Opinion
Docket No. 25783.
Filed: September 4, 2001.
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Stephen W. Drescher, District Judge. Hon. Robert M.
Taisey, Magistrate.
Order of the district court, on appeal from the magistrate division, affirming judgment of conviction for disturbing the peace, affirmed.
Wiebe Fouser, Canyon County Public Defender, Caldwell, for appellant.
Thomas A. Sullivan argued.
Hon. Alan G. Lance, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.
Patrick Sheldon Suiter appeals from the district court's decision affirming his judgment of conviction for disturbing the peace. I.C. § 18-6409.
I. BACKGROUND
On April 3, 1998, Suiter went to the Canyon County Courthouse and spoke to an officer in the records division about a fraudulent check case. Suiter became frustrated with the officer's responses to his inquiries. As the discussion escalated, Suiter told the officer in a loud voice to "fuck off." In addition to the officer with whom he was speaking, a number of other individuals overheard Suiter's comments including two additional officers, two employees of the records department, and two members of the public. Suiter was charged with disturbing the peace.
Suiter moved to dismiss the charge, asserting that it violated his free speech rights under the First and Fourteenth Amendments of the United States Constitution. The motion was denied by the magistrate.
The case proceeded to jury trial. During the trial, Suiter again moved to dismiss the case. The magistrate also denied this motion. The jury found Suiter guilty of disturbing the peace. Suiter appealed to the district court, which affirmed the judgment of conviction. Suiter again appeals, claiming that Idaho's disturbing the peace statute is unconstitutionally overbroad as applied to the facts of his case.
II. STANDARD OF REVIEW
On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App. 1993). Where the constitutionality of a statute or ordinance is challenged, we review the trial court's ruling de novo since it involves purely a question of law. State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998).
III. ANALYSIS
Suiter does not assert that I.C. 18-6409 is facially overbroad. Suiter argues that, as it has been applied to the facts of his case, I.C. 18-6409 violates his freedom of speech as protected by the First Amendment and Fourteenth Amendments of the United States Constitution.
The First Amendment of the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Those protections of free speech afforded by the First Amendment are made applicable to state actions by operation of the Fourteenth Amendment.
The First and Fourteenth Amendments, however, have "never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses." Cohen v. California, 403 U.S. 15, 19 (1971). Our society has permitted restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. R.A.V. v. St. Paul, 505 U.S. 377, 382-83 (1992). The "freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. Id.
One such area is the family of expression classified as "fighting words." The United States Supreme Court has defined "fighting words" as those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Cohen, 403 U.S. at 20; Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942). The states are free to ban simple use of what have been termed "fighting words" without being required to demonstrate additional justifying circumstances. Cohen, 403 U.S. at 20; State v. Hammersley, 134 Idaho 816, 819, 10 P.3d 1285, 1288 (2000). The rationale behind the "fighting words" exception is that certain words or phrases, when directed towards another, may be regulated consistent with the First Amendment because of their constitutionally proscribable content. Hammersley, 134 Idaho at 819, 10 P.3d at 1288. Therefore, the exclusion of "fighting words" from the scope of the First Amendment means that the unprotected features of the words are essentially a nonspeech element of communication subject to state regulation because they constitute no essential part of any exposition of ideas. Id.
If a statute restricts constitutionally protected conduct the statute may be unconstitutionally overbroad. See State v. Bitt, 118 Idaho 584, 586, 798 P.2d 43, 45 (1990). In determining whether a statute is impermissibly overbroad, the Idaho Supreme Court has set forth the following analysis:
First, the court must ask whether the ordinance regulates constitutionally protected conduct. If the answer to this first step is in the affirmative, then the next step asks whether the ordinance precludes a significant amount of the constitutionally protected conduct. If the answer to this step is also in the affirmative, then the ordinance is quite likely overbroad and must be restricted in its application or rewritten.
Bitt, 118 Idaho at 587-88, 798 P.2d at 46-47. See also Hammersley, 134 Idaho at 820, 10 P.3d at 1289. There is a strong presumption of the validity of a statute, and appellate courts are obligated to seek an interpretation of a statute that upholds its constitutionality. State v. Richards, 127 Idaho 31, 34, 896 P.2d 357, 360 (Ct.App. 1995). However, because the First Amendment generally prevents government from proscribing speech or expressive conduct based on disapproval of the ideas expressed, most content-based regulations on speech are presumptively invalid. Hammersley, 134 at 819, 10 P.3d at 1288.
The first step in determining whether I.C. § 18-6409 is overbroad is to determine whether the ordinance regulates constitutionally protected conduct. The statute provides:
Every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner, is guilty of a misdemeanor.
I.C. § 18-6409. The magistrate correctly concluded that the portion of I.C. § 18-6409 that prohibits the use of "vulgar, profane or indecent language within the presence or hearing of children" did not apply to Suiter's conduct in this case because the evidence submitted at trial showed that no children were present at the time that the statement was made. In addition, Suiter's conduct could not be characterized as "threatening, traducing, quarreling, challenging to fight or fighting," nor was any evidence admitted showing that Suiter fired any gun or pistol. Thus, our review of the constitutionality of I.C. § 18-6409 should be limited to the remaining grounds for conviction available under the statute. The remaining grounds for conviction set forth in the statute provide that "every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct . . . is guilty of a misdemeanor." I.C. § 18-6409 (emphasis added). We assume that the language of I.C. § 18-6409, at issue, regulates speech. Because speech is protected under the United States and Idaho Constitutions, see Hammersley, 134 Idaho at 820, 10 P.3d at 1289, I.C. § 18-6409 regulates constitutionally protected conduct.
The second step in an overbreadth analysis is to determine whether the ordinance precludes a significant amount of the constitutionally protected conduct. In this case, because Suiter has not asserted that I.C. § 18-6409 is facially overbroad, the second part of our analysis need only address whether the statute precludes a significant amount of Suiter's speech. In Hammersley, the Idaho Supreme Court determined that I.C. § 18-6409 is self-limiting by its very terms. Id. at 821, 10 P.3d at 1290. The Court noted that the first sentence of I.C § 18-6409 requires that the conduct regulated be willful and malicious. Id. As defined by I.C. § 18-101(1), "willfully" means a purpose or willingness to commit the act or make the omission referred to. Moreover, I.C. § 18-101(4) states that "maliciously" imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act. The Court in Hammersley concluded that through its specific intent requirement that the regulated speech be malicious, I.C. § 18-6409 limits its application to those circumstances where the speech is intended to vex, annoy, or injure another person. In Hammersley, the speech reviewed by the Court was, "shut your fucking mouth, you bitch. . . ." The Court went on to hold that this speech, intended to "vex, annoy, or injure" did not fall within the realm of protections afforded by either the United States or Idaho Constitutions. Therefore, the only remaining question is whether Suiter's conduct falls within the specific intent requirement of I.C. § 18-6409.
In support of his assertion that his conduct was constitutionally protected, Suiter relies solely on the United States Supreme Court's decision in Cohen. In Cohen, the defendant was charged with disturbing the peace for wearing a jacket in the Los Angeles County Courthouse bearing the words "fuck the draft" which were plainly visible. The language of the disturbing the peace statute under which the defendant was charged was substantially the same as I.C. § 18-6409. The Court in Cohen concluded that the defendant's conviction violated his right to freedom of expression. Cohen, 403 U.S. at 26.
The state argues that Hammersley is most closely analogous and that Cohen is distinguishable from the instant case. We agree. In Cohen, the defendant's conviction clearly rested upon the offensiveness of the words used to convey his message to the public. In contrast, Suiter's conduct in this case did not consist solely of silently displaying a four-letter expletive in a public forum. Instead, Suiter told the police officer to "fuck off" in a loud and boisterous manner. A number of witnesses to the incident testified at trial that Suiter's "voice was loud," that Suiter "sounded like he was upset," and that Suiter "raised his voice" at the time that he uttered the expletive. Based on this testimony, the magistrate determined that there was evidence from which the jury could find Suiter guilty of disturbing the peace without reference to the content of his speech.
However, even assuming that Suiter's conviction was based, in part, upon the content of his speech, the facts surrounding this case also distinguish it from Cohen. First, by verbally communicating his statement to the officer, Suiter rendered the officer and the other involuntary listeners powerless to avert their attention. One of the factors the United States Supreme Court relied on in Cohen was the ability of the onlookers to "avoid further bombardment of their sensibilities simply by averting their eyes." Cohen, 403 U.S. at 21. Second, in contrast to the facts in Cohen, there was evidence admitted at trial to show that some of the persons subjected to Suiter's conduct did in fact object to it. Third, unlike the speech in Cohen, Suiter's speech in this case conveyed no message of political or social importance. Thus, Suiter's statement to the officer did not contain an essential element of the expression of ideas that was entitled to constitutional protection. Fourth, Suiter's statement in this case was specifically directed to the person of the listener, the police officer, whereas the defendant's expression in Cohen was made to the public in general. Furthermore, the words uttered by Suiter to the officer were personally provocative and insulting. As noted by the United States Supreme Court in Cohen, the word "fuck" is "not uncommonly employed in a personally provocative fashion." Id. at 20. We conclude that such a personally provocative epithet, delivered in the manner and setting here, cannot be reasonably interpreted as the communication of information or opinion safeguarded by the Constitution.
Based on the nature and circumstances surrounding Suiter's statement, we conclude that Suiter's conduct fell within the specific intent requirement of I.C. § 18-6409, as it was intended to vex or annoy the officer. Thus, Suiter's statement fell within the area of speech previously recognized as unprotected by the First Amendment. For the reasons stated above, we hold that Suiter has failed to show that I.C § 18-6409 was unconstitutionally applied to the facts of his case.
IV. CONCLUSION
Suiter has failed to show that I.C. § 18-6409, as applied to the facts of this case, precluded a significant amount of his constitutionally protected speech. Therefore, the district court's order upholding Suiter's judgment of conviction for disturbing the peace is affirmed.
I write separately in order to explain my views on two issues raised in the dissenting opinion. 1. Jury instructions.
The issues relating to jury instructions detailed in the dissent do not provide a basis for deciding this appeal. A brief discussion of the procedural history of this case as presented to the trial court and on appeal is necessary to explain this conclusion.
Prior to trial, Suiter moved to dismiss the action, asserting that his statement was constitutionally protected. However, as Suiter failed to appear for the hearing on his motion to dismiss, the motion was denied. At trial, Suiter did not object to the trial court's jury instructions. To the contrary, when asked if he had any objection to the court's proposed instructions, he replied "None whatsoever." He twice advised the court that he had no additional requested instructions. Relying on Cohen v. California, 403 U.S. 15 (1971), Suiter simply contended that his conduct was protected by the First Amendment. Indeed, his position that the issue was a question of law was most clearly articulated in closing argument, when he told the jury: "I'm going to win it through appeal when you find me guilty. It's proven in Cohen versus California." Suiter's briefs made passing reference to the jury instructions, both on appeal to the district court and again before this Court. However, Suiter has consistently framed the single issue on appeal as whether Idaho Code § 18-6409 is unconstitutionally overbroad as applied to the facts of his case. Accordingly, the district court's opinion did not address the adequacy of jury instructions. On appeal from the district court, Respondent has responded to the sole issue raised on appeal and has not addressed the jury instructions. Accordingly, I do not think it appropriate for this Court to address this issue on appeal.
2. Suiter's statements as fighting words.
Two aspects of the dissenting analysis of this issue warrant discussion: first, whether the First Amendment creates a right to subject law enforcement officers to greater verbal abuse than other citizens may be expected to endure; and second, consideration of the practical effects of this decision.
a. Status of law enforcement officers.
The First Amendment does not confer a right to direct greater verbal abuse at a law enforcement officer than any other citizen. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the accused directed his statements to a city marshal. Nevertheless, the Supreme Court determined that his statements were fighting words because they were "epithets likely to provide the average person to retaliation. . . ." 315 U.S. at 574. Absent clear direction from the United States Supreme Court or the Idaho Supreme Court, I cannot accept the proposition that the First Amendment permits statements to be directed to law enforcement officers which could not be directed to other members of society.
b. Practical effects of this decision.
The determination of whether a criminal statute is constitutional should not turn on the issue of the frequency with which it may be enforced. Consideration of the prospect of future arrests, with the corollary impact upon citizens' privacy rights, is a matter for the legislature's consideration rather than a basis for constitutional interpretation.
That being said, the dissent overstates the potential "mischief" presented by the majority's decision. The unspoken premise of the dissent is that when law enforcement officers encounter the "f-word, " they will exercise their discretion to effectuate arrests, rather than issue citations, in order to conduct searches of citizens' persons and automobiles.
By the nature of their duties, officers regularly have contact with citizens who are in highly emotional states or who have been affected by the use of alcohol or drugs. Officers are frequently subjected to language and conduct which is far more egregious than that presented in the instant case. Most officers, when confronted with such situations, respond professionally and with restraint.
There are officers who do not react with such restraint. Speaking generally, law enforcement officers are neither stupid nor lacking in creativity. Every trial judge in this state has seen cases where an officer has exercised the discretion to arrest for "contempt of cop." The present reality is that if law enforcement officers are tempted to arrest citizens as a result of their behavior, it will almost invariably happen, regardless of this court's ruling in this case.
That is not to say that I am without concern as to the prospective effect of this decision. While it may not be widely recognized, the decisions of our appellate courts have the capacity to change public behavior, both for good and for ill. Police-citizen contacts are, with increasing frequency, characterized by distrust and hostility. There have been far too many tragedies in this state as a result of such confrontations. A decision which has the effect of issuing a license to citizens to direct language which is offensive and devoid of communicative content to an officer would tend to exacerbate this sad state of affairs.
I respectfully dissent for two reasons. First, the majority opinion does not adequately address the central issue presented by this appeal — whether this prosecution violated Suiter's First Amendment rights in view of the manner in which Idaho Code § 18-6409 was applied to him.
When that issue is examined, in my view it is apparent that, at the very least, Suiter's judgment of conviction must be vacated and a new trial allowed due to the inadequacy of the jury instructions employed in his trial to prevent a violation of Suiter's First Amendment rights. Second, it is my opinion that, as a matter of law, Suiter's words directed to the officer were not "fighting words" as that term has been employed by the United States Supreme Court, and therefore the charge against him should be dismissed.
For a full understanding of the First Amendment implications of this prosecution, a more expansive description of the factual background than is provided in the majority opinion is helpful. Suiter went to the Canyon County sheriff's office to speak to a detective about a check fraud case in which one of Suiter's friends was the victim. Suiter explained that he was acting at his friend's request and as his agent. The detective responded that without some sort of verification from the crime victim that Suiter was authorized to act on the victim's behalf, the detective could not take a complaint or assist Suiter in an investigation of the alleged check fraud. As the conversation progressed, Suiter became agitated and critical of the sheriff's office. The detective asked Suiter to calm down. At that point, Suiter said in a raised voice, "Hey, fuck off," and then turned to leave. Suiter was then stopped by other officers and cited for disturbing the peace. According to a deputy who overheard the vulgarity, Suiter at the time was loud but not combative. Others who heard the profanity included another sheriff's deputy, two clerks in the records division of the sheriff's office, and two civilian bystanders. The civilians were a woman and her nineteen-year-old daughter. The woman testified that she was not angered by what she heard but was surprised to hear such language in the courthouse. She said it didn't really bother her. The daughter was also surprised but not agitated by hearing the "f-word" used in the courthouse. Personnel of the sheriff's office who overheard the conversation said Suiter's agitated profanity disrupted their work or disrupted their peace and quiet. The witnesses described Suiter's voice as "fairly loud," "not real loud," or "seemed to raise a little bit," when he uttered the vulgarity; no one characterized it as yelling, shouting, or screaming.
In interpreting and applying the First Amendment to the United States Constitution, this Court is obligated to follow precedent established by the United States Supreme Court. That Court has held that the First Amendment's guarantee of freedom of speech "forbid[s] the states to punish the use of words or language not within `narrowly limited classes of speech.'" Gooding v. Wilson, 405 U.S. 518, 521-22 (1972). See also Hess v. Indiana, 414 U.S. 105, 107 (1973). Protected speech may not be punished just because it is distasteful, vulgar, or offensive to the sensibilities of those who hear it. Lewis v. City of New Orleans, 415 U.S. 130, 134 (1974); Gooding, 405 U.S. at 520. "Speech is often provocative and challenging. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." City of Houston v. Hill, 482 U.S. 451, 461 (1987) (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949). One of the narrowly limited classes of speech that can be regulated is "fighting words," and the State seeks to justify its prosecution of Suiter on the basis that his utterance to the detective fell within that category. The United States Supreme Court defines fighting words as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
They are words that have "the direct tendency . . . to provoke the person against whom [they were] directed to acts of violence." Id. at 574 n. 8. See also Lewis, 415 U.S. at 132; Gooding, 405 U.S. at 524-25. In Cohen v. California, 403 U.S. 15 (1971), the defendant was prosecuted for disturbing the peace for wearing a jacket bearing the words "Fuck the Draft." He was charged with violating a portion of California's disturbing the peace statute — nearly identical to the Idaho statute at issue here — which subjected to punishment a person "who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct. . . ." The Court defined the issue in Cohen as "whether California can excise, as `offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory . . . that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary." Id. at 22-23. The Court answered in the negative, holding that the conviction, which "clearly rests upon the asserted offensiveness of the words Cohen used to convey his message," could not stand. Id. at 18. The Court rejected the notion that a state may criminalize speech merely because it includes distasteful language:
[M]uch has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the state might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. . . . The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependant upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
Id. at 20 (citations omitted).
The Cohen court also made it clear that use of this type of vulgar expression cannot be prosecuted as an obscenity case. "Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic." Cohen, 403 U.S. at 20.
Unless the speaker's words and conduct are so provocative as to rise to the level of "fighting words," "in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 774 (1994) (quoting Boos v. Barry, 485 U.S. 312, 322 (1988)). Thus, state laws which purport to criminalize "opprobrious" or "abusive" speech have been held facially overbroad, and therefore unconstitutional, because they encompass protected speech and do not limit their scope to fighting words. Lewis, supra; Gooding, supra. The Gooding court commented that making it a criminal offense "merely to speak words offensive to some who hear them, . . . sweeps too broadly." Gooding, 405 U.S. at 527.
In the present case, Suiter has not challenged I.C. § 18-6409 as facially overbroad, but contends that it was overbroad as applied to him. Specifically, Suiter complains that the jury was never limited to finding him guilty only if he used fighting words. The record substantiates his claim. Although the State now seeks to justify Suiter's prosecution on the basis that his statement to the detective constituted fighting words, and therefore was not entitled to constitutional protection, the jury was never instructed that the State had to prove that Suiter used fighting words. Needless to say, the jury was also never given a definition of "fighting words." Moreover, although the State contends that Suiter's alleged "fighting words" violated the portion of I.C. § 18-6409 that prohibits "tumultuous or offensive conduct," the jurors were not even required to find that he engaged in such conduct. The jury instruction defining the charged offense incorporated all of the conduct included in I.C. § 18-6409 as forms of disturbing the peace. This includes many types of conduct which the State never contended that Suiter committed, including, in particular, "uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner." The magistrate held, and the State concedes, that Suiter could not have violated this portion of the statute because there were no children present. Nevertheless, under the instructions employed, the jury was given permission to find Suiter guilty of a violation of that provision of the statute.
The fact that there was no objection to the jury instructions from Suiter, who represented himself without aid of counsel throughout the proceedings in the trial court, does not preclude his challenge to the sufficiency of the instructions on appeal. State v. Raudebaugh, 124 Idaho 758, 762, 864 P.2d 596, 600 (1993); State v. Smith, 117 Idaho 225, 229, 786 P.2d 1127, 1131 (1990); State v. Carlson, 134 Idaho 389, 399, 3 P.3d 67, 77 (Ct.App. 2000).
The instruction defining the elements of the offense stated:
In order for the defendant, Patrick Sheldon Suiter, to be found guilty of the crime of Disturbing the Peace the State must prove each of the following elements beyond a reasonable doubt:
1. Every person who maliciously and wilfully
2. disturbs the peace or quiet of any neighborhood, family or person;
3. by loud or unusual noise or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of women or children;
4. in a loud and boisterous manner;
5. is guilty of a misdemeanor.
Although it has not been raised as an issue on appeal, to avoid reader confusion it must be acknowledged that the instruction contains a significant error in that subpart 3 of the instruction refers to the use of vulgar, profane or indecent language "within the presence or hearing of women or children." (Emphasis added.) This was incorrect, for the words "women or" had been deleted from the statute years before Suiter's alleged offense. See 1994 Idaho Sess. Laws ch. 167, § 4 at 375.
The inadequacy of the jury instructions was exacerbated by the prosecutor's closing argument, which asserted that Suiter had violated the part of the § 18-6409 that prohibits "tumultuous or offensive conduct" by using the "f-word." Quite the opposite of telling the jury that Suiter's guilt turned upon whether he used words that have "the direct tendency . . . to provoke the person against whom [they were] directed to acts of violence," Chaplinsky, 315 U.S. at 574 n. 8, the prosecutor argued that Suiter was guilty of disturbing the peace merely because he "disrupted [the witnesses'] business, their quietness — or, their peace or quiet." Moreover, the prosecutor argued that the determination of whether Suiter's behavior was criminal should be based, in part, on the location where it occurred:
We're not at a concert, we are not paying to go to a movie, we're in that situation, we're in a government building, we're in a courthouse, a place where business is conducted, serious business. . . . [T]his conduct does take it out of the situation where it is a situation where a person can place themselves like at a movie, or at a concert, or at a bar where sometimes certain language is utilized on a routine basis.
This prosecutorial argument is directly contrary to the Supreme Court's statement in Cohen, based upon a California statute worded very similar to I.C. § 18-6409, that "[a]ny attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places." Cohen, 403 U.S. at 19.
The errors in the jury instructions alone should result in the judgment being vacated. Substantive errors in jury instructions in a criminal case ordinarily require that the defendant be given a new trial. However, a new trial in this case should be permitted only if Suiter could, consonant with his First Amendment rights, be prosecuted at all for his words spoken to the detective. In my view, the prosecution violates the First Amendment and therefore the charge against Suiter should be dismissed. Whether particular speech uttered in a particular context falls under the umbrella of First Amendment protection is a question of law. "When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. . . . Whether the First Amendment protects the activity which constitutes the violation of the statute must depend upon a judicial determination of the scope of the First Amendment applied to the circumstances of the case." Dennis v. United States, 341 U.S. 494, 513 (1951). See also Connick v. Myers, 461 U.S. 138, 148 n. 7 (1983) (inquiry into protected status of speech is one of law, not fact). Here, even if we assume the facts are entirely as alleged by the State, they do not show that Suiter used a form of unprotected speech.
In State v. Hammersley, 134 Idaho 816, 10 P.3d 1285 (2000), upon which the majority opinion relies, our Supreme Court did not need to consider jury instructions because the defendant in that case had pleaded guilty after her motion to dismiss the charge was denied.
First, Suiter's words were not so utterly devoid of content or message as the majority opinion suggests. Suiter had gone to the sheriff's office to discuss a problem for which he sought assistance from law enforcement. In the course of the conversation, he learned that the assistance was not going to be forthcoming in the manner he thought it should. His dismissive words as he prepared to leave were an expression of frustration at the response he had received from a public official. As the United States Supreme Court said in Cohen (where the words "fuck the draft" were at issue):
[I]t is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.
Cohen, 403 U.S. at 25-26.
Second, the words uttered by Suiter do not amount to fighting words. I certainly do not suggest that Suiter's behavior or language was suitable or admirable. To the contrary, it was crude, vulgar, boorish, obnoxious, discourteous, and distasteful. It was not, however, a personal insult maligning the detective or his lineage. Rather, it was a dismissive expression of disapproval of what the detective had been saying — the vulgar equivalent of "Go jump in a lake." Suiter was not taking an aggressive or provocative posture as he spoke the words but, rather, was turning to leave. There was no testimony that either the deputy to whom Suiter was speaking nor anyone else within hearing was moved toward a violent reaction. The comment is not so outrageous or insulting that it is "likely to provoke the average person," much less the average law enforcement officer, "to retaliation, and thereby cause a breach of the peace." Chaplinsky, 315 U.S. at 574.
Justice Powell expressed the view that "a properly trained officer may reasonably be expected to `exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to `fighting words.'" Lewis, 415 U.S. at 135 (Powell, J. concurring in the result). This sentiment was echoed in City of Houston, where the Supreme Court majority stated that there is a "constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint." City of Houston, 482 U.S. at 471. Many other courts have held that because law enforcement officers are trained and expected to exercise a high degree of self-control, and are themselves obliged to prevent breaches of the peace, a higher level of provocation and aggression is necessary in order to establish that insulting or vulgar words directed to a police officer amount to fighting words. For example, in Oratowski v. Civil Serv. Comm'n, 123 N.E.2d 146 (Ill.App. 1954), the Illinois Appellate Court held:
[W]ords addressed to an officer in an insolent manner do not without any other overt act tend to breach the peace because it is the sworn duty and obligation of the officer not to breach the peace and beyond this to conduct himself so as to keep others from doing so. He has an obligation to exercise a great degree of restraint in dealing with the public and should not permit abusive statements to so arouse him that he will commit a breach of the peace.
Id. at 151. On a similar basis, the Maine Supreme Court held in State v. John W., 418 A.2d 1097 (Me. 1980), that the words, "Hey, you fucking pig, you fuckin' kangaroo" and, "Fuck you" screamed at an officer who was arresting the defendant's sister "were not so egregiously offensive and likely to provoke a violent response [from a police officer] as to forfeit the protection of . . . the first amendment of the Federal Constitution." See also Annotation, Insulting Words Addressed Directly to Police Officer as Breach of Peace or Disorderly Conduct, 14 A.L.R. 4th 1252 and cases cited therein.
Manifestly, the Idaho Supreme Court's holding in State v. Hammersley, 134 Idaho 816, 819-20, 10 P.3d 1285, 1288-89 (2000), that a vulgar and insulting harangue directed toward a fourteen-year-old child constituted fighting words does not require a conclusion that the decidedly milder comment addressed to a law enforcement officer in the context presented here also meets the test for fighting words. The fact that there were others who overheard the words does not alter this analysis. Suiter's words were not directed to anyone but the detective and were not of a nature that could be expected to provoke a violent response from onlookers, who, the evidence shows, were merely momentarily distracted from their normal activities. I do not imply a view that prosecution should never be permitted for engaging in a vulgar and profane diatribe against a police officer, but prosecution for the two-word comment involved here simply does not comport with the First Amendment as that Amendment has been interpreted and applied by the United States Supreme Court.
I fear that the majority opinion in this case invites mischief. In the words of Justice Powell: "The present type of ordinance tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person. The opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident." Lewis, 415 U.S. at 136 (Powell, J. concurring in the result). Under the majority's decision, probable cause for an arrest may be found whenever an individual uses the "f-word" in an agitated conversation with a police officer or with any other person. And once an arrest is effectuated, an officer will be free to search the defendant (and if the arrest follows a vehicle stop, to search the passenger compartment of the vehicle) as a search incident to the arrest. Thus, today's majority decision carries implications not only for First Amendment freedoms but also for Fourth Amendment privacy interests.
It is my conclusion that the facts presented by the State show no risk of imminent violence created by Suiter's unseemly language. Therefore, his words, though inappropriate and offensive, are not fighting words and are protected by the First Amendment. Accordingly, I would hold that the judgment of conviction must be reversed and the charge against Suiter dismissed.