Constitutional – Disorderly Conduct Ordinance – Right to Free Speech

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Appellant failed to meet her burden of proving the Town of Sullivan’s Island’s Disorderly Conduct Ordinance infringed on her right to Free Speech or was unconstitutionally vague.

We affirmed Appellant’s conviction for disorderly conduct.

This was a direct appeal from the circuit court’s affirmance of Meredith Logan Whitehurst’s municipal court (trial court) conviction for violation of the Town of Sullivan’s Island’s Disorderly Conduct Ordinance. The Town cited Whitehurst for violation of the Ordinance for loudly berating the driver of her Uber ride (Driver) with profanity and racial and xenophobic epithets at almost 2am. After the jury found her guilty, the trial court fined her $1,040.

On appeal, Whitehurst argued her conviction under the Ordinance was an unconstitutional regulation of her protected speech under the First Amendment. We disagreed. Whitehurst argued the charge against her was based solely on her use of insulting and profane language, which she claims is protected speech. The two Ordinance subsections the jury considered, however, addressed only the manner of speech rather than its content. These subsections prohibited a person from willfully making a noise or disturbance that was “loud,” “boisterous,” and/or “unreasonable” in public. While Officer DeNett testified she considered the profane language Whitehurst used, she also considered the volume of the statements she heard on the Uber Video and asserted the charge could be brought solely on that volume. In its return to the circuit court, the trial court noted the Town was “primarily a residential island” and had an interest in keeping the peace, which is why it enacted the Ordinance. We found the Ordinance was content-neutral, regulating speech solely upon the noise generated, rather than the message conveyed. In addition, it served the Town’s important governmental interest in controlling the noise level of the primarily residential island without substantially burdening speech. Whitehurst made no argument that the subsections of the Ordinance for which she was convicted were invalid time, place, and manner restrictions. Accordingly, Whitehurst failed to meet her burden of proving Ordinance unconstitutionally infringed on her right to free speech.

Whitehurst next argued that the trial court erred in denying her motion to dismiss because the Ordinance was unconstitutionally vague. She asserted that the Ordinance failed to give notice of the conduct that was truly prohibited under many of its subsections, and the subjective nature of the Ordinance was misused to charge her for her constitutionally protected speech. We disagreed. Using common and ordinary terms, the Ordinance provides fair notice of what is prohibited and specific guidelines for its enforcement. The terms “loud,” “boisterous,” and “unreasonable,” whether in the disjunctive or conjunctive, describing a noise or disturbance clearly prohibit yelling on a public street at almost 2am in a residential area such as Sullivan’s Island. As the challenger to the constitutionality of the Ordinance, Whitehurst has the burden of proving the Ordinance was unconstitutionally vague. She failed to meet this burden.

Affirmed.

Whitehurst v. Town of Sullivan’s Island (Lawyers’ Weekly No. 010-039-25, 32 pp.) (Letitia H. Verdin, J.) Appealed from Charleston County Circuit Court (Bentley Price, J.) C. Austin Elliott, of Kulp and Elliott, of Charleston, for Appellant. George Trenholm Walker, James Whittington Clement, and John Phillips Linton, Jr., all of Walker Gressette & Linton, LLC, of Charleston, for Respondent. South Carolina Supreme Court