Two men were arrested for disorderly conduct in an anti-abortion demonstration in Little Rock, Arkansas. In addition to bringing a Fourth Amendment claim against the Little Rock Police Department, the men challenged the Arkansas disorderly conduct statute and the city’s permit requirement as violations of their free speech rights under the First Amendment. A federal district court dismissed the plaintiffs’ claims, and the Eighth Circuit affirmed on appeal earlier this month.

Arkansas’s criminal code contains several actions that constitute disorderly conduct, including: fighting; in violent, threatening, or tumultuous behavior; unreasonable or excessive noise; the use of “abusive or obscene language, or mak[ing] an obscene gesture, in a manner likely to provoke a violent or disorderly response; disruption or disturbance of meetings or gatherings; obstructing traffic; and other actions. The plaintiffs argued that the statute was vague and overbroad. The appeals court found that the statute was not vague, primarily because it contained a mens rea requirement—that is, that the violator have a particular intent to engage in disorderly conduct. The court used similar logic in upholding the statute against the plaintiffs’ overbreadth claim, finding that the statute was content neutral and that its objective mens rea requirement precluded an overbreadth challenge.

With respect to the plaintiffs’ claim that Little Rock’s permit requirement for public assemblies of 20 or more people violated the First Amendment, the appellate court also disagreed. The court found that the threat of arrest for violating the permit requirement was virtually non-existent, since the plaintiffs’ arrests were unrelated to the permit requirement, and the plaintiffs had engaged in protest in groups smaller than the permit requirement’s threshold.

The court also rejected the plaintiffs’ Fourth Amendment and excessive detention claims.

Duhe v. City of Little Rock, ___ F.3d ___, 2018 WL 4210500 (8th Cir. Sept. 5, 2018).