468, 451 A.2d at 117 [ellipsis in Diehl].
The State sought to uphold Diehl‘s subsequent conviction under § 121 in part on the ground that Diehl violated the statute “by making loud and unseemly noises in refusing ‘to obey Gavin‘s proper order.‘” Id. at 470, 451 A.2d at 118. At no time did the State argue that the loudness of Diehl‘s protestations violated § 121.3 Rather, it was the State‘s
B.
The command of the first amendment, that “Congress shall make no law ... abridging the freedom of speech ...,” is directed with equal force, by way of the fourteenth amendment, to state and local governments. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); see also Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500 n. 8, 72 S.Ct. 777, 780 n. 8, 96 L.Ed. 1098, 1105 n. 8 (1952) (collecting cases); Schowgurow v. State, 240 Md. 121, 124, 213 A.2d 475, 478 (1965). This “constitutional right of free expression” puts “the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787-1788, 29 L.Ed.2d 284, 293 (1971). The “freedom to think as you will and to speak as you think” is a “means indispensable to the discovery and spread of political truth” and is essential both to “stable government” and to “political
Yet “the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses.” Cohen, 403 U.S. at 19, 91 S.Ct. at 1785, 29 L.Ed.2d at 290. See Kovacs v. Cooper, 336 U.S. 77, 85-86, 69 S.Ct. 448, 453, 93 L.Ed. 513, 521 (1949) (sound trucks); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942) (“fighting words“); Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473-474 (1919) (clear and present danger of imminent unlawful conduct). “Even protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567, 578 (1985) (nonpublic forum); see Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420, 428 (1988) (picketing of single residence); Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, 484 (1965) (obstructing sidewalk). The fundamental importance of free speech in our constitutional scheme requires, however, that restrictions on its exercise be subjected to searching scrutiny. Frisby, 487 U.S. at —, 108 S.Ct. at 2499, 101 L.Ed.2d at 428.
Constitutional analysis begins by looking at the type of forum the speaker seeks to employ. Id. We deal here with
When a court reviews restrictions on speech in traditional public forums, “the appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content.” Frisby, 487 U.S. at —, 108 S.Ct. at 2500, 101 L.Ed.2d at 429. A content-based restriction is constitutionally hale only if it can be shown that the challenged “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end....‘” Id. (quoting Perry, 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804) [ellipsis in Frisby]. See Sable Communications of Calif. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837, 106 L.Ed.2d 93, 106 (1989) (content-based regulatiоn of telephonic commercial communication); Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263, 270 (1980) (content-based regulation of residential picketing). On the other hand, a state “may ... enforce regulations of the
In this case even Eanes does not question that as applied to protected speech § 121 can be read as content neutral. Indeed, because we are working in the area of protected speech, the statutory phrase “loud and unseemly noise” should be construed in a content-neutral fashion in order to remain in conformity with first amendment jurisprudence. “[I]f one of the proposed interpretations would render an enactment valid, while another would render it invalid or ineffective, the court will construe the enactment to be valid whenever feasible.” City of College Park v. Cotter, 309 Md. 573, 589, 525 A.2d 1059, 1067 (1987); see Craig v. State, 316 Md. 551, 566, 560 A.2d 1120, 1127 (1989).
In Matter of Nawrocki, 15 Md.App. 252, 289 A.2d 846 (1972), Judge Orth, then of the Court of Special Appeals, faced with construction of the phrase “loud and unseemly” as it appears in § 121, gave the words their common meaning.
‘Loud’ is ‘characterized by high volume and intensity of sound ... clamorous and insistent.’ ‘Unseemly’ and its synonyms such as ‘improper‘, ‘indecorous‘, ‘indelicate’ mean ‘in violation of accepted standards of what is right or proper.’
Id. at 256, 289 A.2d at 849 [ellipsis in opinion]. “Unseemly” has also been defined as “analogous to the oft-used term
This content-neutral law is not a regulation of time or place. Under the statute individuals may speak in any traditional public forum at any time. The elements of time and place operate, in the context of the statute, to inform; they are not themselves the subject of regulation. As the State correctly contends, § 121 is a regulation on the manner of expression. It serves to limit, under proper circumstances, the loudness of the delivery of the communication.
As a regulation on the manner of expression, § 121 must be narrowly tailored to serve a substantial government interest. The Supreme Court recently pointed out that “it can no longer be doubted that government ‘ha[s] a substantial interest in protecting its citizens from unwelcome noise.‘” Ward, 491 U.S. at —, 109 S.Ct. at 2756, 105 L.Ed.2d at 678 (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772, 787 (1984), citing Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949)) [brackets in Ward]. See also Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574, 1578 (1948); Reeves v. McConn, 631 F.2d 377, 382 (5th Cir.1980).
What is more
Ward, 491 U.S. at —, 109 S.Ct. at 2756, 105 L.Ed.2d at 678-679. In Ward, the Supreme Court upheld a regulation which gave New York City broad authority to control the volume level of concerts and other performances (recognized as protected speech) at a Central Park bandshell, on the justification that the City sought “to avoid undue [noise] intrusion into residential and other areas of the park.” Id. at —, 109 S.Ct. at 2754, 105 L.Ed.2d at 676.
In Kovacs, supra, a much earlier antinoise case relied on in Ward, the Supreme Court upheld a city ordinance which prohibited the use of sound trucks which emitted “loud and raucous” noise. As in Ward, the concern in Kovacs was on protecting the “unwilling listener” both on the street and in the privacy of his or her home. 336 U.S. at 86-87, 69 S.Ct. at 453, 93 L.Ed. at 522. Without such regulation, the court remarked, “in the residential thoroughfares the quiet and tranquility so desirable for city dwellers would ... be at the mercy of advocates of particular religious, social or political persuasions.” Id. at 87, 69 S.Ct. at 453, 93 L.Ed. at 522.
Ward and Kovacs, as well as numerous other Supreme Court cases, reflect judicial concern with balancing the right of free speech with the individual‘s right to be free from unwanted communication. See, e.g., Frisby, 487 U.S. at —, 108 S.Ct. at 2502, 101 L.Ed.2d at 431; Carey, 447 U.S. at 470-471, 100 S.Ct. at 2295, 65 L.Ed.2d at 276; F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073, 1093 (1978); Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-211, 95 S.Ct. 2268, 2272-2274, 45 L.Ed.2d 125, 130-132 (1975); Lehman v. City of
The notion of “captive audience” involves the problem of the unwilling listener or viewer who cannot readily escape from the undesired communication, or whose own rights are such that he or she should not be required to do so. See Haiman, Speech v. Privacy: Is There A Right Not To Be Spoken To? 67 Nw.U.L.Rev. 153, 195-197 (1972). The pеdestrian or motorist on a public street may simply walk or drive past the unwelcome speaker or detour around the picketers or demonstrators. As in Cohen, 403 U.S. at 21-22, 91 S.Ct. at 1786, 29 L.Ed.2d at 291-292, those who do not care to read or hear certain messages are, in these circumstances, free to turn away. But the Cohen Court pointed out that the people passing through a courthouse corridor, who could look the other way if they did not like the anti-draft message on the back of Cohen‘s jacket, “were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences.” 403 U.S. at 21, 91 S.Ct. at 1786, 29 L.Ed.2d at 292. Justice Harlan, writing for the Court, explained:
[T]his Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue.... The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.
Id. [citations omitted]. See also Carey, 447 U.S. at 471, 100 S.Ct. at 2295, 65 L.Ed.2d at 276 (1980) (preserving sanctity of the home from tribulations of daily pursuits is an important value).
Moreover, a captive audience that is entitled to protection may exist outside the home. Because riders on public rapid transit vehicles are captive audiences, a municipality may decline to accept political advertising on these vehicles. Lehman, supra. See also Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (ordinance prohibiting disturbance of school).
The principle is grounded on the concept of privacy. “The Supreme Court permits the state to protect listeners who are ‘captive’ to unwanted speech—when speech invades their privacy interest in an essentially intolerable manner.” Note, Too Close For Comfort: Protesting Outside Medical Faculties, 101 Harv. L. Rev. 1856, 1863 (1988) [footnote omitted]. Although that protection is most often extended to those within their homes, it may be extended to any situation in which “privacy interests [are] substantially threatened” because “individuals cannot escape ‘bombardment of
Sound is one of the most intrusive means of communication. “The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it.” Kovacs, 336 U.S. at 86-87, 69 S.Ct. at 453, 93 L.Ed. at 522 [footnote omitted]. The cases support the view that content-neutral regulations controlling its loudness are permissible. See, e.g., Ward, (volume may be controlled to protect area of park and nearby residences); Grayned, (ordinance prohibiting disturbance of good order of a school valid); Kovacs (municipality may control volume of sound trucks); Reeves (city may protect citizens from unreasonable or disruptive levels of noise in streets). It may be otherwise outside the home or office, where the audience is ordinarily not captive, see Pacifica Foundation, 438 U.S. at 749 n. 27, 98 S.Ct. at 3040 n. 27, 57 L.Ed.2d at 1093 n. 27; Erznoznik, 422 U.S. at 209-211, 95 S.Ct. at 2272-2273, 45 L.Ed.2d at 130-132; Cohen, 403 U.S. at 21, 91 S.Ct. at 1786, 29 L.Ed.2d at 292. But § 121 prohibits only that volume level of communication that unreasonably disturbs individuals whose rights to be free from aural abuse override the right of a speaker to address them by direct or incidental oral communication. This is the type of balance of conflicting interests contemplated by first amendment jurisprudence.
We read the statute as going no further than to afford content-neutral protection to the captive auditor (on the facts before us, auditors in homes or in private offices) who cannot avoid continuing, unreasonably loud and disruptive communications emanating from the street. So read,
When the State seeks to correct a particular evil by way of time, place, or manner restrictions, it need not employ the least restrictive or least intrusive means. Ward, 491 U.S. at —, 109 S.Ct. at 2758, 105 L.Ed.2d at 680. “Rather, the requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.‘” Id. (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536, 548 (1985) [ellipsis in Ward]. Since the character of open public places may differ widely, one from another, only a flexible approach to volume control can adequately serve the myriad circumstances which the State can legitimately regulate. As we have pointed out, it is the particular circumstances that render a loud communication unseemly or unreasonable, and hence subject to time, place, and manner regulations.
Consider apartment dwellers and workers in private offices along West Washington Street. The record in this case makes clear that during business hours the street is heavily travelled by motor vehicles, including large trucks. This traffic produces a high noise level, and one who wishes
One speaking on West Washington Street at midnight, with traffic levels much reduced, could run afoul of § 121 at a lower level of voice volume. In this quieter environment, a less loud oral presentation could unreasonably disturb what might well be a larger captive audience, at least from the viewpoint of apartment dwellers. See People v. Fitzgerald, 194 Colo. 415, 419, 573 P.2d 100, 103 (1978) (proscribed conduct “necessarily varies according to the time, location and decibel level of such conduct“); Commonwealth v. Orlando, 371 Mass. 732, 735, 359 N.E.2d 310, 312 (1977) (same). And if we move the scene to an area of Hagerstown that is solely residential, still different levels of speech might suffice to violate the statute. Reeves, 631 F.2d at 385 n. 10 (threshold level of prohibited disruptive noise may be substantially lower in areas primarily residential). We deal with a balancing that involves the time and place where speech occurs as well as the nature of the
Another factor that enters the balancing is that of alternative means. We shall have more to say about this topic shortly in a somewhat different context. Whether there is some other way of achieving the actor‘s goal is to be considered in the determination of whether a loud sound is unreasonably loud. Road construction equipment, for example, may make a great deal of noise and may seriously disturb people in homes, hospitals, schools, and offices. But broken water mains must be repaired and streets must be maintained, and it is often the case that noisy machines are the only practicable means of achieving these objectives. Thus, the sound created by that sort of activity is not necessarily unseemly or unreasonably loud. But a speaker will usually have a number of less noisy ways of presenting his or her message: speaking at lower volume; individual contact; use of placards or leaflets. So the balance of reasonableness may rest differently depending on the circumstances. See Commonwealth v. Greene, 410 Pa. 111, 115-116, 189 A.2d 141, 144 (1963).
Another weight in the balance may be the mechanical or electronic amplification of sound. It is no doubt easier to find that an antinoise law is constitutional when it deals with that sort of amplification, as did the ordinance in Kovacs, supra. See also, e.g., Ward, Saia and Reeves, all supra. But even though cases like Kovacs emphasize the sound-truck feature of the law, we reject Eanes‘s argument that amplification is a constitutional sine qua non. Eanes would have it that a speaker could stand in front of a residence at two o‘clock in the morning and shout at top volume as long as he or she pleased provided a message was being conveyed. We disagree. If the State is able to prove that, under the circumstances, the human voice is so unreasonably loud as to be unreasonably intrusive on a
Eanes suggests that only a statute which sets a specific decibel level would be constitutional. Yеt even with respect to a particular public forum, such as Hagerstown‘s West Washington Street, a decibel level that would permit communication with passersby and not disturb residents in their homes may vary with the time of day, air temperature, air currents, and background noise present. A standard which more specifically defined acceptable decibel levels at varying times and places would be likely both underinclusive and overbroad. See Commonwealth v. Orlando, 371 Mass. at 735, 359 N.E.2d at 312 (addressing the statutory standard “disturbers of the peace“). See also Mann v. Mack, 155 Cal.App.3d 666, 674, 202 Cal.Rptr. 296, 301-302 (1984) (“A determination as to what constitutes a ‘loud, unnecessary and unusual noise’ requires common sense not a decibel meter“).10 Because
Bolstering our determination that
In summary, we hold that
IV.
A.
A penal statute is vague if it violates “[t]he cardinal requirement ... that [it] ‘be sufficiently explicit to
A law is not vague simply because it requires conformity to an imprecise normative standard. The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.
Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972). The touchstone is whether persons of “common intelligence” need reasonably “‘guess at its meaning.‘” Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830, 837 (1973) (quoting Connally, 269 U.S. at 391, 46 S.Ct. at 127, 70 L.Ed. at 328).
Bowers involved a vagueness challenge to a then-existing child abuse statute which made it unlawful to injure a child
[a] statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.
Id. at 125, 389 A.2d at 347. Using a variety of the sources listed above to define the phrase “cruel or inhumane,” the statute was determined to be “sufficiently explicit....” Id. at 127, 389 A.2d at 349. We explained that
[p]arents of ordinary intelligence are made aware that they do not subject themselves to the statute by merely engaging in corporal discipline for the purpose of punishment or correction. Only when the line is crossed and physical injury is intentionally and maliciously or cruelly inflicted does criminal responsibility attach.
Other courts have applied these principles in responding to vagueness attacks on antinoise laws. For example, in Kovacs, supra, the Supreme Court confronted a vagueness challenge to the not-too-dissimilar statutory phrase “loud and raucous.” 336 U.S. at 79, 69 S.Ct. at 449, 93 L.Ed. at 518. Remarking that the claim deserved only passing mention, the Court stated that “[w]hile these are abstract words, they have through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden.” Id. at 79, 69 S.Ct. at 449-450, 93 L.Ed. at 518.
The method of analysis is further demonstrated in Grayned, supra. That case involved a Rockford, Illinois, ordinance that made it a crime for anyone willfully to make a noise or diversion which disturbed or tended to disturb the peace or good order of any school in session. 408 U.S. at 107-108, 92 S.Ct. at 2298, 33 L.Ed.2d at 227. The Supreme Court held the ordinance was not unconstitutionally vague. The words “tending to disturb,” in a Chicago ordinance, had previously been construed by the Supreme Court of Illinois to refer only to an imminent threat of violence. Id. at 110-112, 92 S.Ct. at 2299-2301, 33 L.Ed.2d at 228-230. The Rockford ordinance did not define the requisite quantum of disturbance, but the United States Supreme Court found that this question was measured by the impact of the disturbance on school activity. Given the requirements of (1) willful conduct, (2) that the noise or diversion be actually incompatible with normal school activity, and (3) a demonstrated causal relationship between “noise or diversion” and disruption, the ordinance withstood constitutional scrutiny. Id. at 113-114, 92 S.Ct. at 2301-2302, 33 L.Ed.2d at 230-231.
In similar fashion, we here apply normal meanings to words of common understanding and conclude that speech that is so unreasonably loud as to be unreasonably intrude on the privacy of a captive audience may be punished.11 We hold that the words “loud and unseemly,” so construed, give sufficient notice of what conduct is penalized. “Unseemly” modifies “loud” and means “unreasonably loud in the circumstances.” That is clear enough. The objective “reasonable” test is used in many areas of the law
An exhaustive listing of words or phrases deemed not unduly vague would unduly prolong this opinion. We note a few examples in addition to those we have already discussed: Reeves, 631 F.2d at 386 (prohibition of sound that is “jarring” or “a nuisance” not unconstitutionally vague; words do not provide mathematiсal certainty, but have acquired sufficiently definite content through daily use); State v. Johnson, 112 Ariz. 383, 542 P.2d 808 (1975) (statute that made it a misdemeanor to “maliciously and wilfully disturb[] the peace or quiet of a neighborhood ... by loud or unusual noises” is valid); Commonwealth v. Jarrett, 359 Mass. 491, 269 N.E.2d 657 (1971) (“disturbers of the peace” not unconstitutionally vague); State v. Smith, 46 N.J. 510, 518, 218 A.2d 147, 151 (1966), cert. denied, 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966) (statute proscribing “noisy or disorderly conduct” which “disturbs or interferes with the quiet or good order” of certain places of assembly is valid; “if there is a public interest in need of protection, due process does not stand in the way merely because the
The words “loud and unseemly noise” as used in
B.
We need not dwell long on Eanes‘s claim that
Eanes argues that
As we have concluded,
V.
We now consider the final issues of whether
The record demonstrates that Judge Wright construed
Courts may differ. Judges will differ. Whether they are trial judges or whether they are appellate judges in the areas of speech and protection of speech. But I think that the evidence that I‘ve heard which indicates basically that Mr. Eanes during this morning in question was extremely loud, louder than normal, [“]one of the two loudest persons I‘ve ever heard in my life,[“] [at a] volume above the traffic.... But that the entire commotion then caused sufficient complaints to bring the police and the police officer asking Mr. Eanes to lower his voice and lower therefore the intensity and not withstanding that Mr. Eanes shouted about money for drugs, etc. at a very high voice, could well lead to the conclusion that his actions on this morning were to willfully disturb the peace and tranquility of the neighborhood. Not caring about whom he did disturb whether it be those that may
have been targets of the language or those of [the] general public.... It was not the content. The content of his language really was not that which was disturbing. It is interesting that the people ... some of the people who were disturbed ... indicated that they agreed with his purposes. And I think that there is sufficient evidence to indicate that on this occasion... Mr. Eanes was using his right to communicate ideas to not only communicate but to willfully disturb. And I think that that kind of activity is proscribed by
Section 121 .
After Eanes presented his defense and closing arguments were made, Judge Wright, in his ruling from the bench, explained how the statute was to be applied.
The statute ... talks about willful disturbance of any neighborhood by means of loud and unseemly noises. Now the loudness of Mr. Eanes’ expressions ... may well be a matter of how one views it, how one hears obviously. What is loud to one person may not be loud to another....
But the Legislature said loud. So that has to be a fact that‘s found. And I would find from the evidence that Mr. Eanes’ method and manner of expression was on this day in May of May 18, [1988] loud.
Now the Legislature also said and unseemly noises. And we know that the Court, the trier of fact is to give that adjective its common meaning, improper. And improper of course means under the circumstances. What is proper in one situation or under one set of circumstances may be improper in another set of circumstances.
Because it also means in violation of accepted standards of what is right or proper. So the noises have to be loud and in violation of accepted standards of what is right or proper. Loud and improper noises, that can mean speech. Because there has to be a balancing of one‘s right to express himself and other‘s right to be free from disruption.
Now the method here is what is being tested not the words. We do know that and there‘s no reason to keep on it. But it is not the content of Mr. Eanes’ speech. There can be no chilling of that right to express what one believes. So it‘s not the content that is being judged or can be judged by any governmental agency. The manner, however, can be subject to restriction. And the statute here is a method of governmental ... restriction of the manner in which somebody expresses his views. Because it cannot be loud and unseemly. That is the manner, loud and unseemly. [emphasis supplied]
Having found Eanes to be loud, Judge Wright went on to find specifically that Eanes actually disturbed both residents and area business people and that he was aware that his manner of communication was disruptive to the neighborhood. He then concluded that Eanes was “guilty of willfully disturbing the peace and tranquility of that particular neighborhood during the morning of May the 18th, [1988] by making loud and otherwise unacceptable improper under the circumstances noises.”
We hold, in view of Judge Wright‘s exposition of
ELDRIDGE, Judge, dissenting.
The First Amendment to the Constitution of the United States sets forth “the sweeping command” 1 that government “shall make no law ... abridging the freedom of speech....” In this case, however, apparently for the first time ever, a state‘s highest court has upheld a criminal conviction based solely on the loudness of a single individual in delivering constitutionally protected speech with an unamplified human voice, in a permitted place and at a permitted time. In affirming Jerry Wayne Eanes‘s conviction under a statute which penalizes disturbing neighborhoods “by loud and unseemly noises,” the majority has construed and applied that statute in a manner inconsistent with the First Amendment. Moreover, in applying a novel construction of the statute to Eanes, the majority has violated his rights under the Due Process Clauses of the Fourteenth Amendment and Article 24 of the Maryland Declaration of Rights.
I.
The Court‘s opinion points out that this case arose in the context of an anti-abortion demonstration which took place on the public sidewalk in front of the Hagerstown Reproductive Health Services Clinic on May 18, 1988. Petitioner Eanes had, however, preached there before. On July 1, 1987, when Eanes was engaged in preaching identical to that of May 18, 1988, Hagerstown police officers arrested him and charged him under Maryland Code (1957, 1987 Repl.Vol.),
The day after his acquittal, Eanes returned to the public sidewalk in front of the clinic and resumed his preaching. A police officer, after receiving a complaint, requested that Eanes lower his voice. The officer then left the scene, later explaining at trial that
“[t]here was a confusion among my supervisors in reference to a decision handed down by Judge Moylan the previous day and we were advised by Captain Hart to leave the area until we got a ruling from the State‘s Attorney‘s office.”
After receiving another complaint about the preaching in front of the clinic, the officer returned and
“was advised that the State‘s Attorney stated that Moylan‘s decision was in reference to that case only, that if anybody was disturbing the peace and I had probable cause to make an arrest to go ahead and make an arrest.”
The officer arrested Eanes and charged him under
On December 15, 1988, the Circuit Court for Washington County (Wright, J.) found Eanes guilty of violating
This Court affirms the conviction by adopting a new construction of
Furthermore, the Court initially states that
In the context of the present case, however, the majority holds that Eanes committed a crime solely because of the volume level of his speech, and not because it was delivered at the wrong time or the wrong place. If Eanes‘s unamplified speech was too loud for the public sidewalk in the heart of downtown Hagerstown at 10:30 a.m. on a weekday, I cannot imagine any time in any neighborhood in this State where he could lawfully reach the same volume.
In addition to construing “loud and unseemly” to mean “unreasonably loud,” the majority adds elements to the
II.
In my view, the First Amendment prohibits the State from punishing Eanes for speaking against abortion on a public sidewalk in Hagerstown under the circumstances of this case. The relevant clause of
A.
At the time of his arrest, Eanes was engaged in free speech in its “most pristine and classic form.” Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). He was standing on a public sidewalk outside the clinic on West Washington Street, a congested, one-way thoroughfare, probably the busiest street in downtown Hagerstown. It is U.S. Route 40 West. He was in a commercial area, a block and a half from the city‘s public square. Between 10:30 a.m. and noon, he and another man, who were part of a group of several protesters, alternately spoke “to preach the gospel of Jesus Christ” and to “speak out against abortion” with their unamplified human voices.
Eanes was expressing his opposition to abortion, one of the most controversial political and social issues today. Unlike many other cases involving protests at abortion clinics, there is no contention in this case that Eanes attempted to block access to the clinic. He did not trespass on clinic property, did not threaten anyone, did not incite listeners to violence, and did not use profanity, ob-
Eanes preached his anti-abortion message in the most appropriate place and at the most appropriate time. Yet today the majority has construed and applied
In holding that Eanes, standing on a public sidewalk adjacent to a busy street, may be punished for speaking against abortion, the majority relies on testimony that “Eanes could readily be heard above the traffic noise,” although the majority acknowledges that the testimony as to this was conflicting. The only meaningful exercise of the First Amendment right to free speech under the circumstances, however, is if the speaker is allowed to speak above the traffic noise. As the majority acknowledges, public streets and sidewalks have been repeatedly recognized as archetypes of traditional public forums. The government‘s ability to restrict expressive activity in such places “which occupy a ‘special position in terms of First Amendment protection‘” is “‘very limited.‘” Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988), quoting United States v. Grace, 461 U.S. 171, 177, 180, 103 S.Ct. 1702, 1707, 1708, 75 L.Ed.2d 736 (1983). Permitting on public sidewalks only speech which cannot be heard because of the surrounding traffic noise gives little effect to this “special position in terms of First Amendment protection.”
The majority opinion also relies heavily upon testimony that, allegedly because of Eanes‘s speech, an adult and a child in nearby apartments could not sleep and some workers nearby were “disturbed” and had difficulty concentrating on their work. It must be emphasized, however, that
For example, speeches by public officials at an outdoor ceremony on the grounds of the Maryland State House in Annapolis may wake up persons sleeping in apartments above stores on State Circle; the speeches might affect the concentration of workers in the stores. If so, would the continuation of the speeches at the same volume, after a complaint and warning by an Annapolis policeman, be criminal? Are demonstrations outside of the State House, when the Legislature is in session, to be suppressed by criminal prosecution if the crowd becomes noisy and causes complaints from persons trying to sleep?4 Presumably under today‘s decision, if
The First Amendment would seem to preclude reducing speakers and the listening public to speech which does not disturb daytime sleepers in a downtown commercial area. Cf. Butler v. State of Michigan, 352 U.S. 380, 383-384, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957) (“The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual ... that
In light of the Court‘s application of
When a particular speech is unpopular or unusual, I doubt that it will be difficult to find an affected citizen to complain, ostensibly because of the sound level. See Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1151, 92 L.Ed. 1574 (1948) (“Annoyance at ideas can be cloaked in annoyance at sound“). At Eanes‘s trial, the woman who testified that her child could not sleep because of the preaching stated: “I really can‘t say whether it [the traffic noise on West Washington Street] did or did not [bother her child‘s sleep].... I mean the traffic was something that we lived with every day.” This testimony demonstrates how complaints because of sound may depend on individual sensibilities. People who live in the commercial area of downtown Hagerstown, and sleep at 10:30 a.m., may get used to the traffic noise on West Washington Street. A speech on abortion, at a sound level merely sufficient to be heard, may disrupt and draw complaints from those same people who may not be used to it, or may not like it. The First Amendment, however, protects speakers from these individual sensibilities of their fellow citizens. Saia v. New York, supra.
The majority‘s insensitivity to Eanes‘s free speech rights is also illustrated by its assertion that “[s]ound is one of the most intrusive means of communication.” The majority has overlooked that sound, in the form of the spoken word, is the most basic thing protected by the
The
B.
The majority argues that
The Court emphasizes that, under its construction of
The majority acknowledges that even “content-neutral” regulations of speech, to be valid under the
(1)
Initially, the majority invokes the principle that the government has an interest in protecting its citizens from unwelcome noise, and it relies on Ward v. Rock Against Racism, supra, 109 S.Ct. at 2756; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Saia v. New York, supra, 334 U.S. at 562, 68 S.Ct. at 1150-1151; and Reeves v. McConn, 631 F.2d 377 (5th Cir.1980). These cases, however, dealt with sound amplification devices; they indicate that narrowly drawn regulation of amplified sound is permissible. The cited cases do not countenance broad regulation of unamplified speeches.
The Supreme Court has never held that the government has a legitimate interest in controlling the volume of unamplified political or social speech delivered in an appropriate
The Supreme Court first confronted the relationship between the
“The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life. Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loud-speakers because their use can be abused is like barring radio receivers because they too make a noise. The police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights. The samе is true here.
“Any abuses which loud-speakers create can be con-trolled by narrowly drawn statutes. When a city allows an official to ban them in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas. In this case a permit is denied because some persons were said to have found the sound annoying. In the next one a permit may be denied because some people find the ideas annoying. Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice.”
In the instant case, even if Eanes had used a loudspeaker, it is questionable whether
One year later, in Kovacs v. Cooper, supra, 336 U.S. 77, 69 S.Ct. 448, the Supreme Court upheld a Trenton, New Jersey, ordinance barring sound trucks from “broadcasting in a loud and raucous manner.” The appellant had used a sound truck to broadcast music and comment on a labor dispute. The opinion of three justices, announcing the judgment of the Court, pointed out that the ordinance applied only to vehicles, only to those with a sound amplifier and only to those operating on the streets. The opinion emphasized that sound trucks could still be utilized “in
“There is no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers.”
In concurring, Justice Frankfurter drew the following distinction (336 U.S. at 96, 69 S.Ct. at 458, emphasis added):
“Only a disregard of vital differences between natural speech, even of the loudest spellbinders, and the noise of sound trucks would give sound trucks the constitutional rights accorded to the unaided human voice.”
The ordinance in Kovacs was more narrowly drawn than
The majority relies on a recent Supreme Court sound amplification case, Ward v. Rock Against Racism, supra, which concerned a challenge to “use guidelines” for a bandshell in New York City‘s Central Park. The regulations required bandshell performers to use sound-amplification equipment and a sound technician provided by the city. Rock Against Racism had previously sponsored programs where it furnished the equipment and technician. The city asserted two justifications for its guidelines. The first was to control noise levels at bandshell events, in order to retain the character of a quiet area of Central Park and avoid
Again, the regulations in Ward were much more narrowly drawn and specific than
The majority also cites Reeves v. McConn, supra, 631 F.2d 377, for the proposition that a “city may protect citizens from unreasonable or disruptive levels of noise in streets.” When the United States Court of Appeals for the Fifth Circuit considered a petition for rehearing, 638 F.2d 762 (5th Cir.1981), however, it recognized the distinction between unaided and amplified sound. The court faced a challenge to an ordinance that prohibited the “amplification” of “obscene” words or sounds. After accepting a construction of “obscene” that extended beyond erotic wоrds and included “indecent” words, the court reasoned that a “sensible balance of these competing rights [speech and a right to have ‘a reasonable means of avoidance‘] is to protect the speaker of obscene or indecent words only when he uses the unamplified voice....” Id. at 764. Instead of supporting the majority‘s decision in the instant case, Reeves points the other way.
Despite the majority‘s refusal to draw a distinction for First Amendment purposes between amplified sound and unamplified speech, it is clear that there is a constitutionally significant difference between the two.
(2)
Many other cases, including ones relied on by the majority, demonstrate that the majority‘s decision cannot be squared with First Amendment principles.
Several Supreme Court cases undermine the majority‘s position that mere loudness, accompanied by complaints and
“Instead of dispersing, the petitioners engaged in what the City Manager described as ‘boisterous,’ ‘loud,’ and ‘flamboyant’ conduct, which, as his later testimony made clear, consisted of listening to a ‘religious harangue’ by one of their leaders, and loudly singing ‘The Star Spangled Banner’ and other patriotic and religious songs, while stamping their feet and clapping their hands. After 15 minutеs had passed, the police arrested the petitioners and marched them off to jail.”
The Court in Edwards, using language fully applicable to the present case, distinguished the situation before it from a conviction under a narrowly drawn regulatory statute (372 U.S. at 236, 83 S.Ct. at 684):
“We do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative judgement that certain specific conduct be limited or
proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case.”
After pointing out that the First and
“‘[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech * * * is * * * protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. * * * There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.‘”
Two years later, in Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), the Supreme Court reversed the convictions of a civil rights demonstration leader for, inter alia, disturbing the peace. Cox had led about 2,000 students in a march to the courthouse in downtown Baton Rouge, Louisiana, to protest against discrimination and the previous day‘s arrest of twenty-three fellow students. At the noon demonstration, the students carried signs, sang songs and pledged allegiance to the flаg. The demonstrators began to cheer loudly and clap when the
Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), is relied on by the majority in the instant case to support its concern for the well being of a “captive audience,” and to support its conclusion that sound “is one of the most intrusive means of communication.” Yet Grayned demonstrates the relevance of Edwards and Cox to the facts before us today. In Grayned, an Illinois antinoise ordinance forbad people, while on grounds adjacent to a school building, from making noises or diversions that disturb the “peace or good order” of a school session or class. In holding that the ordinance was sufficiently narrowly tailored, and not unconstitutionally vague or overbroad, the Supreme Court emphasized that the ordinance was limited to grounds adjacent to a school building, was limited to times when school was in session, and, as construed by the Supreme Court of Illinois, was limited to prohibiting “actual or imminent interference with the ‘peace or good order’ of the school.” 408 U.S. at 111-112, 92 S.Ct. at 2301. Even with these specific time, place and manner limitations, the Grayned Court at one point stated that “the question is close” as to whether the ordinance was “impermissibly vague.” 408 U.S. at 109, 92 S.Ct. at 2299.
The statute under which Eanes was convicted, as construed by the majority today, has none of these time, place and manner limitations. Although the majority of this
Furthermore, in upholding the ordinance, the Grayned opinion drеw a sharp distinction between noisy demonstrations adjacent to a school and noisy demonstrations elsewhere (408 U.S. at 120, 92 S.Ct. at 2305):
“Noisy demonstrations that disrupt or are incompatible with normal school activities are obviously within the ordinance‘s reach. Such expressive conduct may be constitutionally protected at other places or other times, cf. Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct. 680, 9 L.Ed.2d 697] (1963); Cox v. Louisiana, 379 U.S. 536 [85 S.Ct. 453, 13 L.Ed.2d 471] (1965), but next to a school, while classes are in session, it may be prohibited. The antinoise ordinance imposes no such restriction on expressive activity before or after the school session, while the student/faculty ‘audience’ enters and leaves the school.”
The Supreme Court clearly indicated that “noisy demonstrations that disrupt” constitute speech which enjoys constitutional protection in at least some places and some times. The majority‘s construction and application of
At Eanes‘s May 17, 1988, trial, Judge Moylan noted that Edwards “bears a resemblance to this case.” He also stated that the issue in Cox was “not far removed from the issue or type of activity here.... There is simply the exercise by citizens of their First Amendment right.” As previously indicated, the speech for which Eanes stands convicted was undoubtedly no louder than the cheering, clapping, and singing of 187 demonstrators in South Carolina whose convictions were reversed in Edwards. The “captive audience” in downtown Baton Rouge, Louisiana, would not have even heard Eanes amidst the singing and cheering of 2,000 demonstrators involved in Cox. It is difficult for me to believe that the Supreme Court would
Edwards, Cox, and Grayned, read together, make it clear that authorities cannot invoke a general disorderly conduct statute like
C.
A state‘s interest in protecting its citizens from unwelcome noise may justify some narrowly drawn time, place and manner regulations of noise. No such regulations are being applied in the case at bar.
The relevant clause of
The majority believes that its formulation and application of the “unreasonably loud” standard, coupled with the need for a complaint and prior police warning, is a specific regulation of the “manner” of speech, and “is sufficiently narrowly tailored” to be valid under First Amendment principles. Neither reason nor case law supports this position.
The standard adopted by the majority is, on its face, a vague one. As previously discussed, it lacks the objective specificity of the regulations of sound involved in cases such as Kovacs v. Cooper, supra; Grayned v. Rockford, supra; Ward v. Rock Against Racism, supra; Reeves v. McConn, supra; and others. For example, the Kovacs standard, in addition to the limitation “loud and raucous,” applied only to vehicles, only to amplified sound, and only to streets. The Grayned standard had express time and place limitations, coupled with a much more specific manner
Further contributing to the vagueness of
In addition the statute, as construed by the majority, obviously suffers from overbreadth, as “its reach ... prohibits constitutionally protected conduct.” Grayned v. Rockford, supra, 408 U.S. at 114, 92 S.Ct. at 2302. As discussed earlier, the standard employed by the majority would encompass peaceful but noisy demonstrations at the State House, like those involved in Edwards v. South Carolina, supra, and like those which regularly occur in Annapolis. The majority‘s standard would prohibit peaceful but noisy civil rights demonstrations in downtown areas, similar to those deemed constitutionally protected in Cox v. Louisiana, supra. The recent non-violent anti-government demonstrations in Eastern Europe, which have been generally praised in this country, would undoubtedly have constituted criminal activity if they had occurred in Maryland, under the test employed by the majority. The examples of protected First Amendment activity, potentially encompassed by the standard being applied to Eanes‘s speech, are endless.
In State v. Swoboda, 658 S.W.2d 24 (Mo.1983), the Supreme Court of Missouri held that a statute proscribing “unreasonably and knowingly causing alarm to another person or persons not physically on the same premises by ... [l]oud and abusive language” was unconstitutionally overbroad. Using language that is quite apt in the present case, the Supreme Court of Missouri emphasized that the statute “can encompass virtually any expletive unreasonably and knowingly uttered at high volume and with high intensity, so long as a complainant is alarmed; vehement political discussion obviously contemplated by the first amendment could fall within the statute‘s proscription.” Id. at 25.
The complaint and police warning requirements, which the majority today engrafts upon the legislative enactment, do not transform the majority‘s “unseemly loud” standard
Preliminarily, complaints and prior warnings by authorities have been present in many of the Supreme Court‘s cases dealing with regulations of activity protected by the
Any time government authorities desire to suppress activity proteсted by the
Moreover, by making a complaint and a prior police warning statutory elements, the majority opens the door to discriminatory enforcement of
Similarly, the prior police warning requirement may lead to the suppression of speech when there are policemen nearby, but if policemen do not happen to be in the area to give warnings, speech of comparable loudness, at the same times and places, will be exempt from the criminal statute. It is wholly irrational to make the violation of a criminal statute dependent upon the presence or absence of a police officer when the conduct takes place.
In City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), the Supreme Court held that a municipal ordinance making it unlawful to “wilfully or intentionally interrupt a city policeman ... by verbal challenge during an investigation” was unconstitutionally overbroad under the
As pointed out below in Part III, a person planning to make a speech in a particular manner, at a specific time and place, should be able to determine in advance whether his activity will be a crime. By making the criminality of the activity dependent upon a complaint and police warning, the speaker has no way of knowing in advance whether the delivering of his speech will be a crime. The elements of
Finally, the majority‘s argument that its construction and application of
Making a speech on a public sidewalk, with the unamplified human voice, is the one form of communication in which virtually all of our citizens may engage, as it does not ordinarily involve expenditures of money. Many who have a message, and wish to convey it in accordance with their First Amendment right, may not be able to afford printing literature, making signs, the postage involved in mailings, telephoning, and the other “alternative means” suggested by the majority. I flatly reject the majority‘s view that, because of “alternative means,” suppression of an unamplified sidewalk speech on a political or social topic “is of little consequence” (majority opinion, p. 458).
Apart from the violation of Eanes‘s First Amendment rights, the majority‘s affirmance of his criminal conviction is inconsistent with basic principles of due process embodied in the
A.
In addition to the constitutional requirement that a regulation of protected speech be “narrowly tailored,” considerations of due process mandate that any criminal statute “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.” Grayned v. City of Rockford, supra, 408 U.S. at 108, 92 S.Ct. at 2298-2299. We require a criminal statute to be sufficiently definite “because we assume that a man is free to steer between lawful and unlawful conduct.” Ibid.
In Bowers v. State, 283 Md. 115, 120, 123, 389 A.2d 341 (1978), Judge Levine for the Court stated that “[t]he cardinal requirement is that a penal statute ‘be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties,‘” (quoting from Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). The Court in Bowers also emphasized “that whenever a criminal statute may ... impact upon free speech rights, the void-for-vagueness doctrine ‘demands a greater degree of specificity than in other contexts,‘” (quoting from Smith v. Goguen, supra, 415 U.S. at 573, 94 S.Ct. at 1247). See also In re Leroy T., 285 Md. 508, 510-512, 403 A.2d 1226 (1979) (holding that a statute prohibiting the possession of devices “commonly used ... for criminal use” was unconstitutionally vague).
For the reasons already set out in Part II above, the pertinent clause of
The majority, recognizing that the statutory language as construed does not “provide fair notice,” adds a prior police warning requirement.9 I do not believe, however, that an unconstitutionally vague statute can be salvaged by judicially creating the mechanism of a police warning to operate on a case by case basis. See Cearfoss v. State, 42 Md. 403, 407 (1875) (“No man incurs a penalty unless the act which subjects him to it is clearly both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction“).
The mandate of due process is that a reasonable person should in advance be able to ascertain whether contemplated conduct violates a statute. It may be permissible in some circumstances for the meaning of a statute to be ascertained from prior reported cases, dictionaries, and oth-
B.
The Supreme Court, in Bouie v. Columbia, supra, 378 U.S. at 352-354, 84 S.Ct. at 1702, explained this principle as follows:
“There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Court recognized in Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 239 [86 L.Ed. 226], ‘judicial enlargement of a criminal act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.’
* * * * * *
“Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitu-
tion forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648. [Footnote omitted.] If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.”
In Bouie, the Supreme Court of South Carolina had construed a statute prohibiting “entry upon the lands of another after notice from the owner or tenant prohibiting such entry” to proscribe staying upon, as well as entering upon, the land after such notice. The United States Supreme Court concluded that while the construction could be valid for the future, it could not be applied retroactively. 378 U.S. at 362, 84 S.Ct. at 1707.
The Supreme Court in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), reversed convictions for, inter alia, transporting obscene materials in violation of a federal statute. The Court held that due process principles precluded retroactive application of new standards announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), for distinguishing between hard core pornography and protected First Amendment expression. The Miller case had “expanded criminal liability” in replacing the “utterly without redeeming social value” test with the “lacks serious literary, artistic, political, or scientific value” test. Marks v. United States, supra, 430 U.S. at 194, 97 S.Ct. at 994. Initially the Court in Marks stated (430 U.S. at 191-192, 97 S.Ct. at 992-993):
“The Ex Post Facto Clause is a limitation on the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government. But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct
which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty.... As such, that right is protected by the Due Process Clause of the Fifth Amendment .”
The Court went on to emphasize that it had “taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values.” 430 U.S. at 196, 97 S.Ct. at 995. The Court also emphasized that it was dealing with “sweeping” statutory language, the reach of which “necessarily has been confined within the constitutional limits announced by this Court.” 430 U.S. at 195, 97 S.Ct. at 994.
This Court affirms Eanes‘s conviction under a new construction of
In Diehl v. State, supra, a police officer named Vincent Gavin heard and saw the operator of an automobile squealing wheels on Main Street in Hancock, Maryland, at 10:25 p.m. He pulled the vehicle over in a supermarket parking lot and noted that it contained several people. When Robert Diehl got out on the passenger‘s side, Gavin ordered him to return to the vehicle. Gavin testified that Diehl began yelling such phrases as “Fuck you, Gavin“; “I know my rights“; and “You can‘t tell me what to do.” After people began to gather, Gavin arrested Diehl for “screaming obscenities and drawing a crowd.” Diehl fled from the scene. When a state trooper found him half an hour later and dragged him to a police car, Diehl began to kick and scream. The State charged Diehl, inter alia, with disturbing a neighborhood by “loud and unseemly noises” in violation of
The majority today states that the Diehl test for “loud and unseemly noise” prohibited by the statute applies only where the conviction is based “on allegedly objectionable content,” and that where the prosecution is based on “loudness,” the statutory phrase means “unreasonably loud.” (Majority opinion, Part III A). The majority justifies this reading of Diehl by arguing that loudness itself was not an issue in the Diehl case. The majority asserts that “[a]t no time did the State argue that the loudness of Diehl‘s protestations violated
Preliminarily, I totally disagree with the Court‘s restrictive view of the issues in Diehl. Loudness was an issue in Diehl, and the Court there held that loudness itself was not proscribed by the statutory phrase. The Diehl opinion specifically referred to the appellant‘s argument that “mere loudness is not enough to constitute disorderly conduct,” 294 Md. at 470, 451 A.2d at 118. The State in its brief in Diehl argued that Diehl was both loud in his volume and unseemly in enhancing the prospect of chaos.10 The State did not argue that the content of Diehl‘s speech was per se unseemly.
Moreover, our opinion in Diehl clearly rejected the idea that loudness alone, regardless of content, was prohibited by
“The Supreme Court of California in construing the terminology of a statute regarding ‘loud and unusual noise’ held in In re Brown, 9 Cal.3d 612, 108 Cal.Rptr. 465, 510 P.2d 1017 (1973), cert. denied, California v. Brown, 416 U.S. 950, 94 S.Ct. 1959, 40 L.Ed.2d 300 (1974) that
‘The statute, however, cannot be interpreted consistent with the First Amendment and traditional views as making criminal all loud shouting or cheering which disturbs and is intended to disturb persons. [Footnote omitted.] When the word noise in the statute is properly construed consistent with the First Amendment and traditional views, it encompasses communications made in a loud manner only when there is a clear and present danger of violence or when the communicatiоn is not intended as such but is merely a guise to disturb persons. [108 Cal.Rptr. at 469, 510 P.2d at 1021.] [Emphasis supplied.]’
“The State‘s evidence failed to establish that Diehl‘s conduct, under the circumstances here, was unlawful under this first portion of § 121.”
Regardless of whether the majority‘s decision is inconsistent with Diehl, it is clear that today‘s construction of
To adopt an unanticipated, unprecedented, and unwarranted construction of a criminal statute is bad enough. To apply that construction retroactively to Eanes‘s conduct is a denial of due process.
In my view, Eanes was entitled to deliver an unamplified speech on the topic of abortion, from a public sidewalk in downtown Hagerstown, during the late morning. To punish as criminal the making of the speech, purportedly because it was too loud, distorts both the statute and our basic constitutional guarantees. Finally, today‘s holding represents great potential danger for Marylanders speaking on controversial topics.
Judges COLE and BLACKWELL have authorized me to state that they concur with the views expressed herein.
Notes
As previously noted, in the instant case there were neither findings nor any evidence that Eanes‘s speech interfered with medical services at the clinic, and the majority does not require this under its construction of the statute.