Tuesday February 26, 2013

PORTLAND, Maine (AP) -- A man charged with disorderly conduct for his loud whistling in downtown Portland has reached a deal with the city -- he can whistle, but he can’t linger in one spot.

Robert Smith, of Westbrook, has been cited by police twice in the past year after businesses complained. He pleaded guilty to disorderly conduct last summer and reached a deal with the city in which he can keep whistling as long as he’s moving.

Smith maintains that his whistling -- audible a block away -- is protected free speech and usually brings smiles.

But downtown businesses have complained about the 32-year-old Smith’s never-ending noise-making.

Janis Beitzer, of the Portland Downtown District, understands why some business owners are upset.

"Just like if somebody plays an instrument in front of your business or has the radio on constantly, it’s irritating," Beitzer said.

The prosecutor, Trish McAllister, disagreed that Smith’s whistling is protected by the First Amendment. A Portland city ordinance says whistling, hooting and other unnecessary noises that "annoy, disturb or injure the health, peace or safety of others" are forms of disorderly conduct.

"The judge and I viewed this as a behavioral issue," she said. "(Smith) was aggressive. He would follow people who gave him a wrong look."


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