PORTLAND – You’ll hear The Whistler before you see him.

Some say he haunts the Old Port. To others, he brings amusement.

Videos Additional Photos Robert Smith is called The Whistler because of his almost daily habit of whistling loudly around downtown Portland. Photos by Gabe Souza/Staff Photographer Robert Smith whistles his way down Exchange Street in Portland recently. “I’m just trying to make people smile,” Smith says. But he disturbs some listeners, leading to legal troubles for Smith that he says won’t stop him from expressing himself. Related Headlines Complaints about behavior keep neighborhood prosecutor busy

But to Robert Smith, it’s a calling.

“I walked around singing for a year,” the 32-year-old said during one of his high-pitched rounds of downtown Portland. “I whistled a tune one day. I don’t know where it came from.”

Smith pauses for a moment, a large crucifix hanging from his neck over a football jersey.

“It came from God — that’s where it came from,” he said of his passion for whistling. “God is showing me what I’m doing is OK. He shows me every day with laughter.”

Smith’s whistling triggers a wide range of reactions from the people he passes on sidewalks and street corners. He shows up in online comments, blogs and videos.

Some downtown businesses and the Portland Police Department aren’t amused, however.

Over the past year, in fact, Smith has been summonsed, arrested and taken to court for disorderly conduct for “loud whistling.”

Smith is now free to whistle, but only under one unusual condition: He has to keep walking while he whistles. The requirement that he keep moving was mutually agreed upon by Smith and the city in court so he doesn’t annoy businesses and passers-by in any one area.

“It just got to the point last summer where the complaints just mounted,” said Trish McAllister, the city’s neighborhood prosecutor, who is charged with prosecuting quality of life issues. “He’s so loud.”

Business groups such as the Portland Community Chamber and the Portland Downtown District are worried about unruly behavior downtown, including disorderly conduct. And a city ordinance lists loud whistling as a form of disorderly conduct.

The business owner who complained declined to comment for this story, as did other shopkeepers. But PDD Executive Director Janis Beitzer said she understands why some shop owners would be upset.

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

On most days, Smith can be found whistling his way around the Old Port. He likes wearing a baseball cap, Oakley wrap-around sunglasses, and a bulging orange and gray backpack. Thin wires dangle from his ears, playing classic rock and oldies all day.

“I’m always kind of curious what his story is,” said City Councilor David Marshall, a street artist who runs a gallery on Congress Street.

Smith’s whistling is impressive — not for the melody but for the volume. The strong, steady monotone notes come in stabbing bursts that can be heard a block away.

When he first came to Portland, Smith liked to sing as he walked around, he said. Then one day he whistled along to a classic rock tune playing through his headphones. He doesn’t recall which song.

“I thought, you know, that sounds pretty cool,” Smith said. “I get more self-worth out of whistling. I do it every day — weather permitting.”

GETTING SMILES AND FROWNS

Smith said he lives on Main Street in Westbrook and works a construction job during the summer. On most days off, he takes a bus into town around 9 a.m. and leaves around 5 p.m.

His goal, he says, is to spread joy.

“I’m not out here to be the best whistler in the world,” he said. “I’m just trying to make people smile.”

Some people do laugh and smile. But others scowl or roll their eyes in disgust, making rude comments shortly after they pass by.

Whistling has put him at odds with local law enforcement.

On May 15, 2012, Smith was issued a summons for disorderly conduct after a business complained.

Two months later, Smith was arrested and taken to jail after police received complaints about his whistling in front of Starbucks at Middle and Exchange streets. The charge again was disorderly conduct.

According to the July 3 arrest affidavit, Smith was whistling loud enough to disturb businesses and people in the area. After being warned to keep the noise down, Smith allegedly started singing louder, “intentionally to annoy bystanders.”

Smith’s May summons landed him in court. Court records indicate he pleaded guilty on Aug. 22, 2012, to the disorderly conduct charge and agreed “to curb disorderly behavior (loud whistling) in the future.”

The plea agreement prohibits Smith from standing in one place and whistling. As long as he whistles while he walks, authorities agreed not to bother him.

His legal troubles are not enough to keep him from his passion.

Smith said he told police: “You can arrest me a thousand times, and the day I walk out of this jail, I’ll be whistling out the door.”

The reactions to his whistling have more to do with the listeners than the whistling itself, Smith said. While some smile, others confront him and threaten to beat him up, he said.

His whistling is such a shared experience among downtown regulars and office workers that he pops up in blog posts and online conversations.

“He acts like he’s treating all of us to his amazing whistling show and that we should all be so lucky to hear him and his magical ability, but I don’t feel lucky,” wrote one blogger in a 2011 post to Thought Catalog. “I feel deep anger and hatred, because his whistling upsets my dog and every dog in the neighborhood.”

People often speculate that Smith’s whistling carries an ulterior motive. But despite being arrested four times in his life, there is no proof of such claims. He has been convicted of misdemeanors including theft, assault and harassment by telephone.

“I’ve heard that drug (dealing) thing. It doesn’t faze me one bit,” he said. “They just want an answer to what I do every day. They want to put an answer to something they have no answer to.”

FIRST AMENDMENT

Smith said he unsuccessfully argued with police that the constitutional right to free speech protects his right to whistle.

“All I’m doing is expressing myself freely,” he said recently. “People who express themselves freely should be held in the highest regard, not the lowest regard.”

The American Civil Liberties Union of Maine declined to comment on Smith’s specific case. However, the free-speech advocates said in a written statement that punishing someone for whistling does raise First Amendment concerns.

“In general, merely being annoying isn’t enough to constitute disorderly conduct,” said Maine ACLU spokeswoman Rachel Healy. “Unless it’s meant to incite chaos or violence, whistling in public is usually not a crime — and punishing someone for it could raise real First Amendment concerns.”

McAllister, the city prosecutor, said she disagrees that whistling is a protected form of free speech.

A Portland city ordinance specifically mentions whistling as a disorderly behavior, which carries fines ranging from $100 to $500.

Since at least 1993, whistling has been included in the disorderly conduct ordinance, along with hooting and other unnecessary noises that “either annoy, disturb, or injure the health, peace or safety of others.”

The code prohibits “the use of any loudspeaker or amplifier for the purpose of commercial advertising or attraction of the public to a specific building, location or business, yelling, shouting, hooting, whistling, or singing shall be considered to be loud, disturbing, and unnecessary noises.”

According to McAllister, Smith’s whistling fit the bill.

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

FAMOUS OR INFAMOUS?

The Whistler is no stranger to many Portland residents or workers.

“I do see him a lot,” said Greta Bank, an artist who leases studio space on Congress Street. “Everybody does.”

Bank and her husband, Scott Peterman, a fellow artist and photography instructor at the Maine College of Art, incorporated The Whistler’s likeness in a window display last fall at the Space Gallery.

The display — “Godzilla Attacks” — included a model of downtown Portland that was used to make a Godzilla parody film. The display was about 2 feet tall, Bank said, and The Whistler, who was depicted wearing a New York Yankees hat and his backpack, stood about 8 inches. Bank said he is nearly as much of a fixture downtown as the buildings themselves, and there is no conceptual linkage between The Whistler and Godzilla.

“I chose him because he is an archetype of what Congress Street is,” Bank said. “He would walk by like every 15 to 20 minutes.”

The Whistler also has an online presence, but not of his own doing.

Someone has set up a business page for The Whistler on Facebook, but it only had five likes as of last week.

A YouTube video, “‘The Whistler’ Haunting Downtown Portland, ME Daily,” which was posted on Aug. 14, 2012, has about 850 views. The video is shot from behind as The Whistler walks along Congress Street from the bus stop at Monument Square to CVS.

Another man followed The Whistler around town to get an audio recording, which was posted to SoundCloud. At one point, the whistling is practically in the same key as the beeping of a commercial vehicle.

Some, however, have come to appreciate The Whistler.

Dr. Lisa Belisle, an East Bayside physician who became acquainted with him when she was working downtown, wrote a December 2011 blog post that she owes a “debt of gratitude” to The Whistler.

“Though I find him as annoying as many others do, I find him equally and strangely compelling,” Belisle wrote. “He is, in his own way, a placeholder. He prompts me to remember that not all hear the same music I hear; or respond the same way.”

In a phone interview, Belisle, who specializes in family and preventive medicine, said The Whistler is breaking down barriers that people put around themselves, forcing people to notice what is right in front of them. He is, she said, a reminder that everyone marches to the beat of their own drummer.

“The best thing you can do is have compassion for other people whose songs are not the same as yours,” she said.

While Smith is well known as The Whistler, he said he doesn’t do it for the fame.

“I’m doing it because of the reward it gives me,” Smith said. “My goal is if someday I can walk down the streets of Portland and I can see 20 or 30 people whistling along, doing the same thing I’m doing, well then I will be a happy camper. I’ll know I did something right.”

Randy Billings can be contacted at 791-6346 or at:

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Twitter: @randybillings

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