‘Noisy conduct’ provision of Wichita law is unconstitutional, Kansas Supreme Court rules
The Kansas Supreme Court has struck down the portion of a Wichita law that criminalizes “noisy conduct,” finding it to be unconstitutional.
Because Wichita borrowed language directly from a state law that prohibits “engaging in noisy conduct tending to reasonably arouse alarm, anger or resentment in others,” the 6-1 ruling could have implications for political protesters across Kansas.
As written, Wichita’s disorderly conduct law “criminalizes a broad range of other constitutionally protected activities — whether expressed in public or private settings and whether expressed at any time during the day or the night,” Justice Melissa Taylor Standridge wrote in the majority opinion, published Friday.
The city will not be required to scrap its entire disorderly conduct law, meaning residents can still be arrested for engaging in fighting or brawling, disrupting meetings or using fighting words.
The case stems from 2020 Black Lives Matter demonstrations where Wichita police arrested participants for disrupting traffic and drawing on sidewalks with chalk. One of the architects of those protests, Gabrielle Griffie, brought her challenge of the ordinance to the Supreme Court after the district and appeals courts sided with the city.
Standridge outlined a range of activities that may be considered criminal under the Wichita ordinance “if expressed in a disagreeable, unpleasant, or loud way that would tend to reasonably arouse alarm, anger, or resentment in others.”
• Speaking, marching, and demonstrating;
• Using profane language in front of, or directed to, another person;
• Being insolent and disrespectful to another person;
• Cheering, booing, or taunting at a sporting event or other occasion
• Talking on the phone in public;
• Playing disagreeable or unpleasant music;
• Honking a horn;
• Talking during a movie at the theater
• Revving the engine of a vehicle or motorcycle
Standridge said the “vast amount of protected activity the provision prohibits” outweighs the city’s argument that it is needed to help law enforcement minimize confrontations between citizens.
“The City will be evaluating the court’s decision and reviewing our disorderly conduct ordinance to insure compliance with the court’s opinion,” spokesperson Megan Lovely told The Eagle.
The ACLU of Kansas, which filed an amicus brief in support of Griffie’s challenge, cheered the court’s decision.
“Free speech and expression, especially political protest, are fundamental to our democracy, and police cannot have the power to selectively arrest anyone for speech they disagree with or are angered by. We are glad to see the Court agreed,” Legal Director Sharon Brett said in an email statement.
The ruling does not explicitly call for a rewrite of Kansas’ disorderly conduct law, but Brett said she expects it will also have to be changed.
“The language of the statute is identical. Even though the prosecution wasn’t under the state law, I think the opinion has implications for the state law as well,” she said.
In his dissenting opinion, Justice Caleb Stegall noted that the U.S. Supreme Court has long recognized time, place and manner restrictions to otherwise protected free speech.
“In my view, the majority’s analysis is sound, with one crucial exception,” Stegall wrote. “After describing the appropriate overbreadth test, the majority fumbles the ball when determining whether the challenged portion of the ordinance sweeps up protected speech in its net.”
During oral arguments last September, Stegall asked Griffie’s attorney if he believed the First Amendment protected speech or conduct so loud that the noise level arouses anger and resentment in others.
Wichita police did not collect data on decibel levels of protest activity at any point during the summer 2020 Black Lives Matter demonstrations, which at times involved megaphones.
In the majority opinion, Standridge points out that Wichita has a separate noise ordinance for regulating nuisances that identifies tests for measuring noise levels and establishes appropriate levels for various times and places.
Griffie did not return a request for comment through her lawyers. Neither did the office of Attorney General Kris Kobach, which filed its own amicus brief in defense of the state law Wichita borrowed language from.
Wichita protests
Griffie, the executive director of Project Justice ICT, was one of several Wichita protesters arrested in the days after a July 2020 demonstration calling out police brutality after George Floyd’s death.
Although the initial disorderly conduct charge against Griffie was dropped, the city used it to support her ultimate conviction on two misdemeanor counts of unlawful assembly for her role in organizing the protest.
Project Justice ICT did not obtain a community event permit to block off city streets. But the Wichita Police Department monitored the group’s activity and prepared for the march by blocking off streets around the planned route to limit contact with motorists.
“[B]ring shields, umbrellas, and other protective gear. We will be marching,” Project Justice ICT posted on Facebook ahead of the demonstration, according to court records.
Forty to 60 marchers chanted “Black Lives Matter” and “Defund the Police.” Livestreamed video from the event shows some marchers also shouted profanity at police, according to court documents. When protesters arrived at the federal courthouse, they gave speeches to the crowd over megaphones for roughly 30 minutes.
In an August 2020 interview, Griffie, then 24, told The Eagle she thought her arrests and those of other protesters were “a blatant scare tactic to try to keep the organizers of Project Justice ICT from marching in the streets.”
