Vexing problem

Prompted by an article in the Wall Street Journal, governments across the nation are reexamining their laws to weed out old “annoyance” statutes and ordinances. Nevada law has a number of them, which are mainly enforced by local governments.

The March 29 Journal article described the case of Willian Barboza, who was ticketed for speeding in the upstate New York town of Liberty. He paid the fine by mail and wrote “FUCK YOUR SHITTY TOWN. BITCHES” on the citation. For good measure, he crossed out Liberty’s name and substituted “Tyranny.”

Barboza was then cited again, for “aggravated harassment in the second degree,” which is triggered when someone “Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.”

That would appear to cover most reader comments on most newspaper websites.

Barboza has struck back with a free expression appeal. The Journal article pointed out that the U.S. Supreme Court has already overturned annoyance laws in a 1971 case, Coates vs. Cincinnati.

In that ruling, two appeals—both in Ohio—were combined in one case. In one appeal, an African-American man was arrested in Euclid after he dropped a black woman off at an all-white residential area and did not immediately depart. He was in his car talking on a two-way radio when arrested. In the second appeal, an antiwar protester was arrested while picketing a draft office, and four workers were arrested while picketing a plant, both in Cincinnati.

“Conduct that annoys some people does not annoy others,” wrote Justice Potter Stewart, an Eisenhower appointee. “Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, ’men of common intelligence must necessarily guess at its meaning.’” The phrase quoted at the end was from an earlier Supreme Court ruling.

As Matthew Lippman wrote in Contemporary Criminal Law, “This did not mean that Cincinnati was helpless to maintain the city sidewalks; the city was free to prohibit people from ’blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct.’” In other words, specificity had to be provided.

But governments all across the country missed the message, and retained their annoyance laws, which serve the purpose of allowing police to deal with situations they don’t like when there is no law that actually covers those situations.

Police in Peoria, Ill., last week used an annoyance law to raid a home to bust a Twitter account that poked fun at the mayor by impersonating him. The Peoria raid became a joke across the nation, but Mayor Jim Ardis defended it and attacked the press for its coverage. (Twitter went along with the town and had already shut down the account before the raid.)

One person’s annoyance may be another person’s music, and how subjective these judgments can be was discussed by Minnesota Judge Steve Halsey of the Wright County District Court, who—after reading the Journal article—wrote in a St. Paul newspaper essay, “At least one Minnesota city had its ’no loud music’ ordinance found unenforceable because of vagueness. Why should it be illegal and chargeable for teens to play loud rock music while driving through downtown at midnight, but probably not illegal or chargeable for a senior citizen to play WCCO news at high volume when driving downtown at midday?”

NBC reported in March, “Brighton, west of Detroit, passed an ordinance in 2008 making it illegal to repeatedly tick off another person in ways that ’serve no legitimate purpose.’ Meanwhile, the Indiana Court of Appeals last month voided part of a state law that said it’s criminal to harass or annoy another person when intoxicated. The statute provided ’no guidance’ for what makes someone’s conduct annoying, the court found.”

Nevada has at least 11 state laws that contain the term annoy (or annoyance and annoying), sometimes in company with terms like delay, harass, hinder, oppress and vex. They touch on phone calls, behavior on public conveyances, trespass, failure to pay wages due, breach of promise, collection of information by Child and Family Services, rental agreements, and deceptive trade practices.

Nevada Senate Judiciary Committee chair Richard “Tick” Segerblom said it’s an issue the legislature might move on.

“We have actually been getting rid of statutes like that, that are unconstitutional,” he said.

But such laws need to be brought to the attention of legislators, and the most likely time for that to have happened was when Coates was handed down by the Supreme Court in 1971.

Segerblom said he may bring the matter to the attention of the Advisory Commission on the Administration of Justice. It examines these kinds of issues and sometimes brings them to the attention of legislators. Its membership includes a Nevada supreme court justice, district attorney, sheriff, public defender, parole commissioner, representative of the American Civil Liberties Union of Nevada, district judge, plus the prison director, state attorney general and others.

“It’s a question we could even analyze during the interim,” he said.

One community recently repealed its annoyance law before the Journal article appeared. In Grand Rapids, Michigan, the city commission got rid of a section of the city code that read, “no person shall willfully annoy another person” in the city. The section had been enacted in 1976. City Attorney Catherine Mish had called the section “simply unenforceable.”

That drew praise from Reason, the libertarian magazine, which reported other developments: “It seems 2014 is shaping up to be a good year all around for freedom of annoyingness. In January, the British House of Lords voted against a clause imposing sanctions on anyone in England and Wales engaging in ’conduct capable of causing nuisance or annoyance to any person.’ And last month the Indiana Court of Appeals ruled that simply being drunk and annoying wasn’t a crime.”

There may be something in the water in Ohio. In 1962 the Ohio Supreme Court ruled on a lower court decision invalidating a Columbus city ordinance that banned keeping animals that made “audible sounds to the annoyance of the inhabitants of this city.” (Residents who had moved to new homes adjacent to a 15-year dog kennel had filed complaints.) In an opinion written in part in doggerel by a Judge Charles Zimmerman, the Ohio supremes upheld the lower court:

Dogs will howl and cats will yowl

When placed in congregation.

These grating sounds may oft result

In human aggravation.

Laws passed to curb such pesky noise

Should fit the situation

And be so phrased in artful ways

To cause no obfuscation.

In other words the laws so passed

Must plainly be effective.

Inaptly framed, they lack the force

To meet their planned objective.