In this regard the intent to cause, or reckless disregard of, public inconvenience, annoyance, or alarm must be assessed in terms of whether the conduct was engaged in with intent to exercise a First Amendment right and whether the interest to be advanced is insignificant in comparison to the inconvenience, annoyance, or alarm caused. Id. 334 N.E.2d at 628 (citation omitted); see also Commonwealth v. Feigenbaum, 404 Mass. 471, 473, 536 N.E.2d 325, 327 (1989) (reaffirming these principles); Commonwealth v. Richards, 369 Mass. 443, 445, 446 n. 2, 340 N.E.2d 892, 896 n. 2 (1976) (expressive conduct cannot be sanctioned as disorderly conduct). Appellees contend that the definition of "disorderly" as used in non-penal Chapter 111B is not the same definition of "disorderly" applied to the criminal statute, Mass. Gen.L. ch. 272, § 53, as enunciated in A Juvenile.

However, the Massachusetts Supreme Judicial Court clearly has held that an individual may not constitutionally be arrested for being an "idle and disorderly person" solely on the basis of offensive and abusive language. Id. at 583, 592, 334 N.E.2d 617; see also Commonwealth v. Richards, 369 Mass. 443, 446 n. 2, 340 N.E.2d 892 (1976). The statute may only reach conduct "which involves no lawful exercise of a First Amendment right."

The judge's findings may well have reflected his legitimate concern that, to the extent that the record left open the possibility that the defendant's conviction was premised, even in part, on conduct shielded by the First Amendment (e.g., the defendant's missionary appeals and preaching), it might have been susceptible to reversal on appeal. See Commonwealth v. Richards, 369 Mass. 443, 446-448 (1976). The judge indicated that the defendant's conviction rested solely on the evidence of his refusal to obey the police command to stop using the megaphone, and the consequences therefrom, and that the defendant had not been convicted on the basis of any protected conduct.

General Laws c. 272, § 53, as amended through St. 1983, c. 66, § 1, provides: "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 may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment." Subsection (b) of § 250.2 is set forth in Commonwealth v. Richards, 369 Mass. 443, 446 n.2 (1976). The language of the section in the Proposed Official Draft of the Model Penal Code (1962) does not differ from that contained in the Official Draft of 1980.

Her subsequent yelling of obscenities precipitated her arrest (id. ¶¶ 14, 15). See Commonwealth v. Richards, 340 N.E.2d 892, 895-96 (Mass. 1976) (defendants in shopping mall refusing to cease public drinking, shouting obscenities, resisting arrest, and attracting crowd of about 200 people hostile and abusive to police warranted disorderly conduct convictions); Commonwealth v. Sinai, 714 N.E.2d 830, 834 (Mass. App. Ct. 1999) ("'Tumultuous behavior' is conduct which may be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance. . . . [D]isorderly conduct embraces those activities which intentionally tend to disturb the public tranquility or alarm or provoke others.") (citing Commonwealth v. A Juvenile, 334 N.E.2d 617, 628 (Mass. 1975); Commonwealth v. LePore, 666 N.E.2d 152, 155 (Mass. App. Ct. 1996)).

This is particularly true in the context of the public offense of disorderly conduct (a violation of state law, Mass. Gen. Laws. ch. 272, § 53). See Commonwealth v. Richards, 369 Mass. 443, 448-450 (1976) (defendants, who were drinking in public, verbally abused and fought with the officers who had ordered them to disperse); Commonwealth v. Carson, 10 Mass. App. Ct. 920, 921 (1980) (student's belligerent behavior was not excused by his verbal protestations of a police presence); Commonwealth v. Sinai, 47 Mass. App. Ct. 544, 548-549 (1999) (defendant's screaming and yelling, pounding on the steering wheel of his car, and resisting arrest, attracted a crowd and forced traffic to be rerouted). Roach claims only a general right to "engage and disengage" with police.

Expressive conduct, even of a coarse and vulgar nature, cannot be punished as a disorderly offense. Commonwealth v. Richards, 369 Mass. 443, 445–46, 340 N.E.2d 892 (1976). At the end of his oral argument, Kinney's counsel conceded, for purposes of the summary judgment motion only, that probable cause was not established under the “tumultuous behavior” prong and instead contended that Kinney had probable cause to arrest under subsection (c).

Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 669, 92 L.Ed. 840 (1948). See N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Commonwealth v. Richards, Mass., 340 N.E.2d 892, 894 (1976). A state court construction of a statute is notice to all concerned of what the statute provides.

See also Commonwealth v. Orlando, 371 Mass. 732, 735, 359 N.E.2d 310 (1977), and cases cited (hurling objects in deserted location would not disturb peace while hurling objects in populated area would be violation). See, e.g., Commonwealth v. Richards, 369 Mass. 443, 446–448, 340 N.E.2d 892 (1976) (defendants in shopping mall refusing to cease public drinking, shouting obscenities, resisting arrest, and attracting crowd of about 200 people hostile and abusive to police warranted disorderly conduct convictions); Commonwealth v. Sinai, 47 Mass.App.Ct. 544, 548, 714 N.E.2d 830 (1999) (disorderly conduct conviction upheld where defendant in parking lot of public town beach was screaming and yelling at parking attendant and then two police officers, pounding on steering wheel of his automobile with both hands, attempting to strike two police officers and forcibly resisting arrest by three police officers, which attracted crowd of twenty onlookers and caused traffic to be rerouted); Commonwealth v. Mulero, 38 Mass.App.Ct. 963, 964–965, 650 N.E.2d 360 (1995) (during roadside stop, defendant's actions of removing his hands from police cruiser, flailing them in agitated and belligerent manner while berating police officer with loud profanities and shoving his hands into pockets of his s

Commonwealth v. A Juvenile, 368 Mass. 580, 597-598 (1975). See Commonwealth v. Richards, 369 Mass. 443, 448-450 (1976). Moreover, the defendant's additional claim of error because the judge failed, sua sponte, to include in his jury instructions that the defendant could not be convicted of this offense solely because of speech, under first amendment principles, is made for the first time on appeal and is without merit as no substantial risk of a miscarriage of justice was created.