Commonwealth v. Jones , 880 S.W.2d 544 ( 1994 )

STUMBO, Justice,

dissenting.

I must dissent. I would affirm the decision of the Court of Appeals. As noted in the commentary to KRS 525.060, that statute penalizes only behavior which is itself disorderly. Further, “[i]f an act or utterance which tends to disturb the public or cause disorder is made criminal, there would appear to be a serious possibility of unconstitutional or unwise restriction of freedom of speech where the speaker’s unpopular views are likely to arouse strong animosities in his audience.” KRS 525.060, Commentary (1974).

The majority opinion notes that appellant was convicted under either subsection (b) or (d) of KRS 525.060. Unreasonable noise is prohibited by subsection (b). The time, place, nature, and purpose of the noise determine whether it is reasonable. Appellee testified that the purpose of her verbal comments was to express opposition to the presence of military personnel and armor in the annual Pegasus parade. The police officer who arrested Appellee did so after he received a complaint that appellee was shouting obscenities directed at the military displays, and after he was himself called an obscene name.

The commentary specifically notes that the term “[ujnreasonable was preferred over loud because loud noises may be appropriate in some places and on some occasions.” KRS 525.060, Commentary (1974). Certainly a parade is an appropriate place to express oneself loudly, be it with approval or disapproval of the displays in the parade. The arresting officer testified only that appellee spoke in a volume greater than a normal speaking voice, not that she was unreasonably loud given the circumstances. As the Court of Appeals concluded, appellee was arrested partly due to the expression of her ideas regarding the military and partly due to the content of her speech directed at the officer. Subsection (l)(b) was intended to regulate volume, not content.

Subsection (l)(d) prohibits the creation of “a hazardous or physically offensive condition by any act that serves no legitimate purpose.” I simply cannot envision how yelling at a parade could conceivably create either, unless the content of what is yelled is considered. As the majority correctly noted, “[t]he content of the noise, however distasteful, is not punishable.”

I would affirm.