Crimes against the public order are tricky. These are all about laws that have been created to punish anyone who does not live or behave in the way those who created the laws want them to live or behave. Public order crimes are those designed to directly address violations of what has been determined to be “acceptable social conduct” and “community behavior standards.” Public order crimes are often controversial and highly debated because they criminalize actions that not all people agree are the only acceptable ways to behave in society. The goal of public order crimes is to keep people from disrupting smooth social operation and peace. Lawmakers have determined that certain behaviors are harmful and detrimental to the good of society, making those behaviors worthy of being restricted.

Particular to public order crimes is the concept of a victimless crime. This is a crime that involves only the offender, who is technically only hurting themselves. Because participation in a victimless crime is a choice and lacks involvement of anyone outside oneself, there is no victim to protect and no harm to prevent. However, others argue that the public order laws are necessary to represent society’s obligation to uphold moral standards.

Public order crimes rest on the fine line between individual and constitutional rights, and the government’s interest in making sure no one becomes overzealous or dangerous in exercising those rights. The careful enforcement of public order crimes is balancing the rights of citizens to engage in behaviors that are legal and constitutionally afforded, but in a way that does not sacrifice safety and security of society at large.

Because public order laws often criminalize things like obscene gestures, threats, and fighting words, they can be challenged regarding constitutional rights under the First Amendment. The amendment protects free speech, specifically, “Congress shall make no law … abridging the freedom of speech…” (U.S. Const. amend. I). However, some public order crimes do exactly that, so how is that allowed? Well, the catch is that not all speech is protected under the First Amendment. It is constitutional and completely legal to regulate (make laws regarding) obscenity, true threats, and fighting words. You can probably imagine how different people would disagree over what is considered obscene or inappropriate and worthy of being controlled by the law. For this reason, any law or act criminalizing speech or expression is thoroughly scrutinized, must be very carefully written, and has to be supported by an unarguable public interest.

A controversial example of this very issue came up in 2022 when Florida Governor Ron DeSantis signed into law what is now being referred to as the “Don’t Say Gay” bill. The new law states, “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through garde 3 or in a manner that is not age-appropraite or developmentally appropriate for students in accordance with state standards” (HB 1557, 2022).

While the debate over whether this is actually in the public interest rages on, court battles are addressing the language. The law is written in such a way that it is broad, vague, and confusing. For example, what if a child in a first grade classroom comes from a family in which both parents are of the same sex? Is that child not allowed to discuss their own home and family life? Are only children of heterosexual couples allowed to talk about their families? What if a book has a character in it who is a member of the LGBTQ+ community? Must the book be banned or parts of the book skipped or not discussed? Also, are only teachers in heterosexual couples allowed to display a family photograph on their desks? This law is a good example of how public order crimes are often controversial and hotly debated because they criminalize actions that not all people in society agree are the only acceptable ways to behave or speak or live.

Another example of public order crimes walking the fine line of trying to avoid violating anyone’s First Amendment rights but also trying to maintain public order is the protests that took place in Portland, Oregon during the summer of 2020. As discussed in the Chapter Overview of Chapter 1, there were large demonstrations in downtown Portland over police violence in response to the death of George Floyd at the hands of police officer Derek Chauvin, another in a long line of Black men killed by White police officers.

The First Amendment protects free speech, but also, “the right of the people peaceably to assemble, and petition the Government for a redress of grievances” (U.S. Const. amend. I). Protesting, holding up signs with messages, marching through the streets, calling out specific chants, and proclaiming outrage are all perfectly legal. However, while almost all of the protestors were demonstrating peacefully and safely, a small portion chose to either take advantage of the situation (police being busy with the protests and distracted) or chose to act out their frustrations through damaging behaviors. Those who engaged in graffiti, vandalism, looting, or threatening language committed public order and property crimes.

8.5.1 Mens Rea in Public Order Crimes

Determining mens rea in public order crimes relies on a concept called the reasonable person standard. The reasonable person standard is based on a hypothetical guess as to what the average person would do in public or think about a particular behavior in public. If a reasonable person would be offended by a behavior, or would refrain from behaving a certain way knowing the impact the behavior would have on the people around them, then the offensive behaviors could be considered a public order crime. In this way, the mens rea of an offender can be evaluated based on what a reasonable person would have been thinking, in addition to any literal evidence as to what the offender was actually thinking (like something they said out loud or posted on social media). Typically, public order crimes require that a person specifically intended to cause a disruption, did something knowing that it could cause a disruption, or was aware of the disruptive nature of their actions.

8.5.2 Actus Reus in Public Order Crimes

Offensive conduct is a category of behaviors that a “reasonable person” would deem disruptive or dangerous to society and is used to determine actus reus in public order crimes. Public order laws are specific in defining actions that constitute violations so that only conduct that is of compelling government interest is regulated, or at least that’s the goal. We will talk about the different types of public order crimes and which behaviors can be considered criminal in the next section.