Eanes v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1,1
• Citation: 318 Md. 436,569 A.2d 604
• Parties: , 58 USLW 2497 Jerry Wayne EANES v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 436

318 Md. 436

569 A.2d 604, 58 USLW 2497

Jerry Wayne EANES v. STATE of Maryland.

No. 1, Sept. Term, 1989.

Court of Appeals of Maryland.

Feb. 8, 1990.

David A. French (The Rutherford Institute of Manassas, Virginia, Craig L. Silver, Campen & Silver, P.C., Gaithersburg), on brief, for petitioner.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

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. ¹ 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. 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 [in 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. ²

Eanes and another man, Timothy Schuller, preached that morning 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 (Department) 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 complaints 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 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 building[.] I was speaking to the general people that were in that 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."

II.

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 petition 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.

III.

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 allegedly objectionable content. As we shall explain, the Diehl limitation on which Eanes relies is only applicable when the prohibition 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.' " Id. at 468, 451 A.2d at 117 [ellipsis in Diehl].

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 governments. 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. 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...