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Thursday, July 23, 2009

Gates Case: What is "Disorderly Conduct" in Terms of the Law

Andrew Sullivan passes on a response from one of his readers:

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?

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