When Is Conduct "Disorderly"?

by Chris Bodenner

Building on a response from Maryland, another reader writes:

I have been a Massachusetts appellate lawyer for more than twenty years, and will attempt to outline relevant state law to you. This is a quick answer, and I will look at some more cases.

The criminal prohibition against "disorderly conduct" can be found in Chapter 272 of the Massachusetts General Laws, under a category that penalizes "crimes against chastitity, morality, decency and good order." It is penalized under Section 53, which provides fines and possible imprisonment for "Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure."

I do not think you need to get far, if at all, into nuances of First Amendment law in order to discern that a "disorderly conduct" is an offense against the public peace, and it is difficult to fathom how it ever properly could be charged for one's behavior in one's own home.

In my decades of practice as a state prosecutor, I have never seen "disorderly conduct" charged for acts which did not originate and occur in a public setting. I cannot conceive of a case in which a prosecutor would pursue a charge of "disorderly conduct" occasioned by tone or speech in one's own home. Nor have I seen tone or content of speech as a basis for charging disorderly conduct even in a public place. At the risk of restating the obvious, "disorderly conduct" aims to penalize what it says: conduct. Disorderly conduct is something more than "disorderly speech." In my opinion, the criminal prohibition would be fatally and unconstitutionally overbroad were it to be deemed to apply to pure speech. What citizen then meaningfully would be on notice to what speech would be viewed as "disorderly" and risk criminal prosecution and penalties?

The Massachusetts Supreme Judicial Court has stressed the public disruption element of "disorderly conduct" as ordinarily charged: the classic formulation of the offense and its enabling statute is found in its decision in Alegata v. Commonwealth, 353 Mass. 287, 303-304 (1967)(emphasis supplied), quoting from Model Penal Code § 250.2 (Proposed Official Draft 1962): "It is our opinion that "disorderly" sets forth an offence. . . designat[ing] behavior such as that singled out in Section 250.2 of the Model Penal Code (Proposed Official Draft): 'A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. `Public' means affecting or likely to affect persons in a place to which the public or a substantial group has access.'. . . .[T]he statute. . . aims at activities which intentionally tend to disturb the public tranquility," and penalizes one who "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, . . . creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor."

In a 2008 case, the state's Appeals Court revisited the matter and reiterated "[t]he "public" element of the offense [may be] satisfied if the defendant's action affects or is 'likely to affect persons in a place to which the public or a substantial group has access.'" Id.

Another writes:

I am a criminal defense attorney in Washington (to be distinguished from Washington, DC- the main difference is we make useful things here like planes, software, fruit and coffee).  Typically an officer would not cite an individual for disorderly conduct in a case like Gates.  Disorderly conduct has a specific definition in the statutes and state courts have interpreted those statutes to give a lot of leeway in favor of freedom of speech.  See State v. Montgomery, 31 Wn. App. 745, 644 P.2d 747 (1982).

However, officers get around this by arresting those who commit POP ("Pissing Off Police") with obstruction.  Obstruction has a much broader definition and covers anyone accused of "willfully hindering or delaying" an investigation.

My last trial as a public defender involved a client who was pulled over and asked to produce his license.  Before doing so he repeatedly asked the officer why he was being stopped.  The officer forcefully yanked the man out of his car, threatened to taser him and arrested him in front of his 9 year old boy.  It should be noted the officer was white and my client Mexican/Hispanic.  While he was getting loaded into the police cruiser the client asked why he was being arrested.  "Because you're an asshole," the cop replied.

Despite having a father who was NYPD for 25 years, obtaining a degree in criminology and aspiring to enter law enforcement, my work as a public defender has taught me one thing.  Ninety percent of the time an obstruction charge is absolute bullshit.

And a lawyer from Nevada writes:

At common law, an assault in the criminal context was an attempted battery -- an attempt to inflict harm on another in the form of an offensive, unconsented-to touching, using unlawful force or violence. In civil law, the tort of assault is committed when one places another in reasonable apprehension of an immediate, unprivileged harmful or offensive touching. Ordinarily, mere words are insufficient to commit an assault.

So there really is no legal line to be drawn between free speech, which is guaranteed by the Constitution, and "verbal assault," which doesn't exist except as a convenient term to be applied to someone who says something we don't like. In theory, you're free to say all manner of unpleasant things to civil servants, such as police officers. In practice, not so much.