dissenting.
I respectfully dissent. The majority holds that unamplified, verbal, politically protected speech expressed on a city street may be punished as a crime because that speech was overheard by persons across the street. I am a bit confused. It seems to me that only that speech which may be overheard could possibly require First Amendment protection. The majority would appear to uphold First Amendment protection to the sound of one hand clapping, but not two.
The First Amendment recognizes that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom but must itself be protected if that freedom is to survive. City of Houston, Texas v. Hill (1987), 482 U.S. 451, 472, 107 S.Ct. 2502, 2515, 96 L.Ed.2d 398. The prohibition against "unreasonable noise" in Indiana's Disorderly Conduct statute, Ind. Code 35-45-1-8(2), is aimed at the intrusiveness and loudness of expression, not whether it is obscene or provocative. Price v. State (1993), Ind., 622 N.E.2d 954, 960, n. 6. The State cannot meet its burden of proof merely by establishing that the defendant issued epithets; but rather, the State must show that the speech infringed upon the right of peace and tranquility enjoyed by others. Whittington v. State (1994), Ind.App., 634 N.E.2d 526, 527 (Judge Hoffman dissenting). The determination of whether loud speech is unduly intrusive and unreasonable, and will thus support a conviction for Disorderly Conduct, requires consideration of the forum employed. Id. Whether particular speech is protected, or punishable as Disorderly Conduct, must be determined on a case by case basis. Radford v. State (1994), Ind.App., 640 N.E.2d 90, 94, (Judge Friedlander dissent ing), trams. demied.
In Price, 622 N.E.2d 954, the defendant loudly protested police conduct in an alley early in the morning on New Year's day. Our supreme court reversed Price's Disorderly Conduct conviction holding that her speech was constitutionally protected political speech that amounted to no more than a "fleeting annoyance." Id. at 964. Similarly, in Whittington, 684 N.E.2d 526, we reversed the defendant's Disorderly Conduct conviction where he had been shouting at the police who had come to his apartment in response to a domestic disturbance. Id. at 527.
In Radford, 640 N.E.2d 90, the defendant engaged in a loud confrontation with a police officer in a hospital corridor near the nursery. Id. at 92. We upheld Radford's Disorderly Conduct conviction holding that her speech was not politically protected as it had been intended to evade the police officer's investigation of whether Radford had been in possession of stolen property. Id. at 94. Similarly, in Stites v. State (1994), Ind.App., 627 N.E.2d 1343, we upheld a Disorderly Conduct conviction where the purpose of the defendant's shouting was to perpetuate a disagreement with her ex-boyfriend rather than to protest police involvement. Id. at 1344.
In the present case, the speech punished was Hooks' unamplified, verbal protest against the police officer's conduct in preparing to tow away Hooks' car. The forum employed was a city street. The magnitude of the infringement upon the peace and tranquillity of others could not have surpassed the "fleeting annoyance" described in Price, 622 N.E.2d at 964. Hooks' politically protected speech was the type of expressive disorder inevitable in a society committed to individual freedom which itself must be protected if that freedom is to survive. City of Houston, 482 U.S. at 472, 107 S.Ct. at 2515.
Accordingly, Hooks' conviction for Disorderly Conduct should be reversed.