JURISDICTION
This Court has
jurisdiction pursuant to an Order of the Michigan Supreme Court in
People v. Barton, SC#: 117832 (May 15, 2001) remanding this case “for
consideration as on leave [to appeal] granted.”
QUESTIONS PRESENTED
The Center for American
Unity and ProEnglish, as amici, seeks to address only the First
Amendment questions raised in Issues II, III and IV, as noted in
Appellant’s brief, which are reprinted below. Appellee did not file a
brief and hence has not stated its view of questions presented.
II. Is the ordinance overbroad because its
unlimited and unqualified language on its face prohibits a wide range of
conduct and speech protected by the First Amendment and this overreach
will chill the exercise of First Amendment expression?
III. Is this criminal ordinance facially
vague on both First Amendment and Due Process grounds because its general
terms invite arbitrary and inconsistent enforcement?
IV. Is the ordinance unconstitutional as
applied because Ms. Barton did not utter fighting words when she remarked
to her mother as she left a restaurant that she wished “damn spics would
speak English in our country” even though these words were overheard by an
off-duty Hispanic police officer and her father?
The trial court said “no”
to each of these questions. None were heard on appeal.
PRELIMINARY STATEMENT
AND INTEREST OF AMICI
“Q [Prosecutor Dennis Swain]. And you feel it’s your right
to say, I wish damn spics would learn to speak English in our country.
Even in the presence of Spanish people?”
“A [Defendant Janice Barton]. I’m entitled to my opinion
according to the First and Fourteenth Amendment.”
Testimony of
Janice Barton, Transcript of Proceedings (“T.”), P. 85 (emphasis added).
The Center for American Unity (“CAU”) is a national
non-profit charitable and educational organization dedicated to preserving
our historical unity as Americans into the 21st Century. CAU's education
program emphasizes that America's common language, English, is the basic
bond uniting and strengthening the United States. CAU also appears in
cases such as this one to present the pro-English position in the courts.
See, e.g. Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 1511 (2001)
(citing amici curiae brief by inter alia, ProEnglish, CAU
and 14 Members of Congress).
Pro-English (formerly known as English Language
Advocates) is a non-profit advocacy organization dedicated to the
preservation and promotion of a common language – English – in American
political and governmental life. Pro-English is an unincorporated
project of U.S., Inc., of Petoskey, Michigan, a non-profit charitable
and educational corporation. Pro-English and its President, Robert D.
Park, have been the principal advocates for “official English” policies
before the federal courts, including in Arizonans for Official
English and Robert D. Park v. Arizona, 520 U.S. 43 (1996).
Amici curiae in no way support or
condone Defendant Janice Barton’s use of an ethnic slur. Amici,
however, strongly support the right to declare, in strenuous language, and
“[e]ven in the presence of Spanish people[,]” that everyone should learn
to speak English in the United States.
As shown in more detail below, support for the English
language is a legitimate political position, recognized in law by half the
States and debated in Congress and the courts. Unfortunately, the decision
below imprisoned a woman who (albeit insultingly) expressed the same
opinion. The court below and the prosecutor were perfectly clear on their
reasons: “fascist, Xenophobic logorrhea,” T. 22; “[H]er attitude, as she
expressed it, constitutes a wrong in this community,” T. 125-26; and, “she
is a bigot” T. 128. The prosecutor erroneously told the jury that her
words were not protected by the First Amendment. T. 106. The same reasons
could conceivably spark similar punishment against CAU, Michigan’s
ProEnglish and other Americans who support the learning and speaking of
English in the United States.
As shown below, the court below was mistaken about the
First Amendment doctrine of “fighting words.” The mistake below chills the
constitutionally-protected speech of CAU, ProEnglish, other English
language organizations, and millions of individual Americans. The chill
will not be erased by simply finding that Barton should not have been
incarcerated. Amici’s experience has shown that, in many cases,
once a decision is handed down which in any way impinges on an official
English policy, that decision is repeated and circulated in other
jurisdictions, even if the original decision is ultimately overturned on
appeal.
This Court must strike down the Manistee ordinance as facially
unconstitutional.
STATEMENT OF THE CASE
In
this case, a woman was sentenced to 45 days in jail and two years’
probation for telling a Hispanic deputy sheriff, in an insulting manner,
“I wish you people would learn English.” She also used an ethnic slur.
She was jailed because the prosecutor told the jury that her attitude
was a wrong in their community and her words were not protected by the
First Amendment. The judge sentenced her to the longest available period
of imprisonment and probation because he said she was a bigot and a
fascist xenophobe. Her request that her First Amendment rights be
respected was denied.
On
August 16, 1998, Defendant Janice Barton (“Barton”) was leaving the
Peppermill Restaurant with her mother and daughter Jennifer. The women
were walking in a single-file line through the exit area. T. 45
(testimony of Carol Benitez (“C. Benitez Test.”)). As they were “exiting
the door,” T. 46 (C. Benitez Test.), Barton heard something spoken in
Spanish. T. 76 (Barton Test.). She then said to her mother: “I wish damn
spics would speak English in our country.” T. 78. Barton’s mother
testified that Barton said, “Why don’t they speak English?” T. 90.
All
witnesses agreed that Barton spoke while she was pushing open the exit
door on her way out of the restaurant. See, e.g., T. 57-58 (“when
she pushed the door and made that comment”)(Carol Benitez Testimony).
All witnesses agreed that only people in the immediate area could hear
Barton’s statement. See, e.g., T. 50, 60, 102. The three women
then left the restaurant. T. 90.
Meanwhile, inside the restaurant door, Manistee County Deputy Sheriff
Carol Benitez, off-duty and out of uniform, waited for a table with her
parents. Her father, Domingo Benitez, testified that he pulled his wife
closer to him as the Bartons passed and said “move over this way, in
Spanish, because she [Barton] was coming through.” T. 67.
Mr.
Benitez further testified that he heard Barton say “let the spics get
through, get out of the way so the spics can get through.” T. 67. Carol
Benitez testified that Barton said, “I wish these damn spics would just
move the hell out of the way.” T. 46 (C. Benitez Test.).
Both
Barton and her mother denied that Barton had said anything about needing
to “get out of the way.” T. 77, 90-91. Both also said that there was no
need for Barton to say anything about getting out of the way, since
their passage was unimpeded and they were already pushing at the door.
Id. Mr. Benitez agreed that Barton was “pushing the door out. She
was pushing the door out.” T. 69.
Mr.
Benitez admitted that after he had moved his wife out of the way, they
were not impeding the Bartons in any way. T. 68-69 (“And we were not in
her way.”). He also testified that Barton was “going out, she had to be
facing the door” when she made her remarks. T. 69.
Carol
Benitez then turned to her father and said, “what did she say?” T. 65
(Domingo Benitez Test.). Carol Benitez said of Barton’s statement: “it
bothered me. It frustrated me.” T. 55.
Then
Carol Benitez “went outdoors to confront her about it.” Id. “So,
I guess I wanted to just try to talk to her, I guess try to educate her.
You know, why are you saying this? It was obvious when I made that
contact, she had her own opinion, I wish you people would just learn
English.” Id.
Barton
was already in her car. T. 48 (C. Benitez Test.). Carol Benitez “was
able to get a hold of her [Barton’s] daughter as she was exiting the
last door.” T. 47. Jennifer Barton “just kind of looked at her because
she hadn’t heard what was said.” T. 78 (Barton Test.).
Benitez then asked Barton what she had said. Id. Benitez
testified that Barton said “I wish you people would just learn English.”
T. 48. Benitez testified that she replied, “well, I do speak English and
I’m a deputy with the Manistee County Sheriff’s Department. Just to let
her know that I am educated.” T. 48.
“That’s your problem,” Barton said she responded. T. 78-9. Benitez then
“felt like, okay, I’ll just walk away because obviously I can’t change
her point of view.” T. 57-8. Benitez then used her cell phone to call
the police and make a complaint. T. 49-50.
After
much confusion, Barton was charged under City of Manistee Code Ordinance
662.01(b)(3) (“the Ordinance”) on a single count of “insulting . . .
conduct in a public place.” The Ordinance provides, “No person shall
engage in any indecent, insulting, immoral or obscene conduct in any
public place.”
Barton
moved to dismiss before the trial, claiming that the Ordinance was
unconstitutional facially and as applied to her. At trial, the court
denied the motion, saying:
The words in this case, and in this context, were clearly intended to
insult or injure someone. Or, to provoke a fight or brouhaha of some
kind as the allegations currently are laid out in the briefs and in the
complaint.
This isn’t just some generalized stupid speech where someone is just
engaging in fascist Xenophobic [sic] logorrhea. This is directed
at someone. It’s – you don’t say words like this when someone is
present, like this, unless you are either intending to hurt them, to
injure them. Or, you are intending to engage in some kind of a physical
altercation. This is a restriction on a free speech that’s especially to
be guarded in Michigan. T.22-23.
The
trial court then explained why this “restriction on free speech” is
“especially to be guarded in Michigan” because in “the southern states .
. . [s]omeone says something to you, or in your presence, about your
wife that is sufficiently provocative, that’s a defense to a later
assault and battery. But, in Michigan we don’t have that at all. . . .
And, so, we have to permit the victim of this kind of conduct to have
some kind of redress when their self-help remedies have been taken away
by our law.” T. 23.
The
trial court continued that “I guess to move to the last stage of it, I
won’t say as a matter of law that these words aren’t fighting words or
aren’t words intended to insult. I think they are fighting words. I
think anyone in this courtroom who were to have their parents insulted
in this manner would find them to be fighting words. I frankly doubt
that I would act with the equanimity that Ms. Benitez did in this case.”
T. 25.
At the
close of the prosecutor’s proof, Barton renewed her motion, and the
motion was denied for the same reasons as the pretrial motion. T. 72.
At the
close of the case, the prosecutor told the jury that “Mrs. Barton is a
bigot. . . . it is not protected speech. And we ask you to find
her guilty of disturbing the peace [sic].” T. 106 (emphasis
added).
Judge
Danielson gave the jury instructions to determine whether Barton engaged
in insulting conduct in a public place. T. 120-21. The jury instructions
said
In order to be insulting conduct, under the ordinance and in accordance
with the Constitution, the conduct must be sufficiently provocative to
either, a) constitute fighting words. And, by that I mean words that
are calculated to incite violence, excuse me, words that would be
recognized, in our community, as words calculated to incite violence or an
immediate breach of the peace. Or, in the alternative, insulting
conduct may be words that are so degrading and insulting that their very
utterance inflicts an injury upon a particular person or persons.
Id. (emphasis
added).
The jury
found Barton guilty of public insulting. T. 124. There were no separate
findings of fact by judge or jury.
During
sentencing, the prosecutor and trial judge discussed whether Barton
deserved a maximum sentence because her “attitude, as she expressed it,
constitut[ing] a wrong in our community,” T. 125-26, and “she is a bigot,”
T. 128. The court sentenced Barton to 45 days, half the maximum, so he
could keep her on probation for two years. T. 129.
The
Circuit Court denied leave to appeal, as did this Court. CoA: 225931. The
Supreme Court of Michigan remanded with instructions to proceed as if
leave were granted. SC: 117832, May 15, 2001. Barton timely filed her
brief on May 21, 2001. Appellee has not filed a brief.
STANDARD FOR REVIEW
This
Court reviews the constitutionality of an ordinance de novo.
People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). In First
Amendment cases: “an appellate court has an obligation to ‘make an
independent examination of the whole record’ in order to make sure that
‘the judgment does not constitute a forbidden intrusion on the field of
free expression.’ New York Times Co. v. Sullivan, 376 U.S., [254]
at 284-286 [1964].” Bose Corp. v. Consumers Union, 466 U.S. 485,
499 (1984). “[O]ur review of petitioners' claim that their activity is
indeed in the nature of protected speech carries with it a constitutional
duty to conduct an independent examination of the record as a whole,
without deference to the trial court. . . . The ‘requirement of
independent appellate review . . . is a rule of federal constitutional
law,’ id. [Bose], at 510, which does not limit our deference
to a trial court on matters of witness credibility.” Hurley v.
Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S.
557, 567 (1995).
An
ordinance is reviewed under strict scrutiny if it seeks to suppress either
the ideas expressed by conduct or the emotive impact of the ideas
expressed by such conduct. Texas v. Johnson, 491 U.S. 397, 403-04
(1989). The government bears the burden of showing that the ordinance is
necessary to serve a compelling state interest and that it is narrowly
tailored to achieve that end. Perry Education Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983).
Unless there is
“no possibility that protected speech will be muted,” a potential or
actual speaker may challenge the statute’s constitutionality on its face.
Los Angeles Police Dep’t v. United Reporting Publishing Corp., __
U.S. __, 120 S.Ct. 483 (1999); quoting, Bates v. State Bar of Arizona,
433 U.S. 350, 380 (1977).
SUMMARY OF ARGUMENT
This
is a case in which a woman was sentenced to 45 days in jail because she
insultingly told a Hispanic deputy sheriff: “I wish you people would
learn English.” “Abusive language” statutes are facially
unconstitutional if they are susceptible of application to speech
protected by the First Amendment. Once it is shown that an “abusive
language” statute can be applied to protected speech, the burden is on
the government to demonstrate that the ordinance is necessary
to serve a compelling state interest and that it is narrowly tailored to
achieve that end. Perry Education Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. at 45. This Ordinance is not narrowly tailored, as,
by definition, it touches speech that is merely “insulting.” The
U.S. Supreme Court has held that mere insults, no matter how harsh, are
still protected speech, and this Ordinance can be applied to mere
insults.
Some
“abusive language” statutes can be protected from unconstitutionality if
they are limited only to “fighting words,” but this Ordinance cannot be
so limited. “Fighting words” have been limited over time to explicit
threats of or invitations to immediate physical violence, described by
the U.S. Supreme Court as “nonspeech elements of communication.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). As the trial
court noted in instructing the jury, the Ordinance here applies to
both “fighting words” and merely insulting speech. T. 120-21. Thus,
to preserve freedom of speech, under controlling U.S. Supreme Court
precedent, this “abusive language” statute must be struck down.
The
trial court seriously misunderstood the “fighting words” doctrine, and
his misunderstanding carried over into the jury instructions. By not
limiting the jury instructions, the trial court made it impossible to
narrow the “abusive language” statute to take advantage of the
constitutional protection of the “fighting words” doctrine. Thus, the
Ordinance here must be struck down.
Even if
the “fighting words” doctrine were applied to this case, the conduct
alleged – mere passing words which contained an ethnic slur but no threat
or invitation to violence – does not meet the standard. “Abusive language”
statutes which sweep beyond explicit threats or invitations to fight are
too easily susceptible to application to protected speech and so are
unconstitutional. This Ordinance was not limited to explicit threats or
invitations to violence, and so must be struck down.
Finally,
the trial court and prosecution misled the jury about the nature of the
speech at issue here. Speech about English is core political speech, and
has been throughout American history. As fully protected speech, the Court
must avoid any chill from over-zealous application of personal views about
English, especially where historical and recent events suggest that the
biases presented in the trial court were as much from the prosecutor and
judge as from the defendant.
The
Manistee Ordinance is unconstitutional on its face and must be struck
down.
ARGUMENT
I. THIS “ABUSIVE
LANGUAGE” STATUTE IS FACIALLY UNCONSTITUTIONAL BECAUSE IT IS SUSCEPTIBLE
OF APPLICATION TO PROTECTED SPEECH:
A. The Ordinance is an
“Abusive Language” Statute That Is Facially Unconstitutional Because It
Can Be Applied to Mere Insults, Which Are Protected Speech:
The conviction in this
case was for insulting conduct in a public place.
T. 120-21. As to spoken words (as in this case), the Ordinance is an
“abusive language” statute. Gooding v. Wilson, 405 U.S. 518
(1972)(finding unconstitutional a statute which criminalized “use to or
of another, and in his presence . . . opprobrious words or abusive
language,
tending to cause a breach of the peace” because it made it a breach of
the peace “merely to speak words offensive to some who hear them and so
sweeps too broadly”) (emphasis added).
An “abusive language”
statute can survive an attack on “its facial constitutionality only
if, as authoritatively construed by the . . . courts, it is not
susceptible of application to speech, although vulgar or offensive, that
is protected by the First and Fourteenth Amendments.” Gooding,
405 U.S. at 523 (emphasis added), citing, Cohen v. California,
403 U.S. 15, 18-22 (1971) and Terminiello v. Chicago, 337 U.S. 1,
4-5 (1949).
The Supreme Court
recently reiterated that an ordinance offends the First Amendment if it
was enacted or applied to suppress speech because of the “emotive
impact” of the speech. Boos v. Barry, 485 U.S. 312, 321 (1988).
Contrary to the court below, the U.S. Supreme Court has made clear that
an “abusive language” statute cannot regulate based on the personal
nature of the insult, or its harshness, or even the physical presence of
the person being insulted; the Court cited examples of “harsh insulting
language” or words “conveying disgrace” such as “You swore a lie”, and
“God damn you, why don’t you get out of the road?”
405 U.S. at 525.
The Gooding Court
pointed out that prior Georgia cases had found insulting language
violated the statute, “even though it be addressed to one who . . can
not actually then and there resent the same by a breach of the peace.”
405 U.S. at 526. That was not sufficient protection for speech. “As a
general matter, we have indicated that 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.” Boos v. Barry, 485 U.S. at 322.
Thus, an “abusive
language” statute is unconstitutional, even where the speech sought to
be suppressed is vulgar or offensive, if there is a possibility that the
statute infringes speech that is protected. Cantwell v. Connecticut,
310 U.S. 296, 304 (1940). See, also, R.A.V., 505 U.S. at
386 (“And just as the power to proscribe particular speech on the basis
of a noncontent element
(e.g., noise) does not entail the power to proscribe the same
speech on the basis of a content element; so also, the power to
proscribe it on the basis of one content element (e.g.,
obscenity) does not entail the power to proscribe it on the basis of
other content elements.”)
This level of precision
requires careful and specific drafting so that the proscription applies
only to expression which can be regulated, and is not susceptible to an
interpretation which may touch protected speech. This “finely drawn”
line, Speiser v. Randall, 357 U.S. 513, 525 (1958), is necessary
because “First Amendment freedoms need breathing space to survive, [so]
government may regulate in the area only with narrow specificity.”
NAACP v. Button, 371 U.S. 415, 433 (1963).
Part of this far-reaching
requirement for specificity and precision is that government not have
discretion to apply the statute to protected language. Kunz v. New
York, 340 U.S. 290 (1951)(because officials suppressed speech
without appropriate standards, reversing conviction for speaker who
incited actual violence from a crowd by saying “the Pope is ‘the
anti-Christ’”, Jews were “Christ-killers,” and “All the garbage that
didn’t believe in Christ should have been burnt in the incinerators.
It’s a shame they all weren’t.”). If that discretion is exercised by a
jury, there is even more danger to the First Amendment because a jury
could determine guilt “measured by common understanding and practice”
without limiting the statute to words which explicitly threatened or
invited immediate violent physical reaction; thus, the statute is
“easily susceptible to improper application.” Gooding, 405 U.S.
at 520.
This Court has applied
some of the teachings of the U.S. Supreme Court in this area. In City
of Oak Park v. Smith, 262 N.W. 2d 900, 79 Mich. App. 757 (Ct. App.
1977), this Court reversed the conviction of a driver who gave an
insulting gesture to another after a traffic incident. This Court said
“But for the ‘fighting words’ construction given it by the respected
circuit Judge, the ordinance in question
would be unconstitutional by reason of overbreadth and vagueness.” 262
N.W. 2d at 902, citing, Coates v. Cincinnati, 402 U.S. 611
(1971) and United Pentecostal Church v. 59th District
Judge, 51 Mich.App. 323, 214 N.W. 2d 866 (1974). Similarly, this
Court reversed a conviction where a jury instruction was not given
limiting the application of an ordinance to language which would “incite
an immediate breach of the peace.” People v. Klein, 67 Mich.App.
556; 242 N.W.2d 436 (1976).
That same presumption
applies to the Ordinance at issue here. Here the jury heard that
Barton’s statement was “unprotected,”
and that they should convict her for “disturbing the peace.”
T. 106 Then the judge twice instructed the jury that they could
determine guilt for EITHER “fighting words” OR words that
are “degrading and insulting.” T. 120-121. These, and other errors noted
below, indicate that Barton’s conviction was based on an “abusive
language” statute which is susceptible to application to speech which
may be merely insulting.
A constitutional “abusive
language” statute requires precision in drafting, interpretation and
application. That precision was lacking here. This “abusive language”
statute must be struck down on its face, in order to protect the First
Amendment.
B. The Limited
“Fighting Words” Exception to Unconstitutionality For Some Statutes Does
Not Apply Here Because The Ordinance Does Not Apply Only to
Content-Neutral Regulations of Explicit Threats or Invitations to Fight:
There are a few narrow
and limited exceptions to the unconstitutionality of “abusive language”
statutes. The only exception at issue in this case is the “fighting
words” exception. That exception is far more limited than was recognized
below and cannot save the Ordinance.
The fighting words
exception was first enunciated as a categorical analysis in
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (“There are
certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include . . . ‘fighting words’ – those
which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.”). Chaplinsky’s approach to
“fighting words,” however, has been substantially restricted over the
years.
1. Chaplinsky Has
Been Limited So Simple Injurious Speech is No Longer “Fighting Words”
Without An Explicit Threat or Invitation to Violence:
In Chaplinsky, the
Supreme Court described fighting words as: “those which by their very
utterance inflict injury or tend to incite an immediate breach of
the peace.” 315 U.S. at 572 (emphasis added). This phraseology was used
in the trial court below; the jury was instructed that it could find
Barton guilty of simply injurious speech. T. 120-21.
In recent years, however,
Chaplinsky has been limited only to those circumstances in which
there is an explicit threat of or invitation to immediate physical
violence, rather than just those situations in which someone feels
insulted or injured by the words alone. The ambiguous phrase “inflict
injury” should not be used after Gooding and R.A.V.,
because such statutes are far too susceptible to enforcement against
protected speech.
To be considered fighting
words today, speech must threaten or invite violence which is immediate,
physical, personal and clear. See, e.g.: “Fighting words must
tend to incite an immediate breach of the peace. . . . ‘One day
you’re gonna get yours’ is, on its face, directed to a time other than
the immediate.” Posr v. Court Officer Shield #207, 180 F.3d 409,
415-16 (2d Cir. 1999)(emphasis in original)(reversing conviction, in
part, because phrase might be construed to mean other than immediate).
“Every speech-related disorderly conduct conviction upheld by Minnesota
appellate courts since [In re Welfare of] S.L.J. [263 N.W.2d 412
(Minn. 1978)] has involved either an explicit verbal or physical threat
of violence or a situation where the victims were placed in fear of
imminent physical harm.” In re M.A.H. and J.L.W., 572 N.W. 2d
752, 757 (Minn. Ct. App., 1997). See, also, New York v. Prisinzano,
648 N.Y.S.2d 267, 274 (Criminal Ct for the City of New York, July 24,
1996)(“few words could more readily be classified as ‘fighting words’
than threats to physically injure the person to whom the words are
directed.”)
Simply saying that
insults are painful, no matter how painful, does not make them into
fighting words. Rhode Island v. Authelet, 120 R.I. 42, 385 A.2d
642, 649 (R.I. 1978). The R.A.V. Court explained that “threats of
violence are outside the First Amendment” to “protect[] individuals from
the fear of violence, from the disruption that fear engenders, and from
the possibility that the threatened violence will occur” 505 U.S. at
388. The words must “by their very utterance provoke a swift physical
retaliation and incite an immediate breach of the peace.” Skelton v.
City of Birmingham, 342 So. 2d 933, 936-37 (Ala.Cr.App.),
remanded on other grounds, 342 So.2d 937 (Ala. 1976).
This evolution stems
from the growing understanding of the distinction between hurt feelings
and provocations to fight, as discussed supra. As the U.S. Court
of Appeals for the Sixth Circuit has noted, “[t]he fighting words
exception is very limited because it is inconsistent with the general
principle of free speech recognized in our First Amendment
jurisprudence. See Texas v. Johnson, 491 U.S. 397, 408-09 (1989)
(quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (‘[A]
principal “function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions
as they are, or even stirs people to anger.”’).” Sandul v. Larion,
119 F.3d 1250, 1254 (6th Cir. 1997).
Similarly, an ordinance offends the
First Amendment by being related to the suppression of free expression
if it was enacted or applied to suppress speech because of the ideas
expressed or their “emotive impact.” Boos v. Barry, 485 U.S. at
321. “As a general matter, we have indicated that 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.” Boos v. Barry, 485 U. S. at 322. An
abusive language statute which simply deals with hurt feelings, no
matter how strong, would not meet this test. Cantwell v. Connecticut,
310 U.S. 296, 309-10 (1940) (reversing breach of peace conviction for
playing anti-Catholic recording in public in front of Catholics);
Cohen, 403 U.S. at 20 (message not directed to the person of the
hearer). Such content distinctions are simply too easy to apply to
protected speech, violating both Gooding and R.A.V.
The Minnesota Court of
Appeals recently described the distinction: “while calling the officers
‘white racist motherf**kers’ may be protected, wishing death upon an
officer’s mother is not.” Minnesota v. Clay, 1999 WL 711038, *2
(Minn.App., No. CX-99-343, September 14, 1999). See, also,
Gooding, 405 U.S. at 418 (focusing on portion of Chaplinsky
which said that fighting words must “have a direct tendency to cause
acts of violence by the person to whom, individually, the remark is
addressed”).
Similarly, in his
concurrence in Lewis v. New Orleans, Justice Powell noted that
“it is unlikely, for example, that the words said to have been used here
would have precipitated a physical confrontation between the middle-aged
woman who spoke them and the police officer in whose presence they were
uttered.” 415 U.S. 130, 135 (1974)(Powell, J., concurring). This Court
dealt with a similar situation in Klein: “We would ordinarily be
disposed to take judicial notice that many members of society are not
fighters.” 242 N.W.2d 436, 437 (Mich.App. 1976). A wide variety of other
courts agree: Ohio v. Miller, 673 N.E.2d 934, 935 (Ohio Ct. App.
1996)(reversing disorderly conduct conviction for man who made
statements to neighbor while separated by fence); In re S.L.J.,
263 N.W.2d at 415, 419-20 (reversing disorderly conduct conviction for
teenage girl who made comments to police from 15 feet away); R.I.T.
v. State, 675 So.2d 97, 98 (Ala. Crim.App. 1995)(reversing
disorderly conduct conviction for statement to sheriff as he walked away
from scene).
Compare Barton’s remark,
made literally in passing, with some of the language for which
disturbing the peace convictions have been upheld: New Mexico v.
James M., 806 P.2d 1063, 1065-66 (N.M. Ct. App. 1990)(upholding
disorderly conduct conviction when juvenile was yelling at a man during
a loud argument, standing close to the man, violently flailing and
pointing, and police officer reasonably thought fight would ensue);
Ohio v. Wood, 679 N.E. 2d 735, 737, 740-41 (Ohio Ct. App.
1996)(upholding disorderly conduct conviction for man who approached
police officers and harangued them with loud abusive language for
several minutes); City of Billings v. Batten, 705 P.2d 1120,
124-25 (Mont. 1985)(upholding disorderly conduct conviction of man
yelling for several minutes accompanied by taunts of “fight me, hit
me”).
In this case, Benitez
said she was “bothered” and “frustrated.” T. 55.
Kentucky v. Ashcraft,
691 S.W.2d at 232 (“Words which merely offend, disgrace, anger, or
frustrate may not be prohibited in violation of one’s right to freedom
of speech”). She did not say she felt threatened or heard an
invitation to fight. She did not offer to fight in retaliation. Instead
she did what the Supreme Court recognizes is the traditional method of
fighting “bad” speech: she attempted to use her own speech to “educate”
the mistaken speaker. Id. When talking didn’t work, Benitez
simply walked away.
“Abusive language”
statutes, like the “insulting speech” Ordinance here, are far less
likely to focus on permitted provocation, and far too likely to focus on
prohibited emotive impact. But it is the explicit threat or invitation
to physical violence which is the modern hallmark of “fighting words”
and which represents the only exception to the presumption that “abusive
language” statutes are unconstitutional. If that explicit threat or
invitation is not present, there are no “fighting words.” That was the
case here, and the Manistee abusive language statute cannot be saved by
calling it a “fighting words” statute. The Ordinance should be struck
down.
2. “Fighting
Words” Are Not Unprotected Speech; They Are Nonspeech Modes of
Communication.
Chaplinsky had led
some observers, including the prosecution in this case, to contend that
certain words are simply not protected by the First Amendment. The
prosecutor told the jury about Barton’s speech: “They are not
protected.” T. 106.
That is not correct under
the modern view of “fighting words.” R.A.V., 505 U.S. at 383
(“Such statements must be taken in context, however, and are no more
literally true than is the occasionally repeated shorthand
characterizing obscenity as not being speech at all.”). The modern view
is not to look at the content of the disfavored speech as outside
protection but to determine whether the government is regulating the
mode of communication or other nonspeech elements. R.A.V., 505
U.S. at 383-84 (“these areas of speech can, consistently with the First
Amendment, be regulated because of their constitutionally
proscribable content (obscenity, defamation, etc.) – not that they
are categories of speech entirely invisible to the Constitution, so that
they may be made the vehicles for content discrimination unrelated to
their distinctively proscribable content.”).
In other words, it is not
true that “fighting words”are not protected speech. In some
circumstances, words carry with them proscribable nonspeech elements.
R.A.V., 505 U.S. at 386 (“the exclusion of ‘fighting words’ from the
scope of the First Amendment simply means that, for purposes of that
Amendment, the unprotected features of the words are, despite their
verbal character, essentially a ‘nonspeech element of communication.’”).
For example, “unreasonably loud” speech – even if the words
themselves are protected by the First Amendment – carries with it the
nonspeech element of excessive volume. Id., (“Fighting words are
thus analogous to a noisy sound truck; Each is . . . a ‘mode of speech,”
. . . both can be used to convey an idea; but neither has, in and of
itself, a claim upon the First Amendment.”). The government can mandate
limits on how and where that nonspeech element occurs, and even whether
it occurs at all. Id. Any limit, however, must be content- and
viewpoint-neutral.
The nonspeech element of
“fighting words” is the express or implied threat or challenge to fight.
“What the government actually proscribes under the ‘fighting words’
doctrine is the mode of communication connected to the speech: the
provocation to violence, which Justice Scalia refers to [in R.A.V.]
as a ‘nonspeech’ element connected to the words themselves.” New York
v. Prisinzano, 648 N.Y.S.2d at 273.
It is this nonspeech
element of threat or challenge to fight, and not the content of the
expression, which constitutes the proscribed “conduct” which can be
regulated by “fighting words” statutes. Wisconsin v. Douglas D.,
626 N.W. 2d 725, 736, 243 Wisc. 2d 225 (Wis. 2001). Here, where there
was no threat or invitation to fight – as discussed infra – the
“fighting words” exception is not available to protect the Ordinance
from unconstitutionality under Gooding.
There is simply no
nonspeech element in Barton’s statement for the government to regulate;
she was jailed for “abusive speech” alone. As shown above, an “abusive
speech” statute is presumptively unconstitutional on its face, and this
Ordinance must be struck down.
3. The “Fighting
Words” Doctrine Cannot Save the Ordinance Here:
The Ordinance under
consideration here provides, “No person shall engage in any indecent,
insulting, immoral or obscene conduct in any public place.” City of
Manistee Code Ordinance 662.01(b)(3). The Ordinance is part of a larger
set of proscriptions, and Barton was originally charged with disturbing
the peace under City of Manistee Code 662.01(b)(19). In fact, it took
four tries for the trial court to correctly enter the judgment as
“insulting conduct” under Subsection 662.01(b)(3). Similarly, the
prosecutor asked the jury to convict Barton of disturbing the peace, T.
106, and the judge failed to recognize the distinctions between cases
involving abusive language statutes, such as the Ordinance, and those
involving disturbing the peace. See, e.g., T. 120-21 (jury
instructions defining “insulting conduct” under Subsection 662.01(b)(3)
as “either” constituting fighting words “Or, in the
alternative” words that are degrading or insulting)(emphasis added).
The confusion about
charge, jury instruction and applicable law are not simply the normal,
routine minor errors of a busy criminal court. They are clear
indications that the constitutional rules in this area, as explained
above, cannot be reconciled with the Ordinance as written and applied.
For example:
a. The Ordinance
Cannot Be Defended As Simply A Breach of the Peace Statute Enforced
Against Provocations to Violence Because It Would Duplicate the Existing
Separate Disturbing the Peace Ordinance:
The Ordinance cannot be
treated as just another form of a “breaching the peace” statute, because
Subsection 662.01(b)(19) already prohibits disturbing the peace. Since
the “abusive language” portion cannot be considered simply surplusage,
there must be a legally cognizable distinction between the two
Ordinances. Yet, under Gooding, any such distinction would
obviate any protection the Ordinance would have as a restriction on
“fighting words.” 405 U.S. at 527 (“makes it a breach of peace merely to
speak words offensive to some who hear them and so sweeps too
broadly.”).
If, on the other hand,
there is no distinction between Subsections 662.01(b)(3) and
662.01(b)(19) – in the hope of sustaining the “abusive language”
ordinance under the fighting words doctrine – the fact that officials
could choose how to charge would, under Kunz, indicate overbroad
discretion. 340 U.S. at 296-97. If the Ordinance “leaves wide open the
standard of responsibility, so that it is easily susceptible to improper
application,” it must be struck down. Gooding, 405 U.S. at 528.
Goodings teaches
not only that “abusive language” statutes are to be construed narrowly
and rejected if they can conceivably be applied to protected speech, but
also that Speiser’s “finely drawn line” will be narrowly and
rigidly enforced. Mere protestations that a statute will be limited to
“fighting words” cannot protect a statute which is broad enough to
“license the jury to create its own standard in each case.” Gooding,
405 U.S. at 528.
The Ordinance is in
constitutional tension with the similar disturbing the peace ordinance.
The result is that the Ordinance is unconstitutionally either over- or
under-broad. Therefore, it must be struck down.
b. The Ordinance
Cannot Be Defended As Limited Only to “Fighting Words” Because the Jury
Was Explicitly Given a Choice Between “Fighting Words” And Separate
Injurious Speech:
The jury in this case was
twice instructed about insulting conduct. In the first instruction, the
trial court said:
In order to be insulting conduct, under the ordinance and in accordance
with the Constitution, the conduct must be sufficiently provocative to
either, a) constitute fighting words. And, by that I mean words
that are calculated to incite violence, excuse me, words that would be
recognized in our community to be calculated to incite violence or an
immediate breach of the peace. Or, in the alternative, insulting
conduct may be words that are so degrading and insulting that
their very utterance inflicts injury on a particular person or persons.
T. 120-21 (emphasis added).
The jury was thus told
that it had a choice between “fighting words” which incite violence “Or,
in the alternative,” words that are simply degrading and insulting.
There is no way of knowing what the jury found to be insulting conduct.
On this record, the jury could have convicted Barton of speech which is
fully constitutionally-protected – that is, which is merely injurious
and does not threaten or incite violence. Or the jury could have limited
itself to what it thought was an explicit threat or invitation to
immediate physical violence.
Clearly Barton never made
anything like an explicit threat. She uttered at worst an insult,
embedded in a political opinion. By all accounts, Barton was passing the
Benitez’s, quietly talking to her mother. The incident was over in a
matter of a few seconds. She did not address the Benitez’s by name. She
did not explicitly invite or suggest any action at all. Neither Carol
nor Domingo perceived a threat or an invitation to violence; both
perceived an unwarranted insult, but that is not a threat or invitation
to violence.
Nothing in the record
showed any violence was imminent in that situation. Barton did not
physically confront the Benitez’s; by all accounts, she was pushing out
the door. She did not yell repeatedly at the Benitez’s; it was a single
remark, uttered in passing. She did not make any aggressive gestures;
indeed, by all accounts, she was pushing at the door and away before the
Benitez’s even realized what she had said. She did not in any other way
provoke physical retaliation.
Based on the record, it
is unlikely that the jury did find Barton guilty of threatening or
inviting immediate physical violence. That finding is the sine qua
non of “fighting words.”
The jury, on the other
hand, may well have, under the instructions provided, found Barton
guilty of uttering an ethnic slur. Though she used an ethnic slur, that
is not enough to constitute an invitation to violence. And that is not,
despite what the jury was instructed, enough to find “fighting words.”
Because it is unclear
whether the jury limited its consideration to “fighting words,” the
Ordinance cannot be sustained as being limited only to those nonspeech
elements of communication. If the jury’s contemplation of the charge was
influenced instead by concern over “insults” or injurious speech, then,
under Gooding, the Ordinance is unconstitutional. The danger that
the jury would move beyond explicit provocation to consider content is
far too great to sustain this Ordinance.
II. THE TRIAL COURT MISUNDERSTOOD THE “FIGHTING
WORDS” DOCTRINE:
In one paragraph, Judge
Danielson summarized his understanding of the “fighting words” doctrine,
as he felt it was embodied in the Ordinance. During pre-trial motions
consideration, Judge Danielson characterized Barton’s remarks as
This isn’t just some generalized stupid speech where someone is just
engaging in fascist Xenophobic logorrhea. This is directed at someone.
You don’t say words like this when someone is present, like this, unless
you are either intending to hurt them, to injure them. Or, you
are intending to engage in some kind of a physical altercation.
T. 23 (emphasis added).
