For as eminently debatable as this week’s arrest of Professor Henry Louis Gates and its aftermath may be for people who are properly qualified to discuss the state of race relations in America, I am not one of those people.² But I have been excited to see how much attention this story has brought to the Commonwealth’s colonial-era disorderly conduct statute, and this is as good a time as any for us to review once again why its continued existence is nothing but an embarassment to us all.

Professor Gates, as we all know by now, was arrested for disorderly conduct on his own front porch in Cambridge last week. Police had been called by a concerned citizen who reported a burglary while watching Gates and his driver attempting to strongarm a door to which Gates had misplaced his keys after a trip to China. The police arrived and established Gates’s identity with a photo ID which included the address in which they were standing.

According to the police report, Gates then became upset and expressed his opinions regarding the injustice of the situation, the Cambridge Police Department, and the treatment of African-American men by police in the United States, at which point he was cuffed and arrested for disorderly conduct as a small crowd gathered. The charge was subsequently killed several days later, together with the usual “not our best moment, not his best moment” statement from the Cambridge PD.

Letting this go was the right move for all concerned, obviously. But what if the case had gone forward?

As I have previously discussed as thoroughly as I cared to, the Commonwealth’s disorderly conduct statute is a facially unconstitutional 400-year-old mess that has been preserved only through willful acts of judicial alchemy. Unfortunately, its many vagaries and moving parts have made it a reliable standby in the collective arsenal of law enforcement officers throughout the Commonwealth and, right or wrong, it is all too common to see this charge brought after an arrest in which the defendant has forgone his Fifth Amendment right to remain silent in favor of his First Amendment right to express his opinion about the situation.

The defense’s first strategy would almost certainly have been to move to dismiss the charge. Looking at only one of this crime’s many possible elements, it is highly unlikely that Gates’s alleged conduct (even assuming that it was just as obnoxious as reported) caused or created a risk of “public inconvenience or alarm.” According to the police report, his confrontation with police began in his own kitchen after he had provided them with evidence of his identity; he was then was invited to step out and continue the discussion on his own front porch. Although the police report alleges that a small crowd was gathering at this point, the fact remains that the officers had no reason to be there once they had established that Gates had not just burgled the place, and it seems highly unlikely that that this gracefully-aging gentleman with a cane, a bronchial infection, 12 hours of jet lag, and a Harvard ID was otherwise likely to pose any risk of “public inconvenience or alarm.”³

The “public” element aside, however, there is the basic issue of a citizen’s right to vocally disagree with the police. While most reasonable people can agree that it’s probably best to keep calm in the face of possible arrest, it is also understandable that, as the U.S. Supreme Court has previously held, your average law-abiding citizen is going to get a little worked up if he feels that he is being treated like a criminal for no good reason. Despite the best efforts of the police to work the magic words “tumultuous” and “served no legitimate purpose” into the affidavit in support of the criminal complaint [page 4], Gates’s conduct closely resembles that of defendants in at least two other Massachusetts appellate cases⁴ in which disorderly conduct convictions have been reversed:

In Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), police had just witnessed the defendant assaulting his girlfriend before they moved in to arrest him; he then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999), my personal favorite in this line of cases, held that a difference of opinion with a police officer is a “legitimate purpose” that may provide a proper defense against a charge of disorderly conduct. Although the defendant in Zettel had actually kicked a cop in the shins following an argument with him over her right to a parking spot in Fall River, the court held that her conduct arose from a “legitimate purpose” for causing a scene. But this is consistent: Massachusetts and other jurisdictions have found “legitimate purpose” for causes as diverse as protecting your water supply and attempting to save your marriage, so why not challenging a police officer who is expressing an intent to arrest you?

For as much fun as this little Gedankenexperiment may be, we are still talking about a criminal offense which carries up to six months of committed time. Disorderly conduct charges are regularly and routinely brought against defendants of every description around the Commonwealth—most of whom do not have Al Sharpton on speed-dial—under nearly identical circumstances. Let’s hope that all of this publicity will finally shame the legislature into putting G.L.c. 272 Sec. 53 out of its misery.

1. Note: Nobody should ever call this incident “Gatesgate,” for any reason.
2. For what it’s worth, I believe that the heartless and disturbingly insensitive prosecution of UMass Amherst student Jason Vassell is a far better example of the point that Gates and his supporters have been trying to make… it was really only the fact that it happened in Western Massachusetts that has kept it out of the conversation.
3. This is generally defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. Molligi, 70 Mass. App. Ct. 108 (2007). So maybe a few people could hear him from the sidewalk—but so what? I just don’t see it. “Public” really should mean “public.” As a policy matter, this statute is supposed to preserve public order, not the sensibilities of police officers.
4. There are many more, but these are the two that immediately came to mind when I read the Gates police report

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute…
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $475 more than the filing fee for an appeal to the Board of Immigration Appeals [PDF], $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF].
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy.

I’m just going to voice my respectful dissent on this right up front. This is all just one kid’s opinion, but whatever else this decision may be, it is not “the most dangerous libel decision in decades.” It has not “turned libel law on its head,” it is not a “bizarre twist,” it has not held that “truth is no longer an absolute defense” to libel, and it doesn’t “threaten to overturn” anything.

The boring truth is that in Noonan the First Circuit has merely glancingly condoned (as opposed to having definitively upheld) a highly questionable state law on reasonable procedural grounds. Somehow all of the critics of this opinion seem to have lost sight of the fact that the standard here was not that which would have been used had the court reviewed the case on the merits after trial, but only in terms of a motion for summary judgment: was there a “triable issue of fact” under existing Massachusetts law? Sadly, there was.

This is not to say that I agree with the outcome: At the end of the day, I’m a public-interest attorney, a progressive voter, an ACLU member, and an uncompromising defender and fan of the First Amendment. But this is an appellate, and not a First Amendment, blawg, so the following analysis is conducted accordingly.

The facts are far simpler than the law, so let’s begin at the beginning. Plaintiff Noonan was a Staples employee who engaged in some shady accounting (not a lot, but enough to get noticed) on his expense accounts and such during the course of his employment there. Staples caught Noonan, fired him, and made an example of him in a mass email sent out to all 1,500 of his former colleagues in the company’s North American division. Noonan did not seriously contend that the email as published was not true, but sued Staples anyway on the theory that it was libelous. In Noonan, the First Circuit (Tourella, J.) has agreed that it is possible that a reasonable person could have found the email to have been libel under Massachusetts law, and has remanded to the district court for further proceedings.

This, of course, is the part where every American law school graduate’s head explodes. How could a statement which is empirically true ever constitute libel? Truth is the “absolute defense” to libel, right? Yes. Yes, it is. Everywhere but the Commonwealth.

That’s right: You’re in the jungle now. Welcome to the jungle.

Let’s get to the law:

American libel law as we know it was invented in 1735 when John Peter Zenger was tried on charges of  ”seditious libel” arising from certain articles his newspaper had published regarding one William Cosby, the sitting colonial governor of New York. (One might assume, if one is too lazy to go looking for it, that the objectionable content had something to do with Mr. Cosby’s tastelessly colorful sweaters and unholy love of Jell-O.) Zenger’s attorney argued to the jury that no matter how scandalous the content of his publication may have been, Zenger simply should not be found guilty of libel because it was all true. The jury agreed to effectively ignore the law on Zenger’s behalf, making him the first—and perhaps still the most famous—American beneficiary of an act of jury nullification.

Strange as it seems today, this was an unprecedented development in Western libel jurisprudence. Our British colonial overlords had no problem spelling “libel” without the letters L-I-E, and it was a basic point of law that truthful statements could be libelous if made with “actual malice.” The American concept of truth as an “absolute defense” to libel can be directly traced to the popular belief in the justice of Zenger’s acquittal, and nearly every American jurisdiction has adopted it.

Every American jurisdiction but one. Cue the Mass Confusion.

Massachusetts has never recognized an “absolute” truth-based defense to libel.  It has instead effectively carried on the legacy of the colonial English law in G. L. c. 231, Section 92, under which truthful statements made with “actual malice” (in the “popular sense” of “hatred and ill-will“) may still constitute libel. Given that Sec. 92 (first codified in 1855; more on the history of the statute in the 1903 case which affirmed it) is still technically valid, the First’s holding in Noonan that summary judgment in the trial court was improperly granted because there was still an open question under Massachusetts law as to the “actual malice” of Staples’s actions was not really all that radical.

To be fair, not all of the confusion here is Mass-based. The Supreme Court’s landmark 1964 decision in New York Times Co. v. Sullivan provided a new Constitutional definition for the common-law phrase “actual malice” in libel cases involving public figures. Under this standard, “actual malice” may only be found in statements made about public figures if these statements were made either with actual knowledge that the statement was false or with “reckless disregard” as to whether or not the statement was true. (Libel: Barack Obama is a “radical Muslim” who “pals around with terrorists.” Not libel: George W. Bush is a convicted drunk driver. See how that works?) So there’s inevitably going to be some confusion now between what all First Amendment lawyers know about “actual malice” in the Sullivan context, and the actual common-law definition which still controls for the purpose of the “actual malice” exception to the truth defense against claims of libel involving private individuals in Massachusetts.

Noonan was not, of course, a public figure at the time that the email went out, and no one is arguing that he should be viewed as one now. Although the SJC casually suggested more than three decades ago that it may someday address the Constitutionality of truth-based libel suits involving private persons, there has never been a direct ruling on this issue. (As far as I’m aware, the closest they’ve come since then was in a case involving my favorite series of budget travel guides and an Israeli hostelier with a groping problem, and that decision held for the defendants only because the plaintiff was a private person who happened to be involved in a matter of nominal “public concern.”) So for as stupid and anachronistic and un-American as this statute undoubtedly is, the “actual malice” bit which ultimately controls here has never been directly challenged nor struck down by a state court as it pertains to private individuals, and it is still therefore the law of the Commonwealth. Not great (or even good) law, but it’s still the law. (Now that the case has been remanded for further proceedings, it would be nice if the federal district court would be kind enough to certify this mess to the SJC for review of the Constitutionality of Sec. 92, but I really don’t see that happening.)

In light of all of this, the most surprising thing to come out of this whole decision, for me, anyway, is that Staples’s expensive appellate counsel—from a notable national law firm which will remain unnamed in the interest of keeping myself from the receiving end of my very own truth-based libel suit—appears to have dropped the Constitutional ball:

In the rehearing proceedings, Staples has suggested that this exception to the truth defense may never be constitutional. But this argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time.

Of course, Justice Tourella was not so much surprised as relieved, as blaming counsel for failing to properly raise the issue gave him an easy out from having to address the obvious Constitutional questions at hand. (Like most appellate courts, the First can dodge Constitutional bullets faster than Neo on amphetemines.)

Which brings me to my final point.

The First Circuit is a pretty reliably conservative collection of judges. As a body, they have spent many lovely afternoons in Boston (as well as their summer home two weeks out of the year in Puerto Rico) wandering the pleasant, well-worn contours of the path of least resistance, taking plenty of time to savor the sweet scent of that peculiar breed of American beauty we call stare decisis along the way. If you’re looking for an appellate court that will spontaneously raise issues that have not been properly brought before it just to strike down a state law as un-Constitutional, get thee to the crazy hippies of the Ninth. I hear those dudes will do anything.

…it is too clear for dispute that the enslaved African race were not intended to be included [in the phrase "all men are created equal"], and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

In Dred Scott v. Sandford, 63 U.S. 393 (1857), now known as one of the worst rulings in Supreme Court history, the Taney Court was asked to decide whether African slaves and their descendents could ever become citizens of the United States. The answer was an angry, Ted-Stevens-style, “NO!” After all, wrote Taney, our Founders found Africans to be:

“…beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Furthermore, Taney believed that it was essential to the health of the nation that the same Constitutional rights that applied to “real” Americans be forever witheld from Africans and their descendents because:

[Citizenship] would give to persons of the negro race… the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color [in slave states], both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

In an unfortunate attempt to answer the “slavery question,” Dred Scott openly vindicated the “property rights” of slaveowners, vitiated the Missouri Compromise, and forcefully precluded the possibility that African slaves and their descendents could ever call themselves “African-Americans.” It remains one of the handful of Supreme Court opinions that everyone can now agree was just a really bad idea.

Although Barack Obama is the first incoming President to take the oath from a Chief Justice to whose appointment he was opposed, John Roberts is no Roger Taney. Justice Taney was an open supporter of the “rights” of slaveowners to their human “property,” and an avowed enemy of Abraham Lincoln. (Scholars still dispute whether or not Lincoln actually attempted to issue a warrant for Taney’s arrest several months after he took office.) Dred Scott had been in effect for four years by the time that the two men faced each other on the steps of a Capitol built on the backs of slave labor with this Bible between them, and a war that would truly solve the “slavery question” once and for all of American history was only months away.

Dred Scott was legally superseded by the passage of the 13th and 14th Amendments to the U.S. Constitution after the Civil War which granted full citizenship to “all persons born or naturalized in the United States,” but it was never formally overruled by the Court.  With the conclusion of today’s ceremonies, however, one singular man has proven that Dred Scott really is as dead, ugly, and rotting as Taney himself.

Happy Inauguration Day!

“For preventing disorders, arising in several places within this jurisdiction by reason of some still observing such festivals as were superstitiously kept in other communities, to the great dishonor of God and offense of others: it is therefore ordered by this court and the authority thereof that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon any such account as aforesaid, every such person so offending shall pay for every such offence five shilling as a fine to the county.”

From the records of the General Court,
Massachusetts Bay Colony
May 11, 1659

Buried right in the middle of the steaming dog’s breakfast of old-timey criminality that is G.L.c. 272 Sec. 53 is the quaint classification of “persons who with offensive or disorderly acts or language accost and annoy members of the opposite sex.” Although not as widely employed as the “disorderly persons” provision, this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.

At worst, behavior sufficient to constitute “accosting and annoying” is pretty much just what it sounds like: criminal sexual harassment. There are only about a half-dozen appellate cases interpreting this, but it amounts to (1) “offensive or disorderly conduct” (2) intentionally directed at (3) a member of the opposite sex.

Such conduct can range (the following are all actual reported cases) from the truly scary (i.e., posting super-creepy “Wanted” posters of your ex-girlfriend around your high school) to the understandably irritating (unwanted hugs, backrubs, and verbal come-ons from a coworker which could have been addressed under existing civil sexual harrassment law), to old-fashioned indecent exposure to very-nearly victimless crimes (singing showtunes in the general direction of a teenage girl while leering at her).  I’m not saying that most of these offenders should have gone entirely unpunished, but only that there has to have been a more Constitutional—and slightly less Puritanical—way to charge them.

There is an obvious potential First Amendment problem automatically raised in any law which permits criminal prosecution based solely on non-threatening speech toward another. But I can acknowledge that this is more of an “as applied” challenge, given that the majority of speech for which someone may be charged under this statute is probably not protected by the First Amendment.

I am far more concerned that there is a really serious inherent equal protection violation built right into the statute for as long as the “opposite sex” element of Sec. 53 remains.

Here’s how it works:

I don’t know about you, but I, dear reader, have been accosted and annoyed by a member of the same sex. Maybe it’s my boyish good looks, my full head of hair, or the femme-y, Ira Glass-y, nasal I slip into when I start to get excited and run my words together, but there it is. I think “annoyed” is really the right word; I really don’t care, and it’s nothing to call the police over.

But you see the problem: Even if I wanted to, I couldn’t! There’s no crime! By criminalizing what I will call from this point forward “sexual harrassment” of the opposite sex, our legislature has by exclusion condoned and permitted sexual harrassment of the same sex at will throughout the Commonwealth. Obviously, this was not an intentional outcome, but only a natural consequence of keeping a 400-year-old statute on the books.

Public admissions and/or displays of homosexuality would have been wholly unthinkable to the Puritans of the Massachusetts Bay Colony. Women, as the “weaker sex,” required the vigilant oversight of their male providers and protectors. This is the world into which Sec. 53 was born, and the world in which it should have died. Instead, it fell on some ice.

As you may have heard, the gays have been a’marryin’ in healthy numbers here in the Commonwealth in the five years since the SJC affirmed everyone’s right to marry in Goodridge v. Dept of Public Health. As a true believer in stupid old liberal cliches like the right to privacy and equal protection under the law–not to mention that hippie pabulum about how maybe love really is all you need–I’m willing to bravely face the open threat that this ruling no doubt continues to pose to the domestic tranquility I now enjoy with my own heterosexual life partner. (We’ve made it so far, anyway…)

My point, however, is that I was particularly struck by the following observation in Justice Greaney’s Goodridge concurrence:

A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people.

While I must repeat again my unconditional support for equal marriage rights, I am compelled to point out that the above logic does compel the conclusion that Sec. 53 may be the only law currently in force in the United States which unfairly burdens heterosexuals. Simply put, heterosexual victims of opposite-sex advances may receive the full protection of our law enforcement system, while their counterparts on the receiving end of same-sex advances may not. Or, as I recently wrote in far more words:

The accosting and annoying provision of [Sec. 53] as it now reads is impermissibly and unconstitutionally underinclusive, in that it excuses an entire potential class of perpetrators while concurrently failing to protect their victims solely on the basis of their respective genders. As such, this provision’s strikingly anachronistic, unmistakably paternalistic, and quintessentially Puritanical language and intent are outshone only by the luminous glare of its arrant unconstitutionality.

I am not the first to make this argument, and I expect that I will not be the last. At the very least, the phrase “of the opposite sex” needs to go. At best, I’d like to see the entire “accost and annoy” provision removed if and when the legislature ever gets around to redoing Sec. 53 as fully and comprehensively as the SJC has asked them to.

But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD.

Fair game, as were prior remarks that this section has “had a tortured history” (too lazy for a full cite, but it was 1975), and is “obviously is badly in need of careful legislative attention and comprehensive revision and rearranging” (same, 1981).

All true. Sec. 53 has been in legal force in one form or another since the earliest days of the Massachusetts Bay Colony, back when freedom of speech meant “freedom of Biblically-sanctioned Puritan speech” and your mom was just getting started in her storied career as a common night walker. Its manifest “constitutional infirmities” (1988) have been remedied only by acts of judicial triage, most significantly a constructive grafting of the Model Penal Code’s definition of “disorderly” (1975) as well as generously limiting its scope to “conduct which involves no lawful exercise of a First Amendment right” (1976).

And it used to be much worse. The last serious attempt to revise and rearrange Sec. 53 “to simplify, to clarify, to modernize, and to make more precise an ancient statute some of the terms of which were difficult to define and had come to have a flavor of obsolescence” was undertaken in 1941. See Commonwealth v. Lombard, 321 Mass. 294 (1947); See also Commonwealth v. Diamond, 248 Mass. 511 (1924)(tracing disorderly conduct statute’s history from 17th century colonial law to the 1920s).

The 1941 reform decriminalized the conduct of a whole merry band of ne’er-do-wells previously named in Sec. 53’s predecessor. To wit: “rogues and vagabonds,” “common pipers and fiddlers,”persons who use any juggling or unlawful games or plays,” “pilferers,” “persons who neglect all lawful business and habitually misspend their time by frequenting houses of ill fame, gaming houses or tippling shops ,” (these last being, I gather, some kind of Victorian packies) and (my favorite) “persons who neglect their calling or employment or who misspend what they earn and do not provide for themselves.” Lombard, again, but see also Alegata v. Commonwealth, 353 Mass. 287 (1967). (When taken as a whole, it appears that this revision also effectively legitimized the existence of most of Allston-Brighton.)

So that’s all pretty hilariously self-explanatory. What is not is why what is left of Sec. 53 hasn’t gone the way of old chestnuts like the  one that used to criminalize “tramps” (still going strong while Lowell native Jack Kerouac was on the road), or the one about any “person known to be a pickpocket, thief or burglar… acting in a suspicious manner around any steamboat landing [etc],” both of which were  gutshot by Alegata more than forty years ago while Sec. 53 was left on life support.

Yes, our creepy Puritan great-uncle still wanders the old post roads, a cheerless zombie who munches nuts and berries while sprinkling himself with ashes as he mumbles about the Commonwealth of idle and disorderly railers and brawlers and common night walkers we’ve become.

As amusing as this bit of colonial arcana is, it is also a real law with real consequences, under which real people are convicted every day.  I presently have four separate appeals pending in which my clients were charged and convicted under this statute. Three of these four were sentenced to the maximum six months of committed time on the basis of nothing more than things that they said to other people and I still just don’t see why.

Next: prepare to be accosted and/or annoyed!