On July 27, the Michigan Supreme Court issued its opinion in People v. Rapp.
At issue was a criminal Michigan State University (MSU) ordinance that defined a misdemeanor offense. The question before the Court was whether the ordinance was substantially overbroad—that is, whether a substantial portion of its applications were unconstitutional.
The Michigan Supreme Court held that the ordinance was, indeed, substantially overbroad, and thus unconstitutional, and accordingly, it struck the ordinance down.
In this column, I’ll argue that the Court was right to so hold.
The Facts of the Michigan Case
The facts of the case were simple: A man named Jared Rapp received a parking ticket in an MSU parking garage. Rapp then confronted an MSU officer, Ricardo Rego, who was giving out tickets in the garage, and asked him if he, Rego, was the officer who had given him his ticket. An irate Rapp then began shouting at Rego.
When Rapp started shouting, Rego called the campus police—which he said was standard procedure in cases where a person had received a citation and was irate. While the two men waited for the police to arrive, Rapp took photos of Rego with his camera phone.
The Ordinance Under Which Rapp Was Charged
Rapp was ultimately charged with, and convicted of, a misdemeanor offense, under an MSU ordinance. The ordinance read as follows: “No person shall disrupt the normal activity or molest the property of any person, firm, or agency while that person, firm, or agency is carrying out service, activity or agreement for or with [MSU].”
There are a number of obvious problems with the ordinance. For one thing, some of the key terms that it uses are vague. Ideally, the ordinance would have defined both “disrupt” and “molest,” and it would have also made clear whether speech alone, without any accompanying conduct, could be deemed to “disrupt” the “normal activity” of the MSU agent at issue.
Moreover, it should have been obvious to the drafters of the ordinance that the kind of conflicts that the ordinance envisions might be accompanied by heated words on both sides—that is, from both the MSU agent at issue, and from the person who had been claimed to be disrupting that agent or molesting his property. Thus, the ordinance’s drafters should have clarified whether such words, in and of themselves, could trigger the ordinance. But since they did not, the question arose whether speaking, in itself, could constitute being disruptive. That question, in turn, formed the core of this case.
The Michigan Supreme Court’s Overbreadth Analysis
As I noted above, the Michigan Supreme Court analyzed whether the MSU ordinance was overbroad—in that it “reaches a substantial amount of constitutionally protected conduct,” as compared to its “plainly legitimate sweep.” (Here, the protected conduct is also First-Amendment-related speech.)
The Michigan Supreme Court began its analysis by following the logic of a very closely related 1987 Supreme Court precedent, City of Houston v. Hill. Hill had made very clear that the Court would strike down as overbroad those laws “that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.” (Emphasis in original.)
Did the MSU scenario involving Rapp and Rego fall under the Supreme Court’s holding in Hill? The Michigan Supreme Court majority thought so.
In particular, a majority of the Michigan Supreme Court held that the prohibition on disrupting the normal activity of someone performing a service for MSU was overbroad, in that the prohibition did not exclude purely verbal disruptions, and thus would be assumed to include them. (The Michigan Supreme Court did not address the “molest” language, but only the “disrupt” language, because it read the “molest” language to rule out molestation by speech alone, and to include only physical molestation.)
Under the MSU ordinance, moreover, the Michigan Supreme Court noted, the disruption at issue did not have to fit into any of the few narrow categories of speech that the Supreme Court has held can be regulated by their very nature– such as so-called fighting words or obscene language. Instead, under the MSU ordinance virtually any words could be deemed to count as “disruptive,” depending on the circumstances.
Applying the U.S. Supreme Court’s Precedent in Hill
Accordingly, the Michigan Supreme Court expressed the fear—as the Hill Court had, before it—that officers might make arrests simply because of what a person said to them. That prospect, moreover, is especially grave here, in light of the fact that the MSU Ordinance at issue is a criminal ordinance, not simply part of a civil code.
The U.S. Supreme Court’s decision in Hill clearly ruled out a purely speech-based criminal conviction, with the Court opining as follows: “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Honoring that freedom, the Michigan Supreme Court held in favor of Rapp.
(Other MSU Ordinances, the Michigan Supreme Court noted, separately criminalize physical assaults. Thus, Rego would have had legal recourse—as he clearly should have had Rapp actually assaulted him, rather than simply shouting at him.)
An Interesting but Unremarked Aspect of the Rapp/Rego Case: Rapp’s Use of the Cameraphone
Finally, although the Michigan Supreme Court appropriately focused on the question whether a verbal dispute could fit within the MSU ordinance, another aspect of the dispute between Rapp and Rego is interesting from a legal point of view, too: Rapp’s use of his cameraphone to photograph Rego, apparently so that he could have evidence to support his complaint about Rego’s (or some other parking enforcer’s) unfairly ticketing him.
It’s likely that we’ll see more and more cameraphone photos arising out of similar disputes, and possibly also see additional laws addressing their use.
Cameraphone photos can be invaluable, but they can also be partial and misleading. If only one person has a cameraphone and thus is the only one who can take his or her own photos, then that person arguably has an unfair advantage in collecting evidence on the spot, and potentially skewing that evidence in his or her favor.
The best solution might be to require sharing the cameraphone in such situations, if there is only one, but that might escalate the dispute. In the Rapp/Rego case, for instance, it might not have been very surprising if Rego had retaliated somehow—even with violence—for the taking of the cameraphone photos. It’s admirable that he, in fact, did not. Using a cameraphone in such an instance may be taken as a challenge by the security officer at issue, and some will respond to the challenge by raising the stakes—and even, in some cases, initiating violence.
The situation is frustrating: Despite a First Amendment right to use the cameraphone to gather and present evidence in their favor, citizens may still fear actually doing so, in the moment. Thus, the use of potentially helpful technology may still be frustrated by human fallibility.