A Brief History of Annoyance Law - Pacific Standard

A Brief History of Annoyance Law

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When making Quentin Tarantino listen to loud birds is a crime, and evicting domestic abuse victims is law enforcement.

By Elena Gooray

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Quentin Tarantino. (Photo: Adam Pretty/Getty Images)

Last week, the City Council of Fresno, California, passed an anti-gang ordinance that included a historically controversial word choice: “annoying.”

The ordinance, meant to hold gang members accountable for harassing or recruiting local students, defines harassment broadly: as “a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting or seriously terrorizing the person that serves no legitimate purpose,” the Fresno Beereports. While much of the community supports the ordinance’s underlying intent, some — including Fresno’s police chief — worry its broad language can encourage racial profiling to identify gang members. (The potential for profiling depends largely on the specificity of the information Fresno’s law enforcement uses to identify gang members, according to Jack Glaser, an associate professor and associate dean at the University of California-Berkeley.)

Altogether, critics say, the ordinance’s language is too vague. What would a so-called reasonable person consider annoying anyway? Answering that question from a legal standpoint, it turns out, has a colorful history.

We Can Thank the King of England and a Fictional Horse

Regulating behavior deemed “annoying” typically falls under nuisance law, which traces back to 12th-century England. Nuisance law originated to allow the king to seek justice when someone, say, blocked his moat. But in 1535, a judge finally argued for non-royals to make nuisance claims, using a thought experiment: If someone builds a ditch blocking the king’s road, and an innocent third party accidentally rides into the ditch on his horse, that third party should be able to complain about it in court, just like the king. So all those advertisements we see today for personal-injury lawyers who have your back if you fall and feel it’s someone else’s fault? We owe the horse scenario for those. The colonial United States inherited English common law, including the right to take your neighbor to civil court if you, too, tumble into an irresponsible ditch.

As of 2005 — the most recent year for which the Bureau of Justice Statistics has shared civil trial data — the median payout for a civil trial, including nuisance cases, was $64,000. But only 12 percent of civil cases actually sought punitive damages.

Nuisance Often Involves Feuds Between Neighbors

Much of nuisance law comes down to what sounds like a fancy cult tagline: “the covenant of quiet enjoyment,” or the right to enjoy undisturbed any property you own or lease. That’s the right director Quentin Tarantino was defending in 2011 when he sued Alan Ball, the creator of HBO’s Six Feet Under and True Blood, for “obnoxious pterodactyl-like screams” coming from Ball’s pet macaws in their Los Angeles neighborhood. Tarantino and Ball settled out of court, according to the Hollywood Reporter.

But Sometimes Being a Nuisance Means Committing a Crime

Fresno is far from the first U.S. jurisdiction to take seriously laws that outright forbid annoyance. More than 5,000 ordinances nationwide ban some kind of annoying behavior, the Wall Street Journalreported in 2014. It’s a misdemeanor in California, for example, to “with intent to annoy … [make] contact by means of an electronic communication device” — e.g. to make calls, send texts, or write emails to people who they can feasibly argue caused them injury, including, well, feeling annoyed. In Indiana, it was a crime to wander about drunk and annoying until 2012, when the state Supreme Court ruled “annoying” an unconstitutionally vague term. And in Vassar, Michigan, it’s illegal to flirt with and “willfully annoy” strangers.

That rule is reminiscent of anti-loitering laws established to protect women from harassment by aggressive men, called “mashers,” in the late-19th century. Women were advised to “dress quietly,” avoid loitering themselves, “discourage the masher,” and not hesitate to call policemen when mashers wouldn’t scram.

“Nuisance” Sometimes Happens on a Very Large Scale

In recent decades, nuisance law has been used to take on entire industries. Tobacco, handgun, lead paint, and gas companies have been targeted as causing a public-health “nuisance” by marketing and selling their products; in 2007, the California attorney general brought a dismissed nuisance suit against General Motors for car pollution across the state. These public nuisance claims involve far more alleged victims than private nuisance cases between individuals. Some legalscholars have argued that, when the victim is the general public, the solution belongs not with the courts, via lawsuits, but with legislatures, via public-interest laws (such as the Clean Air Act, which can anticipate cases like the one against General Motors by establishing certain pollution levels as a criminal offense).

Nuisance Law Can Create Its Own Victims

Domestic violence sometimes leads to nuisance claims — of such violence disturbing neighbors — that ultimately cause the victims to be evicted from their homes. Nuisance-based evictions can also plague low-income families in urban neighborhoods. Between early 2013 and mid-2014, the New York Police Department issued over 500 nuisance lawsuits that forced people from their homes, ProPublica and the New York Daily Newsfound, disproportionately affecting non-white communities (many of whom had not been convicted of a crime). New York City Police Commissioner Bill Bratton defended those abatements last month, suggesting they won’t let up any time soon.

But New York’s highest state court took a stand against annoying speech claims in 2014. It was a strange case — a man named Norman Golb went on a digital rampage to defend his father’s scholarship on the Dead Sea Scrolls, ancient texts containing much of the oldest manuscripts that form the Hebrew Bible. Golb had created fake email accounts to impersonate researchers he perceived as his father’s enemies, and he was convicted on 30 counts, including identity theft. But the state court of appeals struck down as unconstitutional the charge against communication “likely to cause annoyance or alarm,” referencing a previous ruling that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.”

One of Golb’s original lawyers declared the ruling more than an approval of annoying speech. It was a victory for “the demented and dissident, the crazies and the critical, the malcontents and the maladjusted — amen.”

So we can add that to nuisance law’s dark side: threatening the rights of all us malcontents.

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