# Polk v. State

> Court of Appeals of Maryland · November 12, 2003 · 378 Md. 1

URL: https://www.frixlaw.com/law-library/cases/9756366

## Case

- **Full name:** Rhonda Michelle POLK v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** November 12, 2003
- **Citations:** 378 Md. 1; 835 A.2d 575; 2003 Md. LEXIS 746
- **Precedential status:** Published
- **Opinion:** Dissent by Battaglia
- **Judges:** Harrell, Battaglia
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756366

## How later opinions describe it (automated extraction)

- affirming conviction of hospital visitor whose prolonged and unreasonable screaming created a public disturbance

## Opinion text

Dissenting Opinion by
BATTAGLIA, Judge.
I respectfully dissent. The majority inappropriately accords deference to a trial court’s determination of a constitutional fact. When that determination is reviewed under the appropriate standard, however, serious First Amendment infringements become apparent, and the majority’s conclusions crumble.
I.
The focus of the analysis in this case should be on the orders issued by Corporal Sperl. Although the crime of disorderly conduct can take several forms under Section 121, the jury, in this case, convicted Polk of violating Section 121(b)(3), which declares that “[a] person may not willfully fail to obey a reasonable and lawful order of a law enforcement *22 officer made to prevent a disturbance of the public peace.” As the plain language of this provision makes clear, no violation of Section 121(b)(3) can occur unless the officer first gave an order that was “lawful.” This aspect of lawfulness is the essence of Polk’s case.
In granting Polk’s petition for a writ of certiorari, this Court sought to resolve the important constitutional question of whether Corporal Sperl issued unlawful orders that infringed on Polk’s First Amendment rights. The answer to this question requires a careful analysis of whether the particular police commands used by Corporal Sperl regulated the content or volume of Polk’s speech. The majority characterizes this pivotal constitutional question as a factual one, stating, “the issue before us is not whether Corporal Sperl’s orders were more likely content-based than content neutral, but whether the trial court’s factual determination was clearly erroneous that his orders, in the main, were directed at the volume of Polk’s speech.” Majority at 13-14. This analysis demonstrates the majority’s misunderstanding of the standard of review required in First Amendment cases. The Court should have rendered an independent review of the whole record in this case because the Supreme Court requires such independent appellate review where factual findings implicate First Amendment freedoms.
It is well-established that the Court undertakes an independent constitutional appraisal of a trial court’s determination of whether one’s First Amendment right to free speech has been infringed. See Crosby v. State, 366 Md. 518, 526 , 784 A.2d 1102, 1106 (2001) (stating that “when the issue is whether a constitutional right has been infringed, we make our own independent constitutional appraisal”) (citing Stokes v. State, 362 Md. 407, 414 , 765 A.2d 612, 615 (2001)). In cases that do not raise First Amendment issues, the Court ordinarily accepts the trial court’s findings of fact unless those findings are clearly erroneous. See Glover v. State, 368 Md. 211, 221 , 792 A.2d 1160, 1166 (2002) (applying de novo review to a question of the constitutional right to a speedy trial but stating that the trial court’s findings of fact are reviewed under a clearly *23 erroneous standard) (citing Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879, 883 (2001)). In First Amendment cases, however, the Court does not defer to fact findings that have constitutional implications; rather, the Court independently examines the “ ‘whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 , 104 S.Ct. 1949, 1958 , 80 L.Ed.2d 502, 515 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 , 84 S.Ct. 710, 727-29 , 11 L.Ed.2d 686, 709 (1964)).
The Supreme Court discussed this distinct aspect of appellate review of First Amendment cases in Bose, 466 U.S. at 498-515 , 104 S.Ct. at 1958-67 , 80 L.Ed.2d at 515-26 . There, in an opinion prepared by Justice Stevens, the Court reconciled Federal Rule of Civil Procedure 52(a), which subjects findings of fact to “clearly erroneous” review, and the requirement in First Amendment cases that an appellate court has an obligation to make an independent examination of the whole record. The trial court, sitting without a jury, had determined, under New York Times Co. v. Sullivan, 1 that there was clear and convincing evidence that a consumer magazine made a false disparaging statement with “actual malice” in a published evaluation of a Bose brand speaker. Id. at 490-91 , 104 S.Ct. at 1954 , 80 L.Ed.2d at 510 . Without deferring to the trial court, the United States Court of Appeals reviewed the determination and reversed. Bose argued before the Supreme Court that the determination of “actual malice” amounted to a factual finding, which according to FRCP 52(a), must be upheld unless clearly erroneous. The Supreme Court disagreed, holding that “the clearly-erroneous standard of [FRCP 52(a) ] does not prescribe the standard of review to be applied in reviewing a determination of actual malice.... ” Id. at 514 , 104 S.Ct. at 1967 , 80 L.Ed.2d at 525-26 .
*24 The Court in Bose presented several reasons why a determination of “actual malice” in defamation cases required such close appellate overview:
First, the common-law heritage of the rule itself assigns an especially broad role to the judge in applying it to specific factual situations. Second, the content of the rule is not revealed simply by its literal text, but rather is given meaning through the evolutionary process of common-law adjudication; though the source of the rule is found in the Constitution, it is nevertheless largely a judge-made rule of law. Finally, the constitutional values protected by the rule make it imperative that judges — and in some cases judges of this Court — make sure that it is correctly applied.
Id. at 502 , 104 S.Ct. at 1960 , 80 L.Ed.2d at 517 .
Speaking of the second of these reasons, the Bose Court explained that, “[w]hen the standard governing the decision of a particular case is provided by the Constitution, [the] Court’s role in marking out the limits of the standard through the process of case-by-case adjudication is of special importance.” Id. at 503 , 104 S.Ct. at 1961 , 80 L.Ed.2d at 518 . The Court stated that “[t]his process has been vitally important in cases involving restrictions on the freedom of speech protected by the First Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the few classes of ‘unprotected’ speech.” Id. Determinations of what constitutes libelous speech, fighting words, incitement to riot, obscenity, and child pornography all involved the “evaluation of special facts that have been deemed to have constitutional significance.” Id. at 504-05 , 104 S.Ct. at 1961-62 , 80 L.Ed.2d at 519 (citing Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 (1942) (fighting words); Brandenburg v. Ohio, 395 U.S. 444 , 89 S.Ct. 1827 , 23 L.Ed.2d 430 (1969) (incitement to riot); Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957) (obscenity); New York v. Ferber, 458 U.S. 747 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982) (child pornography)). Specifically, questions of what appeals to the “prurient interest” and what is “patently offensive,” the Court described, are “essentially questions of fact” *25 yet subject to an appellate court’s “ultimate power ... to conduct an independent review of constitutional claims.... ” Id. at 506, 104 S.Ct. at 1963 , 80 L.Ed.2d at 520 (quoting Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973)). Whenever the Court has considered the limits of unprotected speech, it:
has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confíne the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served sufficiently to narrow the category, nor served to eliminate the danger that decisions by triers of fact may inhibit the expressions of protected ideas. The principle of viewpoint neutrality that underlies the First Amendment itself ... imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected.
Id. at 505, 104 S.Ct. at 1962 , 80 L.Ed.2d at 519-20 (citation omitted).
Expounding on constitutional significance of the “actual malice” determination, the Bose Court provided insight into why constitutional claims, and First Amendment claims in particular, deserve the close appellate attention of independent review:
The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law. It emerged from the exigency of deciding concrete cases; it is law in its purest form under our common-law heritage. It reflects a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution. The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a ques *26 tion for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.”
Id. at 510-11 , 104 S.Ct. at 1965 , 80 L.Ed.2d at 523 .
Several commentators analyzing Bose have illustrated the difference between those “findings” best accorded deference and those the Supreme Court has held should be reviewed independently based on the whole record. Purely factual findings worthy of deference, as one commentator suggests, answer questions that “can be determined by direct observation and by accepting or rejecting the testimony of witnesses who are reporting their own direct observations.” George C. Christie, Judicial Review of Findings of Fact, 87 Nw. U.L.Rev. 14, 39 (1992) (hereinafter “Christie”) (emphasis added). Other scholars explain that the process of establishing “facts” involves answering “who, when, what, and where,” inquiries that “can be made by a person who is ignorant of the applicable law.” Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229, 235 (1985) (hereinafter “Mona-ghan”)(quoting, in part, L. Jaffe, Judicial Control of Administrative Action 548, 624-53 (1965).
On the other hand, some “factual findings” cannot be made by direct observation alone, but also “require some degree of conscious reflection.” Christie at 40. When such reflection is necessary, one must resolve “why it is necessary to decide the question and what will be the consequences of deciding the question one way or the other.” Id. at 39^0. Commentators have described the process of making determinations of this nature as “law application” or answering “mixed questions of law and fact.” See Monaghan at 236; Christie at 39. Law application occurs frequently in areas outside of the First Amendment context, such as when a jury decides whether a defendant in tort case was negligent. When constitutional rights are not at stake, appellate courts typically review these judgments with some degree of deference.
*27 The Supreme Court mandates, however, that where “law application” implicates First Amendment freedoms, appellate courts should not defer to the trial court’s judgment. Rather, the appellate court “has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.” Bose, 466 U.S. at 499 , 104 S.Ct. at 1958 , 80 L.Ed.2d at 515 (quoting New York Times Co., 376 U.S. at 284-86 , 84 S.Ct. at 728-29 , 11 L.Ed.2d at 708-09 ). Sometimes referred to as “constitutional fact” review, the requirement of rendering an independent determination of First Amendment law application ensures, as the Bose Court recognized, that the appellate courts, on a case by case basis, develop the meaning of the constitutional principles at issue. Commentators consider this a form of norm elaboration. Monaghan at 231. That is, an appellate court’s case-by-case filtering of specific facts through First Amendment principles serves to assign practical significance to those principles. Without reference to specific facts, First Amendment standards are merely abstract principles. As Professor Monoghan summarized:
Constitutional fact review presupposes that appellate courts will render independent judgment on any issues of constitutional “law” presented. Its distinctive feature is a requirement of similar independent judicial judgment on issues of constitutional law “application.” That is, the courts must sort out the relevant facts and apply to them the controlling constitutional norms.
Monaghan at 238.
First Amendment issues are no less apparent in the case at bar than they were in Bose. Corporal Sperl issued orders seeking to control Polk’s speech. Whether those orders were directed at her volume, as the trial court found, or directed at her message, they must survive First Amendment scrutiny. This determination, though, dictates the level of scrutiny we apply to those orders, and, to a great extent, the lawfulness of those orders; it is inextricably tied to whether Polk’s speech was protected by the First Amendment. Only by conducting *28 an independent review of Polk’s case based on the entire record may this Court set the limits of what types of speech are protected under the First Amendment. This Court’s duty to declare the meaning of the First Amendment cannot be delegated to the trier of fact. The freedoms enjoyed under the First Amendment are simply too precious to risk a trial court’s mistaken interpretation of how a police officer may control an individual’s speech.
Moreover, the trial court’s judgment that Corporal Sperl directed his orders at the volume of Polk’s speech rather than its content was not the type of factual finding to which an appellate court accords deference. See Wells v. City and County of Denver, 257 F.3d 1132, 1146-47 (10th Cir.2001) (citing Bose and reviewing a determination of content-neutrality independently based on the whole record); AIDS Action Comm. v. Massachusetts Bay Transp. Auth., 42 F.3d 1, 7-8 (1st Cir.1994) (reviewing the entire record independently to determine whether a government restriction was a content-based or content-neutral); see also Pack Shack, Inc. v. Howard County, 377 Md. 55, 71 , 832 A.2d 170, 180 (2003) (considering the question of content-neutrality without regard to the trial court’s finding on that matter).
The State presented evidence at trial that Corporal Sperl had issued a series of commands to Polk as she was leaving the hospital. Corporal Sperl, himself, testified that he commanded Polk to “stop her cursing,” “stop her profanity,” “keep [her] mouth quiet,” and “keep [her] mouth shut.” The State did not contend that the officer’s testimony misstated the words he used in issuing the orders to Polk, nor did the State dispute that Corporal Sperl referred specifically to Polk’s profanity in those orders. Because no conviction under Section 121(b) may rest on an unlawful police order, the trial judge had an obligation, upon Polk’s motion for judgment of acquittal, to decide the lawfulness of police orders that sought to restrict both the content and volume of an individual’s speech.
*29 To answer this question properly, the judge could not merely rely on direct observation of the testimony, which might allow him to decide the time and place the incident occurred or the words Corporal Sperl used to issue his commands. Instead, the process of making this determination involved examining First Amendment law to decide whether it permitted mixed regulation of speech content and volume. The Supreme Court in Bose directed that this type of analytical process must be subjected to independent review of the appellate court. Because Polk’s First Amendment rights were implicated by the trial court’s finding, the Court should not be bound by the clearly erroneous standard of review. The majority should have employed a de novo review of this case to answer the constitutional question of whether the orders given by Corporal Sperl were directed at the volume or content of Polk’s speech.
II.
By deciding that Corporal Sperl directed his orders at the volume of Polk’s voice, the trial judge misapplied an established First Amendment principle to the facts of this case. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” This command, by operation of the Fourteenth Amendment, applies with equal force to state and local governments. Eanes v. State, 318 Md. 436, 445 , 569 A.2d 604, 608 (1990) (citing Gitlow v. New York, 268 U.S. 652 , 45 S.Ct. 625 , 69 L.Ed. 1138 (1925)). Without question, however, “the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses.” Id. at 446, 569 A.2d at 608 -09 (quoting Cohen v. California, 403 U.S. 15, 19 , 91 S.Ct. 1780, 1785 , 29 L.Ed.2d 284, 290 (1971)); see also R.A.V. v. St. Paul, 505 U.S. 377, 382-83 , 112 S.Ct. 2538, 2542-43 , 120 L.Ed.2d 305, 317 (1992) (discussing the restrictions on speech that are permissible under the First Amendment). For example, consistent with the First Amendment, States may restrict the use of “fighting words,” Chap- *30 linsky, 315 U.S. at 571-72 , 62 S.Ct. at 769 , 86 L.Ed. at 1035 , and in a limited way, restrict the use of “obscenity,” see Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973), and defamatory speech, see Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974); New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Beauharnais v. Illinois, 343 U.S. 250 , 72 S.Ct. 725 , 96 L.Ed. 919 (1952).
Nevertheless, as the Supreme Court’s and our cases make clear, “[i]t is rare that a regulation restricting speech because of its content will ever be permissible.” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 818 , 120 S.Ct. 1878, 1889 , 146 L.Ed.2d 865, 882 (2000). Rather, such regulation is prohibited unless it “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.... ” Eanes, 318 Md. at 447 , 569 A.2d at 609 (quoting Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 , 103 S.Ct. 948, 955 , 74 L.Ed.2d 794, 804 (1983)); see also Playboy, 529 U.S. at 813 , 120 S.Ct. at 1886 , 146 L.Ed.2d at 879 . Therefore, “[w]here the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists.” Playboy, 529 U.S. at 813 , 120 S.Ct. at 1886 , 146 L.Ed.2d at 879 .
Guided by these principles, this Court has held on two occasions that convictions for disorderly conduct based on the profane nature of one’s speech run afoul of the First Amendment. Diehl v. State, 294 Md. 466, 470-74 , 451 A.2d 115, 118-20 (1982), cert. denied, 460 U.S. 1098 , 103 S.Ct. 1798 , 76 L.Ed.2d 363 (1983); Downs v. State, 278 Md. 610, 618 , 366 A.2d 41, 46 (1976). In Downs , the Court addressed whether the uttering of “the fucking niggers in this county are no better than goddamn policemen” constituted protected speech. 278 Md. at 611 , 366 A.2d at 42 . Downs spoke these words in a loud voice while conversing with three friends over breakfast in a crowded restaurant. Id. Overhearing the vulgarity, a police officer approached Downs, told him that his talk was *31 disruptive, and warned that “if he did not refrain from using such profane language,” he would arrest him. Id., 366 A.2d at 42-43 . When Downs foolishly replied, “You ain’t bad enough to place me under arrest,” the officer arrested him, and a jury later convicted him of several offenses, including disorderly conduct. Id. at 611-12 , 366 A.2d at 43 . The Court reversed the convictions, holding that “Downs’ remarks were not the kind of personally abusive epithets which fall outside of the protection of the First Amendment under the rubric of ‘fighting’ words.” Id. at 618 , 366 A.2d at 46 . Rather, the Court concluded, “He engaged in protected speech. That his views might be offensive to someone who overheard him does not warrant a conviction for disorderly conduct.” Id
The Court further developed this line of reasoning in Diehl, 294 Md. 466 , 451 A.2d 115 . There, a patrolling police officer pulled over a car for “squealing wheels.” Id. at 467 , 451 A.2d at 116 . After both the driver and a passenger got out of the car, the officer ordered them to get back into the vehicle. The driver complied, but the passenger, Diehl, yelled at the officer, “Fuck you, Gavin;” “I know my rights;” “you can’t tell me what to do....” Id. at 468 , 451 A.2d at 116 . The officer again ordered Diehl into the car, warning him that he would be arrested if he did not obey. Id at 468, 451 A.2d at 117 . When Diehl refused to follow the instructions, the officer arrested him for “screaming obscenities and ... drawing a crowd.” Id Diehl was convicted of numerous offenses, including violating former Article 27, Section 121, which prohibited “wilfully disturbing] any neighborhood in ... [any] city, town or county [of this State] by loud and unseemly noises, or ... profanely curs[ing] or swear[ing] or us[ing] obscene language upon or near to any street or highway within the hearing of persons passing by or along such highway.” Following an appeal to the Court of Special Appeals, which affirmed the convictions, we issued a writ of certiorari and then reversed. Id at 469, 451 A.2d at 117 .
At the outset in Diehl , the Court noted that Diehl’s “oral communication ... clearly constituted speech” and, therefore, was entitled to First Amendment protection. Id at 471, 451 *32 A.2d at 118 . Significantly, we observed that “Downs ... teaches us that the use of the word ‘fuck’ is not punishable in the absence of compelling reasons.” Id. at 477 , 451 A.2d at 122 . Diehl’s words, we concluded, although specifically directed at the police officer, did not qualify as “fighting words” because they were spoken, not as a “personally abusive epithet hurled to invoke immediate and violent response,” but as an “emotional and emphatic response to [the officer’s] order.” Id. at 478 , 451 A.2d at 122 .
These cases demonstrate clearly that an order directed at controlling a speaker’s use of profanity constitutes an impermissible content-based restriction on free speech. Indeed, the State does not dispute this axiom, stating in its brief that the “First Amendment would render unlawful, as constituting disorderly conduct, any order to refrain from profanity.” The State also does not contend that Polk used “fighting words,” conceivably because there is no evidence that her speech was intended “to invoke immediate and violent response,” Diehl, 294 Md. at 478 , 451 A.2d at 122 , or because the words were spoken to a police officer who “may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen and be less likely to respond belligerently . . . .” Id. at 477 , 451 A.2d at 121 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135 , 94 S.Ct. 970, 973 , 39 L.Ed.2d 214, 220 (1974) (Powell, J., concurring)). Consequently, the content of Polk’s speech, which included the same “profanity” at issue in Downs and Diehl , was protected under the First and Fourteenth Amendments.
The majority determines that Corporal Sperl’s orders to Polk sought to restrict not the content of her speech, but its volume. Under the majority’s view, the orders were permissible, “content-neutral” regulations to control unreasonably loud noise caused by Polk. In support of its assertions, the majority relies on this Court’s decision in Eanes v. State, 318 Md. 436 , 569 A.2d 604 (1990). The Eanes Court affirmed the conviction of an anti-abortion protester, whose loud preaching during the mid-morning hours in a busy downtown area constituted a “wilfulQ disturb[ance] of any neighborhood ... by loud and *33 unseemly noises” in violation of former Article 27, Section 121. Id. at 440-41, 468 , 569 A.2d at 606, 620 . Reading the statute’s restriction on speech to be “clearly content-neutral,” the Court subjected it to constitutional scrutiny to determine whether it was “narrowly tailored to serve a substantial governmental interest.” Id. at 449 , 569 A.2d at 610 . “Sound,” the Eanes Court explained, “is one of the most intrusive means of communication,” and the “government ha[s] a substantial interest in protecting its citizens from unwelcome noise.” Id. at 449, 453 , 569 A.2d at 610 , 612 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 796 , 109 S.Ct. 2746, 2756 , 105 L.Ed.2d 661, 678 (1989)). Because the statute “prohibit[ed] only that volume level of communication that unreasonably disturbs individuals whose rights to be free from aural abuse override the right of a speaker to address them by direct or incidental oral communication,” it “serve[d] a substantial interest and [was] narrowly tailored to serve those ends.” Id. at 453-54, 569 A.2d at 612 . Based on the trial judge’s findings that Eanes’s speech was loud and actually disturbed residents and business people in the area, the Court concluded:
[The trial judge] properly balanced Eanes’s first amendment rights against a substantial public interest protected by a narrowly drawn, content-neutral regulation. Eanes was warned to lower his voice by a police officer whose action was based on complaints from members of the captive audience. Eanes chose not to comply. Under these circumstances, he was properly convicted of a violation of the statute.
Id. at 468 , 569 A.2d at 620 . 2
The teachings of Eanes, Diehl, and Downs , expose the pivotal constitutional question in this case: whether Corporal *34 Sperl’s orders impermissibly restricted the content of Polk’s speech. If the officer directed his orders to restrict the use of profanity, he issued a content-based order, which is unlawful unless it “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.... ” Eanes, 318 Md. at 447 , 569 A.2d at 609 (quoting Perry Education Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804 . On the other hand, if the commands were an attempt to regulate the volume of Polk’s language, they may be able to withstand constitutional scrutiny under Eanes if they were “narrowly tailored to serve a substantial governmental interest.” Id. at 449 , 569 A.2d at 610 .
An examination of the entire record reveals that Corporal Sperl’s orders unlawfully attempted to regulate Polk’s protected speech. First and foremost, the officer told Polk to “stop her profanity” and “stop her cursing.” These commands unquestionably were aimed at controlling the words Polk used and not the volume of her voice. Although the record indicates that Polk also was instructed to “keep your mouth shut” and “keep your mouth quiet,” these phrases were always used in conjunction with the references to the content of Polk’s speech. Where an officer issues orders that attempt to restrict protected speech, those orders are “content-based” and must be narrowly drawn to achieve a compelling state interest. See Eanes, 318 Md. at 447 , 569 A.2d at 609 (quoting Perry Education Assn., 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at 804 ).
This is so even if the “content-based” orders are combined, as they were here, with other commands that, by themselves, might not raise constitutional concerns. That is, despite Corporal Sperl’s alleged attempt to quiet Polk’s voice, it is his order to control her speech content that dictates which level of scrutiny this Court should apply. Support for this approach resides in the Supreme Court’s longstanding prohibition of *35 laws that “do[] not aim specifically at evils within the allowable area of [government] control, but ... sweep[] within [their] ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech.... ” See Thornhill v. Alabama, 310 U.S. 88, 97 , 60 S.Ct. 736, 742 , 84 L.Ed. 1093, 1100 (1940); see also Secretary of State of Md. v. Joseph H. Munson Co. Inc., 467 U.S. 947, 967-68 , 104 S.Ct. 2839, 2852-53 , 81 L.Ed.2d 786, 802-03 (1984) (“Where, as here, a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack.”); Terminiello v. Chicago, 337 U.S. 1, 4-5 , 69 S.Ct. 894, 895-96 , 93 L.Ed. 1131 , 1134-35 (1949) (invalidating under the First Amendment the application of a city code provision that the trial court had construed as prohibiting conduct, which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance,” because the prohibited conduct, in part, encompassed protected speech); Cantwell v. Connecticut, 310 U.S. 296, 303, 308-11 , 60 S.Ct. 900, 903, 905-06 , 84 L.Ed. 1213, 1215, 1220-21 (1940) (holding that the “general and undefined” common law offense of “inciting a breach of peace” was an unconstitutional proscription of a wide range of activities, some of which were protected by the First Amendment); Laurence H. Tribe, American Constitutional law 1022 (2nd ed. 1988) (“A law is void on its face if it ‘does not aim specifically at evils within the allowable area of [government] control, but ... sweeps within its ambit other activities that constitute an exercise’ of protected expressive or associational rights.”) (quoting Thornhill, 310 U.S. at 97 , 60 S.Ct. at 742 , 84 L.Ed. at 1100 ). 3
*36 In Thornhill , the Supreme Court struck down an Alabama state statute, which prohibited all loitering or picketing around a place of business, on grounds that it violated the First Amendment. Id. at 104 , 60 S.Ct. at 745, 84 L.Ed. at 1103. The Court concluded that, even though the statute prohibited conduct that the Constitution did not protect, such as violence and breaches of the peace, it also placed restrictions on “peaceful and truthful discussion of matters of public interest,” activities that enjoy First Amendment protection. Id. Because the law did not “aim specifically” at the activities that States may regulate validly, it therefore constituted an unlawful, “sweeping proscription of freedom of discussion.” Id. at 104, 105, 60 S.Ct. at 745, 746, 84 L.Ed. at 1103, 1104.
In Gooding v. Wilson, 405 U.S. 518 , 92 S.Ct. 1103 , 31 L.Ed.2d 408 (1972), the Court again held unconstitutional a statute that penalized a range of conduct that included certain protected speech. The Georgia statute at issue established criminal penalties for certain uses of “opprobrious words or abusive language, tending to cause a breach of the peace.” Id. at 519 , 92 S.Ct. at 1104 , 31 L.Ed.2d at 412 . The Court recognized that statutes touching on the constitutional guarantees of free speech “must be carefully drawn or authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Id. at 522 , 92 S.Ct. at 1106 , 31 L.Ed. at 414. In light of this requirement, the Court concluded that the Georgia statute, as defined by the state courts, “d[id] not define the standard of responsibility with requisite narrow specificity.” Id. at 527, 92 S.Ct. at 1108 , 31 L.Ed.2d at 417 . Although the statute did apply to “fighting words” (conduct for which the First Amendment offered no protection), its strictures also affected protected *37 expression and, consequently, violated the First Amendment. Id. at 528 , 92 S.Ct. at 1109 , 31 L.Ed.2d at 417 .
Very recently, in Virginia v. Black, 538 U.S. 343 , 123 S.Ct. 1536 , 155 L.Ed.2d 535 (2003) (plurality opinion), the Supreme Court applied the principles expressed in Gooding to invalidate a provision of Virginia’s statutory scheme, prohibiting cross-burning with the intent to intimidate. The provision at issue stated that “any such burning of a cross,” established a prima facie case of an intent to intimidate. Id. at —, 123 S.Ct. at 1550 , 155 L.Ed.2d at 554 . This language, therefore, rendered all cross-burning subject to criminal sanctions, including that which was intended as an expression of ideology not intimidation. By failing to distinguish between different types of cross-burning (i.e., those carried out with the intent to intimidate and those carried out as political expression), the prima facie provision penalized both protected as well as unprotected acts of expression. Id. at —, 123 S.Ct. at 1151 , 155 L.Ed.2d at 556 . The Court held, therefore, that the prima facie evidence provision was “unconstitutional on its face.” Id. at —, 123 S.Ct. at 1151-52 , 31 L.Ed.2d at 557 .
Consistent with the spirit of these Supreme Court cases, Corporal Sperl’s orders in this case do not pass constitutional scrutiny. The orders required Polk to “stop her cursing,” “stop her profanity,” “keep [her] mouth shut,” and “keep [her] mouth quiet.” The collective effect of these prohibitions embraced not only the volume of Polk’s voice, but also the content of her message. The orders were not narrowly drawn to cover only the aspects of Polk’s speech that were “content-neutral” and that the First Amendment allows to be regulated more freely. Rather, the orders were susceptible of application to “content-based” speech and, therefore, should be subjected to a stricter standard of constitutional scrutiny.
Under this stricter standard of First Amendment scrutiny, as we have previously discussed, the content of Polk’s speech “is not punishable in the absence of compelling reasons.” Diehl, 294 Md. at 477 , 451 A.2d at 122 (citing Downs, 278 Md. at 618 , 366 A.2d at 46 ). Like in Diehl , where the motorist *38 uttered “vulgar language” at a police officer, there are no compelling reasons in this case that warranted Corporal Sperl’s proscription of Polk’s choice of language. See id. at 478 , 451 A.2d at 122 . No evidence in the record suggests that the conditions in and around the hospital necessitated completely prohibiting the use of vulgar language. In the absence of compelling reasons to forbid Polk’s use of certain words, Corporal Sperl had no lawful justification for issuing orders to “stop her cursing” and “stop her profanity.”
Nevertheless, the majority insists on reaching a different result in this case because the alleged conduct took place within a hospital, which has a particular interest in avoiding unreasonably loud noises. As support for this assertion, the majority points to the decision of an Indiana intermediate appellate court in Radford v. State, 640 N.E.2d 90 (Ind.Ct.App.1994). The court in that ease affirmed the disorderly conduct conviction of Radford, a former hospital employee whose unpleasant encounter with a police officer inside the hospital led to public disturbance. Id. at 91-92 . After receiving a report that Radford had been removing hospital property from her former work station, the police officer approached the employee in a hospital hallway near the OB-GYN clinic. Id. at 91 . When the officer asked her to step into an alcove to avoid obstructing traffic in the hallway and demanded to see the contents of the box she was carrying, Radford “loudly protested” and “continually got angry and in a very loud and abusive voice.” Id. at 91-92 . The officer asked Radford to “quiet down” at least three times, but she refused. Id. Radford was then charged and convicted of disorderly conduct under an Indiana statute prohibiting a person from making “unreasonable noise and continuing] to do so after being asked to stop.” Id. at 92, 94 .
On appeal, the court initially reversed the conviction, holding that Radford’s speech “was [protected] political speech ... protesting the legality and appropriateness of police conduct.” Id. at 92 . The court, however, reheard the case and affirmed the conviction. Id. at 91 . The court opined that the statutory prohibition of unreasonable noise was “content-neutral” and *39 applied to the volume of Radford’s speech. Id. at 92 . Additionally, the court observed that the type of speech in which Radford engaged was not “purely political” in nature and that the “forum” of Radford’s speech “was a quiet hallway of a hospital____adjacent to the OB-GYN clinic and close to the recently born baby nursery.” Id. at 94 . It characterized Radford’s loud speech as “harmful and abusive” and stated that it “destroyed [the patients’] right to a quiet and peaceful environment.” The court concluded, therefore, that “Radford made unreasonable noise and continued to do so after being asked to stop, as required for conviction under [the applicable Indiana statute].”
Radford is readily distinguishable from the case before us on several grounds. Most importantly, unlike the present case, the officer in Radford never directed his orders at the content of speech. He offered instructions only to “quiet” the volume of Radford’s unreasonably noisy voice, not to limit her word choice. In addition, the incident in Radford occurred entirely within the confines of the hospital walls and near the OB-GYN clinic where patients were likely to be disturbed, and the court was persuaded that this setting should be protected from “disturbing noise” for the “safety of those hospitalized.” The episode in the present case, by contrast, took place near the Human Resources Department and eventually outside of the hospital. There is no evidence in the record that patients were under treatment nearby or that the area adjacent to Human Resources, like an OB-GYN clinic, required special noise control. It is also notable that Polk was arrested after she had left the building. The exchange between Corporal Sperl and Polk reached its pinnacle, not inside the hospital, but as she was walking outside to the parking garage. Only then, when Polk was outside the hospital and away from any sensitive areas, did Corporal Sperl decide to take her into custody, even though the volume of her voice at that point was much less of a concern. One can only speculate whether the events that transpired inside the hospital formed the basis for Polk’s arrest, unlike in Radford where the events and arrest occurred wholly inside the hospital walls.
*40 Additional aspects of the majority’s analysis in this case are similarly troublesome. The majority contends that “ample testimony before the trial court” supports that “Corporal Sperl issued orders aimed, in the main, at the volume of Ms. Polk’s speech.” Majority at 14. This conclusion is defective for several reasons. First, the majority accepts the proposition that Corporal Speri’s orders were volume-based despite Corporal Sperl’s own testimony establishing that he told Polk to “stop [her] profanity” and “stop [her] cursing.” Under the majority’s analysis, police would be permitted to justify content-based speech restrictions by claiming an intention to reduce the volume of one’s voice. This precedent encourages unlawful regulation of an individual’s message under the pretext of noise control.
In addition, the majority’s reasoning inappropriately concentrates on the officer’s “aim” in issuing his order. In other words, the majority allows a police officer’s subjective intentions to dictate the Court’s evaluation of the police command’s lawfulness. The Court, instead, should focus its analysis on the actual words used by the Corporal. A reasonable person would have no reason to believe that only the volume of his or her voice is the target of an order to “stop your cursing” or “stop your profanity.” The plain meaning of those specific references to speech content would lead a reasonable person to conclude that the officer objects to the message the speaker is conveying. The Court should not require one in Polk’s position to obey a facially content-based police order because the officer intended his mandate to reach only the speaker’s volume.
Yet, the majority makes a significant effort to highlight the volume of Polk’s speech. It pinpoints the testimony describing Polk’s behavior as “screaming,” “tirades of vulgarity,” and “yelling.” The emphasis on the actual volume of Polk’s speech, however, is only a diversion from the consequential issue. If Corporal Sperl ordered Polk to refrain from cursing, as he did, the particular order is still subject to strict First Amendment scrutiny even if the sound of Polk’s voice carried across the Chesapeake Bay. Polk’s “use of vulgar language *41 does not evolve into a crime simply because persons in the area stopped, looked, and listened.” Diehl, 294 Md. at 478 , 451 A.2d at 122 . One violates Section 121(b)(3) only by wilfully failing to obey a lawful command, and the State has not presented sufficiently compelling reasons for justifying the content-based orders to Polk that she “stop [her] cursing” and “stop [her] profanity.” Consequently, Corporal Sperl’s orders unlawfully restricted the content of Polk’s speech. 4 In the absence of a lawful order, Polk’s conviction of disorderly conduct under Section 121(b)(3) cannot be supported by the evidence.
Because Polk’s conviction for disorderly conduct is without support, it follows necessarily that the evidence does not support her conviction of resisting arrest. It is well settled that, “one illegally arrested may use any reasonable means to effect his escape, even to the extent of using such force as is reasonably necessary.” Diehl, 294 Md. at 479 , 451 A.2d at 123 (citing Rogers v. State, 280 Md. 406 , 373 A.2d 944 , cert. denied, 434 U.S. 928 , 98 S.Ct. 412 , 54 L.Ed.2d 287 (1977); Sugarman v. State, 173 Md. 52 , 195 A. 324 (1937)); see State v. Wiegmann, 350 Md. 585, 607 , 714 A.2d 841, 851 (1998) (“[W]e decline to abolish the long-standing common law privilege permitting persons to resist an illegal warrantless arrest”). Corporal Sperl’s orders to Polk were unlawful, so his subsequent arrest of her for violating those orders was also illegal. *42 Polk’s use of force in resisting that illegal arrest, therefore, did not constitute a crime.
IY. Conclusion
By deferring to the trial court’s conclusion that Corporal Sperl directed his orders at Polk’s volume, the majority ignores an essential aspect of this Court’s role as a appellate body. The majority opts to avoid the highly significant constitutional issue in this case in favor of upholding a police order, which, it admits, was at least partially directed at Polk’s speech content. Majority at 14 (“The record contains ample testimony before the trial court supporting its finding that Corporal Sperl issued orders aimed, in the main> at the volume of Ms. Polk’s speech.”) (emphasis added). Because Corporal Sperl’s orders restricted the content of Polk’s speech, they were not “lawful and reasonable” as required by Section 121(b)(3). Thus, Polk had no obligation to comply •with the officer’s orders or submit to the arrest. I would reverse the judgment of the Court of Special Appeals.
BELL, C.J. and ELDRIDGE, J., authorize me to state that they join in this dissent.
. In New York Times v. Sullivan, the Supreme Court established the requirement for a finding of “actual malice” in certain types of defamation actions. 376 U.S. at 285, 84 S.Ct. at 727 , 11 L.Ed.2d at 708 .
. Judge Eldridge, in his dissenting opinion in Eanes , disagreed that the speech at issue in that case warranted a criminal conviction. 318 Md. at 500 , 569 A.2d at 635 (Eldridge, J., dissenting). He believed, instead, that Eanes “was engaged in free speech in its 'most pristine and classic form' ” at the time of his arrest. Id. at 472 , 569 A.2d at 622 (quoting Edwards v. South Carolina, 372 U.S. 229, 235 , 83 S.Ct. 680, 683 , 9 L.Ed.2d 697, 702 (1963)). He also took the position that the majority, *34 by emphasizing the importance of volume control, "overlooked that sound, in the form of the spoken word, is the most basic thing protected by the First Amendment.” Id. at 476, 569 A.2d at 624 .
. Attempting to distinguish these cases, the majority points out that each one “involves a facial constitutional challenge to a statute.” Because Polk did not challenge the facial validity of Section 121, the majority claims, the cases are “inapposite to the case at hand.” Majority at 16. The distinction relied upon is without meaning. Thornhill and its progeny stand for the proposition that overly broad government *36 speech regulation, whether in the form of enacted legislation or impromptu police orders, violates the First Amendment right to free speech. The substance of the government regulation, not its form or source, should drive the constitutional analysis. It is highly unlikely that the Supreme Court’s analysis would turn on whether a police officer or legislative body acted to infringe upon one's constitutional right.
. Other circumstances in this case undermine the State's position that Corporal Sperl issued a "reasonable and lawful order” under Section 121(b)(3). Assuming the orders in this case were lawful, which they were not, I question whether they were reasonable under the circumstances. The trial testimony suggests that the officer may have shared some of the responsibility for aggravating the commotion in the hospital. Upon first encountering Polk on the day of the incident, Corporal Sperl held her pay stub above his head and out of her reach while he asked a Human Resources employee whether he could turn it over to Polk. Even when Polk began walking toward the hospital exit to leave, Corporal Sperl followed close behind, commenting provocatively, “I feel sorry for your child.” It is within this context — a tense situation made worse by the officer’s inflammatory conduct — that Corporal Sperl then ordered Polk not to talk. I would decline to construe Section 121(b)(3) in a manner that punishes a citizen's emotional yet nonviolent response to a taunting police officer.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756366. Public record. Not legal advice.