The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No First Amendment Protection for "Shouting into a Bullhorn and Blaring the Bullhorn's Siren as Close as Three Feet from Government Employees …

and continuing the conduct while following those employees."


From People v. Rolfe, decided Tuesday by the Appellate Court of Illinois, in an opinion by Justice James Knecht, joined by Justices Amy Lannerd and John Turner:

This appeal stems from a June 4, 2021, interaction between defendant, who was protesting and seeking racial justice, and city employees, who were removing "memorials" or "posters" from utility poles near city hall. We note defendant's appellant brief identifies defendant as a nonviolent protestor and member of an activist group opposing police brutality and government misconduct in Winnebago County….

Stephanie Peavy, a code-enforcement officer with the City of Rockford[,] … testified she enforced city administrative ordinances…. [O]n June 4, 2021, … Peavy began the day by removing memorials from utility poles in the area…. In the previous few months, this task had been done fairly frequently, at least weekly….

Peavy testified it was a common occurrence to see defendant. On June 4, 2021, defendant approached the three yelling profanities and racial slurs. He was also blowing the siren on his bullhorn. Defendant came "[w]ithin a couple feet" of the group. Defendant called the three "Ku Klux Klan members" and racist city workers. The three continued cleaning and completed the task. They attempted to hurry, as defendant was harassing them.

Peavy testified "[t]he [bull]horn was rather loud." She stated she was not issued hearing protection for removing posters from a pole. The siren was "[a]bsolutely" close enough to hurt her ears. Peavy stated they reported the incident to the police via e-mail. Peavy did so because this "felt like this was kind of an escalated event." It was common for the workers to be recorded while they were out there and to hear the things they said, but "[t]he siren was new." The situation "just seemed a little different this time."

On cross-examination, Peavy acknowledged defendant did not physically harm her, touch her, or threaten her. When asked if he said anything to her personally, Peavy said he called the group names. Peavy believed the bullhorn noise was loud enough to cause hearing damage.

On redirect examination, Peavy testified defendant "was using a siren and a bullhorn" and "was shouting" at her. Being in a group made her feel more secure….

[Discussion of similar evidence from the other employees omitted. -EV]

Defendant testified on his own behalf. On June 4, 2021, defendant, who considered himself a "protestor," was sitting outside city hall and noticed the memorials in the area were being removed. Defendant knew, based on the wardrobe, city workers were removing the memorials. Defendant grabbed his phone and started to live stream on Facebook.

Defendant grabbed a megaphone and headed toward the memorials, narrating his efforts for the live-stream viewers. Defendant spoke into the megaphone, stating Rockford government employees were removing the memorials. Defendant intermittently changed between using the siren function on the megaphone and using the talk function, as both could not be used at the same time. As defendant arrived at the memorials, he would begin filming, showing the light pole and "what was going on." He estimated he was "three to ten feet" away, in constant motion. Defendant explained he used the megaphone to draw attention to the government employees' actions….

The jury found defendant guilty [of disorderly conduct] …. The court sentenced defendant to 24 months' conditional discharge and fined him $150, plus the minimum court assessment of $439. The court ordered defendant have "no unlawful contact" with [Peavy and other employees] and no unlawful contact with City Market and City Hall….

While we agree the disorderly conduct statute "cannot criminalize protected speech," defendant has not proved his disorderly conduct convictions are based on only "protected speech." We agree the content of defendant's statements were protected. Despite defendant's repeated characterization of his conduct as only words, defendant's choice of words is not the issue.

Defendant's conviction is based on more than words. It was his conduct of shouting into a bullhorn and blaring the bullhorn's siren as close as three feet from government employees and continuing the conduct while following those employees…. Defendant has, therefore, not met his burden of proving his convictions violate the first amendment's protection of free speech….

Under section 26-1(a)(1) of the Criminal Code of 2012, one commits disorderly conduct "when he or she knowingly *** [d]oes any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace." To convict defendant, a jury had to find beyond a reasonable doubt "defendant knowingly engaged in conduct that (1) was unreasonable, (2) alarmed or disturbed another, and (3) provoked a breach of the peace." …

Viewing the evidence in the light most favorable to the prosecution, we find the evidence sufficient for a rational trier of fact to find the elements proved beyond a reasonable doubt. Contrary to defendant's bare contention, no evidence of a group or public response is necessary to provoke a breach of the peace. The Illinois Supreme Court has held, "A breach of the peace may as easily occur between two persons fighting in a deserted alleyway as it can on a crowded public street." In addition, the fact defendant did not directly threaten the government workers does not undermine his convictions, as direct threats are unnecessary.

Here, viewed in the light most favorable to the State, the evidence shows defendant engaged in unreasonable conduct that alarmed or disturbed the city workers and provoked a breach of the peace. The testimony of the workers, as well as defendant, establishes defendant used a bullhorn near them. Defendant admitted being as close as three feet from the workers while using the bullhorn and blaring the siren. The workers testified defendant's yelling into the bullhorn and the siren were loud enough to cause hearing damage, and they felt threatened and scared.

The testimony further establishes defendant followed or entered their pathways to continue this conduct. Any rational jury could have found the elements of disorderly conduct proved beyond a reasonable doubt….

We further note defendant, in his reply brief, states "there is zero evidence that [defendant] played loud noises directly into the employees' ears and faces." Defendant is incorrect. Even defendant acknowledged in his testimony the bullhorn could have been perceived as pointed at the employees' heads….