Lead Opinion
ON PETITION TO TRANSFER
Arrested after a noisy neighborhood party, appellant Colleen Price was eventually acquitted of obstructing or interfering with the officer who took her into custody. On the other hand, she was found guilty of disorderly conduct on the basis of her statements to the officer. We grant transfer to consider an issue of first impression, the boundaries imposed on our disorderly conduct statute by the Indiana Constitution’s protection for freedom of expression.
I. Facts and Procedural History
The reticence with which police officers approach New Year’s Eve is no doubt born of incidents like the one which spawned this prosecution. At about 3 a.m. on January 1, 1991, Officer Douglas Cook of the Indianapolis Police Department was patrolling the 1600 block of East Prospect Street when his attention was drawn to a boisterous knot of quarreling party-goers. This initial group included one Eddie Coleman and perhaps appellant Colleen Price, though her presence at this stage of the encounter is controverted. Officer Cook approached the group and requested that they continue their argument beyond the earshot of their neighbors, which request drew a hail of epithets from Coleman. This verbal confrontation escalated to the point that Officer Cook resolved to arrest Coleman, but Coleman managed to evade him and fled on foot.
Coleman was quickly apprehended in a nearby alley by another officer who had since happened upon the scene. Coleman remained uncooperative, and the officer had to subdue him to effect the arrest. Meanwhile, the alley began to fill with additional police officers, including Cook, and with some twenty spectators, many attracted from the party Coleman had been attending. At this juncture, Price appeared in the alley and confronted Cook regarding
After several verbal exchanges, Cook directed Price to desist and threatened her with arrest for disorderly conduct, to which she responded “F— you. I haven’t done anything.” Thereafter, she was arrested and subsequently charged with two counts of obstructing or interfering with a law enforcement officer by force, a Class A misdemeanor, Ind.Code Ann. § 35-44-3-3(a)(1) (West Supp.1993); public intoxication, a Class B misdemeanor, Ind.Code Ann. § 7.1-5-1-3 (West 1982); and disorderly conduct, a Class B misdemeanor, Ind. Code Ann. § 35-45-1-3(2) (West Supp. 1993). Price moved to dismiss the disorderly conduct charge, claiming that Ind.Code Ann. § 35-45-1-3(2), was unconstitutional. This motion was denied. After a bench trial, Price was acquitted on the interfering counts but convicted of disorderly conduct and public intoxication.
Price appealed, challenging the sufficiency of the evidence as to both counts and the denial of her motion to dismiss. The Court of Appeals affirmed in all respects. Price v. State (1992), Ind.App.,
II. Indiana Constitutional Claim
Price has properly preserved her § 9 challenge and supports it with an excellent and incisive brief by her attorney, Fran Quigley. This Court has never reviewed the. constitutionality of Ind.Code Ann. § 35-45-1-3(2)
A. No Overbreadth Analysis in Our Constitution
The State stakes its fortune on the contention that Price’s utterances were not within the protection of § 9:
No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
It draws its line too soon, however, for § 9 expressly extends protection to speaking, writing or printing “on any subject whatever.” Price was speaking; therefore the legality of her prosecution must stand or fall on the dictates of our constitution’s free expression provision.
Once an Indiana constitutional challenge is properly raised, a court should focus on the actual operation of the statute at issue and refrain from speculating about hypothetical applications. See, e.g., Hightower v. State (1976),
B. Government Power Intended to Support Individual Freedom
Section 9 forbids the General Assembly from passing any law “restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever.” Ind. Const, art. I, § 9. A corresponding clause stipulates that “for the abuse of that right, every person shall be responsible.” Id. Common in state constitutions, this formulation is sometimes called the “freedom-and-responsibility standard.”
When the import of a given word is at issue, a useful starting point is the documentary evidence which illuminates the contemporaneous understanding of its meaning. See, e.g., Fordyce v. State (1991), Ind.App.,
The free expression guarantee of the Indiana Constitution is one of thirty-seven provisions in our Bill of Rights and, we may assume, was calibrated consonant with its overall design. This design reflects the influence of the natural rights
This right of the majority to define and effect salubrious conditions is sometimes viewed as being at odds with the ability of individuals to pursue their personal ends. Our founders, however, perceived no dichotomy between individual rights and communal needs. See Robert C. Palmer, Liberties as Constitutional Provisions, in Constitution and Rights in the Early American Republic 55 (William E. Nelson & Robert C. Palmer eds., 1987); see also State ex rel. Mavity v. Tyndall (1947),
Providing this structure is the principal task for which the powers and restrictions in our Constitution and our Bill of Rights were designed. Applying these assumptions to the skeletal definition of “abuse” set out above, we conclude that § 9 derives its function from a constitutional arrangement calculated to correlate the enjoyment of individual rights and the exercise of state power such that the latter facilitates the former. Abuse then lies in that expression which injures the retained rights of individuals or undermines the State’s efforts to facilitate their enjoyment. As such, § 9 limits legislative authority over expression to sanctioning encroachments upon the rights of individuals or interference with exercises of the police power. See also Gibson v. Kincaid (1966),
Though earnestly given, the promise that § 9 shields all expression from penalty save that which impairs a state prerogative may appear illusory, given the broad sweep of those prerogatives. The State may exercise its police power to promote the health, safety, comfort, morals, and welfare of the public. State v. Gerhardt (1896),
Such a conclusion fails to recognize, however, that in Indiana the police power is limited by the existence of certain preserves of human endeavor, typically denominated as interests not “within the realm of the police power,” see Milharcic v. Metropolitan Bd. of Zoning Appeals (1986), Ind.App.,
C. Disorderly Conduct Under § 9
For purposes of this appeal, we will assume arguendo that Ind.Code Ann. § 35-45-1-3(2) is rationally calculated to advance the public good. The commentary to § 250.2(l)(b) of the Model Penal Code, from which the statute was derived, states that it was “designed to cover the most common types of misbehavior by which individuals can create a public nuisance.”
We must also be able to conclude that Price’s conviction does not materially burden a core constitutional value.
D. Political Speech Under § 9
What core values animate a particular guarantee is a judicial question. See Peachey,
Indiana’s drive towards statehood saw its territorial leadership, comprised predominately of southern planters, pitted against comparatively poor frontiersmen. The former group generally considered the “common citizen” to be “unworthy ... of presuming to criticize the conduct of officials.” John D. Barnhart, Valley of Democracy 195 (1953). The frontiersmen agitated for greater popular participation, holding that “even the poorest had a right to a voice in the determination of the policies which affected his life as well as the career of the richest.” Id. The frontier democrats who dominated the first Constitutional Conven
In 1850, when populist, anti-government Jacksonian Democrats turned their eye towards constitutional revision, the Bill of Rights captured only modest attention. To be sure, a number of important rights questions were debated and several new provisions were adopted, see Address to the Electors of the State (Feb. 8, 1851), reprinted in I Charles Kettleborough, Constitution Making in Indiana 404-05 (reprint 1971) (1968). But these innovations generally reflect completion of the agenda set in 1816 rather than departure from it.
Progression in the texts of our constitutions supports this presumption. The Constitution of 1816 included a provision which reversed the common law rule that truth was no defense to a prosecution for criminal libel in cases involving “men in a public capacity” or other “matters proper for the public information.”
The free expression clause underwent similar alteration. Former § 9 contained two sentences, one proscribing any law restraining the ability of individuals to “examine the proceedings of the legislature, or any branch of government,” and one allowing laws holding responsible those who abuse the “invaluable right[ ] ... [to] speak, write, and print, on any subject.” Ind. Const, of 1816, art. I, § 9. The 1851 revisions deleted specific reference to political speech, retaining only the proscription on laws restraining the right to speak, write and print on any subject, punishment for abuse allowing. Ind. Const, art. I, § 9.
These deletions might be said to reflect diminished regard for the importance of political expression. However, we think they demonstrate that by 1850 the importance of free interchange on public affairs was well accepted and, therefore, the need to highlight its role in the maintenance of republican government was no longer so compelling. Given this, it becomes clear that Robert Dale Owen and the other drafters of the 1851 Bill of Rights merely folded protection for political speech into the existing “freedom and responsibility” equation. Public discourse could hardly be called an abuse which impairs the sovereign when, in fact, a hale state government requires that discourse be unfettered and
E. Does Price’s Conviction Impair a Core Value?
Because Price’s conviction for noisy protest about police conduct implicates this core value, our focus now shifts to the magnitude of the impairment. To the extent that Ind.Code Ann. § 35-45-1-3(2) permits the State to impose a material burden upon the free exercise of political speech, it cannot stand. Indiana courts are reluctant, of course, to strike down statutes.
Unconstitutional intention will not be attributed to the legislature if reasonably avoidable. Conter v. Commercial Bank of Crown Point (1936),
The State argues.that political expression may be unreasonably noisy under Ind.Code Ann. § 35-45-1-3(2) when it constitutes a “public nuisance.” Whenever the state dictates the means by which political opinion may be voiced, however, it teeters on the edge of its authority. The machinery of democracy produces a sonorous cacophony, not a drone. Professor Chafee observed some seventy years ago that “you cannot limit free speech to polite criticism, because the greater a grievance the more likely men are to get excited about it.” Zechariah Chafee, Freedom of Speech in War Time, 32 Harv.L.Rev. 932, 961 (1919) (citing Thomas M. Cooley, A Treatise on the Constitutional Limitations 613-614 (7th ed. 1903)). In short, the efficacy of political speech often depends upon its ability to jar and galvanize.
Under public nuisance doctrine no individual interest need be injured before criminal liability may attach; it is enough that the criminalized conduct disturbs the “public order and decorum.” See 66 C.J.S. Nuisances § 160; see also Thomas, supra note 8, at 150-51 & n. 50 (only potential disturbance of neighborhood, not individual, required). This is so even though no “actual breach or disturbance of the peace, or actual or threatened violence” is involved. 66 C.J.S. Nuisances § 160 (footnotes omitted). Moreover, whether a thing injures the public is generally a matter within the discretion of the authorities. Smith v. City of New Albany (1910),
Subjecting the political expression of Hoosiers to this standard of gentility would impose a material burden upon this core constitutional value and would thus be impermissible. This is not to say, however, that noisy political expression may never give rise to criminal liability. Section 9 was certainly not intended to create a private warrant by which an individual might impair the fundamental rights of private persons. Our common law of torts, the mechanism by which we vindicate such pri
Ultimately, it was intrusion upon the interests of others which Ind.Code Ann. § 35-45-1-3(2) was designed to remedy. It seems clear that the statute’s sparse language was selected by the legislature with an eye towards creating a provision which the courts could constitutionally enforce. See Model Penal Code § 250.2(l)(b) comments 4(b) & (c). We therefore hold that political expression becomes “unreasonably noisy” for purposes of Ind.Code Ann. § 35-45-1-3(2) when and only when it inflicts upon determinant parties harm analogous to that which would sustain tort liability against the speaker.
F. Price’s Noise
We now turn to Price’s conviction. The evidence favorable to the judgment indicates that during the early morning of January 1, 1991, in a residential area, Price repeatedly “scream[ed]” at Officer Cook. When asked about Price’s volume, Cook responded that her tone was
Very loud. Loud enough that ... I noticed that people on either side come out their back doors. We were in between houses and there was people coming out both sides on either house out their back door to see what was going on. And she wasn’t the ... [ellipsis in original] I’m saying, she wasn’t the only one screaming. She was screaming this to me in my face. Record at 68.
While actual discomfort to persons of ordinary sensibilities will often be the grist of tortious conduct, there need not be proof of physical damage to individuals or property. Cf. Friendship Farms Camps v. Parson (1977),
The facts in evidence here would likely be sufficient to support a finding that Price created a public nuisance. Cf Humphries v. State (1991), Ind.App.,
III. Federal Constitutional Claim
The First Amendment’s command that “Congress shall make no law ... abridging the freedom of speech” has been incorporated into the Fourteenth Amendment and as such applies to the State of Indiana. Near v. Minnesota,
When a public forum is at issue, the analysis further turns on whether the challenged measure distinguishes between prohibited and permitted speech on the basis of content. Frisby,
The Court of Appeals in this case apparently assumed that § 35-45-1-3(2) imposes content-based restrictions. This view of the statute appears to have had its genesis in our decision in Hess v. State (1973),
In 1976 the legislature repealed § 35-27-2-1, substituting in its place a modified version of Model Penal Code § 250.2. Act of Feb. 25, 1976, Pub.L. No. 148, § 5, 1976 Ind. Acts 750-51. We may assume that this action was, in part, prompted by criticism of the content-based approach, see, e.g., Richard C. Lague, Note, Penal Code Reform in Indiana: Piecemeal Amendment is Not the Answer, 44 Ind.L.J. 425, 441-442 (1969), inasmuch as all such restrictions in the original statute (e.g., “offensive behavior”) were deleted and similar words in the Model Penal Code draft were not adopted. The former restrictions were replaced by simple prohibition of unreasonable noise. Nonetheless, the Court of Appeals characterized the 1976 enactment as a “minor change,” opining that “our courts have consistently applied the categories-of-speech analysis enunciated in Hess” to the new statute. We believe, however, that the absence of content definitions in our current statute invites reconsideration of this conclusion.
The principal inquiry in determining whether a statute is content-neutral
The statute is also narrowly tailored to further a significant state interest. The U.S. Supreme Court recently confirmed that “it can no longer be doubted that government ‘ha[s] a substantial interest in protecting its citizens from unwelcome noise.’ ” Ward,
Similarly, the statute’s narrow focus leaves Hoosiers ample alternative means of communication. Section 35-45-1-3(2) implicates only spoken or otherwise noisy expression and has no application to written, printed or electronic media. Moreover, it proscribes only unreasonably noisy expression amounting to a public nuisance or, when political speech is at issue, amounting to a private nuisance. As the Maryland Court of Appeals has noted, the “inability to stand outside a residence or business and scream a message to the unwilling listener therein is of little consequence when there are ample alternative channels of conveying that communication.” Eanes,
We now turn to Price’s contention that § 35-45-1-3(2) is overbroad and vague and therefore facially invalid. As an initial matter, overbreadth analysis would appear to perform but a limited function when the statute at issue is a content-neutral regulation of the time, manner, or place of expression. A statute is overbroad only if it prohibits a substantial amount of protected speech. Osborne v. Ohio,
Price’s vagueness challenge also fails. The constitutional requirement of definiteness, which a vagueness challenge addresses, is violated if a criminal statute fails to give a person of ordinary intelligence fair notice that her contemplated conduct is forbidden. Broadrick v. Oklahoma,
A statute is also void for vagueness if its terms invite arbitrary or discriminatory enforcement. Kolender v. Lawson,
IV. Conclusion
We reject the contention that Ind.Code § 35-45-1-3(2) is overbroad or vague in violation of the First and Fourteenth Amendments but conclude that there was insufficient evidence to establish that Price violated the statute, as interpreted to render it constitutional under the.Indiana Bill of Rights. We therefore remand to the trial court for entry of an acquittal on the disorderly conduct count. The Court of Appeals correctly rejected Price’s arguments with respect to her public intoxication charge, and we summarily affirm that conviction. Ind. Appellate Rule 11(B)(3).
Notes
. The State asserts that we upheld the constitutionality of Ind.Code Ann. § 35-45-1-3(2) in State v. New (1981), Ind.,
. Cf. Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 Ind.L.Rev. 575, 581 n. 39 (1989).
. Margaret A. Blanchard, Filling in the Void: Speech and Press in State Courts prior to Gitlow, in The First Amendment Reconsidered 14, 20 (Bill F. Chamberlin & Charlene J. Brown eds., 1982).
. After some initial debate, see generally Mon-rad G. Paulsen, "Natural Rights’ — A Constitutional Doctrine in Indiana, 25 Ind.LJ. 123 (1950), this Court determined that it would not root Indiana constitutional jurisprudence in the shifting sands of philosophical inquiry. See Hedderich v. State (1885),
. When the right to own property is at issue, for example, required adherence to regulations or statutes which promote order, safety, health and general welfare becomes a "taking" when it amounts to substantial interference with the owner's “use and enjoyment,” Foreman v. State ex rel. Dept. of Natural Resources (1979),
. Some portions of Ind.Code Ann. § 35-45-1-3 embody common law breach of peace provisions, see, e.g., Ind.Code Ann. § 35-45-1-3(1) (engaging in fighting or tumultuous conduct), but we decline the State’s invitation to characterize § 35-45-1-3(2) as a breach of the peace or "fighting words” statute. Hornbook law counts violence — either actual or threatened — as an essential element of breaching the peace. 11 C.J.S. Breach of the Peace §§ 2 & 3 (1938). None of Indiana's breach of the peace statutes permitted prosecution based on expression alone. See, e.g., ch. 6, Rev.Stats. of 1852, § 4 (riot), § 5 (rout), § 37 (disturbing meetings), § 19 (barratry). While it was an offense in Indiana to give a verbal or oral challenge to a duel, State v. Perkins (1841),
Section 35-45-1-3(2) is aimed at the intrusiveness and loudness of expression, not whether it is obscene or provocative. Indeed, one could violate the section by "reading the scriptures in an unreasonably loud manner," Mesarosh v. State (1984), Ind.App.,
. Rationality inquiry under § 9 has historically centered on whether the impingement created by the statute is outweighed by the public health, welfare, and safety served. See, e.g., Johnson v. St. Vincent Hosp. (1980),
. In Whited v. State (1971),
. But see State v. Robertson,
. C.A. Byers, Growth of the Constitution of Indiana, 6 The Indianian 279-80 (1890). Thus, while the delegates relied heavily on the constitutions of the Ohio Valley and southeastern states, they generally borrowed only those features which promoted political inclusion, eschewing the elitist provisions favored by territorial federalists, such as tax requirement for voting, property qualifications for officeholders, unequal apportionment of representation and protection of slavery. Barnhart, supra, at 193.
. See John D. Barnhart & Donald F. Carmony, Indiana's Century Old Constitution 6, 12 (1951); Jacob P. Dunn, The Proposed Constitution of Indiana, 7 Indiana Magazine of History 100, 103 (1911); cf. Christopher B. Coleman, The Development of State Constitutions, 7 Indiana Magazine of History 41, 45 (1911) (Constitution of 1851 motivated by legislative incompetency, and exceptionally large expenditures for internal improvements).
."In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for the public information, the truth thereof may be given in evidence." Ind. Const, of 1816, art. I, § 10.
. See generally G. Alan Tarr, State Constitutionalism and “First Amendment" Rights, in Human Rights in the States 21 (Stanley H. Friedelbaum ed„ 1988).
. We use the term "pure" to emphasize that the sole issue here is the volume of defendant’s expression. Charges that a defendant was fighting, obstructing traffic or otherwise engaging in disruptive conduct would require a different analysis. Moreover, an individual who directs strength, power or violence towards police officers or who makes a threatening gesture or movement in their direction, may properly be charged with violation of Ind.Code Ann. § 35-44-3-3 (resisting, obstructing or interfering with a law enforcement officer); Spangler v. State (1993), Ind.,
. In 1851 our law recognized, as it does now, that expression might constitute a tort actionable by a private party, McJunkins v. State (1858),
. Act of Mar. 10, 1943, ch. 243, § 1, 1943 Ind. Acts 685; Act of Mar. 12, 1969, ch. 161, § 1, 1969 Ind.Acts 329 (codified at Ind.Code Ann. § 35-27-2-1 (Burns Supp.1972)).
Dissenting Opinion
dissenting.
The essence of the majority opinion is that a person facing arrest who protests by screaming vulgar profanities into the face of an arresting officer does not violate Indiana’s disorderly conduct statute prohibiting unreasonable noise. I strenuously disagree. In an apparent desire to give vitality to Art. 1, § 9, of the Indiana Constitution independent of its federal counterpart, the majority has chosen an ill-suited case and formulated a strained rationale. Today’s decision is contrary to the inten
The majority’s conclusion stems from several sources: its redefinition of the word “abuse,” its reliance on the concept of police power rather than the express language of our constitution to authorize penal sanctions for abusive speech, its recourse to a theory of “core constitutional value,” its elevation of political speech to a preferred position, and its decision to protect loud and profane epithets as political speech.
First, it seems unnecessary and inappropriate for the majority to invent a new definition for the word “abuse” as it is used in responsibility clause of the free speech provision in our state constitution:
No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.
Constitution of Indiana, Art. 1, § 9 (emphasis added). We have long recognized as “a cardinal principle of constitutional construction that words are to be considered as used in their ordinary sense; and that their ordinary and common meaning is to be attributed to them.” Tucker v. State (1941),
In 1851, when ratifying the above-quoted language, Indiana citizens would have attributed to “abuse” its plain and ordinary meaning. In contrast, the majority today redefines “abuse” to mean “the use of a thing in a manner injurious to the order or arrangement from which it derives its function.” Op. at 958. From this definition the majority then weaves its theory that the responsibility clause was intended not to apply to political speech as a “core constitutional value.” The premise, however, is flawed.
In determining the probable meaning perceived by the ratifiers, we look to dictionaries of common usage contemporaneous with the ratification. See McAnalley v. State (1987), Ind.,
Ill use; improper treatment or employment; application to a wrong purpose; as, an abuse of our natural powers; an abuse of civil rights, or of religious privileges; abuse of advantages, & c.
2. A corrupt practice or custom; as, the abuses of government.
3. Rude speech; reproachful language addressed to a person; contumely; reviling words.
4. Violation of a female.
5. Perversion of meaning; improper use or application; as, an abuse of words.
Noah Webster, An American Dictionary of the English Language 6 (1856). Considering the ordinary meaning of “abuse” leads to the conclusion that the framers and ratifiers did not envision a restrained responsibility clause inapplicable to “core constitutional values,” but rather intended the free speech right extended in Section 9 to be limited so as to not grant protection to abusive speech. Our constitution-makers did not intend protection for rude or vile language, but instead assumed that citizens would remain civilly and criminally responsible for abuse of the right.
Second, in its focus upon the extent of the police power as a limitation upon rights conferred by our constitution, the majority opinion fails to give credence to the responsibility clause of Section 9 as a separate and independent source of governmental
Third, there appears to be no need for the majority to devise its “core constitutional value” analysis. The “core” of Indiana’s free speech right is provided by the whole, not part, of Section 9. This is not an absolute right of completely unfettered, unlimited speech but one expressly tempered by its final clause, “for the abuse thereof, every person shall be responsible.” The majority disregards this responsibility clause in fashioning its “core constitutional value” theory.
Further troubling is the inconsistency between the majority’s overbreadth analysis and its subsequent limitation upon the State’s authority to punish abusive speech. The majority initially rejects' the concept of overbreadth, noting that the history and structure of the Indiana Constitution do not evince any “preferred” position for expression. Later, however, the majority elevates political expression to a preferred position by defining it as a “core constitutional value” entitled to particular deference, making it immune from statutes prohibiting unreasonable noise. This rationale is then used to engraft a judicial exception declaring that the disorderly conduct statute cannot apply to political speech otherwise disorderly.
Finally, the majority posits that unreasonable noise which would otherwise constitute disorderly conduct must be shielded from criminal penalty if it is an expression of “concern about the role of police.” Op. at 961. The majority thus concludes that the defendant's vulgar complaints constituted political speech. The message sent by today’s opinion is that persons confronted with imminent arrest may now react with unlimited noise and vulgarity — so long as such profanities include a protest about police conduct.
The Indiana citizens who wrote and ratified our constitution did not intend to create a right to curse in public, let alone at a police officer. Obscenity was not intended to be cloaked with the protection of the free speech clause. Fordyce v. State (1991), Ind.App.,
It is true that speech not constituting disorderly conduct may not be criminalized merely because it includes political protest. On the other hand, speech which does constitute disorderly conduct should not be shielded from prosecution merely because it contains such a protest.
I therefore dissent. If transfer must be granted for this Court to speak on Art. 1, § 9,1 would grant transfer only to express our affirmance and adoption of the opinion of the Court of Appeals.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion in this case. I believe the Court of Appeals opinion reported at
I do not think transfer of this case and reversal of the trial court is justified.