Whittington v. State
| Decision Date | 07 August 1996 |
| Docket Number | No. 49S02-9608-CR-534,49S02-9608-CR-534 |
| Citation | 669 N.E.2d 1363 |
| Parties | Eric WHITTINGTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Steven R. Jacobs, Indianapolis, for Appellant.
Pamela Carter, Attorney General of Indiana, Julie Zandstra Frazee, Deputy Attorney General, Indianapolis, for Appellee.
Appellant Eric Whittington was prosecuted for battery and disorderly conduct arising out of a domestic altercation. Although acquitted of battery, he was convicted of disorderly conduct, based on his loud speaking during the police investigation of the incident. He appeals that conviction. We affirm.
The evidence at trial tended to show that Whittington had been drinking when he came home from work on March 12, 1993. He soon began to argue with his sister, who lived with him, and her boyfriend, who may also have lived in the apartment. At some point, Whittington either punched his pregnant sister in the abdomen or struck her while she and her boyfriend struggled to restrain him.
Apparently, someone in the apartment called the police. When Officer Anthony Finnell arrived, the boyfriend met him outside and escorted him into the apartment. Finnell noticed that furniture was strewn about the living room, and he found Whittington's sister in her bedroom holding her abdomen. After she told Finnell that Whittington had "hit" her, the officer summoned an ambulance.
Finnell then interviewed Whittington, the boyfriend, and another witness in the living room. When paramedics arrived, Finnell accompanied them into the bedroom. No sooner had he left the living room than a heated argument erupted between Whittington and the boyfriend. Finnell returned and sent the boyfriend to the bedroom in order to separate the two.
According to Finnell, Whittington continued to be "loud and boisterous," (R. at 65) repeatedly declaring, "This is all bullsh--" (R. at 66). When Finnell asked Whittington to sit and relax, Whittington responded, "F--- this sh--." Finnell once again asked Whittington to be quiet and calm down because the outbursts were agitating the boyfriend, who could hear them from the bedroom. (R. at 66.) When Whittington persisted in "a very loud and angry manner," Finnell arrested him for disorderly conduct. (R. at 67.)
The State charged Whittington with the battery of his sister and with disorderly conduct, characterized in the information as "cursing, yelling, and acting in a belligerent manner." (R. at 7.) The court convicted Whittington of only disorderly conduct, based on Whittington's loud speaking during Finnell's investigation.
Whittington appealed, arguing that his speech was constitutionally protected. A divided Court of Appeals reversed, each judge writing an opinion. Whittington v. State, 634 N.E.2d 526 (Ind.Ct.App.1994). We grant transfer. Citing some of the same formulations raised in Price v. State, 622 N.E.2d 954 (Ind.1993), Whittington contends that his remarks were constitutionally protected. 1
We shall begin by considering the application of the disorderly conduct statute in circumstances like those in this case. The context of Whittington's conduct is quite different than that we encountered in Price. There, the defendant's loud speaking occurred in an alley, and we observed that, where political expression was not at issue, the statute reached noise that amounted to a public nuisance. 622 N.E.2d at 966. In contrast, the loud speaking in this case occurred inside a private apartment, and there is no evidence that it was detectable beyond the walls of the apartment.
Indiana's disorderly conduct statute was adapted from a similar provision of the Model Penal Code. The proposed version read as follows:
A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he ... makes unreasonable noise.... "Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access....
Model Penal Code § 250.2(1)(b) (1980) (emphasis added). The drafters of the Model Code indicated that they intended this provision to penalize "public nuisance." Id. cmt. 2. That intent explains the inclusion of references to public inconvenience, annoyance, or alarm.
Although patterned on § 250.2, Indiana's disorderly conduct statute departs from the language of the Model Code in important respects. Our statute provides as follows:
A person who recklessly, knowingly, or intentionally ... makes unreasonable noise and continues to do so after being asked to stop ... commits disorderly conduct, a Class B misdemeanor.
Ind.Code Ann. § 35-45-1-3(2) (West Supp.1996). Significantly, our legislature deleted any reference to a requirement that a person act purposely or recklessly toward annoying the public. Instead, the mental element of Indiana's statute (intentional, knowing, or reckless) applies to the making of unreasonable noise, not to producing effects with the noise. Thus, the application of the statute can extend to situations in addition to those constituting public nuisance.
We held in Price that the criminalization of "unreasonable noise" was "aimed at preventing the harm which flows from the volume" of noise. 622 N.E.2d at 966. The State must prove that a defendant produced decibels of sound that were too loud for the circumstances. Whether the state thinks the sound conveys a good message, a bad message, or no message at all, the statute imposes the same standard: it prohibits context-inappropriate volume.
Loud noise could be found unreasonable in a case like Whittington's on a number of grounds. It could threaten the safety of injured parties by aggravating their trauma or by distracting the medical personnel tending them. Loud outbursts could agitate witnesses and disrupt police investigations. It could make coordination of investigations and medical treatment more difficult. Finally, loud noise can be quite annoying to others present at the scene.
Reviewing the constitutionality of an application of the disorderly conduct statute requires a two-step inquiry. First, a reviewing court must determine whether state action has restricted a claimant's expressive activity. Second, if it has, the court must decide whether the restricted activity constituted an "abuse" of the right to speak.
To challenge state action as violating the right to speak, a claimant must first demonstrate that the state action has, in the concrete circumstances of the case, restricted his or her opportunity to engage in expressive activity. This inquiry is governed by our Bill of Rights' free expression clause, which provides that "[n]o law shall be passed ... restricting the right to speak, write, or print, freely, on any subject whatever." Ind Const. art. 1, § 9. 2
That clause contemplates a broad notion of expressive activity. First, it extends to "any subject whatever," and thus it is difficult to imagine a topic it does not cover. 3 Second, because the right to speak clause also provides that expressive activity may be "freely" performed, the clause reaches every conceivable mode of expression. We conclude that speaking, writing, or printing, freely, on any subject whatever, includes, at least, the projection of any words in any manner.
Of course, the trigger of the right to speak clause is the notion of restriction. In construing that important concept, we resist the siren song of First Amendment jurisprudence. 4 The right to speak clause articulates a liberty interest, not an equality interest. It protects against restriction of expressive activity, not discrimination because of content or viewpoint. The right to speak clause focuses on the restrictive impact of state action on an individual's expressive activity. 5 At a minimum, the clause is implicated when the state imposes a direct and significant burden on a person's opportunity to speak his or her mind, in whatever manner the speaker deems most appropriate.
The right to speak is qualified, of course, by § 9's responsibility clause, which provides that "for the abuse of that right, every person shall be responsible." Ind. Const. art. 1, § 9. The responsibility clause expressly recognizes the state's prerogative to punish expressive activity that constitutes an "abuse" of the right to speak.
In Price, we defined "abuse" in light of the political philosophy that informs the Indiana Constitution. 622 N.E.2d at 958-59; see Patrick Baude, Has The Indiana Constitution Found Its Epic?, 69 Ind.L.J. 849 (1994). Under that philosophy, individuals possess "inalienable" freedom to do as they will, but they have collectively delegated to government a quantum of that freedom in order to advance everyone's "peace, safety, and well-being." Ind. Const. art. 1, § 1; see In re Lawrance, 579 N.E.2d 32, 39 n. 3 (Ind.1991). The purpose of state power, then, is to foster an atmosphere in which individuals can fully enjoy that measure of freedom they have not delegated to government.
Applying this philosophy in Price, we construed "abuse" as any expressive activity that "injures the retained rights of individuals or undermines the State's efforts to facilitate their enjoyment." 622 N.E.2d at 959; see also State v. Marshall, 859 S.W.2d 289, 293-94 (Tenn.1993) (). In other words, expressive activity constitutes "abuse" if, notwithstanding § 9, it is punishable within the strictures of the police power, as that power is generally delineated in the personal liberty clause, Ind. Const. art. 1, § 1. 6
In Price, we made clear that in reviewing the...
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