Polk v. State

835 A.2d 575 Michelle POLK Rhonda Maryland. STATE Term, 101, Sept. No. 2002. Appeals Maryland.

Court of

Nov. McCormack, Stacy (Stephen Assistant Public Defender W. Baltimore, Harris, Defender, brief), for peti- on E. Public tioner. (J. Russell,

Devy Attorney Patterson Assistant General Curran, Jr., brief), Attorney Maryland, Joseph General Baltimore, respondent. RAKER, BELL, C.J., ELDRIDGE, Argued before WILNER, CATHELL, BATTAGLIA, HARRELL JJ.

HARRELL, Judge. contretemps hospital As the result of a at a between Peti- tioner, Polk, officer, special police Rhonda Michelle and a Polk was Corporal Raymond Sperl, convicted (1957, conduct in violation of Repl.Vol., Md.Code 121(b)(3) (“A § Art. 27 fail to Supp.), person may willfully obey reasonable and lawful order of a law enforcement prevent peace.”)1 officer made to a disturbance to the public arrest. for resisting agree We with Circuit Court County Special Appeals Wicomico and the Court of that facts placed before the trial court were sufficient to support those and, therefore, convictions shall affirm judgments.

I. 2001, Polk, On the accompanied by afternoon 8 June her nine-year-old daughter, Regional went the Peninsula Medi- in Salisbury, Maryland. cal Center Polk previously worked as Center, secretary Heart Hospital’s employ- but her ment had been terminated recently. She returned on this occasion to her final pick up pay check.

Polk first visited the Human Department Resources for her check, pay but was directed to togo the Heart Center. When 121(b)(3) recodified, § change, has been without substantive at Md. (1974, 10-201(c)(3) Repl.Vol.), § Code of the Criminal Law Arti- Throughout opinion, by cle. we shall refer to the statute its operative numeration as of the events of this case. Center, told her former Heart she was she reached the not at the that her check was Brady, supervisor, Shannon Resources. should return to Human and that she Center breath, for her left Polk, muttering insults under after Soon To avoid Resources, located the check. Brady pay Human Polk, securi- Brady Hospital contacted further interaction with at Human Resources. delivered to her to have the check ty officer stationed Raymond Sperl, special police Corporal Brady’s request. security, responded for Hospital at the there encoun- Human Resources and carried the check to He check, pay asked him about Polk. Polk tered When to take it to personnel.” that he Sperl replied “ha[d] Corporal As the officer contin- you, asshole.” Polk responded, “[F]uck check, Polk began Human Resources with ued toward A Human Resources myme check.” “screaming,” “[G]ive Polk give that he could Corporal Sperl indicated to employee him, another, adding from Polk snatched it the check. exchange described the Corporal Sperl asshole.” you, “[F]uek toward a hallway Hospi- down a that followed as Polk walked tal exit: Again, [she mouth and leave. just keep your quiet

I said sorry your I I feel for fuck asshole. said you, responded] for child, sorry her. After I said I feel had a child with she child, keep your I said you, said fuck asshole. your she going you up or I’m to lock mouth and leave quiet disorderly conduct. shut, mouth Polk to “keep [her] officer also commаnded leave the called cursing, just property.” Polk

stop [and] [her] In wannabe.” cop an “old white baldheaded Corporal Sperl several exchange, Corporal stressed the course of their if she up conduct] that “she’d locked [for times be at the end of the two women stop profanity.” didn’t her When an- commotion,” away down they walked hallway “heard exit, Hospital Polk reached the she hallway. other When toward, shouted, asshole,” you, the officer and “[F]uck turned through the doors. again passed once as she outside, Corporal Sperl tirade at continuing Now Hospital employees or stand- of ten fifteen group “startled” a Hospital Polk escorted toward ing nearby. Corporal Sperl letting “was irate” and “very Polk was parking garage. at him by “yell[ing] how irate she was” [Corporal] Sperl know abruptly stopped At one Polk point, at him.” cursfing] and one on the back of of her causing step the officer walking, his balance. When the and almost lose “flip-flop” sandals intensified,” that Polk announced Corporal ... “vulgarity apprehend her. He arrest and attempted was under arm, away his shoulder, she and bit pulled her but grabbed scuffle, During other his wrist. the skin on breaking eventually and and arrested officers arrived subdued security Polk. in charged disorderly conduct engaging

Polk was with 121(b)(3) Code, (1957, §27 Maryland Article violation arrest, resisting second-degree and RepLVol., Supp.), (1957, Code, § 12A Maryland Article 27 assault in violation in the Circuit jury was tried Repl.Vol.).2 She before 2001. County for 28 November After Court Wicomico case-in-chief, Polk for a judgment its moved presented State charges, arguing Corporal as to all of the acquittal unlawfully Sperl’s “stop cursing” initial orders to direct- and that a “domino effect” ed the content of her that, subsequent illegal. made arrest She maintained her officer, engaging she was using pro- toward profanity Polk, had According tected because she not dis- officer had no obeyed a lawful order and the reason her, rightfully resisted the to arrest her. attempts arrest she motion The acquittal. Court denied Polk’s Circuit “quiet orders to down” judge Corporal Speri’s concluded that person may provides "[a] 12A commit assault.” Section "12, Code, § Maryland Art. 27 'assault' means the offenses of Under assault, battery, battery, which terms retain their and assault recodified, meanings.” judicially 12A has been determined Section (1974, Vol), Repl. § change, 3- substantive at Md.Code without Article, § Art. 27 12 has been recodified 203 of the Criminal Law § change Law substantive 3-201 Criminal Article. without constituted lawful orders to prevent a disturbance orders, public peace. view, The in his were directed at the volume of Polk’s rather its than content. In this regard, the judge stated:

“[Tjhere testimony is the of Corporal Sperl that Ms. Polk irate, was using was profane language, and I think it’s reasonable to from his testimony infer she was so doing loudly told her on because he several occasions that she had quiet be and told her that if wasn’t quiet he she that he would place disorderly her under arrest for conduct. testimony “There is from Corporal Sperl two other people who were in the time hallway changed their away direction to walk from where he Ms. Polk were located, may it they just be that don’t hearing like you, asshole, say someone fuck it but could have also been they because of the fact didn’t like volume of the language, as well as the content.

“And possibility, looking because of that at it in the light most favorable to the I think I have to assume at this point that they away walked other merely reasons than the content of it.

“There is testimony also from Corporal Sperl and from other people who [observed incident outside the hospi- tal’s exit that Ms. Polk was of control doors] out at the point when building, she exited the a manner speaking loud, which I think could be Sperl considered said that caught everyone’s attention in when they [that area] left.” From these findings, judge that a concluded reasonable fact-finder find that Polk could failed comply with the officer’s orders to reduce volume of her voice. jury guilty found Polk conduct and resist- arrest,

ing acquitted but her charge. assault The trial judge merged the two convictions and sentenced Polk to 18 incarceration, months suspending days. all but 60 Polk appealed. The Court of Special Appeals affirmed the judgments in an unreported opinion. court, Before Polk again argued that the officer’s orders were directed unconsti- of her The intermediate at the content tutionally the First Amendment the U.S. court noted that appellate from order to refrain any unlawful “render[s] Constitution Nonetheless, that Polk was testimony from the profanity.” ... “irate,” vulgarity,” into tirades of “laps[ed] and “yell[ing],” she cursed “shouting that she was when the court determined determined, further, that the officer’s It Sperl.” at [Corporal] sought the mouth to control “keep quiet” orders to [her] content, of Polk’s Based volume, rather than the that a rational trier determinations, the court concluded these or- lawfully that “[Corporal] Sperl of fact could have found down, the order.” quiet ignored and [she] dered [Polk] resisting to the conviction for arrest challenge Because Polk’s the court illegality on the of the officer’s orders also was based as well.” that, “that must fail challenge held certiorari, of v. for a writ Polk petition Polk’s granted We State, (2002), 429, 813 to consider 372 Md. A.2d following questions: “stop cursing” “stop

1. order to Does officer’s constitute a “lawful order” to the profanity” [your] comply refusal to would be extent that an individual’s 121(b)(3)? Code, 27 § Article Maryland violation of of for Article purposes If an order is “lawful” such 121(b)(3), § to sustain the evidence sufficient for conviction conduct? appellant’s that, below, For we conclude Petition- explained the reasons notwithstanding, framing Corporal Sperl’s er’s of her issues voice rea- orders directed toward volume lawful orders the evidence she indicating sonable and obey support failed to those orders was her sufficient convictions. of Review

II. Standard State, Moye recently In we reiterated the stan sufficiency dard of evaluation evidence review a criminal conviction as: underlying any whether rational trier of fact could have found the essential beyond elements of the crimes a reasonable doubt. We view the evidence in a light most favorable prosecution. We “due give regard to the [fact finder’s] facts, finding evidence, its resolution of and, conflicting significantly, its opportunity observe and assess the credi- bility of witnesses.” our Although analysis does not involve evidence, re-weighing we must determine whether jury’s verdict was supported by either direct or circum- stantial evidence^] 2, 12, (2002) (Citations

369 Md. omitted). 796 A.2d If the facts as found the trier of fact are not clearly errone- ous, our review of the application of the facts, law to those such as where impingement on an individual’s constitutional rights may question, be de novo. See Glover v. 211, 220, Md. 792 A.2d (reviewing de novo the lower court’s judgment on a motion to for dismiss violation of the constitutional right trial); to a speedy see also Cartnail State, 272, v. 282, 359 Md. 519, 753 A.2d 525 (stating regard with to a Fourth Amendment question, “this Court makes an independent determination of whether State has violated an individual’s constitutional rights by facts”). applying the law to the perform When we an indepen- dent review, constitutional do not engage “[w]e in de novo Cartnail, fact-finding.” 282, 359 Md. at 753 A.2d at 525. Instead, we defer to the trial court’s factual findings unless Glover, clearly 221, erroneous. 386 Md. at 792 A.2d at 1166.

III. The First Amendment of the U.S. Constitution applies to state and local governments through the Fourteenth State, Amendment. Eanes v. 436, 445, 318 Md. 604, 569 A.2d (1990), 609 citing York, 652, Gitlow v. New 268 45 U.S. S.Ct. 625, (1925).3 69 L.Ed. 1138 Though the U.S. Constitution It is not clear Corporal Sperl, whether a special state-commissioned employed by Regional Center, officer Peninsula Medical is a state purposes Amendment, actor for the of the Fourteenth but this issue is

9 it is regulation speech, from individuals state protects Amendments have “the and Fourtеenth First undisputed indi protection every thought give absolute never been or pleases, she] or wherever he [or whenever speak vidual he any [or circumstances that any form address to use Eanes, 446, A.2d at 569 608-609 318 Md. chooses.” she] 15, 19, 91 California, 403 U.S. S.Ct. Cohen (quoting (1971)). 1785, 29 L.Ed.2d 290 reversal, on Diehl v. heavily for Polk relies arguing In denied, (1982), 460 A.2d cert. U.S. 294 Md. 363(1983). Diehl, In the defen L.Ed.2d dant, disorderly for passenger, convicted automobile §of 121 after the driver was a former version conduct under a lot for traffic viola grocery parking over in a store pulled 467-69, Diehl, at 116-117. The 294 Md. at A.2d tion. disturbing] any neighborhood prohibited “wilfully statute county unseemly loud and Maryland] city, by or [any town or noises, swear[ing] us[ing] or ob curs[ing] or profanely [] any highway or street or within language upon [] scene near ” highway.... or such persons passing along hearing (1957, obey § Diehl refused to RepLVol.). Art. car order that he return to the and stated: police officer’s [officer];” rights;” “you “I can’t tell you, my “Fuck know response, Id. at 451 A.2d 116. In me what to do.” Diehl and ... “screaming officer arrested obscenities drawing crowd” while officer’s order. Id. protesting 468, 451 at 117. reversed Diehl’s conviction for A.2d We Diehl never acted unlawfully. conduct because We “where, here, acting in a lawful person concluded (a car) of a getting stopped manner out and is the passenger car], to the it is object police [to an unlawful order return person verbally a criminal for such usually violation 121(b)(3) violating § case. is not relevant to this A conviction for issuing predicated “law officer” a on the enforcement “reasonable An order Amendment no more lawful order.” thаt violates First is by private police reasonable or lawful if it is issued a officer than if it is by by employed the State local issued a law enforcement officer or a entity. governmental 10

protest a police officer’s insistence upon submission to such an Id. 479, order.” 451 A.2d at 122. Because Diehl was protesting order, any unlawful disturbance created Diehl’s protests did not Id. constitute conduct. 478, 451 A.2d at 122.4

Diehl v. subsequently qualified by our holding in Eanes State, where we affirmed the defendant’s conviction for disor- 121(b)(5)5 derly § conduct under for shouting loudly in front of an abortion clinic in a Eanes, residential neighborhood. 436, 468, (1990). Eanes, 604, Md. A.2d In we stated: that, facts, It is not at all clear on its Diehl today would be decided as it was majority in 1982. The Diehl observed that Officer Gavin ‍​​‌​​​​‌‌​​​‌​‌‌​​​​‌​​‌​​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‍"did any right not have to make his demand on Diehl” that Diehl re-enter following stop. vehicle the traffic 294 Md. at A.2d at 118. classifying In response Diehl’s protected speech, as majority’s analysis depended great to a extent on the conclusion that the officer’s ordering "unlawful," id., conduct Diehl back into the car was misconduct,” id., “police constituted "exceed[ed] bounds of authority,” [the officer’s] id. at 451 A.2d at 122. That this important conclusion was majority’s to the reasoning Diehl is manifest from its statement: conclude, therefore, where, We person acting as here a ain (a car) lawful passenger getting manner stopped out of a and is the order, object police of an unlawful usually it is not a criminal person verbally violation for protest such a officer’s insis- upon tence submission to such an order. We hold that the State prima showing and, failed to make out a § of a violation of 121 facie therefore, judge granting trial erred in not Diehl's a motion for judgment acquittal at the conclusion of the State's case or at the close of all the evidence. (citation omitted). 294 Md. at 451 A.2d 122 Today question there is no as to the lawfulness vel non of an officer’s order, following stop, passenger traffic stopped of the vehicle See, Wilson, either to remain in or exit the Maryland vehicle. v. U.S. 117 S.Ct. (holding 137 L.Ed.2d 41 that the rule of Mimms, Pennsylvania making that while stop police a traffic officer constitutionally may require car, get a motorist to out of the 434 U.S. (1977), 54 L.Ed.2d 331 passengers extends to well). reason, major For this premise majority's analysis Diehl longer no is valid. 5. Eanes was 121(b)(5) convicted under § another version of the former "wilfully disturbing] any neighborhood [Maryland] by loud and Md.Code, unseemly 121(b)(5)(iii) (1957, § noises ...” Art. 27 Repl.Vol). This language version contained similar to that version of § 121 for which Diehl had been convicted.

11 in Harlan, Supreme for the Court writing Justice “[As recognized govern- Cohen, Court has explained:][T]his intru- in to many prohibit act situations may ment properly of unwelcome views of home sion into privacy dia- totally public from the banned ideas which cannot be government, of consonant with ability .... logue Constitution, solely to others protect off discourse to shut words, a show- is, dependent upon in other hearing from in being interests are invaded privacy ing substantial essentially intolerable manner.” “Moreover, protec- is audience that entitled captive on public the home. Because riders may exist outside tion audiences, municipality captive transit are vehicles rapid advertising these vehicles. accept political decline to may 298, 304, 94 Heights, 418 U.S. Lehman Shaker City [v. of (1974)]. 770, also 2718, 41 L.Ed.2d 778 See S.Ct. 92 33 408 S.Ct. Grayned Rockford, U.S. (ordinance (1972) prohibiting 222 disturbance L.Ed.2d school). privacy. on the grounded concept

“The is principle protect state to listeners permits “The Court Supreme invades speech to unwanted ‘captive’ who are —when manner.” essentially in an their interest intolerable privacy Note, Protesting Medical Too For Outside Close Comfort: Faculties, 1856, 1863 omit 101 Harv.L.Rev. [footnote most often extended protection Although ted]. homes, it be extended situa may any "withintheir those threat substantially interests “privacy [are] tion which escape “individuals cannot ‘bombardment enedbecause ” Id. Erznoznik (quoting sensibilities.’ [their] 1864 [2268,] Jacksonville, [205,] [v. City U.S. S.Ct. Cohen, [125,] (1975)], quoting [ L.Ed.2d 292). also 29 L.Ed.2d See U.S. at ... Comment, Right to the Your It Say Death ‘I’ll Defend to the Captive Corollary Not to Audience But Me’ — The Amendment, 211, 215-216. First 1983 S.Ill.U.L.J.

“Sound is one of the most intrusive means of communica- tion. The unwilling listener is not passer-by like the who may be offered a pamphlet the street but cannot be made to take it. The eases the view that support content-neutral regulations controlling its loudness are permissible. may It be office, otherwise outside the home or where the audience ordinarily is not captive. §But 121 prohibits only that volume level of communication that unreasonably disturbs rights individuals whose to be free from aural abuse over- ride the right speaker address them direct or incidental oral communication. This is the type balance of conflicting interests contemplated by first amendment jurisprudence.”

Eanes, (some 451-53, 318 Md. at 569 A.2d at 611-12 citations omitted) (some added). emphasis Eanes,

In forth we set the factors to weighed be in determining whether a regulation is constitutional. (1) Those factors include: whether regulation is content- (2) content-neutral; or based the circumstances surrounding the time and place occurred, where the speech as well as the (3) location; overhearing parties’ and whether there are less Eanes, disruptive alternatives available the speaker.6 Eanes, 447, 454-56, Md. at 569 A.2d at 613. Under order, such as Corporal Sperl’s “keep your mouth quiet,” may legitimate be even if it results in a restriction on other wise protected speech, if the three-pronged test is satisfied. See, e.g.,Briggs 60, 71, 73, 90 Md.App. 599 A.2d (1992) (upholding the defendant’s arrest for disor derly conduct because of behavior, his loud and disruptive despite the fact that his speech protected under the First Amendment). Earns, In we stated that "the amplification mechanical or electronic test, may balancing of sound” be another factor in the 318 Md. at 569 A.2d at unamplified may but noted that sound still violate the that, circumstances, prove "[i]f statute: the State is able to under the unreasonably the human voice is so unreasonably loud as to be intru- audience, 456-57, captive sive on a enough.” that is 318 Md. at A.2d at 614.

jWanes Diehl is not controlling applicable here.7 clearly from, sub the facts of the case to, distinguishable in and is fact holding Diehl in Danes that the explained judice. Court ‘loud prohibition against only applicable “is when of speеch.” the content regulate seeks to unseemly noise’ added). Eanes, at 608 (emphasis 569 A.2d 318 Md. analysis ap in case present applied court The trial (1) orders, in Corporal Sperl’s in and found that Danes proved (2) content-neutral, sufficiently was a main, there patients, protecting rights interest in state compelling hospital visitors, to be free from disturbances and staff of expression alternative means there were setting, evidence Because there is sufficient to Ms. Polk. available the trial court’s supporting case present the record of the orders, main, in the were con findings Corporal Sperl’s tent-neutral, clearly court’s are not errone findings the trial inapposite. and Diehl is ous case, arresting the present and unlike the

Significantly, in Diehl testified that he arrested Diehl because officer Diehl, at 294 Md. at 451 A.2d of his language. content hand, testify did not that he on the other Corporal Sperl, Instead, her language. Polk based on the content of arrested or mouth and leave “just your that he told Polk shut he stated conduct.” This up to be locked you’re going trial by the rational inference drawn testimony supports a lawful attempt prevent court that the order was loud and behavior. disruptive §of 121 due to her violation test, the Danes whether the order was The first factor of volume-based, in of light or must be considered content-based noted, must supra, of review. As we appropriate standard regarding any implica- constitutional conduct a de novo review tions, findings the trial court’s analysis is informed but Thus, us is not whether Corporal of fact. the issue before Maryland, despite good the announced views of' 7. Eanes remains law in Galloway 614 n. See 365 Md. some of the dissenters here. denied, (2001), cert. 535 U.S. 781 A.2d 859 n. 10 (2002). 152 L.Ed.2d 472 than likely orders were more content-based content- Sperl’s neutral, whether the trial court’s factual determination but orders, main, in clearly that his was erroneous directed at the volume of Polk’s speech.

The of concluded that there was Special Appeals Court in the for a rational trier of fact to sufficient evidence record at the Corporal Sperl’s determine that orders were directed of of Special Appeals volume Polk’s The Court stated: From maintenance testimony Sperl Donohoe [a Center], Regional mechanic at Peninsula Medical the trier shouting of fact could inferred that when appellant have testimony own Sperl. Appellant’s provided she cursed direct wás appellant ‘yelling’ Sperl. Appel- evidence that, if dispute making enough lant does not she was noise persons hospital, Sperl to disturb other could have 121(b)(5)(ii) Indeed, § lawfully quiet. ordered her be specifically ány Article 27 states that from person “[a] may by unreasonably willfully location loud noise dis- ” turb ... peace place another business.... [i]n of fact Sperl’s testimony, From the trier could have deter- Sperl Appellant quiet mined that ordered down. contains before the trial ample testimony record finding court its issued orders supporting Corporal Sperl aimed, main, the volume of Ms. Polk’s speech. that, him Corporal Sperl testified when Polk first cursed at Dеpartment, outside the Human Resources he told her to addition, mouth and leave.” In he warned “keep quiet [her] her “four or five times” thereafter to mouth “keep quiet” [her] as her tirade continued. Several witnesses confirmed his testimony regarding response. both Polk’s conduct and his was to “screaming” employees Polk described Division, check, Human “tell him to give myme tell Resources Donohoe, him to check.” Brandon give my me who witnessed area, the incident from an outdoors Polk as smoking described “very continually “lapse[d] irate” and testified that she into that, vulgarity.” ... Polk herself admitted as she tirade[s] and walked out the doors of the she Corporal Sperl Hospital, know, just, you yell outside did [she] so to be happy “was him it that was acknowledged him.” She further and curse her yelling Corporal placed that the began not until after she Landherr, facilities man- supervisor arrest. Charles under was a “[Corporal Sperl] testified that hospital, at the agement handled winded, thought calm. I he very but he was little language, foul any He didn’t use very professionally. himself to just cooperate, Rhonda trying get [Polk] and he was out of control totally did not. was obviously which she She manager Human I went out there.” The Resources when of Polk’s to some Craig Koppenhaver, witness hospital, outbursts, point say “I one Sperl testified that heard Officer down, effect, to calm you’re going to the to have something Each you I’m to have to under arrest.” going place otherwise Corporal to mean that may of these statements be understood his to “maintain and attempting duty pеace to do Sperl hospital.” order in the support trial noted that the evidence would judge

The that Ms. Polk’s unreasonable volume and rational inference arrest, her prompted stating: disorderliness from two other testimony Corporal Sperl [t]here changed in the at the their people hallway who were time to walk from and Ms. Polk were away direction where he located, just hearing be that don’t like may they asshole, fuck it could also been say you, someone but have of the fact didn’t like volume of the they because ... language, as well as the content And because of looking at it most favorable to the possibility, light they I think I have to assume at this point for reasons other than the content of it. away merely walked First Amend- attempts The dissent rewrite Court’s jWanes. dissenting announced in jurisprudence ment opinion states:

“An Corporal examination of the entire record reveals that unlawfully attempted regulate pro- orders Sperl’s foremost, Polk First and the officer told tected her her These com- “stop profanity” “stop cursing.” 16 words controlling were aimed at unquestionably

mands Although Polk and not the volume of her voice. used your “keep record indicates that Polk also was instructed to phrases and mouth these “keep you quiet,” mouth shut” conjunction with the references to the always were used an officer issues orders content of Polk’s Where those orders are attempt protected speech, restrict drawn to achieve a narrowly “content-based” and must be Eanes, 447, 318 Md. at 569 state interest. See compelling Education Assn. v. Local (quoting Perry Perry A.2d at 609 Assn., 45, 955, 103 at 74 Educators’ 460 U.S. S.Ct. (1983)). if This is so even the “content- L.Ed.2d 804 combined, here, with other they based” orders are that, themselves, not raise constitution- might commands al concerns.

(Dissent 34). Eanes, claim under a case insupportable

Such a broad is is emphasized protected speech which repeatedly “[e]ven Eanes, in all and at all times.” equally permissible places not (citation omitted). 446, Each case 318 Md. at 569 A.2d at 609 a sweeping the dissent uses to its statement involves support challenge facial constitutional statute therefore is § 121 challenge to the at hand. Polk does not inapposite case face. as unconstitutional its statute, is the and not the accusation or the evidence

“[I]t it, conduct prescribes permissible under which the limits of Alabama, Thornhill v. 310 against transgression.” warns (1940). 742, 1093, 88, 98, L.Ed. 1100 U.S. 60 S.Ct. 84 See Co., H. Joseph also State Md. v. Munson 467 Secretary of (1984) (statute 104 S.Ct. 81 L.Ed.2d 786 U.S. attack); subject Chicago, to facial Termiello v. properly likewise. A facial U.S. 93 L.Ed. certainly § 121 fail almost challenge would because limited than statute Kentucky up- statute is much more Kentucky, held in U.S. S.Ct. Colten 121(b)(3) (“[a] (1972), § example. Compare L.Ed.2d 584 for. fail to and lawful person may willfully obey reasonable prevent that a law enforcement officer makes to order disturbance to the public peace”) with Ky.Rev.Stat. 437.016(l)(f) (“[a] § (Supp.1968) person guilty of disorderly if, conduct with inconvenience, intent to cause public annoy- alarm, thereof, ance or or recklessly creating risk he ... with in ‍​​‌​​​​‌‌​​​‌​‌‌​​​​‌​​‌​​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‍[congregates persons other and public place refuses comply to with a lawful order of the to disperse”) Colten, in (quoted 407 U.S. at 92 S.Ct. at 32 L.Ed.2d 589). In the few cases where the Supreme Court has looked beyond the text of a valid statute to assess the “accusation or it,” evidence under the Court has limited its inquiry to the See, sufficiency of the e.g. evidence. Shuttleswoth v. Birming- ham, 87, 95, 211, 216, 382 U.S. S.Ct. 15 L.Ed.2d (1965) (“[tjhere was ... no evidence whatever in the record to support petitioner’s ordinance”), conviction under Connecticut, 296, 311, Cantwell v. 900, 906, 310 U.S. (1940) (“the 84 L.Ed. petitioner’s communication ... raised no such clear and present menace to public peace and as order to render him liable to conviction of the common law offense question”). As supra, demonstrated the evi- dence the present case is to sufficient support convic- tions.8

The dissent not only ignores impermissibly the clearly erroneous standard and precedents, our but cherry-picks the to support evidence its view that Corporal Sperl’s orders were directed at the content of Polk’s speech. The dissent states that: examination of

[a]n the record reveals that Corporal Sperl’s orders unlawfully attempted regulate to Polk’s protected appears 8. The adopt dissent to poisonous a "fruit approach tree” drawing based on a factual inference from some of the earlier of Corporal Sperl's electing carry orders and perceived to over the taint ("The from that inference onto all of required his orders. orders Polk 'stop cursing,' 'stop her profanity,' 'keep her quiet.' [her] mouth prohibitions collective effect of only these embraced not the volume of voice, (Dissent 38). Polk's but also message.”) the content of her To adopt analytical such an model could faulty lead to even more sweeping applied conclusions if calling in other cases for the assess- legal ment of the effect of a series of orders issued law enforcement officers in dynamic similar circumstances or other situations. foremost, officer Polk “stop First and told cursing.” These commands “stop her her profanity” Polk unquestionably aimed at words controlling not the voice. used and volume her (Dissent 34). contrary, upon To the close examination record, are not as nearly “unquestionable” the facts portrays. Sperl response dissent testified his first asshole,” you, which inside outburst “fuck occurred volume Polk to lower the of her hospital, request was to voice: keep mouth your quiet Again

I and leave. just [she said child, I I she you sorry your fuck asshole. said feel for said] I sorry had with I said your a child her. After feel for mouth keep your child, I you, she said fuck asshole. said quiet I’m lock you up and leave or going conduct.” added).

(emphasis dissenting directly the to facts Quixotically, opinion points error, exist, by claims not own exposes do thus its that: observing a the majority significant makes effort to highlight

[t]he de- speech. pinpoints testimony volume of Polk’s It Polk’s as scribing ‘screaming,’ behavior emphasis of and ‘loud.’ The on vulgarity,’ ‘yelling,’ ‘tirades however, speech, only the actual volume of a consequential diversion from issue.

(Dissent 40). it has been deter- contrary, To because court trial mined Corporal Sperl’s orders voice, not a directed at the volume Ms. Polk’s her volume is diversion, consequential but is rather the issue. in the Eanes analysis

The an requires second factor exami- speech nation of both time and and the place Eanes, 455-56, overhearing parties’ location. 318 Md. at 569 surrounding A.2d at 613. circumstances physical The In legality outburst influence the restriction Eanes, emphasized open we character of because “the another, public may only differ one from places widely,

19 can adequately flexible volume control serve the approach myriad legitimately regu- circumstances which the state can late.” Md. at 569 A.2d at 613. The restriction on in speech permissible Eanes under the First Amendment area, in a place because Eanes’s took residential affect- audience,” ing “captive “unwilling who we defined listen- who from readily escape or cannot the unde- er[s] viewer[s] communication, rights sired or are such that [they] whose Eanes, required should not be do so.” 318 Md.

A.2d at 611.

Eanes did limit Signifi- its residential areas. holding from cantly, “[protection speech] may we noted unwanted any be extended to situation in which interests privacy [are] substantially threatened individuals cannot escape because Eanes, bombardment of Md. [their] sensibilities.” at 452- (alterations (citations omitted). 569 A.2d original) in environs, Hospitals and their in particular, immediate share with areas a heightened residential similarly protec- need Eanes, tion. pointed As we out in sound level that a “[a] pedestrian on the sidewalk not constitutionally object could might respect be with to a impermissible patient аn inten- sive care ward.” Md. at 569 A.2d at 613. (Ind.Ct.

Similarly, 640 N.E.2d Radford App.1994), the Court of Appeals recognized Indiana compelling state in protecting its citizens from interest unwel come at a disturbances hospital. court initially Radford overturned Radford’s conviction for disorderly conduct for obey an refusing to lawful quiet officer’s order to down. 627 N.E.2d 1331 (Ind.Ct.App.1994). The Radford itself, court then reversed on rehearing, quoting from the original dissent:

Radford’s abusive and harmful the privacy invaded in those patients the and their hospital destroyed right to quiet a peaceful environment. Patients with heart patients disorders, conditions and with nervous among oth- ers, come to the hospital quietude. The expecting intrusive- ness, harm, in and abuse Radford’s forum a is thousand times more sensitive than forum disorderly the a [of conduct at 3:00 in the morn- alley residential occurring in]

case —a ing. court and reasoning

Id. the agree We with Radford in compelling a interest Corporal Sperl here that had conclude Hospital. in the environs of the maintaining peace quiet present in the case claims dissenting opinion The Radford the facts of the case. present from “easily distinguishable” in First, it that while the officer wrong. dissent is states The speech, of Radford’s never addressed the content Radford the content of Polk’s Sperl sought regulate Corporal 39). (Dissent a factual determina- Again, at this is its court substitute own appellate tion for which an cannot analysis the court. As our supra for that of trial finding reveals, clearly judge’s findings the trial factual Second, in the states that regard. dissent erroneous in outburst occurred inside disruptive while Radford the Human Resources outbursts occurred near hospital, Polk’s hospital its outside actual pinnacle” office and “reached (Dissent 39). the dissent inti- Consequently, building. in protecting hospi- is no interest legitimate mates there visitors, tal or from disturbances under workers patients, fact, In initiated Corporal Sperl Id. these circumstances. not after she leaving budding, arrest she Polk’s was Furthermore, location at the time of her arrest exited. in central whether she acted question, is irrelevant to the in The evidence disorderly Hospital. manner and around the in manner that Polk acted while inside shows Thus, Corporal Sperl well she was arrested. Hospital, before in creating Polk for a disturbance entitled arrest legally Hospital, a situation identical Radford. third Eanes is whether there are test prong speaker. of communication available to the alternative means Eanes, speaker usually In that “a will have we stated message: his or her noisy ways presenting number less contact; volume; of placards individual use speaking lower rest differ- may or the balance of reasonableness leaflets. So on the circumstances.” 318 Md. ently depending Eanes, at 614. As in ways A.2d Polk had other expressing her with hospital Corporal discontent such as Sperl, and/or supervisor Resources, to a Human speaking writing a letter to the her hospital stating or complaints, speaking Corporal Sperl’s supervisor.9 reasons,

For the trial foregoing correctly court Corporal Sperl’s found that orders were lawful under 121(b)(3). Court, therefore, § This agrees with the Court Special that Appeals appellant’s challenge “because to her conviction for resisting faulty arrest is based on the premise unlawful, that her for disorderly arrest conduct was challenge fail must as well.” trial findings Because the court’s erroneous, of fact not clearly Polk’s convictions for disorderly conduct and resisting arrest are affirmed. AFFIRMED,

JUDGMENTS COSTS. WITH Dissenting Opinion BATTAGLIA, by Judge.

I respectfully dissent. The majority inappropriately ac- cords deference to a trial court’s determination aof constitu- tional fact. When determination is reviewed under the appropriate standard, however, serious First in- Amendment fringements become apparent, and the majority’s conclusions crumble.

I. The focus analysis of the in this case should be on the orders issued Corporal Sperl. Although the crime disorderly conduct can take several forms under Section case, jury, convicted Polk of violating Section 121(b)(3),which person may declares “[a] fail willfully obey a reasonable and lawful order of a law enforcement If Polk had speech, maintained the changed same content of her but voice, expression the manner of its had she lowered her but contin- —if cursing ued could not have been convicted conduct. —she Likewise, changed if she had expression, the content of her without changing shouting its manner —if she had continued in and about the Hospital, cursing but without still could have been convicted. —she As public peace.” a disturbance prevent

officer made clear, no violation of provision of this makes plain language 121(b)(3) first an gаve officer can occur unless the Section is the of lawfulness aspect “lawful.” This order that was Polk’s case. essence of certiorari, a writ of this Court petition

In granting Polk’s question of important constitutional sought to resolve the infringed unlawful orders Corporal Sperl issued whether ques- The answer this rights. First Amendment on Polk’s whether the analysis particular a careful of requires tion the content or regulated by Corporal Sperl used commands majority The characterizes of Polk’s volume one, a “the stating, factual question constitutional pivotal orders were Corporal Sperl’s not us is whether issue before neutral, but whether than content likely more content-based clearly erroneous court’s factual determination the trial main, at the volume of orders, in the were directed that his This demon- analysis at 13-14. Majority speech.” misunderstanding of the standard majority’s strates should The Court in First Amendment cases. required review whole record independent rendered an review have requires indepen- such Supreme because the Court this case findings implicate First where factual dent review appellate Amendment freedoms. indepen- an is that the Court undertakes

It well-established trial appraisal of a court’s determination dent constitutional has to free been right First Amendment whether one’s 526, State, 518, 784 A.2d Crosby v. 366 Md. infringed. See (2001) 1102, “when the issue whether (stating 1106 make our own we infringed, constitutional has been right State, v. (citing Stokes appraisal”) constitutional independent (2001)). 407, 414, 612, In cases that do 765 A.2d 615 362 Md. issues, ordinarily ac- First Amendment the Court not raise findings of fact unless those are findings trial court’s cepts State, 221, 792 v. 368 Md. clearly See Glover erroneous. (2002) question de review a (applying novo A.2d 1166 that the stating trial but right speedy of the constitutional clearly of fact are reviewed under findings trial court’s

23 standard) (citing erroneous Rowe 363 Md. (2001)). cases, A.2d 883 In First 769 Amendment howev- er, findings the Court does not defer to fact that have consti- rather, tutional the Court implications; independently exam- “ ines the ‘whole record’ in to make order sure that ‘the judgment does constitute a forbidden intrusion the field ” of free expression.’ Corp. Bose v. Consumers Union of States, Inc., 485, 499, 1949, 1958, United 466 U.S. 80 L.Ed.2d New York (quoting Times Co. v. Sullivan, 254, 284-86, 710, 727-29, 376 U.S. S.Ct. (1964)). L.Ed.2d Court Supreme discussed this distinct aspect appel Bose,

late review of First Amendment cases in U.S. 498-515, 1958-67, There, S.Ct. 80 L.Ed.2d at 515-26. Stevens, opinion prepared Justice the Court recon 52(a), ciled Federal Rule of Civil Procedure which subjects findings review, of fact to “clearly erroneous” and the require in ment First Amendment that an cases court appellate has an obligation independent to make an examination of the whole court, record. trial The a sitting ‍​​‌​​​​‌‌​​​‌​‌‌​​​​‌​​‌​​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‍without had jury, deter mined, Sullivan,1 under New York Times Co. that there was clear and convincing evidence that a consumer magazine made a false disparaging statement “actual in with a pub malice” lished of 490-91, evaluation a Bose brand speaker. Id. at at S.Ct. 80 L.Ed.2d at 510. deferring Without to the court, trial the United States Appeals Court of reviewed the determination and reversed. Bose argued before the Su preme Court the determination of “actual malice” amounted to a finding, 52(a), factual which according to FRCP must be upheld clearly unless erroneous. The Supreme Court disagreed, holding that “the clearly-erroneous standard of 52(a) [FRCP does not prescribe ] the standard of review to be ” in applied reviewing a determination of actual malice.... 514, 104 Id. at S.Ct. at 80 L.Ed.2d at 525-26. Sullivan, Supreme 1. In New York Times v. the Court established the requirement finding of malice” types “actual in certain of defama- tion actions. at U.S. 84 S.Ct. at 11 L.Ed.2d at 708. in Bose why a deter- several reasons presented Court in such required malice” defamation cases mination of “actual close overview: appellate of rule

First, assigns the itself heritage the common-law it specific in judge applying broad role to especially Second, of is not the content the rule factual situations. text, given but rather is by its literal simply revealed evolutionary of common-law through process meaning in of is found though the source the rule adjudication; rule of Constitution, largely judge-made is it nevertheless by the protected values rule Finally, law. the constitutional judges in some cases judges it imperative make —and correctly it is applied. sure that of this Court —make 502, 104 at Id. at 80 L.Ed.2d S.Ct. reasons, the Bose Court of these of the second

Speaking of that, the decision governing the standard explained “[w]hen Constitution, Court’s provided by is [the] case particular through out limits of the standard marking role in special importance.” case-by-case adjudication is process L.Ed.2d at 518. The Court Id. S.Ct. vitally has in cases process important been stated that “[t]his speech protected by the freedom of restrictions on involving Amendment, in which is those cases particularly the First оne of the the communication issue within contended that Id. Determinations ‘unprotected’ speech.” few classes words, incitement speech, fighting libelous what constitutes riot, all involved “evalua- obscenity, pornography and child have to have constitu- of facts that been deemed special tion 1961-62, 504-05, 104 Id. 80 S.Ct. significance.” tional Hampshire, v. New (citing Chaplinsky 315 at 519 L.Ed.2d (1942) words); 568, 766, (fighting L.Ed. 1031 62 S.Ct. 86 U.S. Ohio, 1827, 444, 23 L.Ed.2d Brandenburg v. 89 395 U.S. S.Ct. States, (incitement riot); Roth v. (1969) United 354 U.S. to 430 New 1304, (obscenity); 1498 476, L.Ed.2d 77 S.Ct. Ferber, v. 73 L.Ed.2d 1113 York 458 U.S. (1982) (child of what questions pornography)). Specifically, is offen- “patently the interest” what “prurient to appeals fact” sive,” described, “essentially of questions are the Court ... to an court’s “ultimate yet subject appellate power ” review of claims.... independent conduct an constitutional 506, 104 Id. at 520 Miller (quoting S.Ct. at L.Ed.2d v. L.Ed.2d 419 California, U.S. S.Ct. (1973)). of Whenever the Court has considered the limits speech, unprotected it:

has an the regularly independent conducted review of rec- question actually ord both be sure that the in falls within unprotected category perime- confíne any unprotected category ters of within narrow acceptably limits in effort to that will protected expression ensure not of Providing general be inhibited. triers fact with a of of description communication content is type whose itself, not, of unworthy protection has in and of served sufficiently to narrow the nor category, served to eliminate by danger may decisions triers fact inhibit the expressions of protected principle viewpoint ideas. The neutrality underlies the First itself ... Amendment a imposes special judges on responsibility whenever is claimed communication particular is unprotected. (citation Id. at 104 S.Ct. at 80 L.Ed.2d at 519-20 omitted).

Expounding constitutional significance of the “actual determination, malice” the Bose provided insight Court into claims, why constitutional and First claims in Amendment particular, deserve the close appellate indepen- attention of dent review: requirement independent appellate review reiterated

in York New Times is Co. Sullivan a rule of federal constitutional law. It emerged from the of decid- exigency ing cases; concrete in it is law its purest form under our common-law heritage. It reflects deeply held conviction that judges particularly Members of this Court—must —and such exercise review order to preserve precious liberties established and ordained Constitution. The question whether the evidence record in a defamation case is the convincing clarity required strip the utter- of First protection ance Amendment merely ques- of the Judges, expositors trier of fact. as tion for the Constitution, whether the evi- independently must decide in is sufficient to cross constitutional dence the record any of that is entry judgment threshold that bars convincing proof of “actual malice.” by clear and supported 510-11, 104 L.Ed.2d at 523. Id. at S.Ct. have analyzing commentators Bose illustrated Several “findings” those best accorded deference difference between Court has held should be reviewed Supreme and those the Purely on the factual based whole record. independently deference, one commentator worthy suggests, of findings by direct observa- questions that “can be determined answer of by rejecting testimony or witnesses accepting tion C. reporting George who are their own direct observations.” Fact, Christie, 87 Nw. Findings Judicial Review of of (hereinafter “Christie”) (emphasis add- U.L.Rev. ed). establishing of explain process Other scholars what, where,” “who, when, answering “facts” involves by be made who is inquiries person ignorant that “can P. Fact Henry Monaghan, Constitutional applicable law.” (1985) (hereinafter Review, “Mona- L.Rev. Colum. Jaffe, L. Judicial Control Adminis- ghan”)(quoting, part, of (1965). trative Action 548, 624-53 hand, findings” some “factual cannot be made On the other alone, degree but also some of “require direct observation is at 40. such reflection conscious reflection.” Christie When “why necessary must resolve to decide the necessary, one question consequences deciding and what will be the or other.” Id. at question way one 39^0. Commentators making of this process described the determinations have or application” answering questions nature as “law “mixed 236; law at 39. Law Monaghan and fact.” See Christie the First application frequently occurs areas outside of context, jury such as when decides whether Amendment in tort constitutional negligent. defendant case When stake, rights appellate typically are not at courts review these degree with some deference. judgments mandates, however, that “law Supreme Court where freedoms, appellate First application” implicates Amendment Rather, judgment. the trial court’s courts should defer to obligation independent court an ‘make an appellate the “has to of that examination the whole record’ in order make sure on judgment ‘the does not constitute a forbidden intrusion the Bose, field of free at 104 S.Ct. at expression.” U.S. Co., (quoting 80 L.Ed.2d at 515 New York Times 708-09). 284-86, 728-29, at U.S. at S.Ct. L.Ed.2d at review, Sometimes referred to as “constitutional fact” the of an requirement rendering independent determination of ensures, First Amendment as application law the Bose Court basis, courts, a recognized, appellate the on case case meaning of the constitutional develop principles issue. Commentators consider this a form of norm elaboration. is, Monaghan case-by-case 231. That an court’s appellate specific through of filtering facts First Amendment principles assign practical significance serves to principles. those facts, Without reference to First stan- specific Amendment merely dards are abstract As principles. Monoghan Professor summarized:

Constitutional fact presupposes appellate review courts will independent judgment any render of issues constitu- tional “law” presented. Its feature is require- distinctive judicial judgment ment of similar of independent on issues is, constitutional law “application.” That must courts sort out relevant facts and to them apply controlling constitutional norms.

Monaghan First Amendment are no apparent issues less case at they bar than in Bose. Corporal Sperl were orders issued seeking speech. to control Polk’s Whether those orders volume, found, her directed at the trial cоurt or directed at her message, they must scrutiny. survive First Amendment determination, This though, dictates of scrutiny the level we and, apply orders, extent, to great those the lawfulness of orders; those inextricably tied whether speech Polk’s was protected by the First Only Amendment. by conducting case on the entire of Polk’s based independent review speech of of may types set the limits what Court

record duty First This under the Amendment. Court’s protected are First Amendment cannot be meaning to declare the enjoyed of fact. The freedoms under to the trier delegated a trial precious too to risk simply First Amendment are may how officer interpretation court’s mistaken an individual’s control Sperl

Moreover, Corporal court’s judgment the trial rather than orders at the volume directed his finding factual to which an type not the content was its City See Wells v. court accords deference. appellate (10th Cir.2001) Denver, F.3d 1146-47 County of of reviewing a determination content-neutrali (citing Bose and record); whole AIDS Action independently based the ty Auth., 42 F.3d 7-8 Bay Transp. Comm. Massachusetts (1st Cir.1994) (reviewing independently the entire record restriction a content- government determine whether Shack, content-neutral); v. How see also Pack Inc. based or (2003) (consider 170, 180 55, 71, County, 377 Md. 832 A.2d ard to the content-neutrality regard of without ing question matter). finding on that trial court’s Sperl Corporal evidence at trial that presented The State leaving to Polk as she was had issued a series of commands himself, that he com- testified hospital. Corporal Sperl, “stop “keep her “stop cursing,” profanity,” manded Polk to her The “keep mouth shut.” State quiet,” mouth [her] [her] testimony the officer’s misstated the did not contend that Polk, the orders to nor did the State issuing words he used to Polk’s Corporal Sperl specifically referred dispute that no conviction under in those orders. Because Sec- profanity 121(b) order, an the trial may rest on unlawful police tion of obligation, upon judgment had an motion judge sought of orders to decide the lawfulness acquittal, an volume of individual’s restrict both content and speech.

To not question properly, judge answer could testimony, on direct which merely rely observation might allow him to decide the time and the incident place Corporal Sperl occurred or the words used to issue his Instead, of process making commands. this determination First to decide examining involved Amendment law whether mixed of content and permitted regulation volume. Court in Bose directed that this of Supreme type analyt- process subjected ical must be review of the independent appellate rights court. Because Polk’s First Amendment implicated the trial by finding, court’s the Court should be by clearly bound erroneous standard review. The have majority employed should de novo review this case to answer the question constitutional whether the orders by were directed at the volume or given Corporal Sperl content of Polk’s

II. By his at the deciding Corporal Sperl directed orders voice, judge volume of Polk’s the trial misapplied estab- First principle lished Amendment this case. facts The First Amendment shall no provides “Congress make command, law ... abridging speech.” the freedom of This Amendment, operation of the Fourteenth with applies equal governments. force to state and local Eanes v. 318 Md. 436, 445, York, 569 A.2d (citing Gitlow v. New (1925)). 268 U.S. 69 L.Ed. 1138 Without however, question, “the First and Fourteenth Amendments thought give have never been absolute protection every speak individual to whenever or wherever he or pleases, to use form any any of address circumstances that he chooses.” 446, Id. at (quoting 569 A.2d at 608-09 Cohen v. California, 15, 19, 1780, 1785, 284, 403 91 U.S. S.Ct. 29 L.Ed.2d 290 (1971)); Paul, 377, 382-83, see also R.A.V. v. St. 505 112 U.S. 2538, 2542-43, 305, (discussing S.Ct. 120 L.Ed.2d 317 the restrictions on that are speech permissible under the First Amendment). For example, consistent with the First Amend- ment, words,” may “fighting States restrict the use of Chap-

30 1035, 769, L.Ed. at 571-72, at 86 at 62 S.Ct.

linsky, 315 U.S. “obscenity,” see Roth the use of way, limited restrict and in a 1304, States, 476, 1 L.Ed.2d 1498 77 v. United 354 U.S. S.Ct. 2607, 15, 37 California, v. 413 93 S.Ct. Miller (1957); U.S. v. see Gertz (1973), defamatory speech, L.Ed.2d 419 Inc., 323, 2997, 789 Welch, 94 41 L.Ed.2d 418 S.Ct. Robert U.S. Sullivan, 254, 84 v. Times Co. 376 U.S. New York (1974); Illinois, Beauharnais v. (1964); 343 710, 686 11 L.Ed.2d S.Ct. (1952). 725, 250, 96 L.Ed. 919 72 S.Ct. U.S. cases make

Nevertheless, and our Supreme as the Court’s because restricting speech clear, regulation rare that a is “[i]t States United permissible.” ever be of its content will Inc., 1878, 803, 818, 120 S.Ct. Group, Entm’t 529 U.S. Playboy (2000). Rather, is regulation such 1889, 865, 882 146 L.Ed.2d state necessary compelling to serve unless it “is prohibited ” to achieve that end.... narrowly drawn and that interest Perry Eanes, 447, at 609 (quoting at 569 A.2d Md. 318 Assn., 460 U.S. 37, Local Educators’ Perry Assn. v. Education also (1983)); see 794, 948, 955, 804 45, 74 L.Ed.2d S.Ct. 103 1886, at at 146 L.Ed.2d at 120 S.Ct. Playboy, 529 U.S. aof content- Therefore, designed benefit “[w]here 879. of listen- to shield the sensibilities restriction is speech based expression prevails, ers, right rule is general Playboy, alternative exists.” no less restrictive even where 146 L.Ed.2d 813, 120 S.Ct. 529 U.S. on two has held Court principles, these Guided conduct based on that convictions occasions of the First Amend run afoul nature of one’s profane State, 466, 470-74, 451 A.2d ment. Diehl v. 294 Md. denied, cert. (1982), 460 U.S. 118-20 610, 618, Downs v. (1983); Md. L.Ed.2d Downs, (1976). addressed whether In the Court A.2d no county in this are niggers fucking of “the uttering protected speech. constituted policemen” than goddamn better words in a 42. Downs these spoke A.2d at 278 Md. at friends over breakfast conversing with three loud voice while Id. vulgarity, Overhearing in a crowded restaurant. talk Downs, him that his told officer approached 31 and warned that “if he did not refrain from disruptive, using Id., profane language,” such he would arrest him. 366 A.2d at 42-43. foolishly replied, enough When Downs “You ain’t bad arrest,” him, me under the officer place jury arrested and a offenses, including later convicted him of several 611-12, Id. at 366 conduct. A.2d 43. The Court reversed convictions, that “Downs’ holding remarks were personally kind of which fall epithets abusive outside of the First Amendment under protection ‘fight the rubric 618, Rather, ing’ words.” Id. at 366 A.2d at 46. the Court concluded, “He engaged protected speech. That his views might be offensive to someone who overheard him does not a for disorderly warrant conviction conduct.” Id Diehl, The Court further this developed reasoning line of 466, There, 451 Md. A.2d 115. officer patrolling police over a car for pulled “squealing wheels.” Id. at A.2d at 116. After both the ‍​​‌​​​​‌‌​​​‌​‌‌​​​​‌​​‌​​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‍driver passenger got out car, the officer ordered to get them back into the vehicle. The Diehl, officer, driver complied, passenger, yelled but the at the Gavin;” you, “Fuck “I my rights;” “you know can’t tell me what to do....” Id. at A.2d at 116. The officer car, again ordered into warning Diehl him that he would arrested if he obey. be did not Id at 451 A.2d at 117. instructions, Diehl When rеfused to follow the the officer arrested him for “screaming obscenities and ... drawing offenses, Id crowd.” Diehl was convicted of in numerous cluding violating former Article Section which prohib ited “wilfully disturbing] any neighborhood in ... [any] city, or county noises, town loud unseemly [of or State] ... profanely or or curs[ing] swear[ing] us[ing] obscene lan or guage upon any near to street or highway within the hearing of persons passing by along or such Fol highway.” lowing appeal to the Court of Special Appeals, which convictions, affirmed the we issued a writ of certiorari and then reversed. Id at A.2d Diehl, At the outset in the Court noted that Diehl’s “oral communication ... clearly and, therefore, constituted speech” protection. was entitled First Amendment Id “Downs ... observed that we Significantly, A.2d at 118. is not punishable the word ‘fuck’ that the use of teaches us 477, A.2d at at 451 reasons.” Id. compelling the absence concluded, specifically direct- words, although Diehl’s we 122. words” officer, “fighting not as qualify did at the police ed epithet abusive “personally not as they spoken, because as an response,” violent but immediate and hurled to invoke order.” to response officer’s] emphatic [the “emotional 478, at 122. 451 A.2d Id. at at clearly that an order directed

These cases demonstrate imper constitutes profanity use of controlling speaker’s Indeed, the on free restriction missible content-based axiom, in its that the stating brief dispute does State unlawful, constituting render would “First Amendment The conduct, profanity.” to refrain from any order words,” “fighting that Polk used does not contend also State that her was speech no evidence there is conceivably because Diehl, response,” and violent “to immediate intended invoke 122, the words were 478, A.2d at or because at 451 294 Md. to reasonably expected be “may officer who to a spoken citizen average than the of restraint’ degree a higher ‘exercise 477, Id. at belligerently . . . .” likely respond and be less Orleans, 415 City Lewis v. New at 121 (quoting 451 A.2d 214, 970, 973, 135, 39 L.Ed.2d 94 S.Ct. U.S. content of Polk’s (Powell, J., Consequently, the concurring)). at in Downs same issue “profanity” included the which speech, First and Fourteenth Diehl, under the protected was Amendments. orders Corporal Sperl’s majority determines its of her but speech, not the content to restrict sought

Polk view, permissi- the orders were majority’s volume. Under unreasonably loud to control ble, regulations “content-neutral” assertions, majority In of its support Polk. by noise caused 318 Md. decision Eanes on this Court’s relies (1990). conviction affirmed the The Eanes Court A.2d 604 during loud preaching whose protester, anof anti-abortion area constituted busy in a downtown hours mid-morning “wilfulQ ... loud and any neighborhood disturb[ance] Article 121. unseemly noises” in violation of former Section 440-41, 468, Reading 569 A.2d at 620. the statute’s Id. content-neutral,” “clearly restriction be Court subjected it to constitutional whether it scrutiny determine “narrowly governmental tailored to serve a substantial “Sound,” Eanes interest.” Id. at 569 A.2d “is one of the intrusive means of explained, Court most communication,” in- “government and the a substantial ha[s] terest in from noise.” protecting its citizens unwelcome Id. 449, 453, Against 569 A.2d at v. Rock (quoting Ward Racism, 781, 796, 2746, 2756, 105 L.Ed.2d U.S. (1989)). “prohibit[ed] only Because the statute unreаsonably volume level of communication that disturbs rights individuals whose to be free from aural abuse override the of a to or right speaker address them direct incidental communication,” oral it a substantial interest and “serve[d] 453-54, narrowly tailored to serve those ends.” Id. at [was] 569 A.2d at 612. judge’s findings Based the trial that speech Eanes’s was loud and actually disturbed residents and area, in people business the Court concluded: judge] trial Eanes’s properly [The balanced first amend- rights ment a substantial against public protected interest drawn, by a narrowly regulation. content-neutral Eanes was warned to lower his voice aby police officer whose action was on complaints based from members of cap- tive audience. Eanes chose not to comply. Under these circumstances, properly he was convicted of a violation of the statute. 468, at

Id. 569 A.2d at 620.2 Eanes, Diehl, Downs, teachings expose and pivotal constitutional in question this case: whether Corporal 2. Eanes, Judge Eldridge, dissenting opinion disagreed in his that the speech at issue in that case warranted a criminal conviction. 318 Md. 500, J., believed, instead, (Eldridge, dissenting). at 569 A.2d at 635 He engaged pristine that Eanes “was in free in its 'most and classic ” 472, at the (quoting form' time of his arrest. Id. at 569 A.2d at 622 Carolina, 229, 235, 680, 683, Edwards v. South 372 U.S. 9 (1963)). position majority, L.Ed.2d He also took the that the of Polk’s

Sperl’s impermissibly orders restricted content If officer directed his orders to restrict the use speech. order, issued a which is unlawful profanity, he content-based it “is to serve a and necessary compelling unless state interest ” Eanes, that narrowly drawn achieve end.... Assn., Perry Education Md. at A.2d at 609 (quoting at at 74 L.Ed.2d at On the U.S. S.Ct. hand, attempt regulate other if the commands were an be able to language, they may volume Polk’s withstand under Eanes if scrutiny they “narrowly constitutional were Id. tailored to governmental serve substantial interest.” 449, 569 A.2d at 610.

An reveals Corporal examination entire record unlawfully regulate Sperl’s attempted protect- orders foremost, told “stop ed First and the officer Polk to her profanity” “stop cursing.” her and These commands aimed at Polk used unquestionably controlling were words Although and not the of her indi- volume voice. the record your cates that Polk also was instructed to shut” “keep mouth “keep your quiet,” phrases always mouth these used conjunction with the to the of Polk’s references content officer re- speech. Where an issues orders attempt those are protected speech, strict orders “content-based” narrowly must be drawn to achieve a interest. compelling state Eanes, Perry See at 609 318 Md. 569 A.2d (quoting Assn., Education 460 U.S. 103 S.Ct. at 74 L.Ed.2d 804). at combined,

This is so if even the are “content-based” orders here, that, themselves, commands they other as with is, might not constitutional concerns. That despite raise Cor- voice, poral Sperl’s alleged attempt quiet it is his order to her that dictates of control content which level scrutiny this should apply. Support approach Court of Supreme longstanding prohibition resides Court’s control, by emphasizing importance of volume "overlooked that sound, word, spoken thing protected in the the most basic form 476, by the First Id. at at 624. Amendment.” 569 A.2d

35 specifically laws that not aim evils within the allowable “do[] control, ... within [government] sweep[] area of but [their] other that in circumstances constitute ordinary ambit activities ” speech.... an exercise of freedom of See Thornhill v. Alabama, 88, 97, 736, 742, 1093, 60 84 310 U.S. S.Ct. L.Ed. (1940); see also Md. v. H. Secretary Joseph State of Inc., 947, 967-68, 2839, Munson Co. 467 U.S. 104 S.Ct. 2852- (1984) (“Where, here, 81 L.Ed.2d 802-03 statute a direct restriction on First Amendment imposes protected that activity, and where the defect the statute is the means are too accomplish objectives imprecise, chosen to State’s that in all creates an unneces applications so its statute sary chilling speech, properly subject risk of free the statute is attack.”); 1, 4-5, to facial Terminiello v. Chicago, U.S. 894, 895-96, 93 L.Ed. 1134-35 (invalidating S.Ct. city under the First Amendment code application the trial court had construed as provision prohibiting conduct, public anger, which “stirs the invites dispute, unrest, disturbance,” brings about a condition of or creates a conduct, prohibited encompassed because the in part, protect Connecticut, 296, 303, speech); ed Cantwell 310 U.S. 308- 900, 903, 905-06, 1213, 1215, 84 L.Ed. 1220-21 (1940) (holding “general that the and undefined” common law “inciting offense of a breach of was an unconstitutional peace” activities, proscription range of a wide some of which were Amendment); protected by the First H. Tribe, Laurence (2nd 1988) (“A law ed. law is American Constitutional if it void its face ‘does not aim specifically evils within control, [government] the allowable area of ... sweeps but within its ambit other activities that constitute an exercise’ of protected еxpressive or associational Thorn rights.”) (quoting hill, 1100).3 U.S. S.Ct. at 84 L.Ed. at cases, Attempting distinguish majority points these out challenge each one facial “involves a constitutional to a statute.” challenge validity Because Polk did not the facial Section claims, majority “inapposite Major- are the cases to the case at hand.” ity upon meaning. at 16. The distinction relied Thornhill is without progeny proposition overly government and its stand for the broad Thornhill, struck down Alabama Court Supreme

In or around statute, loitering picketing all prohibited which state First business, it grounds on violated place 104, 745, L.Ed. at 1103. 60 S.Ct. at Id. at Amendment. that, though prohibited even the statute concluded The Court as violence protect, did not such that the Constitution conduct placed it also restrictions peace, of the and breaches interest,” of matters of public truthful discussion “peaceful Be Id. enjoy protection. First Amendment activities that at the activities specifically” not “aim cause the law did constituted an unlaw therefore may regulate validly, States at Id. ful, of freedom discussion.” “sweeping proscription 1103, 1104. 745, 746, at 104, 105, at 84 L.Ed. 60 S.Ct. 1103, Wilson, 92 S.Ct. In U.S. Gooding (1972), held unconstitutional again the Court L.Ed.2d 408 certain of conduct that included range that penalized statute at Georgia statute issue established speech. The protected words or “opprobrious for certain uses of criminal penalties Id. peace.” to cause a breach language, tending abusive at 412. The Court at 31 L.Ed.2d 92 S.Ct. touching guaran- on the constitutional that statutes recognized authoritatively or carefully “must be drawn tees of free and not be only unprotected speech punish construed to Id. at protected expression.” susceptible application light requirement, 414. In of this 31 L.Ed. at 92 S.Ct. statute, that the as defined Georgia concluded the Court courts, responsibili- standard of not define the the state “d[id] Id. at specificity.” narrow ty requisite with apply the statute did Although L.Ed.2d at 417. (conduct the First Amendment for which “fighting words” protected also affected no its strictures protection), offered legislation or im- speech regulation, whether in the form of enacted orders, right to free violates the First Amendment promptu police government regulation, not its form or The substance source, unlikely analysis. highly It is should drive the constitutional analysis Supreme turn on whether a Court’s would body infringe upon constitutional legislative acted to one's officer or right. First Amendment. and, violated consequently, expression at 417. 31 L.Ed.2d at 92 S.Ct. Id. at Black, 343, 123 S.Ct. 538 U.S. recently, Virginia in Very Supreme opinion), (plurality L.Ed.2d 535 to invali Gooding in expressed principles applied Court scheme, prohibiting statutory Virginia’s of a provision date at provision to intimidate. the intent cross-burning with cross,” aof established burning such “any stated issue at —, Id. intimidate. an intent to case of facie prima therefore, language, This at 554. L.Ed.2d at S.Ct. sanctions, in to criminal subject cross-burning all rendered ideology of expression as an was intended that which cluding different between distinguish By failing not intimidation. intent to with the (i.e., carried out those cross-burning of types expression), as political carried out those intimidate and well as protected both penalized provision facie prima at —, at 123 S.Ct. Id. expression. of acts unprotected therefore, held, prima that the The Court L.Ed.2d at 556. face.” Id. on its “unconstitutional provision facie evidence at 557. 1151-52, 31 L.Ed.2d at —, at cases, Court Supreme of these spirit with the Consistent not constitutional pass in this case do orders Corporal Sperl’s cursing,” Polk to her “stop required The orders scrutiny. shut,” “keep [her] mouth “keep [her] “stop profanity,” her em- of these prohibitions effect The collective quiet.” mouth voice, also the Polk’s but the volume of only not braced narrowly drawn orders were message. The content of her “content- that were speech of Polk’s only aspects to cover regulated allows to be First Amendment that the neutral” and of Rather, susceptible applica- the orders were more freely. and, therefore, sub- should be speech tion to “content-based” scrutiny. of constitutional to a standard jected stricter scrutiny, First Amendment standard of this stricter Under Polk’s discussed, the content of have previously as we reasons.” compelling in the absence not punishable “is Downs, 278 Md. Diehl, (citing at 122 at 451 A.2d 294 Md. 46). Diehl, the motorist where Like 366 A.2d officer, uttered at a “vulgar language” there are no compelling reasons in this case that Corporal warranted Sperl’s proscription Polk’s choice of language. See id. 478, 451 A.2d at 122. No evidence the record suggests the conditions in and around hospital necessitated com- the use of pletely prohibiting vulgar language. In the absence compelling words, reasons to forbid use certain Corporal justification had no lawful Sperl issuing оrders to her “stop cursing” “stop her profanity.” Nevertheless, the majority insists on reaching different result in this case alleged because the conduct took place within a hospital, particular which has interest in avoiding assertion, unreasonably loud noises. As for this support majority to the points decision of an Indiana intermediate (Ind.Ct. court in appellate 640 N.E.2d 90 Radford App.1994). The court in that ease disorderly affirmed the Radford, conduct conviction of a hospital former employee unpleasant whose encounter with a officer police inside the hospital public led to disturbance. Id. at 91-92. After receiv ing a that report Radford had been removing hospital proper station, ty from her former work the officer approached the employee hallway near hospital the OB-GYN clinic. Id. at 91. When the officer to asked her into an to step alcove obstructing avoid traffic in hallway the and to demanded see contents the box she was carrying, “loudly Radford protested” “continually got angry and in very and loud and abusive voice.” Id. at 91-92. The officer asked Radford to times, “quiet down” at least three but she refused. Id. Radford was then and charged convicted of conduct under an Indiana statute prohibiting a from person making noise continuing] “unreasonable and to do so being after asked to stop.” Id. at conviction,

On the court appeal, initially reversed the hold- ing that Radford’s speech [protected] “was ... political speech protesting and legality appropriateness of police conduct.” howеver, court, Id. at 92. The reheard the case and affirmed the conviction. Id. at 91. The court opined that the statutory prohibition of unreasonable noise was “content-neutral” and Addi- Id. at 92. speech. of Radford’s to the volume applied in which speech type that the the court observed tionally, and that in nature not “purely political” engaged Radford of a hallway quiet speech Radford’s “was “forum” of close clinic and to the OB-GYN hospital____adjacent at 94. It characterized Id. baby nursery.” recently born stated and “harmful and abusive” as Radford’s loud peaceful right quiet to a “destroyed patients’] [the that concluded, therefore, “Radford court The environment.” being to do so after continued noise and unreasonable made applicable under [the for conviction required stop, asked statute].” Indiana us from the case before distinguishable readily Radford present unlike the Most importantly, grounds.

on several at the his orders never directed case, officer in Radford only “quiet” offered instructions He content voice, limit her noisy not to unreasonably of Radford’s volume occurred addition, In the incident choice. word Radford and near the walls hospital the confines of the entirely within disturbed, likely be patients clinic where OB-GYN setting should be persuaded the court was of those “safety for the “disturbing noise” from protected contrast, case, by present in the episode hospitalized.” and even- Department the Human Resources place took near in the is no evidence There tually hospital. outside of the or that nearby treatment were under patients record clinic, Resources, like an OB-GYN adjacent to Human area Polk was It also notable that noise control. is special required exchange The be- building. had left the arrested she after not inside its pinnacle, and Polk reached Corporal Sperl tween parking outside to the walking she was hospital, the but as then, hospital outside the and when Polk was Only garage. areas, decide Corporal Sperl did away any from sensitive of her voice custody, though even the volume take her into only speculate One can much less of a concern. point formed hospital inside the transpired the events that whether arrest, the events unlike in where for Polk’s the basis Radford walls. wholly hospital inside the and arrest occurred aspects majority’s Additional analysis this case are similarly majority troublesome. The contends that “ample testimony before trial court” supports the that “Corporal aimed, main, Sperl issued orders in the at the volume of Ms. Polk’s speech.” Majority at 14. This conclusion is defective First, for several majority reasons. the accepts proposi- tion that orders Corporal Speri’s were volume-based despite Corporal Sperl’s testimony establishing own that he told Polk to “stop profanity” “stop cursing.” [her] Under the [her] majority’s analysis, would be police permitted justify con- tent-based speech by claiming restrictions an intention to reduce the volume of one’s precedent voice. This encourages unlawful regulation an individual’s message pre- under the text of noise control. addition,

In majority’s reasoning inappropriately con- centrates on the officer’s “aim” in issuing his order. In other words, the majority allows a officer’s subjective inten- tions to dictate the Court’s evaluation of the police command’s Court, instead, lawfulness. The analysis should focus its the actual words used by Corporal. A person reasonable have no reason to believe that only the volume of his or would her voice is the of an target your order to “stop cursing” or your “stop profanity.” The plain meaning those specific references to content would lead person reasonable to conclude that the officer objects to the message speaker is conveying. The Court should not require one Polk’s position obey facially content-based police order because the officer intended his mandate to only reach the speaker’s volume.

Yet, the majority makes a effort significant highlight volume Polk’s It pinpoints testimony describ- ing Polk’s behavior as “screaming,” vulgarity,” “tirades of “yelling.” emphasis on the actual volume of however, speech, only a diversion from the consequential If Corporal issue. ordered Polk to Sperl refrain from cursing, did, particular he still subject order is to strict First scrutiny Amendment even if the sound of Polk’s voice carried Chesapeake Bay. across the Polk’s “use of vulgar language in the persons because simply into a crime not evolve does 478, Diehl, 294 Md. looked, and listened.” stopped, area 121(b)(3) only by violates Section A.2d at 122. One command, has State obey a lawful failing to wilfully for justifying reasons sufficiently compelling not presented cursing” and “stop [her] to Polk that she orders content-based orders Corporal Sperl’s Consequently, profanity.” “stop [her] In the Polk’s speech.4 the content of restricted unlawfully order, Polk’s conviction of a lawful absence 121(b)(3) by supported cannot be under conduct Section evidence. without disorderly conduct is for

Because Polk’s conviction does not the evidence necessarily it follows support, It is well settled arrest. resisting her conviction support means to that, any use reasonable may “one arrested illegally force as is using extent of such his even escape, effect Diehl, 451 A.2d at 123 294 Md. at reasonably necessary.” denied, State, cert. 280 Md. 373 A.2d Rogers v. (citing (1977); Sugarman 54 L.Ed.2d 287 434 U.S. (1937)); v. Wieg 195 A. 324 see State 173 Md. (“[W]e mann, 585, 607, A.2d 350 Md. privilege common law long-standing to abolish the decline arrest”). warrantless illegal to resist an permitting persons unlawful, subse orders to Polk were so his Corporal Sperl’s illegal. for those orders was also violating arrest of her quent position that in this case undermine the State's 4. Other circumstances Corporal Sperl lawful under Section issued a "reasonable and order” lawful, 121(b)(3). they Assuming case were which the orders not, question they reasonable under the circum- I whether were may testimony suggests the officer have shared stances. The trial hospi- responsibility aggravating for the ‍​​‌​​​​‌‌​​​‌​‌‌​​​​‌​​‌​​‌​​​‌​​​‌​‌​​‌​​‌‌​​​‌‍commotion in the some of the incident, Corporal Upon encountering day tal. first Polk on the while he Sperl pay held her stub above his heаd out of her reach employee he could turn it over to asked a Human Resources whether leave, began walking hospital toward the exit to Polk. Even when Polk behind, commenting provocatively, “I Corporal Sperl followed close sorry your situation feel child.” It is within this context —a tense inflammatory Corporal Sperl made worse the officer’s conduct —that to talk. I would decline to construe Section then ordered Polk not 121(b)(3) yet punishes a citizen's emotional non- in a manner taunting police response violent to a officer. therefore, arrest, resisting illegal Polk’s use force of did not constitute a crime.

IY. Conclusion By to the trial court’s conclusion that deferring Corporal volume, directed orders at Polk’s Sperl majority ig- his nores an essential of this Court’s role as a aspect appellate body. to avoid majority opts highly significant consti- order, tutional case in favor of upholding issue which, admits, at Polk’s partially least directed (“The Majority content. at 14 contains ample record trial court testimony supporting finding before the its in the aimed, Corporal Sperl issued orders main> added). speech.”) (emphasis volume Ms. Polk’s Because Corporal Sperl’s orders restricted the content of Polk’s speech, they required by were not “lawful and reasonable” as 121(b)(3). Thus, obligation Section Polk had no to comply I (cid:127)with the officer’s orders or submit to the arrest. would judgment Special reverse the the Court of Appeals. BELL, ELDRIDGE, J., C.J. and authorize me state join in this they dissent. A.2d

Rico Duvall COLE Maryland. STATE 5, Sept. Term, No. 2003. Appeals Maryland.

Court of

Nov.

Case Details

Case Name: Polk v. State

Court Name: Court of Appeals of Maryland

Date Published: Nov 12, 2003

Citation: 835 A.2d 575

Docket Number: 101, Sept. Term, 2002

Court Abbreviation: Md.