Appendix — Eanes v. Maryland
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upreme Cort, U.S.
ZRIiLED
| MAY 7 1990
89-1745
YOSEPH F. SPANIOL, UR,
No. CLERK
Se
IN THE —
Supreme Court of the United States
OCTOBER TERM, 1989
JERRY WAYNE EANES,
Petitioner,
Vv.
STATE OF MARYLAND,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND
APPENDIX
LARRY L. CRAIN*
105 Westpark Drive, Suite 450
Brentwood, TN 37027
(615) 377-1107
JOHN W. WHITEHEAD
P.O. Box 7482 ;
Charlottesville, VA 22906
(804) 978-3888
Participating Attorneys For
THE RUTHERFORD INSTITUTE
Attorneys for the Petitioner
April 20, 1990
*Counsel of Record for Petitioner
Balmar Legal Publishing Division, Washington, D.C. 20005 (202) 659-3610
Jerry Wayne EANES
v.
STATE of Maryland.
No. 1, Sept. Term, 1989.
Court of Appeals of Maryland.
Feb. 8, 1990.
Argued Before MURPHY, C.J., and ELDRIDGE, COLE,
RODOWSKY, McAULIFFE, ADKINS and BLACKWELL,* JJ.
ADKINS, Judge.
Section 121 of Article 27 (1987 Repl. Vol.) makes it unlawful
for anyone to “wilfully disturb any neighborhood in [any Maryland]
city, town or county by loud and unseemly noises....” In the case before
us, we must decide whether this proscription is constitutional when
used by the State to limit the volume level of speech protected by the
first amendment to the United States Constitution.! Before addressing
this issue, however, we set out the facts in some detail.
I.
This case arises in the context of an anti-abortion demonstration
which took place in front of the Hagerstown Reproductive Clinic
(Clinic) on 18 May 1988. The Clinic is located on West Washington
Street, a congested, one-way, two-lane thoroughfare in Hagerstown.
* Blackwell, J., now retired, participated in the hearing and conference of this case
while an active member of this Court; after being recalled pursuant to the Constitution,
Article IV, Section 3A, he also participated in the decision and adoption of this
opinion.
' “Congress shall make no law . . . abridging the freedom of speech....” This
command is directed to state and local government by the fourteenth amendment.
Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). As petitioner’s
contentions are based solely on the guarantee of freedom of speech under the first
amendment, we do not deal with the similar guarantee under Article 40 of the
Maryland Declaration of Rights. See Sigma Delta Chi v. Speaker, Md. House of
Delegates, 270 Md. 1, 4, 310 A.2d 156, 158 (1973).
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The building which houses the Clinic also houses two other businesses
and at least one residential apartment. Across the street from the Clinic
is a residential apartment building.
On the morning of 18 May, petitioner Jerry Wayne Eanes
(Eanes) was part of a small group that had gathered in front of the
Clinic to, in Eanes’s words, “assemble [,] to speak out against abortion,
to pass out gospel tracts [and] to try and talk to girls that are walking
by fin order to explain the evils of abortion].” Eanes’s primary method
of opposing abortion, however, was “to preach the gospel of Jesus
Christ.” Indeed, he asserted that his purpose was to preach to the entire
neighborhood.”
Eanes and another man, Timothy Schuller, preached that morn-
ing between approximately 10:30 a.m. and 12:00 p.m. Each spoke for
short periods of time at varying intervals. Each spoke unaided by any
artificial amplification. People employed in the vicinity and local
residents complained to the Hagerstown Police Department (Depart-
ment) that they were being disturbed by the loudness of the preaching.
At least one resident left her home and complained to the
demonstrators. She requested that the noise level be reduced. The
administrator of the Clinic left her office and complained directly to
Eanes. She indicated to him that the noise was disrupting her work and
requested that he quiet down. Police Officer Feigly, who had
responded to complaints received at the Department, also spoke with
Eanes and with Schuller. He explained that a number of noise com-
plaints had been received and requested that the volume level of the
speech be reduced.
After warning Eanes, Officer Feigly left the scene, although it
appears from the record that other police officers remained in the area.
He returned approximately forty minutes later in response to further
noise complaints received by the Department. At that time he observed
7 Preaching on the public street was Eanes’s only activity on West Washington
Street on 18 May 1988. There is no suggestion that he made any effort to restrain
physically anyone who attempted to enter the Clinic or that he tried to block access
to the Clinic (see Ch. 807, Acts of 1989). Nor does the State contend that he threatened
anyone with physical violence or that he trespassed on private property. Nor did he
attempt to incite his listeners to violence, use profanity or obscenity, or hurl “fighting
words” at his listeners.
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Eanes shouting in a loud voice. He then placed Eanes under arrest for
disturbing the peace in violation of § 121.
On 2 August 1988, the District Court of Maryland sitting in
Washington County (Glaser, J.) found Eanes guilty of disturbing the
peace in violation of § 121. On 15 December 1988, Eanes obtained de
novo review of his conviction before Judge Frederick C. Wright, III,
of the Circuit Court for Washington County.
At that trial the State presented eleven witnesses who testified
as to Eanes’s conduct on 18 May: three residents, three local business
people, one pedestrian, one police cadet, and three police officers. All
generally characterized Eanes’s preaching as very or extremely loud.
His conduct was more specifically described as “screaming without
screeching,” “shouting and screaming,” “yelling and screaming at the
top of his voice.” Each of the first six witnesses listed above testified
that they were disturbed in their homes or places of business and that
it was the loudness and tone they found objectionable, not the message
Eanes conveyed. One resident, unable to put her son down for his nap,
testified that she and her child were forced to leave their apartment
due to the noise. Another resident, in an apartment in.the back of the
building across the street from the Clinic, testified that her husband’s
sleep (he worked the night shift) was disrupted. Each of the three
State’s witnesses who were employed in the area testified that the
volume level of Eanes’s speech was so great that it interfered in some
manner with their work.
Although there was some conflicting testimony, several of the
witnesses agreed that Eanes could readily be heard above the traffic
noise. One witness testified that Eanes was “far louder than the vehicle
noises,” while others testified that he “overpowered” or “overtook”
the sounds from the street. It also was said that Eanes could be heard
as far away as “the square,” a location stated to be a block and a half
from where Eanes was preaching.
Eanes, testifying in his own defense, did not, for the most part,
dispute this evidence. He testified that in preaching in front of the
Clinic, he raised his voice. When asked why he raised his voice, he
replied:
Because I’m speaking not just to the people in that build-
ing[.] I was speaking to the general people that were in that
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area, the bystanders, the people driving by, the people that
I knew were going to be coming in.
Based on the evidence presented, Judge Wright found Eanes “guilty
of willfully disturbing the peace and tranquility of that particular
neighborhood during the morning of May the 18th ... by making loud
and otherwise unacceptable[,] improper under the circumstances
noises.”
Il.
Eanes raises several constitutional challenges to his conviction.
He insists that in Diehl v. State, 294 Md. 466, 451 A.2d 115 (1982),
cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 363 (1983),
this Court definitively limited application of the statutory prohibition
against “loud and unseemly noises” to speech that falls outside the
protective reach of the first amendment; speech, for example, that
advocates imminent, lawless action. Bereft of such a limitation, he
argues, the statute is left unconstitutionally vague and overbroad. He
concludes that even if § 121 is found to overcome those hurdles, it
cannot, consonant with the first amendment, be enforced to limit the
volume level of speech that is not artificially amplified.
The State, for its part, disputes each of these contentions. It takes
the position that the provision at issue is a content-neutral regulation
of the manner of protected speech, one that is neither vague nor
overbroad, and one that was properly applied in the case at bar. Noting
the substantial disparity between the parties’ understanding of the
constitutionally permissible scope of § 121, we granted Eanes’s peti-
tion for writ of certiorari, 315 Md. 223, 554 A.2d 351 (1989), in order
to consider if and in what manner § 121 may be applied as a limitation
on protected speech.
Ill.
A.
We begin by disagreeing with Eanes’s evaluation of Diehl. He
reads that opinion much too broadly. We dealt there not with a
conviction based on objectionable loudness, but with one based on
allegediy objectionable content. As we shall explain, the Dieh! limita-
tion on which Eanes relies is only applicable when the prohibition
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against “loud and unseemly noise” seeks to regulate the content of
speech.
Diehl involved a police officer, Gavin, who stopped an
automobile for a traffic violation. Diehl, a passenger, left the vehicle
but was ordered by Gavin to return to the car. Diehl responded by
screaming, “‘Fuck you Gavin;’ ‘I know my rights;’ you can’t tell me
what to do....’” 294 Md. at 468, 451 A.2d at 116. A crowd gathered.
After Diehl refused a second time to get back in the car, Gavin arrested
him for “‘screaming obscenities and . . . drawing a crowd.’” /d. at
468, 451 A.2d at 117 [ellipsis in Diehf].
The State sought to uphold Diehl’s subsequent conviction under
§ 121 in part on the ground that Diehl violated the statute “by making
loud and unseemly noises in refusing ‘to obey Gavin’s proper order.’”
Id. at 470, 451 A.2d at 118. At no time did the State argue that the
loudness of Diehl’s protestations violated § 121.3 Rather, it was the
State’s position that the statements “attracted a crowd and enhanced
the possibility of chaos.” Appellee’s Brief in Diehl v. State at 6, see
294 Md. at 480-481, 487-488, 451 A.2d at 123, 126-127 (Rodowsky,
J., dissenting). Since the State’s argument addressed the content of
Diehl’s speech (and not its loudness), we determined that in order to
qualify as “loud and unseemly noise,” under the circumstances,
“Diehl’s conduct must have advocated imminent lawless action and
been likely to incite a breach of the peace....” Diehl, 294 Md. at 472,
451 A.2d at 119 [emphasis in original]. In this manner we limited the
provision’s ability to regulate the content of speech. We did not in that
case, however, consider the argument the State at present raises before
us: that the statute serves as a constitutionally valid content-neutral
regulation of the volume level of protected speech. We now address
that question.
B.
The command of the first amendment, that “Congress shall make
no law ... abridging the freedom of speech ...,” is directed with equal
force, by way of the fourteenth amendment, to state and local govern-
ments. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138
(1925); see also Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500 n.
3 indeed, we determined that the decibel level of Diehl’s communication was not
unexpected under the circumstances. Diehl, 294 Md. at 471-472, 451 A.2d at 118.
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8, 72 S.Ct. 777, 780 n. 8, 96 L.Ed. 1098,1105 n. 8 (1952) (collecting
cases); Schowgurow v. State, 240 Md. 121, 124, 213 A.2d 475, 478
(1965). This “constitutional right of free expression” puts “the
decision as to what views shall be voiced largely into the hands of each
of us, in the hope that use of such freedom will ultimately produce a
more capable citizenry and more perfect polity and in the belief that
no other approach would comport with the premise of individual
dignity and choice upon which our political system rests.” Cohen v.
California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787-1788, 29 L.Ed.2d
284, 293 (1971). The “freedom to think as you will and to speak as
you think” is a “means indispensable to the discovery and spread of
political truth” and is essential both to “stable government” and to
“political change.” Whitney v. California, 274 U.S. 357, 375-377, 47
S.Ct. 641, 648-649, 71 L.Ed. 1095, 1105-1106 (1927) (Brandeis, J.,
joined by Holmes, J., concurring), overruled by Brandenburg v. Ohio,
395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).4 It has been
described as “the Constitution’s most majestic guarantee ....” L. Tribe,
American Constitutional Law § 12-1 at 785 (2d ed. 1988).
Yet “the First and Fourteenth Amendments have never been
thought to give absolute protection to every individual to speak
whenever or wherever he pleases, or to use any form of address in any
circumstances that he chooses.” Cohen, 403 U.S. at 19, 91 S.Ct. at
1785, 29 L.Ed.2d at 290. See Kovacs v. Cooper, 336 U.S. 77, 85-86,
69 S.Ct. 448, 453, 93 L.Ed. 513, 521 (1949) (sound trucks);
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766,
769, 86 L.Ed. 1031, 1035 (1942) ("fighting words"); Schenck v. United
States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473-474
(1919) (clear and present danger of imminent unlawful conduct).
“Even protected speech is not equally permissible in all places and at
all times.” Cornelius v. NAACP Legal Defense & Educational Fund,
Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3447, 87 L.Ed.2d 567, 578
(1985) (nonpublic forum); see Frisby v. Schultz, 487 U.S. 474, __,
108 S.Ct. 2495, 2499, 101 L.Ed.2d 420, 428 (1988) (picketing of
single residence); Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453,
464, 13 L.Ed.2d 471, 484 (1965) (obstructing sidewalk). The fun-
: Although Whitney was overruled by Brandenburg, the words of Justice Brandeis
remain a meaningful exposition on the singular importance of free speech to the
maintenance of our democratic ideals.
——eE
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damental importance of free speech in our constitutional scheme
requires, however, that restrictions on its exercise be subjected to
searching scrutiny. Frisby, 487 U.S. at ___, 108 S.Ct. at 2499, 101
L.Ed.2d at 428.
Constitutional analysis begins by looking at the type of forum
the speaker seeks to employ. /d. We deal here with the public streets
and sidewalks which have been repeatedly recognized as “ar-
chetype(s] of . . . traditional public forum[s].” /d. See, e.g., Boos v.
Barry, 485 U.S. 312, 318,108 S.Ct. 1157, 1162, 99 L.Ed.2d 333, 343
(1988); Cornelius, supra, 473 U.S. at 802, 105 S.Ct. at 3448-3449, 87
L.Ed.2d at 580; Perry Education Assn v. Perry Local Educators’
Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954-955, 74 L.Ed.2d 794, 804
(1983). “*[S]treets, sidewalks, parks, and other similar public places
are so historically associated with the exercise of First Amendment
rights that access to them for the purpose of exercising such rights
cannot constitutionally be denied broadly and absolutely.’” Hudgens
v. NLRB, 424 U.S. 507,515, 96 S.Ct. 1029, 1034, 47 L.Ed.2d 196, 204
(1976) (quoting Food Employees v. Logan Valley Plaza, 391 U.S. 308,
315, 88 S.Ct. 1601, 1606, 20 L.Ed.2d 603, 610 (1968)).5
When a court reviews restrictions on speech in traditional public
forums, “the appropriate ievel of scrutiny is initially tied to whether
the statute distinguishes between prohibited and permitted speech on
the basis of content.” Frisby, 487 U.S. at___, 108 S.Ct. at 2500,101
L.Ed.2d at 429. A content-based restriction is constitutionally hale
only if it can be shown that the challenged “‘regulation is necessary
to serve a compelling state interest and that it is narrowly drawn to
achieve that end....’” /d. (quoting Perry, 460 U.S. at 45, 103 S.Ct. at
955, 74 L.Ed.2d at 804) [ellipsis in Frisby]. See Sable Communica-
tions of Calif. v. FCC,__ U.S.__, __, 109 S.Ct. 2829, 2837, 106
L.Ed.2d 93, 106 (1989) (content-based regulation of telephonic com-
mercial communication); Carey v. Brown, 447 U.S. 455, 461,100
S.Ct. 2286, 2290, 65 L.Ed.2d 263, 270 (1980) (content-based regula-
tion of residential picketing). On the other hand, a state “‘may .. .
enforce regulations of the time, place and manner of expression which
> The nature of the street in question (i.e., rural residential, commercial, or some
variant there of) is not important at this stage of analysis since “all public streets are
held in the public trust and are properly considered traditional public fora” Frisby,
487 U.S. at___, 108 S.Ct. at 2500, 101 L.Ed.2d at 429.
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are content-neutral, are narrowly tailored to serve a significant govern-
ment interest, and leave open ample alternative channels of com-
munication.’” Frisby, 487 U.S. at___, 108 S.Ct. at 2500, 101 L.Ed.2d
at 429 (quoting Perry, 460 U.S. at 45, 103 S.Ct. at 955, 74 L.Ed.2d at
804). See Ward v. Rock Against Racism, __ U.S.__,__, 109 S.Ct.
2746, 2753, 105 L.Ed.2d 661, 675 (1989) (content-neutral regulation
of sound volume); Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221, 227 (1984)
(content-neutral ban on overnight sleeping and camping in certain
parks).
In this case even Eanes does not question that as applied to
protected speech § 121 can be read as content neutral. Indeed, because
we are working in the area of protected speech, the statutory phrase
“loud and unseemly noise” should be construed in a content-neutral
fashion in order to remain in conformity with first amendment
jurisprudence. “[I]f one of the proposed interpretations would render
an enactment valid, while another would render it invalid or ineffec-
tive, the court will construe the enactment to be valid whenever
feasible.” City of College Park v. Cotter, 309 Md. 573, 589, 525 A.2d
1059, 1067 (1987); see Craig v. State, 316 Md. 551, 566, 560 A.2d
1120, 1127 (1989).
In Matter of Nawrocki, 15 Md.App. 252, 289 A.2d 846 (1972),
Judge Orth, then of the Court of Special Appeals, faced with construc-
tion of the phrase “loud and unseemly” as it appears in § 121, gave the
words their common meaning.
‘Loud’ is ‘characterized by high volume and intensity of
sound . . . clamorous and insistent.’ ‘Unseemly’ and its
synonyms such as ‘improper’, ‘indecorous’, ‘indelicate’
mean ‘in violation of accepted standards of what is right or
proper.’
Id. at 256, 289 A.2d at 849 [ellipsis in opinion]. “Unseemly” has also
been defined as “analogous to the oft-used term ‘unreasonable.””
Heard v. Rizzo, 281 F.Supp. 720, 741 (E.D.Pa.1968), aff'd, 392 U.S.
646, 88 S.Ct. 2307, 20 L.Ed.2d 1358. We interpret the word “unseem-
ly” as directly modifying the volume level of “loud.” It requires the
meaning of “loud” to be informed by the circumstances. It does not
act as a blanket proscription against loud speech. If the other statutory
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elements are met, § 121 can be enforced only if the speech is un-
reasonably loud under the circumstances.® Construed in this manner
the phrase “loud and unseemly noise” is clearly content-neutral.
This content-neutral law is not a regulation of time or place.
Under the statute individuals may speak in any traditional public
forum at any time. The elements of time and place operate, in the
context of the statute, to inform; they are not themselves the subject
of regulation. As the State correctly contends, § 121 is a regulation on
the manner of expression. It serves to limit, under proper circumstan-
ces, the loudness of the delivery of the communication.
As a regulation on the manner of expression, § 121 must be
narrowly tailored to serve a substantial government interest. The
Supreme Court recently pointed out that “it can no longer be doubted
that government ‘ha[s] a substantial interest in protecting its citizens
from unwelcome noise.”’ Ward, ___U.S. at__, 109 S.Ct. at 2756,
105 L.Ed.2d at 678 (quoting City Council of Los Angeles v. Taxpayer
for Vincent, 466 U.S. 789, 806,104 S.Ct. 2118, 2129, 80 L.Ed.2d 772,
787 (1984), citing Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93
L.Ed. 513 (1949)) [brackets in Ward]. See also Saia v. New York, 334
U.S. 558, 562, 68 S.Ct. 1148,1150, 92 L.Ed. 1574, 1578 (1948);
Reeves v. McConn, 631 F.2d 377, 382 (Sth Cir.1980).
What is more
[t]his interest is perhaps at its greatest when government
seeks to protect “‘the well-being, tranquility and privacy
of the home.’” Frisby v. Schultz, 487 U.S. at [___]}, [108
S.Ct. at 2502,101 L.Ed.2d at 431] (quoting Carey v. Brown,
447 U.S. [at] 471(100 S.Ct. at 2296, 65 L.Ed.2d at 276]
(1980)), but it is by no means limited to that context, for
the government may act to protect even such traditional
forums as city streets and parks from excessive noise.
[citations omitted]
° In a similar fashion, a federal regulation which prohibited disruption of the
official duties of government employees by “’loud or unusual noise’” was held to
“include speech ... only where the manner of expression is in itself unreasonable."
United States v. Occhino, 629 F.2d 561, 563 (8th Cir. 1980) (per curiam), cert. denied,
450 U.S. 968, 101 S.Ct. 1487, 67 L.Ed.2d 618 (1981).
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Ward, __U.S.at___, 109 S.Ct. at 2756, 105 L.Ed.2d at 678-679. In
Ward, the Supreme Court upheld a regulation which gave New York
City broad authority to control the volume level of concerts and other
performances (recognized as protected speech) at a Central Park
bandshell, on the justification that the City sought “to avoid undue
[noise] intrusion into residential and other areas of the park.” /d. at
__, 109 S.Ct. at 2754, 105 L.Ed. 2d at 676.
In Kovacs, supra, a much earlier anti-noise case relied on in
Ward, the Supreme Court upheld a city ordinance which prohibited
the use of sound trucks which emitted “loud and raucous” noise. As
in Ward, the concern in Kovacs was on protecting the “unwilling
listener” both on the street and in the privacy of his or her home. 336
U.S. at 86-87, 69 S.Ct. at 453, 93 L.Ed. at 522. Without such
regulation, the court remarked, “in the residential thoroughfares the
quiet and tranquility so desirable for city dwellers would . . . be at the
mercy of advocates of particular religious, social or political per-
suasions.” /d. at 87, 69 S.Ct. at 453, 93 L.Ed. at 522.
Ward and Kovacs, as well as numerous other Supreme Court
cases, reflect judicial concern with balancing the right of free speech
with the individual’s right to be free from unwanted communication.
See, e.g., Frisby, 487 U.S. at__, 108 S.Ct. at 2502, 101 L.Ed.2d at
431; Carey, 447 U.S. at 470-471, 100 S.Ct. at 2295, 65 L.Ed.2d at 276;
F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026,
3040, 57 L.Ed.2d 1073, 1093 (1978); Erznoznik v. City of Jackson-
ville, 422 U.S. 205, 208-211, 95 S.Ct. 2268, 2272-2274, 45 L.Ed.2d
125, 130-132 (1975); Lehman v. City of Shaker Heights, 418 U.S. 298,
302-303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770, 776-777 (1974);
Cohen, 403 U.S. at 21-22, 91 S.Ct. at 1786, 29 L.Ed.2d at 291-292
(1971); Rowan v. United States Post Office Dept., 397 U.S. 728, 90
S.Ct. 1484, 25 L.Ed.2d 736 (1970). This has often been expressed in
terms of the “captive audience.”
The notion of “captive audience” involves the problem of the
unwilling listener or viewer who cannot readily escape from the
undesired communication, or whose own rights are such that he or she
should not be required to do so. See Haiman, Speech v. Privacy: Is
There A Right Not To Be Spoken To? 67 Nw.U.L.Rev. 153, 195-197
(1972). The pedestrian or motorist on a public street may simply walk
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or drive past the unwelcome speaker or detour around the picketers or
demonstrators. As in Cohen, 403 U.S. at 21-22, 91 S.Ct. at 1786, 29
L.Ed.2d at 291-292, those who do not care to read or hear certain
messages are, in these circumstances, free to turn away. But the Cohen
Court pointed out that the people passing through a courthouse cor-
ridor, who could look the other way if they did not like the anti-draft
message on the back of Cohen’s jacket, “were in a quite different
posture than, say, those subjected to the raucous emissions of sound
trucks blaring outside their residences.” 403 U.S. at 21, 91 S.Ct. at
1786, 29 L.Ed.2d at 292. Justice Harlan, writing for the Court,
explained:
[T]his Court has recognized that government may properly
act in many situations to prohibit intrusion into the privacy
of the home of unwelcome views and ideas which cannot
be totally banned from the public dialogue.... The ability of
government, consonant with the Constitution, to shut off
discourse solely to protect others from hearing it is, in other
words, dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable
manner.
Id. [citations omitted]. See also Carey, 447 U.S. at 471,100 S.Ct. at
2295, 65 L.Ed.2d at 276 (1980) (preserving sanctity of the home from
tribulations of daily pursuits is an important value).
Thus, while door-to-door residential canvassing cannot be sub-
ject to blanket prohibition, Schneider v. New Jersey, 308 U.S. 147, 60
S.Ct. 146, 84 LEd. 155 (1939), a householder who does not wish to
be canvassed may be permitted to prevent unwelcome visits by
invoking trespass laws. Martin v. Struthers, 319 U.S. 141, 147-148,
63 S.Ct. 862, 865-866, 87 L.Ed. 1313, 1319 (1943). Within the home,
“the individual’s right to be left alone plainly outweighs the First
Amendment rights of an intruder.” Pacifica Foundation, 438 U.S. at
748, 98 S.Ct. at 3040, 57 L.Ed.2d at 1093. For even if “the First
Amendment may require unwilling adults to absorb the first blow of
offensive but protected speech when they are in public before they
turn away, ... a different order of values obtains in the home.” /d. at
759, 98 S.Ct. at 3045-3046, 57 L.Ed.2d at 1100 (Powell, J., concur-
ring) [citations omitted]. See also Frisby, 487 U.S. at__, 108 S.Ct.
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at 2503, 101 L.Ed.2d at 432 (unwilling listeners may be protected
within their own houses); Rowan v. Post Office Dept., 397 U.S. at 736,
90 S.Ct. at 1490, 25 L.Ed.2d at 742-743 (householder may act to
preclude receipt of unwanted mail).
Moreover, a captive audience that is entitled to protection may
exist outside the home. Because riders on public rapid transit vehicles
are captive audiences, a municipality may decline to accept political
advertising on these vehicles. Lehman, supra. See also Grayned v.
Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)
(ordinance prohibiting disturbance of school).
The principle is grounded on the concept of privacy. “The
Supreme Court permits the state to protect listeners who are ‘captive’
to unwanted speech — when speech invades their privacy interest in an
essentially intolerable manner.” Note, Too Close For Comfort:
Protesting Outside Medical Faculties, 101 Harv.L.Rev. 1856, 1863
(1988) [footnote omitted]. Although that protection is most often
extended to those within their homes, it may be extended to any
situation in which “privacy interests [are] substantially threatened”
because “individuals cannot escape ‘bombardment of [their] sen-
sibilities.’” Jd. at 1864 (quoting Erznoznik, 422 U.S. at 211, 95 S.Ct.
at 2273, 45 L.Ed.2d at 132, quoting Cohen, 403 US. at 21, 91 S.Ct.
at 1286, 29 L.Ed.2d at 292). See also Comment, ‘/’ll Defend to the
Death Your Right to Say It ... But Not to Me’ — The Captive Audience
Corollary to the First Amendment, 1983 S.III1. U.L.J. 211, 215-216.
Sound is one of the most intrusive means of communication.
“The unwilling listener is not like the passer-by who may be offered
a pamphlet in the street but cannot be made to take it.” Kovacs, 336
1J.S. at 86-87, 69 S.Ct. at 453, 93 L.Ed. at 522 [footnote omitted]. The
cases support the view that content-neutral regulations controlling its
loudness are permissible. See, e.g., Ward, (volume may be controlled
to protect area of park and nearby residences); Grayned, (ordinance
prohibiting disturbance of good order of a school valid); Kovacs
(municipality may control volume of sound trucks); Reeves (city may
protect citizens from unreasonable or disruptive levels of noise in
streets). It may be otherwise outside the home or office, where the
audience is ordinarily not captive, see Pacifica Foundation, 438 U.S.
at 749 n. 27, 98 S.Ct. at 3040 n. 27, 57 L.Ed.2d at 1093 n. 27;
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Erznoznik, 422 U.S. at 209-211, 95 S.Ct. at 2272-2273, 45 L.Ed.2d at
130-132; Cohen, 403 U.S. at 21, 91 S.Ct. at 1786, 29 L.Ed.2d at 292.
But § 121 prohibits only that volume level of communication that
unreasonably disturbs individuals whose rights to be free from aural
abuse override the right of a speaker to address them by direct or
incidental oral communication. This is the type of balance of conflict-
ing interests contemplated by first amendment jurisprudence.
We read the statute as going no further than to afford content-
neutral protection to the captive auditor (on the facts before us,
auditors in homes or in private offices) who cannot avoid continuing,
unreasonably loud and disruptive communications emanating from
the street. So read, the statute serves a substantial interest and is
narrowly tailored to serve those ends.’
When the State seeks to correct a particular evil by way of time,
place, or manner restrictions, it need not employ the least restrictive
or least intrusive means. Ward, __~ U.S. at__, 109 S.Ct. at 2758,
105 L.Ed.2d at 680. “Rather, the requirement of narrow tailoring is
satisfied ‘so long as the . . . regulation promotes a substantial govern-
ment interest that would be achieved less effectively absent the regula-
tion.’” Id. (quoting United States v. Albertini, 472 U.S. 675, 689, 105
S.Ct. 2897, 2906, 86 L.Ed.2d 536, 548 (1985) [ellipsis in Ward]. Since
the character of open public piaces may differ widely, one from
another, only a flexible approach to volume control can adequately
serve the myriad circumstances which the State can legitimately
7 We reject the argument that a statute of this nature may survive first amendment
scrutiny only if it is limited to a communication that is both loud and either presents
a clear and present danger of violence or is not intended as a communication but “is
merely a guise to disturb persons.” See Jn re Brown, 9 Cal.3d 612, 108 Cal.Rptr. 465,
469, 510 P.2d 1017, 1021 (1973), cert. denied, 416 U.S. 950, 94 S.Ct. 1959, 40
L.Ed.2d 300 (1974). See also People v. Fitzgerald, 194 Colo. 415, 420, 573 P.2d 100,
104 (1978); State v. Marker, 21 Or.App. 671, 678, 536 P.2d 1273, 1277 (1975). We
have already held that Diehl v. State, 294 Md. 466, 451 A.2d 115 (1982), requires no
such construction. Neither do the United States Supreme Court decisions. Our
construction of § 121 is not inconsistent with decisions that hold antinoise statutes do
not apply to speech protected by the first amendment. See, e.g., Commonwealth v.
Mastrangelo, 489 Pa. 254, 414 A.2d 54, appeal dismissed, 449 U.S. 894, 101 S.Ct.
259, 66 L.Ed.2d 124 (1980). Cases of this type are concerned with possible regulation
of content. We have already held that § 121 is content-neutral.
a
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regulate. As we have pointed out, it is the particular circumstances
that render a loud communication unseemly or unreasonable, and
hence subject to time, place, and manner regulations.
Consider apartment dwellers and workers in private offices
along West Washington Street. The record in this case makes clear
that during business hours the street is heavily travelled by motor
vehicles, including large trucks. This traffic produces a high noise
level, and one who wishes to communicate by voice with people in
the street must make his or her voice heard over the sound of traffic.
But when the volume of the speaker’s voice not only reaches passersby
in the street — the public forum — but also awakens adults sleeping
in their homes, prevents children from taking their naps, and makes it
impossible for workers to concentrate on their work, the volume’s
effect on the captive audience reaches a point at which that volume
may be controlled.®
One speaking on West Washington Street at midnight, with
traffic levels much reduced, could run afoul of § 121 at a lower level
of voice volume. In this quieter environment, a less loud oral presen-
tation could unreasonably disturb what might well be a larger captive
audience, at least from the viewpoint of apartment dwellers. See
People v. Fitzgerald, 194 Colo. 415, 419, 573 P.2d 100, 103 (1978)
(proscribed conduct “necessarily varies according to the time, location
and decibel level of such conduct”); Commonwealth v. Orlando, 371
Mass. 732, 735, 359 N.E.2d 310, 312 (1977) (same). And if we move
the scene to an area of Hagerstown that is solely residential, still
. In the context of common law nuisance, this Court has stated that:
“It can scarcely be argued that any habitual noise ... which is so loud,
continuous, insistent, not inherent to the character of the neighborhood,
and unusual therein, that normal men, women, and children, when
occupying their own homes, however distant, are so seriously incom-
moded that they cannot sleep, study, read, converse, or concentrate until
it stops, is not an unreasonable unlawful, invasion of their rights.”
Swimming Club v. Albert, 173 Md. 641, 647,197 A. 146, 148-149 (1938) (quoting
the chancellor’s decision in that case). The criteria for disturbance of the peace by
noise are sometimes equated with those for nuisance. See, e.g., State v. Holland, 132
N.J.Super. 17, 27, 331 A.2d 626, 631 (1975); State v. New York Central Railroad
Co., 37 N.J.Super. 42, 49, 116 A.2d 800, 804 (1955).
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different levels of speech might suffice to violate the statute. Reeves,
631 F.2d at 385 n. 10 (threshold level of prohibited disruptive noise
may be substantially lower in areas primarily residential). We deal
with a balancing that involves the time and place where speech occurs
as well as the nature of the places where auditors are — the street itself;
stores; schools; hospitals; private offices; homes. A sound level that a
pedestrian on the sidewalk could not constitutionally object to might
be impermissible with respect to a patient in an intensive care ward.
Another factor that enters the balancing is that of alternative
means. We shall have more to say about this topic shortly in a
somewhat different context. Whether there is some other way of
achieving the actor’s goal is to be considered in the determination of
whether a loud sound is unreasonably loud. Road construction equip-
ment, for example, may make a great deal of noise and may seriously
disturb people in homes, hospitals, schools, and offices. But broken
water mains must be repaired and streets must be maintained, and it
is often the case that noisy machines are the only practicable means
of achieving these objectives. Thus, the sound created by that sort of
activity is not necessarily unseemly or unreasonably loud. But a
speaker will usually have a number of less noisy ways of presenting
his or her message: speaking at lower volume; individual contact; use
of placards or leaflets. So the balance of reasonableness may rest
differently depending on the circumstances. See Commonwealth v.
Greene, 410 Pa. 111, 115-116, 189 A.2d 141, 144 (1963).
Another weight in the balance may be the mechanical or
electronic amplification of sound. It is no doubt easier to find that an
antinoise law is constitutional when it deals with that sort of amplifica-
tion, as did the ordinance in Kovacs, supra. See also, e.g., Ward, Saia
and Reeves, all supra. But even though cases like Kovacs emphasize
the sound-truck feature of the law, we reject Eanes’s argument that
amplification is a constitutional sine qua non. Eanes would have it
that a speaker could stand in front of a residence at two o’clock in the
morning and shout at top volume as long as he or she pleased provided
a message was being conveyed. We disagree. If the State is able to
prove that, under the circumstances, the human voice is so unreasonab-
ly loud as to be unreasonably intrusive on a captive audience, that is
enough. See, e.g., Grayned, supra. Captive auditors in their homes and
| seen iaateeaenieetaam emma
a-16
places of business need not become an unwilling congregation for
Eanes’s street-preaching.?
Eanes suggests that only a statute which sets a specific decibel
level would be constitutional. Yet even with respect to a particular
public forum, such as Hagerstown’s West Washington Street, a
decibel level that would permit communication with passersby and
not disturb residents in their homes may vary with the time of day, air
temperature, air currents, and background noise present. A standard
which more specifically defined acceptable decibel levels at varying
times and places would be likely both underinclusive and overbroau.
See Commonwealth v. Orlando, 371 Mass. at 735, 359 N.E.2d at 312
(addressing the statutory standard “disturbers of the peace”). See also
Mann v. Mack, 155 Cal. App.3d 666, 674, 202 Cal.Rptr. 296, 301-302
(1984) ("A determination as to what constitutes a ‘loud, unnecessary
and unusual noise’ requires common sense not a decibel meter"). !0
Because § 121 is tailored to respond to the individual circumstances
and, as it is here construed, to regulate only that conduct which on
balance can appropriately be limited consistent with the first amend-
ment, we conclude it is sufficiently narrowly tailored.
Bolstering our determination that § 121 is narrowly tailored is
the fact that the statute allows for ample alternative avenues of
* Eanes asserts that Cohen prohibits the regulation of speech that does not invade
“substantial privacy interests in an intolerable manner.” Petitioner’s Brief at 27-28
[emphasis supplied]. By this Eanes means, we take it, “in a manner that is physically
or psychologically unbearable.” The cases do not require sound to rise to ear-drum
breaking level before government can regulate. It is the invasion of privacy that is
intolerable, not the sound level that produces it. See Ward v. Rock Against Racism,
__US.__, 109 S.Ct. 2746,105 L.Ed.2d 661 (1989), in which the Supreme Court
upheld a regulation of sound volume without requiring that the noise be “in tolerable”
before regulation could be affected. In any event, Cohen dealt with the content of
speech, not its volume. 403 U.S. at 20-22, 91 S.Ct. at 1785-1787, 29 L.Ed.2d at
291-292. What is more, the passage from Cohen, on which Eanes relies, addresses
“(t]he ability of the government, consonant with the Constitution, to shut off dis-
course....” Id. at 21,91 S.Ct. at 1786, 29 L.Ed.2d at 291 [emphasis supplied]. We are
dealing here with a statute that does not “shut off discourse” but simply limits its
volume.
10 For some problems that may arise from “regulation by decibel,” see U.S. Labor
Party v. Pomerleau, 557 F.2d 410 (4th Cir.1977). See also Reeves v. McConn, 631
F.2d 377, 386 (Sth Cir. 1980) (enforcement of decibel-based regulation is a highly
complex issue).
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communication. See Vincent, 466 U.S. at 812, 104 S.Ct. at 2132-2133,
80 L.Ed.2d at 792. See also J. Nowak, R. Rotunda, J. Young, Con-
stitutional Law (3d ed. 1986) § 16.47 at 971. Nothing in § 121 prevents
a speaker from orally addressing passersby, or from distributing
literature or carrying a sign which expresses his or her viewpoint. Nor,
if the intent of the speaker is to reach area residents or merchants, is
an individual prohibited by § 121 from communicating with willing
recipients by telephone, postal service, or in person. That a speaker’s
potential aural audience may be limited by 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 which have not been
shown to be inadequate. Ward, _ U.S. at___, 109 S.Ct. at 2759, 105
L.Ed.2d at 682.
In summary, we hold that § 121, as we have construed it, is
content neutral, narrowly tailored to serve a significant State interest,
and does not inhibit the use of various alternative channels of com-
munication. It does not violate the first amendment unless the words
“loud and unseemly noise” in § 121 render the statute vague or
overbroad. We next consider those concerns.
IV.
A.
A penal statute is vague if it violates “[t]he cardinal requirement
... that [it] ‘be sufficiently explicit to inform those who are subject to
it what conduct on their part will render them liable to its penalties.’”
Bowers v. State, 283 Md. 115,120, 389 A.2d 341, 345 (1978) (quoting
Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126,127,
70 L.Ed. 322, 328 (1926)). In Bowers, we described this “as the fair
notice principle [which] is grounded on the assumption that one should
be free to choose between lawful and unlawful conduct.” /d. at 121,
389 A.2d at 345. See Grayned, 408 U.S. at 108, 92 S.Ct. at 2298, 33
L.Ed.2d at 227. A statute also may be void for vagueness if it lacks
fixed enforcement standards or guidelines and thus “impermissibly
delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application.” Jd. at 108-109,
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92 S.Ct. at 2299, 33 L.Ed.2d at 228. Both of these tests of vagueness
are based on fourteenth amendment due process or fairness concerns.
Tribe, supra, § 12-31. We first address the issue of notice.
A law is not vague simply because it requires conformity to an
imprecise normative standard.
The root of the vagueness doctrine is a rough idea of
fairness. It is not a principle designed to convert into a
constitutional dilemma the practical difficulties in drawing
criminal statutes both general enough to take into account
a variety of human conduct and sufficiently specific to
provide fair warning that certain kinds of conduct are
prohibited.
Colten v. Kentucky, 407 U.S. 104, 110,92 S.Ct. 1953,1957, 32 L.Ed.2d
584, 590 (1972). The tcuchstone is whether persons of “‘common
intelligence” need reasonably “‘guess at its meaning.’” Broadrick v.
Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L-Ed.2d 830,
837 (1973) (quoting Connally, 269 U.S. at 391, 46 S.Ct. at 127, 70
L.Ed. at 328).
Bowers involved a vagueness challenge to a then-existing child
abuse statute which made it unlawful to injure a child by “cruel or
inhumane treatment.” 283 Md. at 119, 389 A.2d at 344. The statute
was attacked, in part, for failing to delineate, with any specificity,
between legitimate corporal punishment and illegitimate child abuse.
We determined that
[a] statute is not vague when the meaning of the words in
controversy can be fairly ascertained by reference to judi-
cial determinations, the common law, dictionaries,
treatises or even the words themselves, if they possess a
common and generally accepted meaning.
Id. at 125, 389 A.2d at 347. Using a variety of the sources listed above
to define the phrase “cruel or inhumane,” the statute was determined
to be “sufficiently explicit...” Jd. at 127, 389 A.2d at 349. We
explained that
[p]arents of ordinary intelligence are made aware that they
do not subject themselves to the statute by merely engaging
in corporal discipline for the purpose of punishment or
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correction. Only when the line is crossed and physical
injury is intentionally and maliciously or cruelly inflicted
does criminal responsibility attach.
Id. at 128, 389 A.2d at 349.
Other courts have applied these principles in responding to
vagueness attacks on antinoise laws. For example, in Kovacs, supra,
the Supreme Court confronted a vagueness challenge to the not-too-
dissimilar statutory phrase “loud and raucous.” 336 U.S. at 79, 69 S.Ct.
at 449, 93 L.Ed. at 518. Remarking that the claim deserved only
passing mention, the Court stated that “[w]hile these are abstract
words, they have through daily use acquired a content that conveys to
any interested person a sufficiently accurate concept of what is for-
bidden.” Id. at 79, 69 S.Ct. at 449-450, 93 L.Ed. at 518.
The method of analysis is further demonstrated in Grayned,
supra. That case involved a Rockford, Illinois, ordinance that made it
a crime for anyone willfully to make a noise or diversion which
disturbed or tended to disturb the peace or good order of any school
in session. 408 U.S. at 107-108, 92 S.Ct. at 2298, 33 L.Ed.2d at 227.
The Supreme Court held the ordinance was not unconstitutionally
vague. The words “tending to disturb,” in a Chicago ordinance, had
previously been construed by the Supreme Court of Illinois to refer
only to an imminent threat of violence. Jd. at 110-112, 92 S.Ct. at
2299-2301, 33 L.Ed.2d at 228-230. The Rockford ordinance did not
define the requisite quantum of disturbance, but the United States
Supreme Court found that this question was measured by the impact
of the disturbance on school activity. Given the requirements of (1)
willful conduct, (2) that the noise or diversion be actually incompatible
with normal school activity, and (3) a demonstrated causal relationship
between “noise or diversion” and disruption, the ordinance withstood
constitutional scrutiny. /d. at 113-114, 92 S.Ct. at 2301-2302, 33
L.Ed.2d at 230-231.
In similar fashion, we here apply normal meanings to words of
common understanding and conclude that speech that is so un-
reasonably loud as to unreasonably intrude on the privacy of a captive
audience may be punished.!! We hold that the words “loud and
"' The objective, content-neutral perspective of § 121 is quite unlike that of an
ordinance recently found unconstitutionally vague in Fratiello v. Mancuso, 653
a-20
unseemly,” so construed, give sufficient notice of what conduct is
penalized. “Unseemly” modifies “loud” and means “unreasonably
loud in the circumstances.” That is clear enough. The objective
“reasonable” test is used in many areas of the law as an appropriate
determinant of liability and thus a guide to conduct.!?
An exhaustive listing of words or phrases deemed not unduly
‘vague would unduly prolong this opinion. We note a few examples in
addition to those we have already discussed: Reeves, 631 F.2d at 386
(prohibition of sound that is “jarring” or “a nuisance” not unconstitu-
tionally vague; words do not provide mathematical certainty, but have
acquired sufficiently definite content through daily use); State v.
Johnson, 112 Ariz. 383, 542 P.2d 808 (1975) (statute that made it a
F.Supp. 775 (D.R.1.1987). One of the problematic provisions of the ordinance
addressed in that case prohibited “’unnecessary noises or sounds .. . which are
physically annoying to persons....’” /d. at 791. The court construed the ordinance as
a content-based restriction on a selected category of speech which the listener
subjectively finds annoying. /d. It acknowledged that in limited circumstances
selective restrictions on speech have been upheld, such as “’when the speaker intrudes
upon the privacy of the home ... or the degree of captivity make it impractical for the
unwilling viewer or auditor to avoid exposure.”’ Jd. (quoting Erznoznik v. City of
Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125, 131 (1975))
[ellipsis in Fratiello]. But, unlike the case at bar, the court found that protection of
the captive auditor was neither alleged nor demonstrated as a basis for the restriction.
Id.
12 For examples primarily in the area of criminal law, see Simmons v. State, 313
Md. 33, 40, 542 A.2d 1258, 1261 (1988) (imperfect self-defense; subjective belief
that force was necessary unreasonable under the circumstances); State v. Crawford,
308 Md. 683, 696, 521 A.2d 1193,1199 (1987) (reasonable apprehension of imminent
danger element of defense to unlawful possession of handgun); Dixon v. State, 302
Md. 447, 459, 488 A.2d 962, 967 (1985) (element of assault: any action or conduct
reasonably tending to create apprehension); Ricketts v. State, 291 Md. 701, 709, 436
A.2d 906, 910-911 (1981) (element of common law indecent exposure: reasonable
knowledge, actual or constructive, that act is open to observation by others); Tichnell
v. State, 287 Md. 695, 718, 415 A.2d 830, 842 (1980) (ciaim of self-defense requires
defendant have a reasonable belief of immediate or imminent death or serious bodily
harm); Jackson v. State, 286 Md. 430, 441, 408 A.2d 711, 718 (1979) (quoting
Wharton's Criminal Law § 68 (Anderson, 1957)) (criminal liability may arise where
“’the ultimate harm is one which a reasonable man would foresee as being reasonably
related to the acts of the defendant’”); Mangum v. Md. St. Bd. of Censors, 273 Md.
176, 185, 328 A.2d 283, 288 (1974) ("obscenity" to be tested by average person
applying contemporary community standards).
a-21
misdemeanor to “maliciously and wilfully disturb[ ] the peace or quiet
of a neighborhood ... by loud or unusual noises” is valid); Common-
wealth v. Jarrett, 359 Mass. 491, 269 N.E.2d 657 (t971) ("disturbers
of the peace" not unconstitutionally vague); State v. Smith, 46 N.J.
510, 518, 218 A.2d 147, 151, cert. denied, 385 U.S. 838, 87 S.Ct. 85,
17 L.Ed.2d 71(1966) (statute proscribing “noisy or disorderly con-
duct” which “disturbs or interferes with the quiet or good order” of
certain places of assembly is valid; “if there is a public interest in need
of protection, due process does not stand in the way merely because
the subject defies minute prescription”); State v. Holland, 132
N.J.Super. 17, 23, 331 A.2d 626, 629 (1975) (prohibition of “un-
reasonably loud and unnecessary noise” valid because “[w]hether a
given noise disturbs the public peace depends upon the circumstances
of the particular case, and it is impractical to speil out rigid legislative
criteria”); Commonwealth v. Weiner, 230 Pa.Super. 245,326 A.2d 896
(1974) ("loud" and “unseemly” not unconstitutionally vague); Seattle
v. Eze, 111 Wash.2d 22, 759 P.2d 366 (1988) ("loud or raucous
behavior" which “unreasonably disturbs others” not unconstitutional-
ly vague).
The words “loud and unseemly noise” as used in § 121 are no
more vague than the words considered in the preceding cases. As we
have construed it, the phrase “loud and unseemly noise” reasonably
conveys what is forbidden. Nevertheless, a speaker exercising the
legitimate rights of free speech may be unaware that his or her volume
has reached a prohibitive level and has become unlawfully disruptive.
In order, then, to provide fair notice in a case such as this, we believe
that the application of § 121 ordinarily requires prior warning by police
authority, so that the speaker is made aware that further communica-
tion at the offensive volume level may subject the individual to
prosecution. See Bacheller v. State, 3 Md.App. 626, 634-635, 240
A.2d 623, 628 (1967), rev’d on other grounds, 397 U.S. 564, 90 S.Ct.
1312, 25 L.Ed.2d 570 (1968) (Art. 27, § 123, prohibiting disorderly
conduct, gives reasonable notice through its language, at least when
demonstrators are notified, before arrest, that they are in violation of
Statute); Occhino, 629 F.2d at 563 (conduct held to be “unreasonable”
where disruptive behavior continued after individual was warned that
disturbance was being created); Weiner, 230 Pa.Super. at 250, 326
A.2d at 898 (statute prohibiting “loud and unseemly noise” violated
a-22
when Weiner continued to use loudspeaker in residential area after
police had warned him that residents had been disturbed).
As to the matter of enforcement standards, we also addressed
this issue in Bowers, wherein we concluded that a statute is not vague
merely because it allows for the exercise of some discretion
on the part of law enforcement and judicial officials. It is
only where a statute is so broad as to be susceptible to
irrational and selective patterns of enforcement that it will
be held unconstitutional under this second arm of the
vagueness principle.
283 Md. at 122, 389 A.2d at 346.
Section 121, properly construed, does not invite arbitrary or
discriminatory enforcement. It can be enforced to limit protected
speech only to the extent the speaker’s actions are willful, the volume
clearly exceeds what is necessary to address passersby, and the noise
is actually disruptive to the “captive” audience in the neighborhood.
Moreover, we hold that police may act under this statute only upon
receipt of a complaint from an affected citizen upon the basis of which
the officer reasonably believes that the statute has been violated. See
Weiner, supra. This requirement guards against oppressive action
initiated solely by government opposition to unwelcome speech.
Circumscribed in this manner § 121 does not permit a subjective
determination of what is “loud and unseemly noise.” The inquiry is
limited to relatively objective criteria and does not confer “impermis-
sible discretion” on police officers, prosecutors, judges, or juries.
Bowers, 283 Md. at 128, 389 A.2d at 349.
B.
We need not dwell long on Eanes’s claim that § 121 is overbroad.
“The crucial question ... is whether the [statute] sweeps within its
prohibitions what may not be punished under the First and Fourteenth
amendments.” Grayned, 408.U.S. at 114-115, 92 S.Ct. at 2302, 33
L.Ed.2d at 231. The concern is that an overbroad statute may, by that
very fact, have a chilling effect on free expression. Taxpayers for
Vincent, 466 U.S. at 796-798, 104 S.Ct. at 2124-2125, 80 L.Ed.2d at
781-782. That is, if a statute is to be struck down as overbroad, it must
appear that the statute’s very existence will inhibit free expression. /d.
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at 799, 104 S.Ct. at 2125, 80 L.Ed.2d at 782. The doctrine is “strong
medicine” and should be applied sparingly. Broadrick, 413 US. at
613, 93 S.Ct. at 2916, 37 L.Ed.2d at 841. It should not be invoked
when a limiting construction can be placed on the statute. Jd. Because
the overbreadth doctrine involves a challenge to the facial validity of
a Statute, a court should not resort to it unless there is a realistic danger
that the statute itself will significantly compromise recognized first
amendment protection of parties not before the court. Taxpayers for
Vincent, 466 U.S. at 801,104 S.Ct. at 2126, 80 L.Ed.2d at 784.
Eanes argues that § 121 is overbroad because “it delegates
standardless discretionary power to local authorities to permit or deny
first amendment activity” and “because its prohibition against
‘unseemly’ conduct can readily ban speech on the basis of its content.”
Petitioner’s Brief at 21-22. We have already rejected these arguments
at various points in this opinion and need not repeat our reasoning.
As we have concluded, § 121 is neither without applicable
enforcement standards nor can it be permissibly applied when the
objection to speech is solely based on its content. What is more § 121,
properly applied, reaches only that conduct which can be regulated
consistent with the rights of free speech and does not reach beyond.
The instant case is not unlike Boos v. Barry, supra. There, a provision
of the District of Columbia Code was attacked as overbroad. The
provision penalized any congregation of three or more persons within
500 feet of a foreign embassy, if the persons failed to disperse when
ordered to do so. The Supreme Court construed the law to prohibit
only “congregations” directed at an embassy and to permit the police
to order dispersal only when they reasonably believed that a threat to
the security or peace of the embassy was present. 485 U.S. at 331,108
S.Ct. at 1169, 99 LEd.2d at 350-351. As so construed, the statute was
not unconstitutionally overbroad because it was site specific and
limited to groups presenting security threats. Jd. As a consequence, it
did not reach a substantial amount of constitutionally protected con-
duct. /d. It did not have the chilling effect that is the concern of
overbreadth analysis. This is also true of § 121 as we have construed
it. It is not overbroad.
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V.
We now consider the final issues of whether § 121 was properly
applied to the specific facts of this case and whether that application
was constitutional.
The record demonstrates that Judge Wright construed § 121 in
a manner consistent with this opinion. In denying Eanes’s motion for
judgment of acquittal at the close of the State’s case, Judge Wright
rejected Eanes’s notion that Diehl, supra, limited application of §
121’s prohibition against “loud and unseemly noises” to speech which
advocated imminent lawlessness. After reviewing the words “loud”
and “unseemly,” as they were defined by Judge Orth in Nawrocki,
supra, Judge Wright concluded:
Courts may differ. Judges will differ. Whether they are trial
judges or whether they are appellate judges in the areas of
speech and protection of speech. But I think that the
evidence that I’ve heard which indicates basically that Mr.
Eanes during this morning in question was extremely loud,
louder than normal, ["Jone of the two loudest persons I’ve
ever heard in my life,{"] [at a] volume above the traffic...
But that the entire commotion then caused sufficient com-
plaints to bring the police and the police officer asking Mr.
Eanes to lower his voice and lower therefore the intensity
and not withstanding that Mr. Eanes shouted about money
for drugs, etc. at a very high voice, could weli lead to the
conclusion that his actions on this morning were to willful-
ly disturb the peace and tranquility of the neighborhood.
Not caring about whom he did disturb whether it be those
that may have been targets of the language or those of [the]
general public...
It was not the content. The content of his language really
was not that which was disturbing. It is interesting that the
people ... some of the people who were disturbed ... indi-
cated that they agreed with his purposes. And I think that
there is sufficient evidence to indicate that on this occasion
... Mr. Eanes was using his right to communicate ideas to
not only communicate but to willfully disturb. And I think
that that kind of activity is proscribed by Section 121.
a-25
After Eanes presented his defense and closing arguments were
made, Judge Wright, in his ruling from the bench, explained how the
statute was to be applied.
The statute . . . talks about willful disturbance of any
neighborhood by means of loud and unseemly noises. Now
the loudness of Mr. Eanes’ expressions ... may well be a
matter of how one views it, how one hears obviously. What
is loud to one person may not be loud to another...
But the Legislature said loud. So that has to be a fact that’s
found. And I would find from the evidence that Mr. Eanes’
method and manner of expression was on this day in May
of May 18, [1988] loud.
Now the Legislature also said and unseemly noises. And
we know that the Court, the trier of fact is to give that
adjective its common meaning, improper. And improper of
course means under the circumstances. What is proper in
one situation or under one set of circumstances may be
improper in another set of circumstances.
Because it also means in violation of accepted standards
of what is right or proper. So the noises have to be loud
and in violation of accepted standards of what is right or
proper. Loud and improper noises, that can mean speech.
Because there has to be a balancing of one’s right to
express himself and other’s right to be free from disruption.
Now the method here is what is being tested not the words.
We do know that and there’s no reason to keep on it. But
it is not the content of Mr. Eanes’ speech. There can be no
chilling of that right to express what one believes. So it’s
not the content that is being judged or can be judged by any
governmental agency. The manner, however, can be sub-
ject to restriction. And the statute here is a method of
governmental ... restriction of the manner in which some-
body expresses his views. Because it cannot be loud and
unseemly. That is the manner, loud and unseemly. [em-
phasis supplied]
ne
a-26
Having found Eanes to be loud, Judge Wright went on to find
specifically that Eanes actually disturbed both residents and area
business people and that he was aware that his manner of communica-
tion was disruptive to the neighborhood. He then concluded that
Eanes was “guilty of willfully disturbing the peace and tranquility of
that particular neighborhood during the morning of May the 18th,
[1988] by making loud and otherwise unacceptable improper under
the circumstances noises.”
We hold, in view of Judge Wright’s exposition of § 121, that he
properly construed “loud and unseemly noise” to apply only to an
improper volume level of speech and not to its content. He further
correctly concluded that noise that was “loud and unseemly” was noise
that was unreasonably loud under the circumstances — among those
circumstances being the fact that the noise produced by Eanes un-
reasonably disturbed members of a captive audience who were entitled
to be free of that sort of disturbance. In other words, Judge Wright
properly balanced Eanes’s first amendment rights against a substantial
public interest protected by a narrowly drawn, content-neutral regula-
tion. 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.
JUDGMENT OF THE CIRCUIT COURT FOR
WASHINGTON COUNTY AFFIRMED. COSTS TO BE PAID BY
PETITIONER.
ELDRIDGE, Judge, dissenting.
The First Amendment to the Constitution of the United States
sets forth “the sweeping command”! that government “shall make no
law ... abridging the freedom of speech....” In this case, however,
apparently for the first time ever, a state’s highest court has upheld a
criminal conviction based solely on the loudness of a single individua!
in delivering constitutionally protected speech with an unamplified
human voice, in a permitted place and at a permitted time. In affirming
Jerry Wayne Eanes’s conviction under a statute which penalizes
disturbing neighborhoods “by loud and unseemly noises,” the
! Abrams v. United States, 250 U.S. 616, 631, 40 S.Ct. 17, 22, 63 L.Ed. 1173
(1919) (Holmes, J., dissenting).
a-27
majority has construed and applied that statute in a manner inconsis-
tent with the First Amendment. Moreover, in applying a novel con-
Struction of the statute to Eanes, the majority has violated his rights
under the Due Process Clauses of the Fourteenth Amendment and
Article 24 of the Maryland Declaration of Rights.
I.
The Court’s opinion points out that this case arose in the context
of an anti-abortion demonstration which took place on the public
sidewalk in front of the Hagerstown Reproductive Health Services
Clinic on May 18,1988. Petitioner Eanes had, however, preached there
before. On July 1, 1987, when Eanes was engaged in preaching
identical to that of May 18,1988, Hagerstown police officers arrested
him and charged him under Maryland Code (1957, 1987 Repl.Vol.),
Art. 27, § 122. That section establishes criminal penalties for “[a]ny
person ... who shall wilfully act in a disorderly manner by making loud
and unseemly noises . . . on or about any public place...” On May
17,1988, only one day prior to the activity which is the subject of this
appeal, the Circuit Court for Washington County (Moylan, J.) granted
Eanes’s motion for judgment of acquittal. The court found that Eanes’s
preaching was “extremely loud, very loud, certainly above the hubbub
and noise of the busy street” and that “the particular means that they
[Eanes and his fellow preachers] were doing” were “disturbing to the
business people who had their businesses nearby.” The court held,
however, that under Diehl v. State, 294 Md. 466, 472-473, 451 A.2d
115 (1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d
363 (1983), the phrase “loud and unseemly noises” could encompass
communications made in a loud manner only if they presented a clear
and present danger of violence, or were not intended as communica-
tions but merely as a guise to disturb other persons. The court further
held that Eanes’s speech was constitutionally protected under prin-
ciples set forth in United States Supreme Court opinions.
The day after his acquittal, Eanes returned to the public sidewalk
in front of the clinic and resumed his preaching. A police officer, after
receiving a complaint, requested that Eanes lower his voice. The
officer then left the scene, later explaining at trial that
“[t]here was a confusion among my supervisors in refer-
ence to a decision handed down by Judge Moylan the
a-28
previous day and we were advised by Captain Hart to leave
the area until we got a ruling from the State’s Attorney’s
office.”
After receiving another complaint about the preaching in front
of the clinic, the officer returned and
“was advised that the State’s Attorney stated that Moylan’s
decision was in reference to that case only, that if anybody
was disturbing the peace and I had probable cause to make
an arrest to go ahead and make an arrest."
The officer arrested Eanes and charged him under Art. 27, § 121. That
section, as previously indicated, provides criminal penalties for “[a]ny
person ... who shall willfully disturb any neighborhood in [any
Maryland] city, town or county by loud and unseemly noises....”
On December 15,1988, the Circuit Court for Washington County
(Wright, J.) found Eanes guilty of violating § 121.
This Court affirms the conviction by adopting a new construc-
tion of § 121, and by retroactively applying that construction to
Eanes’s speech. Despite the language of the statute which, as pointed
out by Judge Wright below, treats “loud” and “unseemly” as separate
elements, the majority today reads the word “unseemly” as a modifier
of “loud.” The Court holds that the “unseemly loud” noise proscribed
by the statute includes unamplified political speech protected by the
First Amendment, even if the speech was not likely to incite a breach
of the peace.”
Furthermore, the Court initially states that § 121 “is not a
regulation of time or place. ... As the State correctly contends, § 121
is a regulation on the manner of expression. It serves to limit, under
proper circumstances, the loudness of the delivery of the communica-
tion.” Majority opinion, p. 610. Later, however, the Court treats the
Statute as regulating in part time and place, for it says that “[o]ne
speaking on West Washington Street at midnight ... could run afoul of
§ 121 at a lower level of voice volume.” /d. at 613.
* But cf., Diehl v. State, 294 Md. 466, 472, 451 A.2d 115 (1982), cert. denied, 460
U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 363 (1983).
a-29
In the context of the present case, however, the majority holds
that Eanes committed a crime solely because of the volume level of
his speech, and not because it was delivered at the wrong time or the
wrong place. If Eanes’s unamplified speech was too loud for the public
sidewalk in the heart of downtown Hagerstown at 10:30 a.m. on a
weekday, I cannot imagine any time in any neighborhood in this State
where he could lawfully reach the same voiume.
In addition to construing “loud and unseemly” to mean “un-
reasonably loud,” the majority adds elements to the statute which go
beyond anything suggested by the statutory language, legislative
history, or case law. The Court holds that “the application of § 121
ordinarily requires prior warning by police authority....”. The Court
also “hold{s] that police may act under this statute only upon receipt
of a complaint from an affected citizen upon the basis of which the
officer reasonably believes that the statute has been violated.”
(Majority opinion, pp. 617-618).
II.
In my view, the First Amendment prohibits the State from
punishing Eanes for speaking against abortion on a public sidewalk in
Hagerstown under the circumstances of this case. The relevant clause
of Art. 27, § 121, as construed by the Court today, may not be validly
applied to one in Eanes’s position under the Supreme Court’s First
Amendment decisions.
A.
At the time of his arrest, Eanes was engaged in free speech in its
“most pristine and classic form.” Edwards v. South Carolina, 372 U.S.
229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963). He was standing
on a public sidewalk outside the clinic on West Washington Street, a
congested, one-way thoroughfare, probably the busiest street in
downtown Hagerstown. It is U.S. Route 40 West. He was in a
commercial area, a block and a half from the city’s public square.
Between 10:30 a.m. and noon, he and another man, who were part of
a group of several protesters, alternately spoke “to preach the gospel
of Jesus Christ” and to “speak out against abortion” with their un-
amplified human voices.
a-30
Eanes was expressing his opposition to abortion, one of the most
controversial political and social issues today. Unlike many other
cases involving protests at abortion clinics, there is no contention in
this case that Eanes attempted to block access to the clinic. He did not
trespass on clinic property, did not threaten anyone, did not incite
listeners to violence, and did not use profanity, obscenity or “fighting
words.” Moreover, there was neither a finding nor any evidence that
Eanes’s speech disrupted any medical procedures at the clinic.> Un-
amplified speech, on a public sidewalk in a commercial area, about a
controversial political and social topic, was Eanes’s only activity.
Eanes preached his anti-abortion message in the most ap-
propriate place and at the most appropriate time. Yet today the
majority has construed and applied Art. 27, § 121, in a manner that
makes the delivery of the speech a crime.
In holding that Eanes, standing on a public sidewalk adjacent to
a busy street, may be punished for speaking against abortion, the
majority relies on testimony that “Eanes could readily be heard above
the traffic noise,” although the majority acknowledges that the tes-
timony as to this was conflicting. The only meaningful exercise of the
First Amendment right to free speech under the circumstances, how-
ever, is if the speaker is allowed to speak above the traffic noise. As
the majority acknowledges, public streets and sidewalks have been
repeatedly recognized as archetypes of traditional public forums. The
government’s ability to restrict expressive activity in such places
“which occupy a ‘special position in terms of First Amendment
protection’” is “‘very limited.’” Boos v. Barry, 485 U.S. 312, 108 S.Ct.
1157, 1162, 99 L.Ed.2d 333 (1988), quoting United States v. Grace,
461 U.S. 171, 177, 180, 103 S.Ct. 1702, 1707, 1708, 75 L.Ed.2d 736
(1983). Permitting on public sidewalks only speech which cannot be
heard because of the surrounding traffic noise gives little effect to this
“special position in terms of First Amendment protection.”
The majority opinion also relies heavily upon testimony that,
allegedly because of Eanes’s speech, an adult and a child in nearby
apartments could not sleep and some workers nearby were “disturbed”
> The only testimony concerning the effect of Eanes’s speech at the clinic was by
the clinic administrator, who stated that she personally was disturbed and was having
difficulty hearing.
a-31
and had difficulty concentrating on their work. It must be emphasized,
however, that Eanes’s speech was not delivered in a residential neigh-
borhood and was not delivered at a time when most people are
sleeping. Of course, some people do reside in commercial and even in
industrial areas, and some people do need to sleep during the day.
Furthermore, some people are “disturbed” and may lose concentration
because of any sound out of the ordinary. If constitutionally protected
speech is limited to that not objected to by such persons, the scope of
the First Amendment’s free speech clause is extremely narrow.
For example, speeches by public officials at an outdoor
ceremony on the grounds of the Maryland State House in Annapolis
may wake up persons sleeping in apartments above stores on State
Circle; the speeches might affect the concentration of workers in the
stores. If so, would the continuation of the speeches at the same
volume, after a complaint and warning by an Annapolis policeman,
be criminal? Are demonstrations outside of the State House, when the
Legislature is in session, to be suppressed by criminal prosecution if
the crowd becomes noisy and causes complaints from persons trying
to sleep?4 Presumably under today’s decision, if Art. 27, § 121, is to
be enforced without discrimination, they would.
The First Amendment would seem to preclude reducing speakers
and the listening public to speech which does not disturb daytime
sleepers in a downtown commercial area. Cf Butler v. State of
Michigan, 352 U.S. 380, 383-384, 77 S.Ct. 524, 526,1 L.Ed.2d 412
(1957) ("The incidence of this enactmert is to reduce the adult
population of Michigan to reading only what is fit for children. It
thereby arbitrarily curtails one of those liberties of the individual ...
that history has attested as the indispensable condition for the main-
tenance and progress of a free society").
In light of the Court’s application of Art. 27, § 121, to the facts
of this case, I fail to see what would stop a policeman from using the
statute to “quiet” a preacher who delivers a loud sermon from inside
* See The Sun (Baltimore, January 16, 1990) p. 2B (reporting on a rally outside of
the State House by abortion opponents, and stating (emphasis added), “But the crowd,
though noisy, was cheerful and peaceful, and dispersed after hearing such anti-abor-
tion speakers as Mr.{[Alan L.] Keyes, former Lt. Gov. Samuel W. Bogley and state
Sen. Francis X. Kelly,...”). See also The Capital (Annapolis, January 16, 1990) p. 1
(describing the noise at the rally).
ee
a-32
a church that lacks air conditioning and has open windows in the
summer. Such preaching, or perhaps the enthusiastic singing of the
congregation, could reach the same volume level that “disturbed” the
residents near the clinic. I also fail to understand what would stop an
elected mayor from using § 121 to “quiet” a political opponent from
delivering a loud but unamplified campaign speech at the Hagerstown
public square, located only a block and a half from where Eanes was
preaching. Such a speech could disturb the very same “captive
auditors in their homes and places of businesses” who were “an
unwilling congregation for Eanes’s street-preaching.”
When a particular speech is unpopular or unusual, I doubt that
it will be difficult to find an affected citizen to complain, ostensibly
because of the sound level. See Saia v. New York, 334 U.S. 558, 562,
68 S.Ct. 1148, 1151, 92 L.Ed. 1574 (1948) ("Annoyance at ideas can
be cloaked in annoyance at sound"). At Eanes’s trial, the woman who
testified that her child could not sleep because of the preaching stated:
“I really can’t say whether it [the traffic noise on West Washington
Street] did or did not [bother her child’s sleep].... 1 mean the traffic
was something that we lived with every day.” This testimony
demonstrates how complaints because of sound may depend on in-
dividual sensibilities. People who live in the commercial area of
downtown Hagerstown, and sleep at 10:30 a.m., may get used to the
traffic noise on West Washington Street. A speech on abortion, at a
sound level merely sufficient to be heard, may disrupt and draw
complaints from those same people who may not be used to it, or may
not like it. The First Amendment, however, protects speakers from
these individual sensibilities of their fellow citizens. Saia v. New York,
supra.
While holding that one may be criminally punished for un-
amplified speech on a political or social issue, if the speech disturbs
others and generates complaints, the majority apparently would not
apply its holding of criminality to the operators of machines and other
equipment which may make greater noise and cause greater distur-
bance. The Court’s opinion states (p. 613): “Road construction equip-
ment, for example, may make a great deal of noise and may seriously
disturb people in homes, hospitals, schools, and offices. But broken
water mains must be repaired and streets must be maintained, and it
is often the case that noisy machines are the only practicable means
“oor
a-33
of achieving these objectives.” Because, in the majority’s view, one
desiring to give a speech on a political or social issue has the option
of refraining from speaking and using “placards or leaflets,” the
majority places more importance upon the maintenance of streets than
upon free speech. Under the majority’s application of Art. 27, § 121,
apparently only those persons desiring to exercise their First Amend-
ment right to make speeches need fear prosecution under the statute.
Those engaged in other endeavors producing a high volume of sound,
such as operating noisy equipment, are apparently doing something
more important and thus are exempt from the criminal statute.
The majority’s insensitivity to Eanes’s free speech rights is also
illustrated by its assertion that “[s]ound is one of the most intrusive
means of communication.” The majority has overlooked that sound,
in the form of the spoken word, is the most basic thing protected by
the First Amendment. See Texas v. Johnson, ___ U.S. ____, 109 S.Ct.
2533, 2540, 105 L.Ed.2d 342 (1989) ("The Government generally has
a freer hand in restricting expressive conduct than it has in restricting
the .... spoken word"). Merely because a speaker on a public sidewalk
along a busy street needs to speak loudly to be heard above the
surrounding noise, or merely because he attains a high level of sound
because of the fervor with which his beliefs are held, does not justify
the suppression of his speech. As Professor Chafee stated over 60
years ago, repeating an earlier thought by Judge Cooley, “you cannot
limit free speech to polite criticism, because the greater a grievance
the more likely men are to get excited about it, and the more urgent
the need of hearing what they have to say.” Zechariah Chafee,
Freedom of Speech in War Time, 32 Harv.L.Rev. 932, 961 (1919). See
T. Cooley, Constitutional Limitations 613-614 (7th ed. 1903) ("The
heat of the discussion will generally be in proportion to the magnitude
of the evil as it appears to the party discussing it").
The First Amendment “is a declaration of national policy in favor
of the public discussion of all public questions.” Chafee, supra, at 934.
Mr. Eanes’s public discussion of abortion, at a permitted place and
permitted time, without obstructing, trespassing, or hindering anyone,
and without any sound amplification devices, was protected by the
national policy embodied in the First Amendment.
a-34
B.
The majority argues that § 121’s clause relating to “loud and
unseemly” noises, as construed and applied by the Court today, is valid
under the Supreme Court’s First Amendment cases and justifies an
affirmance of Eanes’s criminal conviction. I disagree. The very cases
relied on in the majority opinion undermine the majority decision.
The Court emphasizes that, under its construction of § 121, the
statute’s regulation of speech is “content-neutral.” Theoretically this
may be true. Nevertheless, as previously indicated, authorizing
policemen to arrest a speaker, where the speaker is simply using his
unamplified voice at a permitted time and place, on the sole ground
that the speech is “too loud” and therefore disturbing to others, gives
complainants and police authorities a powerful weapon which can
easily be misused to suppress speech because of its content and
because of the identity of the speaker. More traditional or “acceptable”
speeches by public officials or prominent persons will rarely, if ever,
lead to arrests, regardless of the volume level of speech. Mavericks
may regularly have problems with the police.
The majority acknowledges that even “content-neutral” regula-
tions of speech, to be valid under the First Amendment, are subject to
stringent requirements. A State may “enforce regulations of the time,
place, and manner of expression which are content-neutral, are nar-
rowly tailored to serve a significant government interest, and leave
open ample alternative channels of communication.” Perry Educ.
Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45, 103 S.Ct. 948,
955, 74 L.Ed.2d 794 (1983). See, e.g., Ward v. Rock Against Racism,
491 U.S.__, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Frisby
v. Schultz, 487 U.S. 474,108 S.Ct. 2495, 2500, 101 L.Ed.2d 420, 429
(1988); Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984), and cases there
cited. The pertinent clause of § 121, as now construed and applied by
this Court, is not a narrowly drawn time, place or manner regulation,
tailored to serve a significant government interest, and leaving ample
alternative channels of communication. Instead, it is overbroad and
vague.
Seer aE
a-35
(1)
Initially, the majority invokes the principle that the government
has an interest in protecting its citizens from unwelcome noise, and it
relies on Ward v. Rock Against Racism, supra, 109 S.Ct. at 2756;
Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949);
Saia v. New York, supra, 334 U.S. at 562, 68 S.Ct. at 1150-1151; and
Reeves v. McConn, 631 F.2d 377 (Sth Cir.1980). These cases, how-
ever, dealt with sound amplification devices; they indicate that nar-
rowly drawn regulation of amplified sound is permissible. The cited
cases do not countenance broad regulation of unamplified speeches.
The Supreme Court has never held that the government has a
legitimate interest in controlling the volume of unamplified political
or social speech delivered in an appropriate place and at an appropriate
time. Indeed, the cases have suggested otherwise.
The Supreme Court first confronted the relationship between the
First Amendment and amplification devices in Saia v. New York,
supra, 334 U.S. 558, 68 S.Ct. 1148, where a local penal ordinance
forbade the use of sound amplification devices without the permission
of the Chief of Police. The appellant, a Jehovah’s Witnesses’ minister,
received a permit to use sound equipment to amplify lectures on
religious subjects in a public park on Sundays. After the permit
expired, his request for another one was denied on the ground that
complaints had been made. When he subsequently used his equipment
anyway, he was arrested and convicted. The state presented witnesses
at trial who, like the witnesses at Eanes’s trial, testified that they were
annoyed by the sound, although not by the content, of his speeches.
The Supreme Court, holding the ordinance unconstitutional, stated
that the ordinance prescribed no standards for the exercise of the Chief
of Police’s discretion, nor was it “narrowly drawn to regulate the hours
or places of use of loud-speakers, or the volume of sound (the decibels)
to which they must be adjusted.” 334 U.S. at 560, 68 S.Ct. at 1149.
Noting that loud-speakers “are today indispensable instruments of
effective public speech,” the Court concluded that abuses created by
loud-speakers would have to be controlled by narrowly drawn statutes,
saying in language quite pertinent here (334 U.S. at 562, 68 S.Ct. at
1150-1151):
———————S— eee
a-36
“The present ordinance would be a dangerous weapon if it
were allowed to get a hold on our public life. Noise can be
regulated by regulating decibels. The hours and place of
public discussion can be controlled. But to allow the police
to bar the use of loud-speakers because their use can be
abused is like barring radio receivers because they too
make a noise. The police need not be given the power to
deny a man the use of his radio in order to protect a
neighbor against sleepless nights. The same is true here.
“Any abuses which loud-speakers create can be controlled
by narrowly drawn statutes. When a city allows an official
to ban them in his uncontrolled discretion, it sanctions a
device for suppression of free communication of ideas. In
this case a permit is denied because some persons were said
to have found the sound annoying. In the next one a permit
may be denied because some people find the ideas annoy-
ing. Annoyance at ideas can be cloaked in annoyance at
sound. The power of censorship inherent in this type of
ordinance reveals its vice.”
In the instant case, even if Eanes had used a loudspeaker, it is
questionable whether § 121, as construed by the majority, could be
constitutionally applied to him in light of the above holding in Saia.
Section 121, as formulated by the Court today, is no more narrowly
drawn than the ordinance in Saia. It does not specify permitted times,
places, or decibels. The only standard to guide the “police authority,”
who must initially give the “prior warning” under the majority’s
construction of the statute, is whether a complaint has been made and
whether the police officer believes that the sound is unreasonably
loud.° The majority, employing broad and vague standards which
perhaps could not constitutionally be applied to amplified sound, uses
such criteria to suppress unamplified speech.
One year later, in Kovacs v. Cooper, supra, 336 U.S. 77, 69S.Ct
448, the Supreme Court upheld a Trenton, New Jersey, ordinance
barring sound trucks from “broadcasting in a loud and raucous man-
ner.” The appellant had used a sound truck to broadcast music and
* The “prior warning by police authority” which the majority has engrafted on Art.
27, § 121, might be analogized to the police refusal to renew the permit in Saia.
ee
a-37
comment on a labor dispute. The opinion of three justices, announcing
the judgment of the Court, pointed out that the ordinance applied only
to vehicles, only to those with a sound amplifier and only to those
operating on the streets. The opinion emphasized that sound trucks
could still be utilized “in places such as parks or other open spaces off
the streets.” 336 U.S. at 85, 69 S.Ct. at 452. The plurality opinion also
indicated that absolute prohibition of sound amplification devices in
the city would be “probably unconstitutional.” 336 U.S. at 82, 69 S.Ct.
at 451. The opinion noted that in a city like Trenton, sound trucks
blaring on the streets “would be dangerous to traffic....” 336 U.S. at
87, 69 S.Ct. at 453. In concluding, the opinion specifically addressed
unamplified human speech which the ordinance did not prohibit (336
U.S. at 89, 69 S.Ct. at 454, emphasis added):
“There is no restriction upon the communication of ideas
or discussion of issues by the human voice, by newspapers,
by pamphlets, by dodgers.”
In concurring, Justice Frankfurter drew the following distinction (336
U.S. at 96, 69 S.Ct. at 458, emphasis added)
“Only a disregard of vital differences between natural
speech, even of the loudest spellbinders, and the noise of
sound trucks would give sound trucks the constitutional
rights accorded to the unaided human voice.”
The ordinance in Kovacs was more narrowly drawn than § 121
as construed by the Court today; the Kovacs ordinance was limited to
vehicles, was limited to sound amplification devices, and permitted
the sound trucks in certain places. More importantly, however, the
Supreme Court clearly drew a distinction between amplified sound
and the unaided human voice.
The majority relies on a recent Supreme Court sound amplifica-
tion case, Ward v. Rock Against Racism, supra, which concerned a
challenge to “use guidelines” for a bandshell in New York City’s
Central Park. The regulations required bandshell performers to use
sound-amplification equipment and a sound technician provided by
the city. Rock Against Racism had previously sponsored programs
where it furnished the equipment and technician. The city asserted two
justifications for its guidelines. The first was to control noise levels at
bandshell events, in order to retain the character of a quiet area of
a
a-38
Central Park and avoid undue intrusion into nearby residential areas.
The second was to ensure the quality of sound at bandshell events.
Again, the regulations in Ward were much more narrowly drawn
and specific than Art. 27, § 121. The Ward regulations specifically
applied to a bandshell, in a particular location, and owned by the city.
Moreover, sound amplification equipment was not proscribed; it
merely had to be supplied by the city. Finally, the Ward regulations
dealt with amplified noise, not unamplified speech on political and
social issues.
The majority also cites Reeves v. McConn, supra, 631 F.2d 377,
for the proposition that a “city may protect citizens from unreasonable
or disruptive levels of noise in streets.” When the United States Court
of Appeals for the Fifth Circuit considered a petition for rehearing,
638 F.2d 762 (Sth Cir.1981), however, it recognized the distinction
between unaided and amplified sound. The court faced a challenge to
an ordinance that prohibited the “amplification” of “obscene” words
or sounds. After accepting a construction of “obscene” that extended
beyond erotic words and included “indecent” words, the court
reasoned that a “sensible balance of these competing rights [speech
and a right to have ‘a reasonable means of avoidance’] is to protect
the speaker of obscene or indecent words only when he uses the
unamplified voice....” /d. at 764. Instead of supporting the majority’s
decision in the instant case, Reeves points the other way.
Despite the majority’s refusal to draw a distinction for First
Amendment purposes between amplified sound and unamplified
speech, it is clear that there is a constitutionally significant difference
between the two.
(2)
Many other cases, including ones relied on by the majority,
demonstrate that the majority’s decision cannot be squared with First
Amendment principles.
Several Supreme Court cases undermine the majority’s position
that mere loudness, accompanied by complaints and warnings, is
sufficient to justify the suppression of unamplified political speech. In
Edwards v. South Carolina, supra, 372 U.S. 229, 83 S.Ct. 680, the
Supreme Court reversed the breach of the peace convictions of 187
a-39
student demonstrators. At noon the demonstrators walked to the South
Carolina State House grounds, an area of two city blocks open to the
public, to protest racial discrimination in the state. For thirty to
forty-five minutes, they marched and carried placards as a crowd of
200 to 300 onlookers gathered on adjacent sidewalks. After apparently
some complaints,®° and after being warned by police authorities that
they would be arrested if they did not disperse within f' teen minutes,
one of the leaders delivered a “religious harangue” and the
demonstrators loudly sang while stamping their feet and clapping their
hands. The noise level caused by the 187 demonstrators, as described
in the Supreme Court’s opinion, was certainly greater than Eanes’s
speech. The Supreme Court stated (372 U.S. at 233, 83 S.Ct. at 682):
“Instead of dispersing, the petitioners engaged in what the
City Manager described as ‘boisterous,’ ‘loud,’ and
‘flamboyant’ conduct, which, as his later testimony made
clear, consisted of listening to a ‘religious harangue’ by one
of their leaders, and loudly singing ‘The Star Spangled
Banner’ and other patriotic and religious songs, while
stamping their feet and clapping their hands. After 15
minutes had passed, the police arrested the petitioners and
marched them off to jail.”
The Court in Edwards, using language fully applicable to the
present case, distinguished the situation before it from a conviction
under a narrowly drawn regulatory statute (372 U.S. at 236, 83 S.Ct.
at 684):
“We do not review in this case criminal convictions result-
ing from the evenhanded application of a precise and
narrowly drawn regulatory statute evincing a legislative
judgement that certain specific conduct be limited or
proscribed. If, for example, the petitioners had been con-
victed upon evidence that they had violated a law regulat-
ing traffic, or had disobeyed a law reasonably limiting the
periods during which the State House grounds were open
to the public, this would be a different case.”
© See 372 US. at 232 n. 6, 83 S.Ct. at 682 1.6.
a-40
After pointing out that the First and Fourteenth Amendments do “not
permit a State to make criminal the peaceful expression of unpopular
views,” the Court (372 U.S. at 237-238, 83 S.Ct. at 684-685) repeated
its earlier language from Terminello v. City of Chicago, 337 U.S. 1,
4-5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949):
“ee
[A] function of free speech under our system of govern-
ment is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs
people to anger. Speech is often provocative and challeng-
ing. It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for accep-
tance of an idea. That is why freedom of speech * * * is *
* * protected against censorship or punishment, unless
shown likely to produce a clear and present danger of a
serious substantive evil that rises far above public incon-
venience, annoyance, or unrest. * * * There is no room
under our Constitution for a more restrictive view. For the
alternative would lead to standardization of ideas either by
legislatures, courts, or dominant political or community
999
groups.
Two years later, in Cox v. State of Louisiana, 379 U.S. 536, 85
S.Ct. 453, 13 L.Ed.2d 471 (1965), the Supreme Court reversed the
convictions of a civil rights demonstration leader for, inter alia,
disturbing the peace. Cox had led about 2,000 students in a march to
the courthouse in downtown Baton Rouge, Louisiana, to protest
against discrimination and the previous day’s arrest of twenty-three
fellow students. At the noon demonstration, the students carried signs,
sang songs and pledged allegiance to the flag. The demonstrators
began to cheer loudly and clap when the twenty-three student
prisoners began to sing from their cells. After Cox encouraged the
group to sit-in at stores that would not serve meals to blacks, the sheriff
ordered the demonstrators to break up. They refused and were dis-
persed by tear gas. Authorities arrested Cox the next day. The Supreme
Court viewed a film of the events and concluded that the “singing and
cheering do not seem to us to differ significantly from the constitu-
tionally protected activity of the demonstrators in Edwards....” 379
U.S. at 548, 85 S.Ct. at 460. In answering Louisiana’s contention that
a-41
the convictions should be sustained because of fears expressed by
some witnesses that violence would erupt, the Court again pointed to
Terminello.
Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d
222 (1972), is relied on by the majority in the instant case to support
its concern for the well being of a “captive audience,” and to support
its conclusion that sound “is one of the most intrusive means of
communication.” Yet Grayned demonstrates the relevance of Ed-
wards and Cox to the facts before us today. In Grayned, an Illinois
antinoise ordinance forbad people, while on ground adjacent to a
school building, from making noises or diversions that disturb the
peace or good order" of a school session or class. In holding that the
ordinance was sufficiently narrowly tailored, and not unconstitution-
ally vague or overbroad, the Supreme Court emphasized that the
ordinance was limited to grounds adjacent to a school building, was
limited to times when school was in session, and, as construed by the
Supreme court of Illinois, was limited to prohibiting “actuai or im-
minent interference with the ‘peace or good order’ of the school.” 408
U.S. at 111-112, 92 S.Ct. at 2301. Even with these specific time, place
and manner limitations, the Grayned Court at one point stated that “the
question is close” as to whether the ordinance was “impermissibly
vague.” 408 U.S. at 109, 92 S.Ct. at 2299.
The statute under which Eanes was convicted, as construed by
the majority today, has none of these time, place and manner limita-
tions. Although the majority « { this Court seems to believe that the
requirement of a prior police warning helps to narrow the regulation
of speech, the Supreme Court in Grayned indicated that police discre-
tion in determining whether con duct was proscribed contributes to
rendering a statute impermissibly vague. /bid.
Furthermore, in upholding the ordinance the Grayned opinion
drew a sharp distinction between noisy demonstrations adjacent to a
school and noisy demonstrations elsewhere (408 US. at 120, 92 S.Ct.
at 2305)
“Noisy demonstrations that disrupt or are incompatible
with normal school activities are obviously within the
ordinance’s reach. Such expressive conduct may be con-
stitutionally protected at other places or other times, cf.
a-42
Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct. 680, 9
L.Ed.2d 697] (1963); Cox v. Louisiana, 379 U.S. 536 [85
S.Ct. 453, 13 L.Ed.2d 471] (1965), but next to a school
while classes are in session, it may be prohibited. The
antinoise ordinance imposes no such restriction on expres-
sive activity before or after the school session, while the
student/faculty ‘audience’ enters and leaves the school.”
The Supreme Court clearly indicated that “noisy demonstrations that
disrupt” constitute speech which enjoys constitutional protection in at
least some places and some times. The majority’s construction and
application of Art. 27, § 121, totally ignores these words.
At Eanes’s May 17, 1988, trial, Judge Moylan noted that Ed-
wards “bears a resemblance to this case.” He also stated that the issue
in Cox was “not far removed from the issue or type of activity here....
There is simply the exercise by citizens of their First Amendment
right.” As previously indicated, the speech for which Eanes stands
convicted was undoubtedly no louder than the cheering, clapping, and
singing of 187 demonstrators in South Carolina whose convictions
were reversed in Edwards. The “captive audience” in downtown
Baton Rouge, Louisiana, would not have even heard Eanes amidst the
singing and cheering of 2,000 demonstrators involved in Cox. It is
difficult for me to believe that the Supreme Court would have sus-
tained convictions in Edwards and Cox based on broad statutes
proscribing “unseemly loud” noises.
Edwards, Cox, and Grayned, read together, make it clear that
authorities cannot invoke a general disorderly conduct statute like Art.
27, § 121, to suppress a speech simply because it is noisy.
ed
A state’s interest in protecting its citizens from unwelcome noise
may justify some narrowly drawn time, place and manner regulations
of noise. No such regulations are being applied in the case at bar.
The relevant clause of Art. 27, § 121, does not itself contain any
time or place regulations. While the majority’s construction of the
statute and reference to the “circumstances” might embody a vague
time and place component applicable in another case, e.g., a speech at
midnight or in a residential neighborhood, no time or place regulation
a-43
is applicable in the present case. Concededly Eanes’s speech was at a
permitted time and a permitted place.
The majority believes that its formulation and application of the
“unreasonably loud” standard, coupled with the need for a complaint
and prior police warning, is a specific regulation of the “manner” of
speech, and “is sufficiently narrowly tailored” to be valid under First
Amendment principles. Neither reason nor case law supports this
position.
The standard adopted by the majority is, on its face, a vague one.
As previously discussed, it lacks the objective specificity of the
regulations of sound involved in cases such as Kovacs v. Cooper,
supra; Grayned v. Rockford, supra; Ward v. Rock Against Racism,
supra; Reeves v.McConn, supra; and others. For example, the Kovacs
standard, in addition to the limitation “loud and raucous,” applied only
to vehicles, only to amplified sound, and only to streets. The Grayned
standard had express time and place limitations, coupled with a much
more specific manner limitation, namely actual or imminent inter-
ference with the operations of the school.’ The regulation in Ward
applied to a particular bandshell, in one specific location, and to
amplified noise. No case cited by the majority, and no case of which
I am aware, upholds the suppression of unamplified political speech,
at a permitted time and place, under a vague “unreasonably loud”
standard.8
' See also Portland Feminist Women’s Health Center v. Advocates For Life, Inc.,
859 F.2d 681, 684 (9th Cir.1988), where the United Siates Court of Appeals for the
Ninth Circuit r considered a constitutional challenge to a preliminary injunction
against “shouting, screaming, chanting, or yelling during on-site demonstrations
outside a clinic that provided abortion services. While the court concluded that a state
can regulate disruptive expression outside a clinic where medical services are offered,
it affirmed the lower court only after modifying the injunction to forbid a volume that
substantially interferes with the provision of medical services within the Center....”
859 F.2d at 686-687.
As previously noted, in the instant case there were neither findings nor any
evidence that Eanes’s speech interfered with medical services at the clinic, and the
majority docs not require this under its construction of the statute.
5 The majority argues that, to be valid, a regulation of noise need not specify the
permitted and prohibited sound levels by decibels. I agree. Nevertheless, regulations
of speech which do not specify decibels, and which have been upheld by the courts,
a
a-44
Further contributing to the vagueness of Art. 27, § 121, are the
different meanings which the majority ascribes to the statutory phrase
“loud and unseemly.” As I understand Part III A of the majority
opinion, if the complaint (or perhaps the theory of the prosecution — I
am not sure which) about a speech relates to its content, then the phrase
“loud and unseemly” means speech advocating “imminent lawless
action and... likely to incite a breach of the peace.” On the other hand,
if the complaint purportedly does not concern the content of the
speech, then the words “loud and unseemly” mean “the volume level
of protected speech” (majority opinion, p. 608). This is a great deal of
flexibility for three little words. How such flexibility can be deemed
to constitute a “narrowly tailored” regulation of speech is beyond my
comprehension.
in addition the statute, as construed by the majority, obviously
suffers from overbreadth, as “its reach ... prohibits constitutionally
protected conduct.” Grayned v. Rockford, supra, 408 U.S. at 114, 92
S.Ct. at 2302. As discussed earlier, the standard employed by the
majority would encompass peaceful but noisy demonstrations at the
State House, like those involved in Edwards v. South Carolina, supra,
and like those which regularly occur in Annapolis. The majority’s
standard would prohibit peaceful but noisy civil rights demonstrations
in downtown areas, similar to those deemed constitutionally protected
in Cox v. Louisiana, supra. The recent non-violent anti-government
demonstrations in Eastern Europe, which have been generally praised
in this country, would undoubtedly have constituted criminal activity
if they had occurred in Maryland, under the test employed by the
majority. The examples of protected First Amendment activity, poten-
tially encompassed by the standard being applied to Eanes’s speech,
are endless.
In State v. Swoboda, 658 S.W.2d 24 (Mo. 1983), the Supreme
Court of Missouri held that a statute proscribing “unreasonably and
knowingly causing alarm to another person or persons not physically
on the same premises by ... [l]oud and abusive language” was uncon-
Stitutionally overbroad. Using language that is quite apt in the present
have contained other specific time, place or manner criteria. In the absence of
sufficient other criteria, a specification of decibels might hslp, depending upon the
circumstances. See Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92
L.Ed. 1574 (1948).
a-45
case, the Supreme Court of Missouri emphasized that the statute “can
encompass virtually any expletive unreasonably and knowingly ut-
tered at high volume and with high intensity, so long as a complainant
is alarmed; vehement political discussion obviously contemplated by
the first amendment could fall within the statute’s proscription.” Jd. at
25.
The complaint and police warning requirements, which the
majority today engrafts upon the legislative enactment, do not trans-
form the majority’s “unseemly loud” standard into a permissible
narrowly tailored time, place or manner regulation of speech. If
anything, the complaint and warning requirements may exacerbate the
First Amendment problems.
Preliminarily, complaints and prior warnings by authorities have
been present in many of the Supreme Court’s cases dealing with
regulations of activity protected by the First Amendment. The Court
has not, to the best of my knowledge, given any weight to these factors
in determining whether the regulation was constitutionally valid. See,
e.g., Edwards v. South Carolina, supra.
Any time government authorities, desire to suppress activity
protected by the First Amendment, it will not be difficult for them to
find complainants and to give prior warnings. The complaint and
warning requirements add nothing to specificity. Whatever protection
they might seem to provide against government overreaching is il-
lusory.
Moreover, by making a complaint and a prior police warning
Statutory elements, the majority opens the door to discriminatory
enforcement of Art. 27, § 121. Thus, if two speakers, at about the same
time of day and in similar neighborhoods, reach the same volume, and
persons complain only about one of them, a police officer can use §
121 only against the speaker who was the object of the complaints.
While the complaints may be couched in terms of loudness, it is quite
likely that the speech with “offensive” content will generate com-
plaints and the speech with popular content, or by a popular speaker,
will not.
Similarly, the prior police warning requirement may lead to the
suppression of speech when there are policemen nearby, but if
policemen do not happen to be in the area to give warnings, speech of
a
a-46
comparable loudness, at the same times and places, will be exempt
from the criminal statute. It is wholly irrational to make the violation
of a criminal statute dependent upon the presence or absence of a
police officer when the conduct takes place.
Furthermore, the prior warning requirement vests police officers
with too much discretion to quell First Amendment protected activity.
Empowering policemen to warn speakers, without any specific
criteria, could lead to routine warnings having a chilling effect upon
free speech. Also, provision of clear and explicit standards to guide
law enforcement officers are necessary to prevent arbitrary and dis-
criminatory enforcement. Smith v. Goquen, 415 U.S. 566, 572-573,
94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Grayned v. City of
Rockford, supra, 408 U.S. at 108-109, 92 S.Ct. at 2298-2299. This is
particularly true when First Amendment activity is at stake. In City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 108 S.Ct. 2138,
100 L.Ed.2d 771(1988), the Court held that a statute giving a mayor
unbridled discretion over whether to permit newsracks was uncon-
stitutional on its face. The Court emphasized that standards are needed
to provide “guideposts that check the licensor” and make more dif-
ficult “post hoc rationalizations” and the use of “shifting or illegitimate
criteria.” 108 S.Ct. at 2144.
In City of Houston, Texas v. Hill, 482 U.S. 451, 107 S.Ct. 2502,
96 L.Ed.2d 398 (1987), the Supreme Court held that a municipal
ordinance making it unlawful to “wilfully or intentionally interrupt a
city policeman ... by verbal challenge during an investigation” was
unconstitutionally overbroad under the First Amendment. The Court
emphasized that the ordinance “accords the police unconstitutional
discretion in enforcement” for they would be free to arrest whom they
chose out of a group of many who violate “plain language” of the
ordinance daily. 482 U.S. at 466, 107 S.Ct. at 2512.
As pointed out below in Part III, a person planning to make a
speech in a particular manner, ai a specific time and place, should be
able to determine in advance whether his activity will be a crime. By
making the criminality of the activity dependent upon a complaint and
police warning, the speaker has no way of knowing in advance
whether the delivering of his speech will be a crime. The elements of
a
a-47
complaint and prior warning render the vague “unseemly loud” stand-
ard even vaguer.
Finally, the majority’s argument that its construction and ap-
plication of Art. 27, § 121, allows for ample alternative avenues of
communication is unpersuasive. Cases upholding narrowly tailored
regulations of activity protected by the First Amendment have not
required persons to forego the most basic form of free speech and
choose less direct methods. Thus, the defendant in Kovacs v. Cooper,
supra, 336 U.S. at 89, 69 S.Ct. at 454, faced “no restriction upon the
communication of ideas or discussion of issues by the human voice....”
Eanes is not so fortunate. He must pursue less direct methods of
communication, even though there was no finding by the trial court
that he could have conveyed his message by alternative means without
disturbing others. See also City Council v. Taxpayers for Vincent, 466
U.S. 789, 812,104 S.Ct. 2118, 2132-2133, 80 L.Ed.2d i172 (1984), on
which the majority relies, but where the Supreme Court noted that the
sign control ordinance there involved “does not affect any individual’s
freedom to exercise the right to speak and to distribute literature in the
same place where the posting of signs on public property is
prohibited,” and where the Court emphasized the findings of the trial
court that there were ample alternative channels of communication.
Making a speech on a public sidewalk, with the unamplified
human voice, is the one form of communication in which virtually all
of our citizens may engage, as it does not ordinarily involve expendi-
tures of money. Many who have a message, and wish to convey it in
accordance with their First Amendment right, may not be able to afford
printing literature, making signs, the postage involved in mailings,
telephoning, and the other “alternative means” suggested by the
majority. I flatly reject the majority’s view that, because of “alternative
means,” suppression of an unamplified sidewalk speech on a political
or social topic “is of little consequence” (majority opinion, p. 615).
Ill.
Apart from the violation of Eanes’s First Amendment rights, the
majority’s affirmance of his criminal conviction is inconsistent with
basic principles of due process embodied in the Fourteenth Amend-
ment and Art. 24 of the Maryland Declaration of Rights.
ES
a-48
A.
In addition to the constitutional requirement that a regulation of
progected speech be “narrowly tailored,” considerations of due process
mafdate that any criminal statute “give the person of ordinary intel-
ligence a reasonable opportunity to know what is prohibited, so that
he may act accordingly. Vague laws may trap the innocent by not
providing fair warning.” Grayned v. City of Rockford, supra, 408 U.S.
at 108, 92 S.Ct. at 2298-2299. We require a criminal statute to be
sufficiently definite “because we assume that a man is free to steer
between lawful and unlawful conduct.” /bid.
In Bowers v. State, 283 Md. 115, 120, 123, 389 A.2d 341(1978),
Judge Levine for the Court stated that “[t]he cardinal requirement is
that a penal statute ‘be sufficiently explicit to inform those who are
subject to it what conduct on their part will render them liable to its
penalties,’” (quoting from Connally v. General Const. Co., 269 U.S.
385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). The Court in Bowers
also emphasized “that whenever a criminal statute may ... impact upon
free speech rights, the void-for-vagueness doctrine ‘demands a greater
degree of specificity than in other contexts,’” (quoting from Smith v.
Goquen, supra, 415 U.S. at 573, 94 S.Ct. at 1247). See also In re Leroy
T., 285 Md. 508, 510-512, 403 A.2d 1226 (1979) (holding that a statute
prohibiting the possession of devices “commonly used ... for criminal
use” was unconstitutionally vague).
For the reasons already set out in Part II above, the pertinent
clause of Art. 27, § 121, as construed and applied by the majority
today, does not inform a reasonable person what conduct will render
him criminally liable. If one contemplates giving a political speech at
noon in the downtown area of a Maryland city, and realizes that to be
heard over the traffic noise he will have to use more than a conversa-
tional level, I do not know how he determines whether his unaided
voice will be deemed “unseemly loud” and generate complaints. The
same is true of one contemplating joining a rally of persons clapping
and singing outside the State House in Annapolis. Unlike the in-
dividual in downtown Trenton, New Jersey, in 1947, who knew that
the use of a sound truck on the streets would violate an ordinance and
that the use of his unaided voice would be permissible (see Kovacs v.
Cooper, supra), the Marylander today has no criteria to determine
whether his speech will be criminal.
a-49
The majority, recognizing that the statutory language as con-
strued does not “provide fair notice,” adds a prior police warning
requirement.? I do not believe, however, that an unconstitutionally
vague Statute can be salvaged by judicially creating the mechanism of
a police warning to operate on a case by case basis. See Cearfoss v.
State, 42 Md. 403, 407 (1875) ("No man incurs a penalty unless the
act which subjects him to it is clearly both within the spirit and letter
of the statute. Things which do not come within the words are not to
be brought within them by construction").
The mandate of due process is that a reasonable person should
in advance be able to ascertain whether contemplated conduct violates
a Statute. It may be permissible in some circumstances for the meaning
of a statute to be ascertained from prior reported cases, dictionaries,
and other sources, along with the statutory language. Bowers v. State,
supra, 283 Md. at 125, 389 A.2d at 347. Nevertheless, if a reasonable
person cannot determine from these sources whether the contemplated
activity is unlawful, the statute is invalid. At the very least, the
vagueness cannot be cured by applying the warning requirement in
the present case. See Bouie v. Columbia, 378 U.S. 347, 352-353, 84
S.Ct. 1697, 1702,12 L.Ed.2d 894 (1964) ("where vague statutes are
concerned, it has been pointed out that the vice in such an enactment
cannot ‘be cured in a given case by a construction in that very case
placing valid limits on the statute’”).
B.
Art. 27, § 121, as construed and applied by the Court today,
violates due process in another, although related, respect. While the
Ex Post Facto clauses of the federal and Maryland constitutions
directly apply only to the acts of legislative bodies, a similar limitation
applies to judicial action through the operation of the Due Process
clauses.
* The majority opinion, at p. 617, states:
“Nevertheless, a speaker exercising the legitimate rights of free speech
may be unaware that his or her volume has reached a prohibitive level
and has become unlawfully disruptive. In order, then, to provide fair
notice in a case such as this, we believe that the application of § 121
ordinarily requires prior warning by police authority, so that the speaker
is made aware that further communication at the offensive volume level
may subject the individual to prosecution.”
EEE
a-50
The Supreme Court, in Bouie v. Columbia, supra, 378 U.S. at
352-354, 84 S.Ct. at 1702, explained this principle as follows:
“There can be no doubt that a deprivation of the right of
fair warning can result not only from vague statutory
language but also from an unforeseeable and retroactive
judicial expansion of narrow and precise statutory lan-
guage. As the Court recognized in Pierce v. United States,
314 U.S. 306, 311, 62 S.Ct. 237, 239 [86 L.Ed. 226],
‘judicial enlargement of a criminal act by interpretation is
at war with a fundamental concept of the common law that
crimes must be defined with appropriate definiteness.’”
xe kee
“Indeed, an unforeseeable judicial enlargement of a
criminal statute, applied retroactively, operates precisely
like an ex post facto law, such as Art. I, § 10, of the
Constitution forbids. An ex post facto law has been defined
by this Court as one ‘that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action,’ or ‘that aggravates a
crime, or makes it greater than it was, when committed.’
Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648. [Footnote
omitted. ] If a state legislature is barred by the Ex Post Facto
Clause from passing such a law, it must follow that a State
Supreme Court is barred by the Due Process Clause from
achieving precisely the same result by judicial construc-
tion.”
In Bouie, the Supreme Court of South Carolina had construed a statute
prohibiting “entry upon the lands of another ... after notice from the
owner or ienant prohibiting such entry” to proscribe staying upon, as
well as entering upon, the land after such notice. The United States
Supreme Court concluded that while the construction could be valid
for the future, it could not be applied retroactively. 378 U.S. at 362,
84 S.Ct. at 1707.
The Supreme Court in Marks v. United States, 430 U.S. 188, 97
S.Ct. 990, 51 L.Ed.2d 260 (1977), reversed convictions for, inter alia,
transporting obscene materials in violation of a federal statute. The
Court held that due process principles precluded retroactive applica-
a-51
tion of new standards announced in Miller v. California, 413 U.S. 15,
93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), for distinguishing between hard
core pornography and protected First Amendment expression. The
Miller case had “expanded criminal liability” in replacing the “utterly
without redeeming social value” test with the “lacks serious literary,
artistic, political, or scientific value” test. Marks v. United States,
supra, 430 U.S. at 194, 97 S.Ct. at 994. Initially the Court in Marks
stated (430 U.S. at 191-192, 97 S.Ct. at 992-993);
“The Ex Post Facto Clause is a limitation on the powers of
the Legislature, . . . and does not of its own force apply to
the Judicial Branch of government. ... But the principle on
which the Clause is based — the notion that persons have a
right to fair warning of that conduct which will give rise to
criminal penalties — is fundamental to our concept of con-
Stitutional liberty.... As such, that night is protected by the
Due Process Clause of the Fifth Amendment.”
The Court went on to emphasize that it had “taken special care to insist
on fair warning when a Statute regulates expression and implicates
First Amendment values.” 430 U.S. at 196, 97 S.Ct. at 995. The Court
also emphasized that it was dealing with “sweeping” statutory lan-
guage, the reach of which “necessarily has been confined within the
constitutional limits announced by this Court.” 430 U.S. at 195, 97
S.Ct. at 994,
This Court affirms Eanes’s conviction under a new construction
of Art. 27, § 121, which goes far beyond the construction of the statute
set forth in Diehl v. State, supra, 294 Md. 466, 451 A.2d 115, and
earlier cases. In addition, today’s construction concededly adds new
elements to the statute. This Court’s action is clearly inconsistent with
the due process principle applied in Bouic v. Columbia, supra; Marks
v. United States, supra; and many other cases.
In Diehl v. State, supra, a police officer named Vincent Gavin
heard and saw the operator of an automobile squealing wheels on Main
Street in Hancock, Maryland, at 10:25 p.m. He pulled the vehicle over
in a supermarket parking lot and noted that it contained several people.
When Robert Diehl got out on the passeriger’s side, Gavin ordered
him to return to the vehicle. Gavin testified that Diehl began yelling
such phrases as “Fuck you, Gavin”; “I know my rights”; and “You
ls aeeataeeen liana etal
—
= —————
a-52
can’t.tell me what to do.” After people began to gather, Gavin arrested
Diehl for “screaming obscenities ... and drawing a crowd.” Diehl fled
from the scene. When a state trooper found him half an hour later and
dragged him to a police car, Diehl began to kick and scream. The State
charged Diehl, inter alia, with disturbing a neighborhood by “loud and
unseemly noises” in violation of Art. 27, § 121. A jury convicted him
of violating that statute and resisting arrest. This Court reversed the
convictions. We held, in an opinion by Judge Cole, that “Diehl’s
speech ... cannot qualify as a loud and unseemly noise under the”
statute, because, “[a]s speech protected by the First Amendment,
Diehl’s conduct must have advocated imminent lawless action and
been likely to incite a breach of the peace in order to be proscribable
by the State.” 294 Md. at 472, 451 A.2d at 119.
The majority today states that the Diehl test for “loud and
unseemly noise” prohibited by the statute applies only where the
conviction is based “on allegedly objectionable content,” and that
where the prosecution is based on “loudness,” the statutory phrase
means “unreasonably loud.” (Majority opinion, Part III A). The
majority justifies this reading of Diehl by arguing that loudness itself
was not an issue in the Diehl case. The majority asserts that “[a]t no
time did the State argue that the loudness of Diehl’s protestations
violated § 121.” (/bid.).
Preliminarily, I totally disagree with the Court’s restrictive view
of the issues in Dieh/. Loudness was an issue in Diehl, and the Court
there held that loudness itself was not proscribed by the statutory
phrase. The Diehl opinion specifically referred to the appellant’s
argument that “mere loudness is not enough to constitute disorderly
conduct,” 294 Md. at 470, 451 A.2d at 118. The State in its brief in
Diehl argued that Diehl was both loud in his volume and unseemly in
enhancing the prospect of chaos.!° The State did not argue that the
content of Diehl’s speech was per se unseemly.
Moreover, our opinion in Diehl clearly rejected the idea that
loudness alone, regardless of content, was prohibited by § 121. In
reasoning that Diehl’s speech was not prohibited, we pointed out that
“his words were chosen to express his outrage” and that “[e]ven the .
.. decibel level of this response was a communication that, although
7 Appellee’s brief in Diehl v. State, p. 6.
a-53
distasteful, should not have been surprising.” 294 Md. at 471-472, 451
A.2d at 118. We directly held that “the statute is not intended to prevent
[an outraged] citizen from loudly protesting,” 294 Md. at 472, 451
A.2d 119. Moreover, in Diehl we quoted with approval from a Califor-
nia opinion which the majority today rejects, !! saying (294 Md. at 473,
451 A.2d at 119):
“The Supreme Court of California in construing the ter-
minology of a statute regarding ‘loud and unusual noise’
held in Jn re Brown, 9 Cal.3d 612, 108 Cal. Rptr. 465, 510
P.2d 1017 (1973), cert. denied, California v. Brown, 416
U.S. 950, 94 S.Ct. 1959, 40 L.Ed.2d 300 (1974) that
‘The statute, however, cannot be interpreted consis-
tent with the First Amendment and traditional views
as making criminal all loud shouting or cheering
which disturbs and is intended to disturb persons.
[Footnote omitted.] When the word noise in the
Statute is properly construed consistent with the First
Amendment and traditional views, it encompasses
communications made in a loud manner only when
there is a clear and present danger of violence or
when the communication is not intended as such but
is merely a guise to disturb persons. {Id. 108 Cal.Rptr.
at 469, 510 P.2d at 1021.] [Emphasis supplied. ]’
“The State’s evidence failed to establish that Diehl’s con-
duct, under the circumstances here, was unlawful under
this first portion of § 121.”
Regardless of whether the majority’s decision is inconsistent
with DieAl, it is clear that today’s construction of § 121 is an entirely
new one. In light of the statutory language, the Diehl opinion, and prior
cases, neither Eanes nor anyone else could have anticipated the
majority ’s present view of the statute. Until today, there has never been
any suggestion that “unseemly” was a modifier of “loud” rather than
a separate statutory element. Neither in Maryland nor elsewhere has
a disorderly conduct statute worded like § 121 been construed or
applied to prohibit protected speech simply because it is deemed
" Majority opinion n. 7.
a-54
“unreasonably loud.” Lastly, the “statutory” elements of a complaint
and prior police warning are admittedly brand new as of today.!2
To adopt an unanticipated, unprecedented, and unwarranted
construction of a criminal statute is bad enough. To apply thai con-
struction retroactively to Eanes’s conduct is a denial of due process.
In my view, Eanes was entitled to deliver an unamplified speech
on the topic of abortion, from a public sidewalk in downtown
Hagerstown, during the late morning. To punish as criminal the
making of the speech, purportedly because it was too loud, distorts
both the statute and our basic constitutional guarantees. Finally,
today’s holding represents great potential danger for Marylanders
speaking on controversial topics.
Judges COLE and BLACKWELL have authorized me to state
that they concur with the views expressed herein.
2 After adding the prior warning requirement to the statute the majority holds that
the requirement was met in the present case by the warning that Eanes received from
the police officer. Until a policeman’s warning was given statutory status by today’s
opinion, however, a reasonable person in Eanes’s position would have put more
reliance on the circuit court’s decision the day before, acquitting him, than upon a
policeman’s warning. The “warning” of an officer, from a police force that had
arrested him once before, could not have outweighed the security of a circuit court
verdict that the statutory language and Constitution would not allow a conviction.
a-55
NO. 4166 CRIMINAL APPEALS
BEFORE:
IN THE
Circuit Court For
Washington County, Maryland
STATE OF MARYLAND
V.
JERRY WAYNE EANES
TRANSCRIPT OF PROCEEDINGS
Courtroom No. 1
Hagerstown, Maryland
December 15, 1988
The above entitled proceedings came
on for trial in open court at 9:40 A.M.
THE HONORABLE FRED C. WRIGHT, III
Associate Judge
APPEARANCES:
Daniel Dwyer, Assistant State’s Attorney for Washington County,
Appearing on behalf of the State of Maryland
David A. French, Esquire, Appearing on behalf of the Defendant
Deborah A. Ausburn, Esquire, Appearing on behalf of the Defendant
Craig L. Silver, Esquire, Appearing on behalf of the Defendant
Christine B. Lewis, Court Reporter
Court House
Hagerstown, Maryland 21740
a-56
* * * just the way the proceedings go. Is there any opening statement
you wish to give?
MR DWYER:
Very briefly, your Honor. I will just state that the defendant Mr.
Jerry Wayne Eanes is charged with being in violation of Article 27
and it is one of the three disturbing the peace statutes. In this instance
Article 27, Section 121 which deals with disturbing a neighborhood.
It is alleged that he was loud and obscenely.... excuse me, loud and
unseemly on the date of May 18th, 1988 in the vicinity of The
Hagerstown Reproductive Health Services, Inc., 160 West
Washington Street. It was a Wednesday.
The State is willing to concede that it’s not part of the State’s
case that any profanity was used, any swearing or using obscene
language was used. No fighting words were used. The State does not
allege that any ingress or egress from the building was obstructed. In
a nutshell, the State’s case is that he was loud and unseemly.
Of course unseemly has been defined in the case law as having
its ordinary dictionary meaning and I have some definitions of that
which I will present to you in closing arguments.
The State also makes no contention that any sound amplification
method was used. We allege that the defendant was loud and unseemly
using only his naked voice. And finally, the State stands ready to prove
that the arrest and prosecution of Mr. Eanes on the 18th of May of this
year was a valid and
** * *
lishment that faces right on West Washington Street that you can
hear traffic noise inside that establishment with the windows closed
and the air conditioning on, isn’t that the case?
A. [Nissa Reuak, business tenant on West Washington Street]
I guess I’ve become oblivious to traffic noises so I really don’t
pay attention to them.
Q. Is it your testimony that you never hear traffic noise?
A. hear traffic sometimes but it doesn’t bother me.
Q. And with the air conditioning on and the windows closed,
correct?
A. Did I say that I had the air conditioning on that day?
a-57
Q. I’m asking you generally.
A. Ah I could hear traffic. Sometimes it doesn’t bother me.
Q. And sometimes it does?
A. I suppose if there were a fire or ambulances or fifty tractor trailers
going down it might disrupt me for a second yeah.
Q. Alright. A lot . . a lot of loud vehicles use that street don’t they?
A. I really don’t spend that much time looking out the window and
paying attention to that noise, sir.
Q. Alright. So you don’t know. You don’t know .. it’s not .. it’s
not a busy street, is that your testimony?
A. Well it’s a busy street.
Q. Alright. The fact is that in the summer of "87 jack hammers were
being used out there weren’t they?
MR. DWYER:
Objection.
THE COURT:
Overruled.
A. The summer of’ 87?
Q. That’s correct.
A. Jack hammers? I believe that there were jack hammers.
Q. Alright.
A. Inthe summer of ’87.
Q. You could hear them inside your establishment with the win-
dows closed and the air conditioning on, couldn’t you?
A. Yes sir.
Q. Excuse me?
A. Yes sir.
Q. You didn’t bother to complain about those noises to the police
did you?
A. Nosir. I didn’t find them terrifically distracting.
Q. Alright. Isn’t it true, M’s Reuak, that you were objecting just as
much to the words that Mr. Eanes was using, the group was usin gZ
out there as you were how loud they were?
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a-58
No sir.
Miss Reuak, you testified on a number of occasions with respect
to this matter before haven't you?
Yes sir but on this particular occasion...
Well Mis Reuak I’m just asking you whether you...
That day I didn’t even know what they were saying.
Have testified. Would you please confine your response to my
question. I’m just asking you whether you testified concerning
Mr. Eanes’ activities before.
I have testified with regard to Mr. Eanes before, yes. | really
don’t recall which time you’re talking about sir.
Alright. Well I haven’t asked you anything about which time yet.
Now M’s Reuak when you testified previously the occasion
you’re referring to you swore to tell the truth, didn’t you?
Yes sir.
And did you tell the truth?
I would hope so sir.
Well did you?
Yes I did.
Alright. M’s Reuak, on July 8th, 1987 didn’t you testify in
District Court as to the following: Question by Mr. Eanes - Is
that what you object to, the loudness, right? Answer - The
loudness. I object to hearing about babies being slaughtered. |
object to hearing about murderers. I object to being subjected to
all of this. Didn’t you testify to all of that?
I did.
Alright. And M’s Reuak, on July first you gave testimony in the
Circuit Court before Judge Moylan on this matter did you not?
Ah yes.
And you also testified in District Court concerning Mr. Eanes’
activities on July first of 1987, did you not?
I guess I did. If it’s there. I really don’t recall dates sir.
Alright. Let me ask you if you recall this testimony. Question -
Do you have any problem with the content? Answer - i have no
a-59
problem with . . actually I don’t mind the Gospel being read
outside, okay. I don’t mind that. I have problems with hearing
butchers, murders, killers. It makes me feel just wonderful sitting
down there listening to that. I have a problem with that. That
content I do. Didn’t you testify to that?
A. Yes! did.
Q. Alright. I have no further questions. Thank you.
END OF CROSS EXAMINATION
THE COURT:
Anything else?
MR. DWYER:
Briefly on re-direct, your Honor.
ee ee
A. [Dana Dirling, resident of 160 West Washington Street]
Yes sir.
Q. And there are a lot of big trucks on there.
A. Yes sir.
Q. There’s a lot of traffic noise, is that correct? When you said the
traffic was heavier, I want to just talk to you about that for a
minute. Really . . strike that, will you. You testified that the one
lane was blocked off, is that correct?
A. Uhhuh. Yes.
Q. And so the only traffic that was actually moving past your
apartment building was . . was ah in that one lane, is that right?
A. Uh huh.
Q. Normally there are two lanes?
A. Yes, sir.
Q. And both of those lanes are filled with traffic, isn’t that correct?
A. Yes sir.
Q. And based on that, isn’t it . . would it be fair . . more fair to say
that normally with . . when there are two lanes open there are
more traffic in the sense it’s moving along and then there’s really
OP
>.
Q.
a-60
less traffic on that day because it was confined to one lane, isn’t
that right? There may have been more vehicles up there.
There may have been less traffic but even if that’s .. when there’s
two lanes of traffic then you’re saying that that’s more and
there’s more traffic noises. I never had any problem with the
noise when there’s two lanes of traffic. But this was only one
lane of traffic and it was . . and therefore the traffic noises would
be lighter and I could still hear them. I never had any problem
before with getting him to sleep. That was what...
So the traffic noise also bothered . . .
No I never had any other problem before.
Well 1. .on May 18th did it bother .. was the traffic noise bad?
I] mean you re saying that it bothered your boy.
I don’t think the traffic noise was even focused upon because
you could hear them over the traffic noise.
Well I’m asking you whether the traffic noise itself bothered his
sleep on May 18th?
No.
Alright. Ah.. youl mean...
I really can’t say whether it did or did not because he was asking,
“Why are all those people down there screaming?” I mean the
traffic was something that we lived with every day.
Okay. And so you kind of got used to that traffic noise?
Right.
There is that right? Okay. And because Mr. Eanes only
** *& *
MR. FRENCH:
That has a lot of relevancy, may it please the Court.
THE COURT:
A.
Go ahead.
[Anthony Compello, business tenant of 160 West Washington
Street]
Like I say, it depends. If it blocked . . if traffic is backed up you
know and they’re stopped they’re not going to make as much
noise but if the two lanes were there and they would keep moving
a-61
you know then it’s possible it would make more noise. But with
one lane traffic would have had to have been backed up. So it
wouid have been a little more quieter.
Q. Okay. And ah .. isn’t it true . . let me just ask you a question
about your radio. You mentioned that you had the radio on inside
your establishment that day?
A. Yes.
Q. The fact is on other occasions you didn’t have that radio inside
the building, did you?
A. I did not take a radio outside if that’s what you’ re asking.
Q. I’m not asking if you did. Do you recall was there anyone from
inside your business establishment ai any time placed a radio out
there when Mr. Eanes or other members of his group were out
there?
MR. DWYER:
Objection.
THE COURT:
Overruled.
A. There was not a radio out there that day. In previous times I
believe on one occasion in the past that I can recall there was a
radio put out front for roughly about five, ten minutes. The police
told them . . told the owner of Stage Struck, my boss Nathan
Kahn to move the radio back inside which he did.
Q. Your testimony is that it was only one time that the radio was
out?
A. I’m saying that I can recall one time.
Q. Okay. The fact is that when that radio is out there the noise
drowns out the voices from Mr. Eanes’ group isn’t that true?
MR. DWYER:
Objection.
A. No.
Q. No?
A. That radio did not . . could not drown out anyone’s voice when
they’re yelling.
a-62
Q. Well Mr. Campello, I want to just ask you, you’ve testified
before haven’t you. . sir in this matter? Concerning the activities
outside Stage Struck?
I’ve testified several times yes.
a
Alright. And on one of those occasions ah . . you testified did
you not sir, Question - Does that radio that Mr. Kahn sits outside
the shop periodically drown out our voices or the music that he
put up there? Answer - I depends on whose voice it is.
>
I cannot recall saying that. I may have or i may not have. The
thing is you know it does not totally drown...
Well I’m just asking . . I’m not asking if...
It does not totally drown out someone’s voice.
Mr. Campello, I’m just asking whether you testified that?
I guess I did. You’ve got it in front of you.
oPreore
Alright. And ah. . isn’t it true as well that . . well let me ask you
another question . . strike that. Didn’t someone come out of Stage
Struck one time in a devil’s costume and mocking Mr. Eanes and
his group?
MR. DWYER:
1 object.
THE COURT:
Sustained.
Q. May it please the Court, first of all I’d like to know the ground
for the objection. I don’t . . counsel has never stated the grounds
and I’d like to have the opportunity to respond to the objection
because it’s very relevant.
THE COURT:
Why is it relevant?
MR. FRENCH:
It shows the motivation for the complaints, may it please the
Court.
THE COURT:
Alright. Proceed.
A. There was a person that came out of there one time with a pitch
fork. It was not acomplete devil’s costume. He worked next door
at 162 with Theatre Effects.
©
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CP
MR.
a-63
x* * *
Now the fact is that inside the center even with the windows shut
and the air conditioning on that you can hear traffic noise and
loud trucks on Highway 40, Washington Street, isn’t that right?
[Diane Silas, Administrator of Hagerstown Reproductive Health
Services Clinic]
That’s correct.
And that it’s as well inside your establishment that with the
windows shut and the air conditioning on you’ve heard jack
hammers in use?
That’s correct.
Alright. And you’ve testified that you don’t like loud noise when
your establishment is in operation, correct?
Yes.
And you didn’t complain about the jack hammers to the police,
did you?
No I don’t believe I did.
Alright. And your dislike of loud noises didn’t prevent you from
putting a radio outside of your establishment and turning it up
really loud . . loudly, did it?
DWYER:
Objection.
THE COURT:
A.
erore
Overruled.
Ah there was a day I’m not sure when, I don’t believe it was that
particular day but I do recall a day at some point where there
were protestors who were screaming at the top of their lungs at
which point it seemed to me that ue only . . the only way to
respond was to ah take the radio out.
Well did you put a radio out there or not Miss Silas?
I’m saying that I did. Yes. And I’m saying why I did it.
And wasn’t it more than just one occasion?
Ah yes it was.
Alright. The fact is that you turned that thing up full volume,
didn’t you?
a-64
That’s correct.
Alright. And you could hear that radio inside your own building
couldn’t you?
I was outside with the building . . outside the building with the
radio. I could hardly be able to hear it on the inside.
Did you stay out there the whole time with the radio?
Yes.
You knew Mr. Eanes had been charged with the same offense
before May 18th, correct?
A. Yes.
Q. In fact you were present at the trial on May 17th, correct?
A. Yes.
Q. You knew he had been acquitted, isn’t that correct?
A. Yes itis.
Q. Andwith that knowledge you attempted still to have him arrested
again for the same activity?
tee *
MR. DWYER: .
Okay. Let the record show he’s identified the defendant Mr.
Eanes.
Q. What exactly do you recall about what Mr. Eanes did or said that
A.
oPrere
morning?
[Officer Wayne Shank]
Basically he was reading from The Bible as he walked up and
down the street right in front of 160 West Washington Street ah
doing the street preaching . . what is referred to as street preach-
ing.
How would you describe his tone of voice?
Very loud.
Was there vehicular traffic, trucks and cars that morning?
Yes there was.
How would you compare the sound of Mr. Eanes’ voice to the
sound of the trucks and cars?
a-65
Ah at times it was louder than the trucks and cars. Like I say, he
would go in spurts. He would be very loud for several minutes
and then he would you know quiet down for a couple of minutes
and then get loud again.
How long did you observe him do this?
Ah .. probably i/self approximately five minutes.
Is there anything else you recall about that morning regarding
Mr. Eanes’ conduct?
No sir.
. DWYER:
Okay. Thank you, Officer Shank. I have no more questions. The
defense counsel may.
END OF DIRECT EXAMINATION
CROSS EXAMINATION
MR FRENCH:
Q. Officer, you arrived . . by responding to a dispatch call?
A. Yes sir.
Q. Could you just tell me what . . what that was? I mean I’m not
familiar with a dispatch call.
The dispatch call?
Yes.
The call came from Headquarters over our radio units is what is
was.
And did they say anything or tell you why to go to the area or
what?
They were supposed to go in reference to a disturbance in front
. . people in front making a lot of noise.
Okay. Ah. . Isn’t it true that Mr. Eanes here when you heard him
preach that he only preached for a couple of minutes at a time,
correct?
Loudly, yes sir.
>Oo Pe
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MR.
a-66
Alright. But it was only for a couple of minutes at a time?
Yeah. At a time and then he would stop for several minutes and
then start again.
And how many times did you hear him, do you recall?
I can’t even recall how many. While I was there it wasn’t that
many times.
Okay. Would you disagree with anyone’s testimony . . strike that.
Would you disagree if someone testified that Mr. Eanes spoke
only on three occasions or four?
While I was there that would be the most that I heard him at. .
at least .. you know at the most while I was there.
Alright. And you also mentioned that a patrol car was parked in
the traffic lane on Washington Street, is that right?
Yes mine was.
I’m sorry?
Mine was.
Yours. And that basically blocked the traffic in that lane, is that
right?
It basically did. They had to change to the center lane to get by,
yes Sir.
. FRENCH:
I have no further questions, your Honor.
END OF CROSS EXAMINATION
DWYER:
I have no further questions, your Honor.
THE COURT:
A.
Q.
A.
Alright, Officer, thank you. Now you’re excused.
Thank you.
** * *
Was . . were you there once or twice that morning?
[Officer Harold Feigley]
I was there twice.
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a-67
Okay. Now these conversations with Mr. Schuller and Mr. Eanes
you're referring to, were they conducted the first time you were
there or the second time?
The first time.
So there came a time when you left?
Yes sir.
Why did you leave?
There was a . . a confusion among my supervisors in reference
to a decision handed down by Judge Moylan the previous day
and we were advised by Captain Hart to leave the area until we
got a ruling from the State’s Attorney’s office.
What happened after that?
We left.
Okay. Did there come a time when you went back?
Approximately forty . . thirty to forty minutes after we left the
first time I returned ah because the Department was still getting
numerous complaints in reference to the noise of the people
protesting in front of the abortion clinic, yes.
Okay. So . . when you went back you observed Mr. Eanes doing
anything?
Mr. Eanes was still protesting in front of 160 West Washington
Street and he was still shouting at a very high voice ah the Gospel.
Apparently he looked over towards us and he made a comment
to myself, Officers Kenneth Stoner . . the Chief of Police Paul
Wood, Captain Hart and Sergeant Spielman were on the corner
by the Presbyterian Church on West Washington at Prospect and
he shouted, “They ask for money for the war on drugs and murder
...” and he didn’t finish the conversation. And this he done in a
very . . very loud voice.
Okay.
At which time I went over and placed him under arrest for
disorderly conduct.
Why didn’t you arrest Mr. Schuller"
Mr. Schuller was quiet the second time I came back.
a-68
MR. DWYER:
Thank you, Officer. I have no more questions. Your witness.
END OF DIRECT EXAMINATION
CROSS EXAMINATION
MR. FRENCH:
Q. Ah you mentioned Officer, is it Feigley or Feigley?
A. Feigley.
Q. Feigley. Ah you mentioned that you received a call from ah...
that you responded to to go to the abortion center, is that right,
that vicinity?
A. Yes sir.
Q. And who did you receive the call from?
A. I got that from our police dispatch.
Q. Okay. Ah.. that wasn’t the first time that you had
**x * *
THE COURT:
Or innocence of this matter it is not an issue.
MR. FRENCH:
Well your Honor, I’d like to at least then make an offer proof to
that on this point.
MR. DWYER:
Objection.
THE COURT:
Sustained.
MR. FRENCH: |
I’m not entitled to make a record . . on ah on whether it’s
admissible for this proceeding or not? Is that what your Honor is
saying?
THE COURT:
That’s correct.
Q. You mentioned that another man . . ah was out there speaking,
is that correct Officer Feigley? Other than Mr. Eanes?
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[Officer Harold Feigley]
Yes sir.
And how much. . how much ah. . er strike that. He was louder
than Mr. Eanes, isn’t that true? Mr. Schuller I’m speaking of.
I would say just a small bit yes.
Alright. Ah . . you never heard Mr. Eanes use any obscene
language, correct?
None.
Did you hear him use any vulgar or profane language?
None.
Did you ever hear him threaten anyone?
No sir.
Did you ever hear him urge anyone to break the law?
No sir.
Did you ever hear him urge anyone to undertake any violent act?
No sir.
Did you hear him u ge anyone to go on to the abortion center
property?
No sir.
Ah the only noise you heard him make was speech, is that
correct?
Yes.
Ah he never went on the abortion center property, correct?
No sir.
And he always . . strike that. You saw him on the side of the
abortion ah. . the side of the street where the abortion center was,
correct?
On the sidewalk, yes.
Right. And you never saw him go on the other side, correct?
No.
He never blocked the entrance to the abortion center, did he?
No sir.
POP
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a-70
And he stayed on the sidewalk there at all times?
** * *
[Jerry Wayne Eanes]
Yes sir I did.
How much time?
I spent ah two and a half tours, seventeen months.
Okay. When was that?
Off and on between those dates.
Alright. Are you familiar with the Reproductive Health Services,
Mr. Eanes?
Yes sir.
How do you know about that?
Well I know about it because of the. . all the church organizations
and all the people I know and where I go to church with, we all
know where the abortions take place.
Alright. And have you been at the Reproductive Health Services
before July 8th..ah...
Yes, sir.
Excuse me, before May 18th of ’88?
Yes sir.
Ah how many times have you been there prior to May 8?
Ah four or five times, six maybe at the most.
Alright. And you were there on May 18th of 1988, is that right?
Yes sir.
And what was your purpose in going there?
That purpose that we go to the abortion clinic is to . . to assemble
to speak out against abortion, to pass out gospel tracts, to try to
talk to girls that are walking by but the main reason that I go out
there is to preach the Gospel of Jesus Christ.
Alright. And were the police there on May 18th of 1988 when
you arrived, sir?
Yes sir.
er 8 PFO
CP
MR.
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And what was the general nature of their activities? If you could
describe them for the Court please.
Well when arrived it was approximately 10:30, 11:00. Ve were
later than, we normally try to get there around ten. And as soon
as we walked around the corner we noticed that ah . . that there
were pJlice everywhere ah on both sides of the street, north and
south side of Washington Street. And there were two or three
police cars in the road and they were just everywhere. I was
absolutely amazed. I didn’t know what was going on.
Alright. And was someone else speaking at the time you arrived?
Ah . . I noticed across the street that Mr. Timothy Schuller was
speaking to some police officers but he wasn’t (inaudible).
Alright. Did you speak to him before you came to the ah area
about being out there and preaching?
Ah... no sir.
Alright. You mentioned you were out there four or five times ah
prior to May 18th of ’88, is that right?
Yes sir.
And ah during the times out there did you have an opportunity
to observe the general noise conditions in the area surrounding
the abortion center?
DWYER:
Your Honor, I would object to any other date other than May
18th regarding this response.
MR.
FRENCH:
Well your Honor, I believe it’s appropriate because first of all I
mean in determining what’s loud ah clearly what’s normal accepted
activity during the course of the day in a particular location is relevant
even if it is not on the day in question.
THE COURT:
Q.
A.
Objection is overruled.
So did you have an opportunity to observe the general noise
conditions?
Yes. Well Washington Street is . . is always. . always very noisy.
It’s .. it’s vibrant. There’s always a lot of people and a lot of
construction going on and a lot of ah trucks coming down and
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stopping. There’s two stop lights there and they ’re taking off and
they’re stopping and it’s just a very busy area.
Well could you describe the noise that ah comes solely from the
traffic conditions ah in that area? Generally speaking.
Well generally ah as automobiles are coming that’s . . that’s
where they’re slowing down to either stop at that stop light
before Prospect or they’re taking off and sometimes they're
taking off rather loudly or they’re . . we have tractor trailers who
are also coming down the street and they’re down shifting and
it’s creating that back lash of their mufflers popping and carrying
on and it’s extremely noisy all the time,
Alright. Ah . . how would you compare the noise from ordinary
traffic to the volume from your voice when you’re out there
preaching?
Well you have to realize that the traffic from here to the . . to that
table there, from where you’re standing and they have cars taking
off or . . or down shifting and so forth, the general noise level is
much higher than what it is right now. And so you have to
regulate your voice accordingly so you can communicate to
people.
Alright. Is there . . generally speaking when you’ve been out
there have there been times when your voice has been drown out
by traffic noise?
Well as I preached a lot of times even I would say even as I’m.
. as I was talking ah you have to stop talking to allow a tractor
trailer to go by. I’m just not . . 1 am not as loud as a tractor trailer
or a jack hammer. I beg to differ. I’m just . . and they ah . . they
would go by and I would stop speaking to allow that to happen
so that I could
*-_* * *
THE COURT:
Well I’ll let him testify as to what he’s observed as to noises that
occur during the time that he’s there.
Q. Alright. You mentioned the noise from construction?
[Jerry Wayne Eanes]
There’s...
> ©
a-73
That you’ve heard out there?
During the 18th, May 18th there wasn’t a whole lot more . .
construction as there was other days.
Q. Well what about the other days?
A. The other days, unbelievable. There was a construction crew
coming right through the street at the same time we were there.
Ah . . they parked right beside us with a hugh compressor . . air
compressor which generated the air to drive a jack hammer. The
compressor ran full time. The jack hammer ran intermittently.
As a result we . . we try and speak around those times where it
wasn't so loud jat you couldn’t speak. We would try to speak
at those times.
Q. How do you compare the noise from that ah construction to the
volume of your voice?
A. I just can’t believe anybody would say that I am as loud as a jack
hammer even as loud as I can get because that would just . . it
would if you stand near a jack hammer long enough you’ re going
to lose your hearing.
Q. Okay. Ah .. did you . . were there any radios out there on any
occasion that you were there preaching?
A. I’ve seen the radios on the . . placed out on the sidewalk, turned
up loud. I’ve seen them set inside the buildings with the radio
turned facing outwards blasting out . . just different times.
Q. Could you describe the noise from those?
A. They were usually turned up as loud as they could get to the point
where they were squawking. The speakers would be . . making
a squawking...
Q. Were the police there when these radios were being used, Mr.
Eanes?
A. Yes sir.
MR. DWYER:
Objection.
THE COURT:
Overruled.
Q. Did they do anything about it?
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The police were always present and they always just seemed to
ignore any . . any and everything that happened other than what
we were doing.
Alright. Did other people speak ah . . let’s talk specifically about
May 18th. Were there other people out there besides yourself
and you mentioned Mr Schuller who spoke with raised voices?
Were there any other people present?
Yes.
We always had ah. . ah five or six people who were always there
on Wednesdays. We tried to meet on Wednesdays between the
hours of ten to twelve. Ah we would walk back and forth and we
would try and pass out Gospel tracts.
What I’m referring to specifically, Mr. Eanes, is peopie other
than the group that you were in. Were there other people out there
on May 18th that were speaking with raised voices that you
heard?
Ah yes sir, there was ah. . it just seemed like May 18th everybody
seemed to come out of the buildings. With all the police there
that look across the street and two of the sidewalks were there
and they were all laughing and yelling any heckling at us and ah
then I seen another lady upstairs yell out and then people . . you
always had a various difference of opinion. Some people would
ride by and they would express their . . their support for what
you were doing and there were people who would ride by and
ah yell at you. You couldn’t really hear them because of the
traffic noises drown out what they were saying but you could
hear them yelling.
Okay. And were the police present on May 18th when these other
people you referred to across the street were making . . yelling
and heckling?
Yes sir.
. DWYER:
Objection.
As you called it?
Yes.
a-75
THE COURT:
Overruled.
Q. And did the police do anything about that that you saw?
A. Nosir.
Q. And could you hear those people’s voices above the traffic, the
sound from the voices in any event?
A. Ah you could hear people. When a person yells from a car you
can hear it. And if the car was coming on and it was in proximity
. . Close proximity you could understand.
Q. Well I’m talking about the people across the street.
A. Youcould only hear them yell but I really couldn’t tell what they
were saying.
Q. Mr. Eanes, you were arrested on another occasion ah for a similar
offense, is that correct?
A. Yes sir.
Q. And you were tried, is that right?
A. Yes sir I was.
Q. And ah .. can you tell me what the outcome was in Judge
Moylan’s court?
A. I wasarrested July first and went to trial in Circuit Court and that
was the day before, that was ah May 17th. We just got the
decision from Judge Moylan and it was based on the exact
identical charge. I have to mention that. When I’m on the streets
MR. DWYER:
I would object to something non-responsive, your Honor.
THE COURT:
Sustained.
Q. Ah..and you were acquitted you mentioned?
A. Yes I was acquitted.
Q. Did that have any . . well let me ask you, up until the time of
Judge Moylan’s decision had you refrained from going out to the
ah . . ah area there to speak?
MR. DWYER:
Objection.
Q.
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For some time?
THE COURT:
A.
Q.
MR.
a
Overruled.
I was afraid that I would be arrested for doing the same thing.
Alright. And did Judge Moylan’s opinion have any effect on
your decision about going out there on May 18th?
I’ve never gone on the street for the purpose of being arrested.
The only reason I was there to preach the Gospel and to speak
out against abortion in front of the abortion clinic and I had done
nothing . . exactly nothing different than I had done on July first.
As a matter of fact I felt that I was even more orderly, more
cooperative, ah just I tried to be a model citizen on the street.
Because I know they have haif a dozen police officers looking
at me all the time, just looking for a reason to arrest me. So I’m
trying to be the model citizen and trying to stay within my rights.
Well let me ask you, when Mr. . . or when Judge Moylan issued
his ruling
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