State v. Lang

• Court: Idaho Court of Appeals
• Writing for the Court: GRATTON, Chief Judge
• Citation: 572 P.3d 227
• Docket Number: Docket No. 51084
• Decision Date: 04 August 2025
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Susan Kaye LANG, Defendant-Appellant.

572 P.3d 227

STATE of Idaho, Plaintiff-Respondent,

v.Susan Kaye LANG, Defendant-Appellant.

Docket No. 51084

Court of Appeals of Idaho.

Filed: March 21, 2025

Review Denied: August 4, 2025

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Abraham Wingrove, Magistrate.

Order of the district court on intermediate appeal from the magistrate court, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

GRATTON, Chief Judge

Susan Kaye Lang appeals from her judgment of conviction under Idaho Code § 18-6409(1) for disturbing the peace. Specifically, Lang asserts I.C. § 18-6409(1) is overbroad as applied to the facts of this case and the district court erred in affirming the magistrate court’s denial of her renewed motion to dismiss. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Lang was charged with disturbing the peace pursuant to I.C. § 18-6409(1) after protesting in front of Ada County Commissioner Diana Lachiondo’s home. Lachiondo was attending a Central District Health (CDH) meeting virtually from the county courthouse to discuss various public protocols concerning COVID. Around 5:00 p.m., Lang and two other protesters went to Lachiondo’s home, expecting Lachiondo to be attending the virtual CDH meeting from her home, and began protesting as the meeting started at 5:15 p.m. Lang recorded a video of the protest which showed all three protesters on the sidewalk making noise by banging on buckets, sounding air horns and a megaphone siren, playing clips of loud noise and a recording from the movie “Scarface” through a speaker, and shouting: “Down with Lachiondo,” and “Why don’t you come out?” On the sidewalk in front of the home, the words “no lockdown” were written in chalk. None of the protesters trespassed onto Lachiondo’s property. At the time, Lachiondo’s two children, ages ten and eight, were in the home while Lachiondo’s mother was away from the house on a walk. The children heard the noise, and the oldest child testified he felt scared, took his younger brother into another room, called his parents, and waited for their grandmother to return. The older child stated he believed the noise lasted about twenty minutes.

A neighbor also testified he had heard the noise and that it lasted between fifteen and twenty minutes. When Lachiondo’s mother returned from her walk, she observed a woman banging on a bucket, two men with a megaphone and a speaker playing a recording, and various yelling from all three individuals. Later, law enforcement responded to a call regarding the noise but the protesters had left by the time an officer arrived at the scene. Lachiondo testified that she had received a call from her son during the CDH meeting and left the meeting immediately to go home. No protesters were at the home when she arrived.

The State charged Lang with maliciously and willfully disturbing the peace by loud or unusual noise and/or tumultuous conduct, pursuant to I.C. § 18-6409. Before trial, Lang filed a motion to dismiss, arguing the use of car horns and air horns is protected speech and that the disturbing the peace statute was overbroad as applied to Lang’s conduct. The magistrate court denied the motion. At trial, Lang renewed her motion to dismiss, which was also denied. The jury found Lang guilty as charged. Lang appealed to the district court, arguing that the magistrate court erred in denying her renewed motion to dismiss. The district court affirmed the denial, finding there were insufficient communicative elements to Lang’s conduct to invoke First Amendment protections and that the statute was a content-neutral restriction which was not overbroad as applied to Lang’s conduct. Lang appeals.

II. STANDARD OF REVIEW

[1, 2] For an appeal from the district court, sitting in its appellate capacity over a case from the magistrate court, we review ’she record to determine whether there is substantial and competent evidence to support the magistrate court’s findings of fact and whether the magistrate court’s conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480, 482 (2009). However, as a matter of appellate procedure, our disposition of the appeal will affirm or reverse the decision of the district court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and conclusions, whether the district court affirmed or reversed the magistrate court and the basis therefore, and either affirm or reverse the district court.

[3-6] Constitutional questions are questions of law, over which an appellate court exercises free review. State v. Sanchez, 165 Idaho 563, 567, 448 P.3d 991, 995 (2019). In cases challenging the constitutionality of a statute, there is a presumption in favor of the constitutionality of the challenged statute or regulation, and the burden of establishing that the statute or regulation is unconstitutional rests upon the challengers. Id. An appellate court is obligated to seek an interpretation of a statute that upholds its constitutionality, and the judicial power to declare legislative action unconstitutional should be exercised only in clear cases. Id. When reviewing a claim of overbroad application, we freely review the application of constitutional principles to the facts found. State v. Pentico, 151 Idaho 906, 912, 265 P.3d 519, 525 (Ct. App. 2011).

III. ANALYSIS

Lang argues that I.C. § 18-6409 is overbroad as applied to her conduct and that the statute regulates and precludes Lang’s constitutionally protected conduct. The State argues that Lang’s loud noises were not constitutionally protected conduct and that, even considering such conduct as protected, the statute was properly applied to Lang’s conduct because the statute: (1) is content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leaves open ample alternative channels for communication.

[7, 8] The First Amendment to the Constitution of the United States provides that “Congress shall make no law … abridging the freedom of speech.” U.S. Const. amend. I. The First Amendment applies to the States through the Fourteenth Amendment and protects both speech and expressive conduct. State v. Cartwright, 168 Idaho 802, 808, 487 P.3d 737, 743 (2021). The Supreme Court of the United States has long interpreted the First Amendment to provide protections for more than just the spoken word. Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). The First Amendment to the Constitution of the United States protects both actual speech and symbolic or expressive conduct. State v. Poe, 139 Idaho 885, 893, 88 P.3d 704, 712 (2004).

[9-12] When a statute is challenged as overbroad, the courts employ a two-part test to ask whether: (1) the statute regulates constitutionally protected conduct; and (2) the statute precludes a significant amount of constitutionally protected conduct. Sanchez, 165 Idaho at 568, 448 P.3d at 996. The overbreadth doctrine has less application, however, to conduct. Id. See also Broadrick v. Oklahoma, 413 U.S. 601, 614, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (noting that overbreadth scrutiny is “less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner”). Where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial and judged in relation to the statute’s plainly legitimate sweep. Poe, 139 Idaho at 892, 88 P.3d at 711. A statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. State v. Manzanares, 152 Idaho 410, 424, 272 P.3d 382, 396 (2012); see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (“[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”).

[13] Idaho Code § 18-6409(1) states:

Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner, is guilty of a misdemeanor.

Lang argues that the statute regulates constitutionally protected conduct because her conduct was expressive. The United States Supreme Court has rejected the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends to express an idea. Johnson, 491 U.S. at 404, 109 S.Ct. 2533. To determine whether conduct is sufficiently imbued with elements of communication to be constitutionally protected expressive conduct, a two-part test is applied. Id. The two-part test looks at whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it. Id.

[14] The district court held that regardless of whether Lang intended to convey a particular message, the loud noises did not have sufficient communicative elements such that the First Amendment protections could be invoked. We agree. Lang’s conduct for which she was convicted of violating I.C. § 18-6409 is not expressive conduct protected by the First Amendment. Whatever Lang’s intent, her conduct did not convey a particularized message with a great likelihood of being understood by those who viewed it. Even if, as Lang argues,...