by David M. Reutter

The Supreme Court of Kansas ruled that the “noisy conduct” provision in a Wichita ordinance is unconstitutionally overbroad under the First Amendment. The Court severed the provision from the constitutional “fighting words” provision in the same subsection.

Before the Court was the appeal of Gabrielle Griffie, who was the director of Project Justice ICT (“ICT”). In July 2020, ICT organized a protest against police brutality in the wake of the May 2020 death of George Floyd. Griffie led 40 to 60 chanting protestors down Wichita streets to the federal courthouse. Speeches were given using megaphones. The protest was conducted without a permit.

Days after the protest, Griffie was charged with unlawful assembly under Wichita Municipal Code of Ordinances (“WMO”) § 5.73.030(1) for “participating in the meeting or coming together of at least five persons for the purpose of engaging in conduct constituting disorderly conduct … by blocking traffic.” The unlawful assembly charge relied upon the disorderly conduct ordinance under WMO § 5.24.010. That ordinance defines disorderly conduct as (1) engaging in brawling or fighting, (2) disturbing an assembly, meeting, or procession, not unlawful in its character, or (3) using fighting words or engaging in noisy conduct tending to reasonably arouse alarm, anger, or resentment. Griffie was found guilty by a jury based upon the third subsection’s “noisy conduct” provision and sentenced to pay $346.50 in fines and costs. Griffie timely appealed, and a divided panel with the appellate court affirmed.

On appeal to the state Supreme Court, Griffie argued the “noisy conduct tending to reasonably arouse alarm, anger, or resentment” (noisy conduct provision) language in the fighting words subsection is unconstitutionally overbroad. Such a constitutional challenge involves three steps. See United States v. Williams, 553 U.S. 285 (2008); City of Wichita v. Trotter, 514 P.3d 1050 (Kan. 2022).

The first step requires interpreting the language of the ordinance to determine its scope. The Court noted the subsection contains the same language as in K.S.A. 21-6203. No cases interpret the ordinance or statute. Using dictionary definitions, the Court found the ordinance criminally punishes persons who make “disagreeable, unpleasant, or loud sounds that the person knows or should know would tend to reasonably arouse alarm, anger, or resentment in others.” The Court cited five cases from the Supreme Court of the United States that held such conduct is protected. See Snyder v. Phelps, 562 U.S. 443 (2011); Virginia v. Black, 538 U.S. 343 (2003); Texas v. Johnson, 491 U.S. 397 (1989); Edwards v. South Carolina, 372 U.S. 229 (1963); Thornhill v. Alabama, 310 U.S. 88 (1940).

The second step requires determining whether the ordinance prohibits a substantial amount of protected activity judged in relation to the law’s plainly legitimate sweep. State v. Williams, 329 P.3d 400 (Kan. 2014). Legitimate applications for the noisy conduct provision are limited to “disagreeable, unpleasant, or loud conduct [that] consists of threatening behavior that poses a risk of provoking physical confrontation,” the Court wrote. “That others may experience alarm, anger, or resentment in response to noisy conduct does not justify the wholesale restriction of free expression,” the Court observed. Thus, the Court ruled that the noisy conduct provision is unconstitutional overbroad.

The Court then moved to the final step: deciding “whether there is a satisfactory method of severing the law’s constitutional provisions from its unconstitutional provisions.” See Trotter. It explained that the “touchstone for severability is legislative intent,” i.e., would the Legislature “have passed the law without the objectionable portion and … would [the law] operate effectively to carry out the intention of the Legislature with the objectionable portion stricken.” See Id.

Turning to the ordinance in question, the Court stated that its intent is to “protect physical safety and preserve public peace.” Severing the unconstitutionally overbroad “noisy conduct” provision “still criminalizes unprotected ‘fighting words’ as an act of disorderly conduct,” the Court reasoned. Consequently, the Court concluded that the Legislature would have enacted the ordinance without the unconstitutional provision and that the ordinance will still carry out the intent behind the ordinance with the offending provision severed. Thus, the Court severed the unconstitutionally overbroad “noisy conduct” provision from the ordinance.

Accordingly, the Court reversed the judgments of the lower courts. See: City of Wichita v. Griffie, 544 P.3d 776 (Kan. 2024).  

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