Important Maryland Cases: Diehl v. State 294 Md. 466 (1982)

Important Note: The Law Office of Bruce Godfrey takes no position as to the legal, political or social merits of recent “occupy” political demonstrations such as “OccupyBaltimore” or “OccupyWallStreet,” and is not a participant in such demonstrations. The purpose of this post is to discuss law that may be relevant to such news events.  Also, this post contains a professional discussion of language laws and First Amendment obscenity/indecency that is not suitable for most workplaces; you are hereby WARNED of the NSFW character of this article.

In Maryland, one has a clear right to resist an illegal arrest and to shout the word “Fuck” at an officer who is attempting to conduct such an illegal arrest. In a 4-3 decision that has been cited by a number of other courts, the Maryland Court of Appeals held in Diehl v. State, 294 Md. 466 (1982), that the word “fuck” used as an expression of dissent towards illegal conduct did not constitute disorderly conduct and could not be prosecuted at all absent compelling circumstances.

In Diehl, the Defendant was exiting a stopped car when an officer ordered him back into the vehicle.  The Defendant refused, stating that he knew his rights and had the right to leave the scene on foot.  The officer, Chief Gavin, told Diehl that he would be arrested if he did not re-enter the vehicle; Diehl responded with the phrase ultimately at issue in the case, “Fuck you, Gavin.”

The Court of Appeals held that such a phrase could not be prosecuted in itself as a violation of the Maryland disturbing the peace statute, which prohibited “willfully disturb[ing] any neighborhood …. with loud and unseemly noises” or “profanely curs[ing] and swear[ing] or us[ing] obscene language in any neighborhood.” As a matter of statutory construction, the Court of Appeals held that Diehl’s word did not willfully disturb anyone and did not constitute “loud or unseemly noises” since Diehl’s words were clearly communicative speech rather than mere “noises.” Similarly, Diehl’s words were deemed not “profane” in the sense of religiously blasphemous nor “obscene” as defined under Supreme Court obscenity insofar as “Fuck” here expresses anger or indignation rather than erotic interest. Accordingly, there was no basis whatsoever for finding that “Fuck you, Gavin” violated the disturbing the peace statute.

The Court further held that the Diehl’s words did not constitute a provocation to Gavin himself to breach the peace. After reviewing Supreme Court jurisprudence on “fighting words” the Court of Appeals held that Diehl’s use of “Fuck you, Gavin” did not constitute the sort of abusive epithet prohibited as “fighting words” but merely constituted an objection to a meritless order not to leave an automobile under threat of arrest, which the Court noted was an illegal threat given a lack of probable cause for any crime by Diehl.

From the opinion:

“We conclude, therefore, that where, as here, a person is acting in a lawful manner (a passenger getting out of a stopped car) and is the object of an unlawful police order, it is not usually a criminal violation for such person to verbally protest a police officer’s insistence upon submission to such an order.”

Diehl at 479.  The Court of Appeals went on to note that the charge of resisting arrest lacked merit as a matter of law under established precedent, since under Maryland law one had a clear right to resist an unlawful arrest by reasonable force and no probable cause existed for any arrest.

I am not certain that a content-based restriction on “blasphemous” references to the Deity or religious object would survive First Amendment scrutiny.  In many predominantly Catholic parts of the world, religiously-themed vulgarities predominate over sexual and excretory ones.  The word “calisse” (literally meaning “chalice”) and the much stronger “tabernac” (“tabernacle”) are so commonly used as a vulgarity in Quebec that some Catholic bishops actually took out ads explaining that “calisse” and other similar terms referred to Catholic liturgical equipment and concepts and were not merely a curse word.  In Bavaria one can still hear “Sakrament” as a strong oath.  Words like “fuck” and “cunt” which are truly severe in American English are not as shocking among, say, Francophone Quebecers or Irish speakers of English.  I am not a scholar of the right to curse or to blaspheme in America or in Maryland, but would be skeptical that the use of “blasphemy” conveying even the slightest substantive content could be prosecuted.

As for those who would be participating in any “occupy” events, there is a lot to consider. One has some protection of your right to express yourself with vulgarities, if it’s really necessary (and wise?)  One has the right to resist an illegal arrest; that is well-established, though an arrestee might have to win a few appeals to get that right upheld.  And, not to put to fine a point on it, the Chief Judge of the highest court in this state was arrested for political activism at age 16 in lunch-counter sit-ins for civil rights.  Whether any participant in any demonstration wants to spend a few years talking with trial and appellate lawyers – that’s a tougher question.

(None of this constitutes legal advice or creates a lawyer-client relationship with ANYONE – this is mere political commentary.)

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