Lead Opinion
As the result of a contretemps at a hospital between Petitioner, Rhonda Michelle Polk, and a special police officer, Corporal Raymond Sperl, Polk was convicted of disorderly conduct in violation of Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27 § 121(b)(3) (“A person may not willfully fail to obey a reasonable and lawful order of a law enforcement officer made to prevent a disturbance to the public peace.”)
I.
On the afternoon of 8 June 2001, Polk, accompanied by her nine-year-old daughter, went to the Peninsula Regional Medical Center in Salisbury, Maryland. Polk previously worked as a secretary in the Hospital’s Heart Center, but her employment had been terminated recently. She returned on this occasion to pick up her final pay check.
Polk first visited the Human Resources Department for her pay check, but was directed to go to the Heart Center. When she reached the Heart Center, she was told by her former supervisor, Shannon Brady, that her check was not at the Center and that she should return to Human Resources. Soon after Polk, muttering insults under her breath, left for Human
Corporal Raymond Sperl, a special police officer stationed at the Hospital for security, responded to Brady’s request. He carried the check to Human Resources and there encountered Polk. When Polk asked him about the pay check, Corporal Sperl replied that he “ha[d] to take it to personnel.” Polk responded, “[F]uck you, asshole.” As the officer continued toward Human Resources with the check, Polk began “screaming,” “[G]ive me my check.” A Human Resources employee indicated to Corporal Sperl that he could give Polk the check. Polk snatched it from him, adding another, “[F]uek you, asshole.” Corporal Sperl described the exchange that followed as Polk walked down a hallway toward a Hospital exit:
I said just keep your mouth quiet and leave. Again, [she responded] fuck you, asshole. I said I feel sorry for your child, she had a child with her. After I said I feel sorry for your child, she said fuck you, asshole. I said keep your mouth quiet and leave or I’m going to lock you up for disorderly conduct.
The officer also commanded Polk to “keep [her] mouth shut, stop [her] cursing, [and] just leave the property.” Polk called Corporal Sperl an “old white baldheaded cop wannabe.” In the course of their exchange, the Corporal stressed several times that “she’d be locked up [for disorderly conduct] if she didn’t stop her profanity.” When two women at the end of the hallway “heard the commotion,” they walked away down аnother hallway. When Polk reached the Hospital exit, she turned toward, the officer and shouted, “[F]uck you, asshole,” once again as she passed through the doors.
Now outside, Polk’s continuing tirade at Corporal Sperl “startled” a group of ten or fifteen Hospital employees standing nearby. Corporal Sperl escorted Polk toward the Hospital parking garage. Polk was “very irate” and “was letting [Corporal] Sperl know how irate she was” by “yell[ing] at him and cursfing] at him.” At one point, Polk abruptly stopped walking, causing the officer to step on the back of one of her “flip-flop” sandals and almost lose his balance. When the “vulgarity ... intensified,” the Corporal announced that Polk was under arrest and attempted to apprehend her. He grabbed her shoulder, but she pulled away and bit his arm, breaking the skin on his wrist. During the scuffle, other security officers arrived and eventually subdued and arrested Polk.
Polk was charged with engaging in disorderly conduct in violation of Maryland Code, Article 27 § 121(b)(3) (1957, 1996 RepLVol., 2001 Supp.), resisting arrest, and second-degree assault in violation of Maryland Code, Article 27 § 12A (1957, 1996 Repl.Vol.).
The Circuit Court denied Polk’s motion for acquittal. The judge concluded that Corporal Speri’s orders to “quiet down” constituted lawful orders to prevent a disturbance to the public peace. The orders, in his view, were directed at the volume of Polk’s speech rather than its content. In this regard, the judge stated:
“[Tjhere is the testimony of Corporal Sperl that Ms. Polk was irate, was using profane language, and I think it’s reasonable to infer from his testimony that she was doing so loudly because he told her on several occasions that she had to be quiet and he told her that if she wasn’t quiet that he would place her under arrest for disorderly conduct.
“There is testimony from Corporal Sperl that two other people who were in the hallway at the time changed their direction to walk away from where he and Ms. Polk were located, and it may be that they just don’t like hearing someone say fuck you, asshole, but it could have also been because of the fact they didn’t like the volume of the language, as well as the content.
“And because of that possibility, in looking at it in the light most favorable to the State, I think I have to assume at this point that they walked away for reasons other than merely the content of it.
“There is also testimony from Corporal Sperl and from other people who [observed the incident outside the hospital’s exit doors] that Ms. Polk was out of control at the point when she exited the building, was speaking in a manner which I think could be considered loud, Sperl said that it caught everyone’s attention in [that area] when they left.”
From these findings, the judge concluded that a reasonable fact-finder could find that Polk failed to comply with the officer’s orders to reduce the volume of her voice.
The jury found Polk guilty of disorderly conduct and resisting arrest, but acquitted her of the assault charge. The trial judge merged the two convictions and sentenced Polk to 18 months incarceration, suspending all but 60 days.
Polk appealed. The Court of Special Appeals affirmed the judgments in an unreported opinion. Before that court, Polk again argued that the officer’s orders were directed unconstitutionally at the content of her speech. The intermediate appellate court noted that the First Amendment to the U.S. Constitution “render[s] unlawful any order to refrain from profanity.” Nonetheless, from the testimony that Polk was “irate,” “yell[ing],” and “laps[ed] into ... tirades of vulgarity,” the court determined that she was “shouting when she cursed at [Corporal] Sperl.” It determined, further, that the officer’s orders to “keep [her] mouth quiet” sought to control the volume, rather than the content, of Polk’s speech. Based on these determinations, the court concluded that a rational trier of fact could have found that “[Corporal] Sperl lawfully ordered [Polk] to quiet down, and that [she] ignored the order.” Because Polk’s challenge to the conviction for resisting arrest also was based on the illegality of the officer’s orders the court held that, “that challenge must fail as well.”
We granted Polk’s petition for a writ of certiorari, Polk v. State,
1. Does an officer’s order to “stop cursing” and “stop [your] profanity” constitute a “lawful order” to the extent that an individual’s refusal to comply would be a violation of Maryland Code, Article 27 § 121(b)(3)?
2. If such an order is not “lawful” for purposes of Article 27 § 121(b)(3), was the evidence sufficient to sustain the appellant’s conviction for disorderly conduct?
For the reasons explained below, we conclude that, Petitioner’s framing of her issues notwithstanding, Corporal Sperl’s orders directed toward the volume of Polk’s voice were reasonable and lawful orders and the evidence indicating she failed to obey those orders was sufficient to support her convictions.
II. Standard of Review
In Moye v. State, we recently reiterated the standard of review for evaluation of the sufficiency of the evidence underlying a criminal conviction as:
whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We view the evidence in a light most favorable to the prosecution. We give “due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” Although our analysis does not involve a re-weighing of the evidence, we must determine whether the jury’s verdict was supported by either direct or circumstantial evidence^]
III.
The First Amendment of the U.S. Constitution applies to state and local governments through the Fourteenth Amendment. Eanes v. State,
In arguing for reversal, Polk relies heavily on Diehl v. State,
Diehl subsequently was qualified by our holding in Eanes v. State, where we affirmed the defendant’s conviction for disorderly conduct under § 121(b)(5)
“[As Justice Harlan, writing for the Supreme Court in Cohen, 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 еssentially intolerable manner.”
“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 [v. City of Shaker Heights,418 U.S. 298 , 304,94 S.Ct. 2714 , 2718,41 L.Ed.2d 770 , 778 (1974)]. 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 threatenedbecause “individuals cannot escape ‘bombardment of [their] sensibilities.’ ” Id. at 1864 (quoting Erznoznik [v. City of Jacksonville, 422 U.S. [205,] 211, 95 S.Ct. [2268,] 2273, 45 L.Ed.2d [125,] 132 [ (1975) ], quoting Cohen,403 U.S. at 21 ,91 S.Ct. at 1786 ,29 L.Ed.2d at 292 ). See also Comment, ‘I’ll Defend to the Death Your Right to Say It ... But Not to Me’—The Captive Audience Corollary to the First Amendment, 1983 S.Ill.U.L.J. 211, 215-216.
“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. The eases support the view that content-neutral regulations controlling its loudness are permissible. It may be otherwise outside the home or office, where the audience is ordinarily not captive. 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.”
Eanes,
In Eanes, we set forth the factors to be weighed in determining whether a regulation of speech is constitutional. Those factors include: (1) whether the regulation is content-based or content-neutral;
jWanes is clearly controlling here.
Significantly, and unlike the present case, the arresting officer in Diehl testified that he arrested Diehl because of the content of his language. Diehl,
The first factor of the Danes test, whether the order was content-based or volume-based, must be considered in light of the appropriate standard of review. As noted, supra, we must conduct a de novo review regarding any constitutional implications, but that analysis is informed by the trial court’s findings of fact. Thus, the issue before us is not whether Corporal Sperl’s orders were more likely content-based than content-neutral, but whether the trial court’s factual determination was clearly erroneous that his orders, in the main, were directed at the volume of Polk’s speech.
The Court of Special Appeals concluded that there was sufficient evidence in the record for a rational trier of fact to determine that Corporal Sperl’s orders were
From the testimony of Sperl and Donohoe [a maintenance mechanic at Peninsula Regional Medical Center], the trier of fact could have inferred that appellant was shouting when she cursed at Sperl. Appellant’s own testimony provided direct evidence that appellant wás ‘yelling’ at Sperl. Appellant does not dispute that, if she was making enough noise to disturb other persons in the hospital, Sperl could have lawfully ordered her to be quiet. Indeed, § 121(b)(5)(ii) of Article 27 specifically states that “[a] person from ány location may not by unreasonably loud noise willfully disturb the peace of another ... [i]n a place of business.... ” From Sperl’s testimony, the trier of fact could have determined that Sperl ordered Appellant to quiet down.
The record contains ample testimony before the trial court supporting its finding that Corporal Sperl issued orders aimed, in the main, at the volume of Ms. Polk’s speech. Corporal Sperl testified that, when Polk first cursed at him outside the Human Resources Department, he told her to “keep [her] mouth quiet and leave.” In addition, he warned her “four or five times” thereafter to “keep [her] mouth quiet” as her tirade continued. Several witnesses confirmed his testimony regarding both Polk’s conduct and his response. Polk was described as “screaming” to the employees of the Human Resources Division, “tell him to give me my check, tell him to give me my check.” Brandon Donohoe, who witnessed the incident from an outdoors smoking area, described Polk as “very irate” and testified that shе continually “lapse[d] into ... tirade[s] of vulgarity.” Polk herself admitted that, as she and Corporal Sperl walked out the doors of the Hospital, she “was so happy to be outside [she] did just, you know, yell at him and curse him.” She further acknowledged that it was not until after she began yelling that the Corporal placed her under arrest. Charles Landherr, supervisor for facilities management at the hospital, testified that “[Corporal Sperl] was a little winded, but he was very calm. I thought he handled himself very professionally. He didn’t use any foul language, and he was just trying to get Rhonda [Polk] to cooperate, which she obviously did not. She was totally out of control when I went out there.” The Human Resources manager at the hospital, Craig Koppenhaver, a witness to some of Polk’s outbursts, testified that “I heard Officer Sperl at one point say something to the effect, you’re going to have to calm down, otherwise I’m going to have to place you under arrest.” Each of these statements may be understood to mean that Corporal Sperl was attempting to do his duty to “maintain peace and order in the hospital.”
The trial judge noted that the evidence would support a rational inference that Ms. Polk’s unreasonable volume and disorderliness prompted her arrest, stating:
[t]here is testimony from Corporal Sperl that two other people who were in the hallway at the time changed their direction to walk away from where he and Ms. Polk were located, and it may be that they just don’t like hearing someone say fuck you, asshole, but it could have also been because of the fact they didn’t like the volume of the language, as well as the content ... And because of that possibility, in looking at it in a light most favorable to the State, I think I have to assume at this point that they walked away for reasons other than merely the content of it.
The dissent attempts to rewrite this Court’s First Amendment jurisprudence
“An examination of the entire record reveals that Corporal Sperl’s orders unlawfully attempted to regulate Polk’s protected speech. First and foremost, the officer told Polk to “stop her profanity” and “stop her cursing.” These commands unquestionably were aimed at controlling the words Polk used and not the volume of her voice. Although the record indicates that Polk also was instructed to “keep your mouth shut” and “keep you mouth quiet,” these phrases were always used in conjunction with the references to the content of Polk’s speech. Where an officer issues orders that attempt to restrict protected speech, those orders are “content-based” and must be narrowly drawn to achieve a compelling state interest. See Eanes,318 Md. at 447 ,569 A.2d at 609 (quoting Perry Education Assn. v. Perry Local Educators’ Assn.,460 U.S. at 45 ,103 S.Ct. at 955 ,74 L.Ed.2d at 804 (1983)). This is so even if the “content-based” orders are combined, as they were here, with other commands that, by themselves, might not raise constitutional concerns.
(Dissent at 34).
Such a broad claim is insupportable under Eanes, a case which repeatedly emphasized that “[e]ven protected speech is not equally permissible in all places and at all times.” Eanes,
“[I]t is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.” Thornhill v. Alabama,
The dissent not only ignores impermissibly the clearly erroneous standard and our precedents, but cherry-picks the evidence to support its view that Corporal Sperl’s orders were directed at the content of Polk’s speech. The dissent states that:
[a]n examination of the record reveals that Corporal Sperl’s orders unlawfully attempted to regulate Polk’s protected speech. First and foremost, the officer told Polk to “stop her profanity” and “stop her cursing.” These commands unquestionably were aimed at controlling the words Polk used and not the volume of her voice.
(Dissent at 34). To the contrary, upon close examination of the record, the facts are not nearly as “unquestionable” as the dissent portrays. Sperl testified that his first response to Polk’s outburst of “fuck you, asshole,” which occurred inside the hospital, was to request Polk to lower the volume of her voice:
I said just keep your mouth quiet and leave. Again [she said] fuck you asshole. I said I feel sorry for your child, she had a child with her. After I said I feel sorry for your child, she said fuck you, asshole. I said keep your mouth quiet and leave or I’m going to lock you up for disorderly conduct.”
(emphasis added).
Quixotically, the dissenting opinion points directly to facts it claims do not exist, and thus exposes its own error, by observing that:
[t]he majority makes a significant effort to highlight the volume of Polk’s speech. It pinpoints the testimony describing Polk’s behavior as ‘screaming,’
‘tirades of vulgarity,’ ‘yelling,’ and ‘loud.’ The emphasis on the actual volume of Polk’s speech, however, is only a diversion from the consequential issue.
(Dissent at 40). To the contrary, because it has been determined by the trial court that Corporal Sperl’s orders were directed at the volume of Ms. Polk’s voice, her volume is not a diversion, but is rather the consequential issue.
The second factor in the Eanes analysis requires an examination of both the time and place of the speech and the overhearing parties’ location. Eanes,
Eanes did not limit its holding to residential areas. Significantly, we noted that “[protection from unwanted speech] may be extended to any situation in which privacy interests [are] substantially threatened because individuals cannot escape bombardment of [their] sensibilities.” Eanes,
Similarly, in Radford v. State,
Radford’s abusive and harmful speech invaded the privacy of those patients in the hospital and destroyed their right to a quiet and peaceful environment. Patients with heart conditions and patients with nervous disorders, among others, come to the hospital expecting quietude. The intrusiveness, harm, and abuse in Radford’s forum is a thousand times more sensitive than the forum [of a disorderly conduct case occurring in] — a residential alley at 3:00 in the morning.
Id. We agree with the reasoning of the Radford court and conclude here that Corporal Sperl had a compelling interest in maintaining peace and quiet in the environs of the Hospital.
The dissenting opinion in the present case claims Radford is “easily distinguishable” from the facts of the present case. The dissent is wrong. First, it states that while the officer in Radford never addressed the content of Radford’s speech, Corporal Sperl sought to regulate the content of Polk’s speech. (Dissent at 39). Again, this is a factual determination for which an appellate court cannot substitute its own finding for that of the trial court. As our analysis supra reveals, the trial judge’s factual findings were not clearly erroneous in this regard. Second, the dissent states that while the disruptive outburst in Radford occurred inside the hospital, Polk’s outbursts occurred near the Human Resources office and “reached its pinnacle” outside the actual hospital building. (Dissent at 39). Consequently, the dissent intimates that there is no legitimate interest in protecting hospital patients, visitors, or workers from disturbances under these circumstances. Id. In fact, Corporal Sperl initiated Polk’s arrest as she was leaving the budding, not after she exited. Furthermore, Polk’s location at the time of her arrest is irrelevant to the central question, whether she acted in a disorderly manner in and around the Hospital. The evidence shows that Polk acted in a disorderly manner while inside the Hospital, well before she was arrested. Thus, Corporal Sperl was legally entitled to arrest Polk for creating a disturbance in the Hospital, a situation identical to that in Radford.
The third prong in the Eanes test is whether there are alternative means of communication available to the speaker. In Eanes, we stated that “a speaker will
For the foregoing reasons, the trial court correctly found that Corporal Sperl’s orders were lawful under § 121(b)(3). This Court, therefore, agrees with the Court of Special Appeals that “because appellant’s challenge to her conviction for resisting arrest is based on the faulty premise that her arrest for disorderly conduct was unlawful, that challenge must fail as well.” Because the trial court’s findings of fact were not clearly erroneous, Polk’s convictions for disorderly conduct and resisting arrest are affirmed.
JUDGMENTS AFFIRMED, WITH COSTS.
Notes
. § 121(b)(3) has been recodified, without substantive change, at Md. Code (1974, 2002 Repl.Vol.), § 10-201(c)(3) of the Criminal Law Article. Throughout this opinion, we shall refer to the statute by its numeration as of the operative events of this case.
. Section 12A provides that "[a] person may not commit an assault.” Under Maryland Code, Art. 27 § 12, " 'assault' means the offenses of assault, battery, and assault and battery, which terms retain their judicially determined meanings.” Section 12A has been recodified, without substantive change, at Md.Code (1974, 2002 Repl. Vol), § 3-203 of the Criminal Law Article, and Art. 27 § 12 has been recodified without substantive change at § 3-201 of the Criminal Law Article.
. It is not clear whether Corporal Sperl, a state-commissioned special police officer employed by Peninsula Regional Medical Center, is a state actor for the purposes of the Fourteenth Amendment, but this issue is not relevant to this case. A conviction for violating § 121(b)(3) is predicated on the “law enforcement officer” issuing a “reasonable and lawful order.” An order that violates the First Amendmеnt is no more reasonable or lawful if it is issued by a private police officer than if it is issued by a law enforcement officer employed by the State or a local governmental entity.
. It is not at all clear that, on its facts, Diehl would be decided today as it was in 1982. The Diehl majority observed that Officer Gavin "did not have any right to make his demand on Diehl” that Diehl re-enter the vehicle following the traffic stop.
We conclude, therefore, that where, as here a person is acting in a lawful manner (a passenger getting out of a stopped car) and is the object of an unlawful police order, it is not usually a criminal violation for such person to verbally protest a police officer’s insistence upon submission to such an order. We hold that the State failed to make out a prima facie showing of a violation of § 121 and, therefore, the trial judge erred in not granting Diehl's motion for a judgment of acquittal at the conclusion of the State's case or at the close of all the evidence.
Today there is no question as to the lawfulness vel non of an officer’s order, following a traffic stop, to the passenger of the stopped vehicle either to remain in or exit the vehicle. See, Maryland v. Wilson,
. Eanes was convicted under another version of the former § 121(b)(5) for "wilfully disturbing] any neighborhood in [Maryland] by loud and unseemly noises ...” Md.Code, Art. 27 § 121(b)(5)(iii) (1957, 1987 Repl.Vol). This version contained similar language to that version of § 121 for which Diehl had been convicted.
. In Earns, we stated that "the mechanical or electronic amplification of sound” may be another factor in the balancing test,
. Eanes remains good law in Maryland, despite the announced views of' some of the dissenters here. See Galloway v. State,
. The dissent appears to adopt a "fruit of the poisonous tree” approach based on drawing a factual inference from some of the earlier of Corporal Sperl's orders and electing to carry over the perceived taint from that inference onto all of his orders. ("The orders required Polk to 'stop her cursing,' 'stop her profanity,' 'keep [her] mouth quiet.' The collective effect of these prohibitions embraced not only the volume of Polk's voice, but also the content of her message.”) (Dissent at 38). To adopt such an analytical model could lead to even more faulty and sweeping conclusions if applied in other cases calling for the assessment of the legal effect of a series of orders issued by law enforcement officers in similar circumstances or other dynamic situations.
. If Polk had maintained the same content of her speech, but changed the manner of its expression — if she had lowered her voice, but continued cursing — she could not have been convicted of disorderly conduct. Likewise, if she had changed the content of her expression, without changing its manner — if she had continued shouting in and about the Hospital, but without cursing — she still could have been convicted.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. The majority inappropriately accords deference to a trial court’s determination of a constitutional fact. When that determination is reviewed under the appropriate standard, however, serious First Amendment infringements become apparent, and the majority’s conclusions crumble.
I.
The focus of the analysis in this case should be on the orders issued by Corporal Sperl. Although the crime of disorderly conduct can take several forms under Section 121, the jury, in this case, convicted Polk of violating Section 121(b)(3), which declares that “[a] person may not willfully fail to obey a reasonable and lawful order of a law enforcement officer made to prevent a disturbance of the public peace.” As the plain language of this provision makes clear, no violation of Section 121(b)(3) can occur unless the officer first gave an order that was “lawful.” This aspect of lawfulness is the essence of Polk’s case.
In granting Polk’s petition for a writ of certiorari, this Court sought to resolve the important constitutional question of whether Corporal Sperl issued unlawful orders that infringed on Polk’s First Amеndment rights. The answer to this question requires a careful analysis of whether the particular police commands used by Corporal Sperl regulated the content or volume of Polk’s speech. The majority characterizes this pivotal constitutional question as a factual one, stating, “the issue before us is not whether Corporal Sperl’s orders were more likely content-based than content neutral, but whether the trial court’s factual determination was clearly erroneous that his orders, in the main, were directed at the volume of Polk’s speech.” Majority at 13-14. This analysis demonstrates the majority’s misunderstanding of the standard of review required in First Amendment cases. The Court should have rendered an independent review of the whole record
It is well-established that the Court undertakes an independent constitutional appraisal of a trial court’s determination of whether one’s First Amendment right to free speech has been infringed. See Crosby v. State,
The Supreme Court discussed this distinct aspect of appellate review of First Amendment cases in Bose,
The Court in Bose presented several reasons why a determination of “actual malice” in defamation cases required such close appellate overview:
First, the common-law heritage of the rule itself assigns an especially broad role to the judge in applying it to specific factual situations. Second, the content of the rule is not revealed simply by its literal text, but rather is given meaning through the evolutionary process of common-law adjudication; though thesource of the rule is found in the Constitution, it is nevertheless largely a judge-made rule of law. Finally, the constitutional values protected by the rule make it imperative that judges — and in some cases judges of this Court — make sure that it is correctly applied.
Id. at 502,
Speaking of the second of these reasons, the Bose Court explained that, “[w]hen the standard governing the decision of a particular case is provided by the Constitution, [the] Court’s role in marking out the limits of the standard through the process of case-by-case adjudication is of special importance.” Id. at 503,
has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confíne the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served sufficiently to narrow the category, nor served to eliminate the danger that decisions by triers of fact may inhibit the expressions of protected ideas. The principle of viewpoint neutrality that underlies the First Amendment itself ... imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected.
Id. at 505,
Expounding on constitutional significance of the “actual malice” determination, the Bose Court provided insight into why constitutional claims, and First Amendment claims in particular, deserve the close appellate attention of independent review:
The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common-law heritage. It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercisesuch review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.”
Id. at 510-11,
Several commentators analyzing Bose have illustrated the difference between those “findings” best accorded deference and those the Supreme Court has held should be reviewed independently based on the whole record. Purely factual findings worthy of deference, as one commentator suggests, answer questions that “can be determined by direct observation and by accepting or rejecting the testimony of witnesses who are reporting their own direct observations.” George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U.L.Rev. 14, 39 (1992) (hereinafter “Christie”) (emphasis added). Other scholars explain that the process of establishing “facts” involves answering “who, when, what, and where,” inquiries that “can be made by a person who is ignorant of the applicable law.” Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229, 235 (1985) (hereinafter “Mona-ghan”)(quoting, in part, L. Jaffe, Judicial Control of Administrative Action 548, 624-53 (1965).
On the other hand, some “factual findings” cannot be made by direct observation alone, but also “require some degree of conscious reflection.” Christie at 40. When such reflection is necessary, one must resolve “why it is necessary to decide the question and what will be the consequences of deciding the question one way or the other.” Id. at 39^0. Commentators have described the process of making determinations of this nature as “law application” or answering “mixed questions of law and fact.” See Monaghan at 236; Christie at 39. Law application occurs frequently in areas outside of the First Amendment context, such as when a jury decides whether a defendant in tort case was negligent. When constitutional rights are not at stake, appellate courts typically review these judgments with some degree of deference.
The Supreme Court mandates, however, that where “law application” implicates First Amendment freedoms, appellate courts should not defer to the trial court’s judgment. Rather, the appellate court “has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.” Bose,
Constitutional fact review presupposes that appellate courts will render independent judgment on any issues of constitutional “law” presented. Its distinctive feature is a requirement of similar independent judicial judgment on issues of constitutional law “application.” That is, the courts must sort out the relevant facts and apply to them the controlling constitutional norms.
Monaghan at 238.
First Amendment issues are no less apparent in the case at bar than they were in Bose. Corporal Sperl issued orders seeking to control Polk’s speech. Whether those orders were directed at her volume, as the trial court found, or directed at her message, they must survive First Amendment scrutiny. This determination, though, dictates the level of scrutiny we apply to those orders, and, to a great extent, the lawfulness of those orders; it is inextricably tied to whether Polk’s speech was protected by the First Amendment. Only by conducting an independent review of Polk’s case based on the entire record may this Court set the limits of what types of speech are protеcted under the First Amendment. This Court’s duty to declare the meaning of the First Amendment cannot be delegated to the trier of fact. The freedoms enjoyed under the First Amendment are simply too precious to risk a trial court’s mistaken interpretation of how a police officer may control an individual’s speech.
Moreover, the trial court’s judgment that Corporal Sperl directed his orders at the volume of Polk’s speech rather than its content was not the type of factual finding to which an appellate court accords deference. See Wells v. City and County of Denver,
The State presented evidence at trial that Corporal Sperl had issued a series of commands to Polk as she was leaving the hospital. Corporal Sperl, himself, testified that he commanded Polk to “stop her cursing,” “stop her profanity,” “keep [her] mouth quiet,” and “keep [her] mouth shut.” The State did not contend that the officer’s testimony misstated the words he used in issuing the orders to Polk, nor did the State dispute that Corporal Sperl referred specifically to Polk’s profanity in those orders. Because no conviction under Section 121(b) may rest on an unlawful police order, the trial judge had an obligation, upon Polk’s motion for judgment of acquittal, to decide the lawfulness of police orders that sought to restrict both the content and volume of an individual’s speech.
To answer this question properly, the judge could not merely rely on direct observation of the testimony, which might allow him to decide the time and place the incident occurred or the words Corporal Sperl used to issue his commands. Instead, the process of making this determination involved examining First Amendment law to decide whether it permitted mixed regulation of speech content and volume. The Supreme Court in Bose directed that this type of analytical process must be subjected to independent review of the appellate court. Because Polk’s
II.
By deciding that Corporal Sperl directed his orders at the volume of Polk’s voice, the trial judge misapplied an established First Amendment principle to the facts of this case. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” This command, by operation of the Fourteenth Amendment, applies with equal force to state and local governments. Eanes v. State,
Nevertheless, as the Supreme Court’s and our cases make clear, “[i]t is rare that a regulation restricting speech because of its content will ever be permissible.” United States v. Playboy Entm’t Group, Inc.,
Guided by these principles, this Court has held on two occasions that convictions for disorderly conduct based on the profane nature of one’s speech run afoul of the First Amendment. Diehl v. State,
The Court further developed this line of reasoning in Diehl,
At the outset in Diehl, the Court noted that Diehl’s “oral communication ... clearly cоnstituted speech” and, therefore, was entitled to First Amendment protection. Id at 471, 451 A.2d at 118. Significantly, we observed that “Downs ... teaches us that the use of the word ‘fuck’ is not punishable in the absence of compelling reasons.” Id. at 477,
These cases demonstrate clearly that an order directed at controlling a speaker’s use of profanity constitutes an impermissible content-based restriction on free speech. Indeed, the State does not dispute this axiom, stating in its brief that the “First Amendment would render unlawful, as constituting disorderly conduct, any order to refrain from profanity.” The State also does not contend that Polk used “fighting words,” conceivably because there is no evidence that her speech was intended “to invoke immediate and violent response,” Diehl,
The majority determines that Corporal Sperl’s orders to Polk sought to restrict not the content of her speech, but its volume. Under the majority’s view, the orders were permissible, “content-neutral” regulations to control unreasonably loud noise caused by Polk. In support of its assertions, the majority relies on this Court’s decision in Eanes v. State,
[The trial judge] properly balanced Eanes’s first amendment rights against a substantial public interest protected by a narrowly drawn, content-neutral regulation. Eanes was warned to lower his voice by a police officer whose аction was based on complaints from members of the captive audience. Eanes chose not to comply. Under these circumstances, he was properly convicted of a violation of the statute.
Id. at 468,
The teachings of Eanes, Diehl, and Downs, expose the pivotal constitutional question in this case: whether Corporal Sperl’s orders impermissibly restricted the content of Polk’s speech. If the officer directed his orders to restrict the use of profanity, he issued a content-based order, which is unlawful unless it “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.... ” Eanes,
An examination of the entire record reveals that Corporal Sperl’s orders unlawfully attempted to regulate Polk’s protected speech. First and foremost, the officer told Polk to “stop her profanity” and “stop her cursing.” These commands unquestionably were aimed at controlling the words Polk used and not the volume of her voice. Although the record indicates that Polk also was instructed to “keep your mouth shut” and “keep your mouth quiet,” these phrases were always used in conjunction with the references to the content of Polk’s speech. Where an officer issues orders that attempt to restrict protected speech, those orders are “content-based” and must be narrowly drawn to achieve a compelling state interest. See Eanes,
This is so even if the “content-based” orders are combined, as they were here, with other commands that, by themselves, might not raise constitutional concerns. That is, despite Corporal Sperl’s alleged attempt to quiet Polk’s voice, it is his order to control her speech content that dictates which level of scrutiny this Court should apply. Support for this approach resides in the Supreme Court’s longstanding prohibition of laws that “do[] not aim specifically at evils within the allowable area of [government] control, but ... sweep[] within [their] ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech.... ” See Thornhill v. Alabama,
In Gooding v. Wilson,
Very recently, in Virginia v. Black,
Consistent with the spirit of these Supreme Court cases, Corporal Sperl’s orders
Under this stricter standard of First Amendment scrutiny, as we have previously discussed, the content of Polk’s speech “is not punishable in the absence of compelling reasons.” Diehl,
Nevertheless, the majority insists on reaching a different result in this case because the alleged conduct took place within a hospital, which has a particular interest in avoiding unreasonably loud noises. As support for this assertion, the majority points to the decision of an Indiana intermediate appellate court in Radford v. State,
On appeal, the court initially reversed the conviction, holding that Radford’s speech “was [protected] political speech ... protesting the legality and appropriateness of police conduct.” Id. at 92. The court, however, reheard the cаse and affirmed the conviction. Id. at 91. The court opined that the statutory prohibition of unreasonable noise was “content-neutral” and applied to the volume of Radford’s speech. Id. at 92. Additionally, the court observed that the type of speech in which Radford engaged was not “purely political” in nature and that the “forum” of Radford’s speech “was a quiet hallway of a hospital____adjacent to the OB-GYN clinic and close to the recently born baby nursery.” Id. at 94. It characterized Radford’s loud speech as “harmful and abusive” and stated that it “destroyed [the patients’] right to a quiet and peaceful environment.” The court concluded, therefore, that “Radford made unreasonable noise and continued to do so after being asked to stop, as required for conviction
Radford is readily distinguishable from the case before us on several grounds. Most importantly, unlike the present case, the officer in Radford never directed his orders at the content of speech. He offered instructions only to “quiet” the volume of Radford’s unreasonably noisy voice, not to limit her word choice. In addition, the incident in Radford occurred entirely within the confines of the hospital walls and near the OB-GYN clinic where patients were likely to be disturbed, and the court was persuaded that this setting should be protected from “disturbing noise” for the “safety of those hospitalized.” The episode in the present case, by contrast, took place near the Human Resources Department and eventually outside of the hospital. Thеre is no evidence in the record that patients were under treatment nearby or that the area adjacent to Human Resources, like an OB-GYN clinic, required special noise control. It is also notable that Polk was arrested after she had left the building. The exchange between Corporal Sperl and Polk reached its pinnacle, not inside the hospital, but as she was walking outside to the parking garage. Only then, when Polk was outside the hospital and away from any sensitive areas, did Corporal Sperl decide to take her into custody, even though the volume of her voice at that point was much less of a concern. One can only speculate whether the events that transpired inside the hospital formed the basis for Polk’s arrest, unlike in Radford where the events and arrest occurred wholly inside the hospital walls.
Additional aspects of the majority’s analysis in this case are similarly troublesome. The majority contends that “ample testimony before the trial court” supports that “Corporal Sperl issued orders aimed, in the main, at the volume of Ms. Polk’s speech.” Majority at 14. This conclusion is defective for several reasons. First, the majority accepts the proposition that Corporal Speri’s orders were volume-based despite Corporal Sperl’s own testimony establishing that he told Polk to “stop [her] profanity” and “stop [her] cursing.” Under the majority’s analysis, police would be permitted to justify content-based speech restrictions by claiming an intention to reduce the volume of one’s voice. This precedent encourages unlawful regulation of an individual’s message under the pretext of noise control.
In addition, the majority’s reasoning inappropriately concentrates on the officer’s “aim” in issuing his order. In other words, the majority allows a police officer’s subjective intentions to dictate the Court’s evaluation of the police command’s lawfulness. The Court, instead, should focus its analysis on the actual words used by the Corporal. A reasonable person would have no reason to believe that only the volume of his or her voice is the target of an order to “stop your cursing” or “stop your profanity.” The plain meaning of those specific references to speech content would lead a reasonable person to conclude that the officer objects to the message the speaker is conveying. The Court should not require one in Polk’s position to obey a facially content-based police order because the officer intended his mandate to reach only the speaker’s volume.
Yet, the majority makes a significant effort to highlight the volume of Polk’s speech. It pinpoints the testimony describing Polk’s behavior as “screaming,” “tirades of vulgarity,” and “yelling.” The emphasis on the actual volume of Polk’s speech, however, is only a diversion from the consequential issue. If Corporal Sperl ordered Polk to refrain from cursing, as he did, the particular order is still subject to strict First Amendment scrutiny even if the sound of Polk’s voice carried across the
Because Polk’s conviction for disorderly conduct is without support, it follows necessarily that the evidence does not support her conviction of resisting arrest. It is well settled that, “one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary.” Diehl,
IY. Conclusion
By deferring to the trial court’s conclusion that Corporal Sperl directed his orders at Polk’s volume, the majority ignores an essential aspect of this Court’s role as a appellate body. The majority opts to avoid the highly significant constitutional issue in this case in favor of upholding a police order, which, it admits, was at least partially directed at Polk’s speech content. Majority at 14 (“The record contains ample testimony before the trial court supporting its finding that Corporal Sperl issued orders aimed, in the main> at the volume of Ms. Polk’s speech.”) (emphasis added). Because Corporal Sperl’s orders restricted the content of Polk’s speech, they were not “lawful and reasonable” as required by Section 121(b)(3). Thus, Polk had no obligation to comply •with the officer’s orders or submit to the arrest. I would reverse the judgment of the Court of Special Appeals.
BELL, C.J. and ELDRIDGE, J., authorize me to state that they join in this dissent.
. In New York Times v. Sullivan, the Supreme Court established the requirement for a finding of “actual malice” in certain types of defamation actions. 376 U.S. at 285,
. Judge Eldridge, in his dissenting opinion in Eanes, disagreed that the speech at issue in that case warranted a criminal conviction.
. Attempting to distinguish these cases, the majority points out that each one “involves a facial constitutional challenge to a statute.” Because Polk did not challenge the facial validity of Section 121, the majority claims, the cases аre “inapposite to the case at hand.” Majority at 16. The distinction relied upon is without meaning. Thornhill and its progeny stand for the proposition that overly broad government speech regulation, whether in the form of enacted legislation or impromptu police orders, violates the First Amendment right to free speech. The substance of the government regulation, not its form or source, should drive the constitutional analysis. It is highly unlikely that the Supreme Court’s analysis would turn on whether a police officer or legislative body acted to infringe upon one's constitutional right.
. Other circumstances in this case undermine the State's position that Corporal Sperl issued a "reasonable and lawful order” under Section 121(b)(3). Assuming the orders in this case were lawful, which they were not, I question whether they were reasonable under the circumstances. The trial testimony suggests that the officer may have shared some of the responsibility for aggravating the commotion in the hospital. Upon first encountering Polk on the day of the incident, Corporal Sperl held her pay stub above his head and out of her reach while he asked a Human Resources employee whether he could turn it over to Polk. Even when Polk began walking toward the hospital exit to leave, Corporal Sperl followed close behind, commenting provocatively, “I feel sorry for your child.” It is within this context — a tense situation made worse by the officer’s inflammatory conduct — that Corporal Sperl then ordered Polk not to talk. I would decline to construe Section 121(b)(3) in a manner that punishes a citizen's emotional yet nonviolent response to a taunting police officer.