Fun with Free Speech

State v. Albarelli, 2011 VT 24.

By Andrew Delaney

Stop the presses.  No, really, the SCOV overturned a conviction for disorderly conduct based on sufficiency of the evidence—this kind of thing happens only rarely.

About a month before the 2008 election, Defendant approached a “Vermonters for Obama” table on the Church Street Mall in Burlington.  Defendant, sheepish at first, claimed that he was confused and unsure of who to vote for, but this was just a ruse as Defendant soon came into his own and began to loudly decry the evils that Obama represented as a candidate.  He accused Obama of being a terrorist and accused anyone who approached the table of being terrorists.  He was there about 20 minutes.  The cops came; Defendant left. 

A couple of days later, Defendant returned with another young man and approached the table, acting “sort of intense, angry, and strange.”  One of the volunteers called the police.  When they came, Defendant said he was expressing his freedom of speech and did not have to give his name. Persisting in that position won Defendant a citation for disorderly conduct. 

During Defendant's first "protest" scene, one of the volunteers on the other side of the table felt threatened because Defendant was yelling, angry, persistent, and “a little too close for comfort.”  She didn’t think he was going to hit her, but she did feel threatened and afraid.

Another volunteer testified that she felt scared because she felt she was dealing with someone who was not mentally stable, and that Defendant was hostile and aggressive, but did not make any threats.

Defendant went as a pro ser because his case was “clear cut.”  Which it was, apparently, to the jury that convicted him.  To those out there facing a charge and thinking of representing themselves, my number is . . . . But seriously, folks.   After conviction, Defendant got himself a lawyer and filed a motion to dismiss and for judgment of acquittal.  After argument, and before sentencing, the trial court denied the motion without any explanation, and this appeal followed.

Defendant challenged his conviction on two grounds: sufficiency of the evidence and that the trial court’s jury instructions enabled the jury to punish constitutionally protected speech.  The SCOV overturned based on sufficiency of the evidence and (claims that it) did not reach the free-speech issue. 

The SCOV first notes that Vermont’s disorderly-conduct charge—as specifically used in this case—proscribes conduct, not speech.  The SCOV then ran through the limits that the First Amendment and Chapter 1, Article 13 of the Vermont Constitution place on prosecutions involving expressive speech and conduct (note to soon-to-be bar examinees: you will get booku points on the essays for memorizing the correlative provisions of the Vermont Constitution).  The SCOV also addressed the State’s argument that the Defendant had waived his right to challenge the sufficiency of the evidence because his motion for acquittal argued “mostly law stuff.” (That’s my “famous” paraphrasing, not the actual argument.)  “Nah,” said the SCOV, “he good.” (More paraphrasing.)

A colorful phrase describes the standard the SCOV applies to a sufficiency of the evidence claim.  You may have heard it before: “Shoveling $#!+ against the tide.” Essentially, the SCOV defers to the non-moving party’s evidence (in this case, the State’s), excludes any modifying evidence, and then asks whether the evidence was sufficient for a conviction.  “Uphill battle” is another good descriptor.

Nonetheless, the SCOV reasoned that the evidence here was insufficient.  Defendant was charged with “yelling aggressively.”  Even if that was proven, it’s not enough for a disorderly-conduct conviction.  The SCOV reasoned that there’s a significant difference between the volunteers feeling threatened and the “threatening conduct” the statute proscribes.  Applying an objective standard, and possibly insinuating that the volunteers needed to be a little tougher, the SCOV concluded that there was no threat to harm here. 

If you like constitutional law, specifically freedom-of-speech issues, this is a great opinion to read.  The bottom line is that however abrasive Defendant’s speech might have been, he didn’t threaten to harm anyone and the speech was political in nature.  The actual opinion provides a good survey of decisions involving situations like the one at issue here.