STATE OF MICHIGAN
IN THE COURT OF APPEALS

BRIEF AMICI CURIAE

IN SUPPORT OF APPELLANT

ORAL ARGUMENT REQUESTED

September 11, 2001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

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.^[1] 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.^[1] 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,^[2] 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).^[3]

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?”^[4] 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.”^[5] 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^[6] (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”^[7] 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^[8] 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. 59^th 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,”^[9] and that they should convict her for “disturbing the peace.”^[10] 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 (6^th 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).

Every significant element of Judge Danielson’s statement embodies an erroneous understanding of the “fighting words” doctrine: “directed at someone,” “when someone is present,” “intending to hurt them, to injure them,” “intending to engage in some kind of a physical altercation.”

A. The “Fighting Words” Doctrine is Not Triggered by Speech Being Directed at Someone or When Someone Is Present:

Simply offending someone who is present is not the definition of “fighting words.” Lewis v. New Orleans, 415 U.S. at 135 (Powell, J., concurring)(“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.”); Cantwell v. Connecticut, 310 U.S. at 309-10 (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).

In Kunz, the conviction was reversed even though the speaker said vile words of a particularly harsh nature directly to persons present in a crowd in front of him. Violence erupted. Nevertheless, the speaker’s words were protected. 340 U.S. at 296-97.

Similarly, in Klein, this Court rejected a claim that an insulting gesture given directly to another was a breach of the peace. “We would ordinarily be disposed to take judicial notice that many members of society are not fighters.” 242 N.W.2d at 437.

Judge Danielson expanded the “fighting words” doctrine beyond its proper bounds. That is sufficient to demonstrate that the Ordinance is susceptible of affecting protected speech. The Ordinance should be struck down.

B. The “Fighting Words” Doctrine Is No Longer Triggered by Speech that is “Intended to Hurt:”

As shown above, merely hurtful words are no longer sufficient to constitute the “fighting words” exception to an “abusive language” statute’s unconstitutionality. Gooding, 405 U.S. at 528; Cohen v. California, 403 U.S. at 18-22; Terminiello v. Chicago, 337 U.S. at 4-5 . “Fighting words” requires an explicit threat of or invitation to violence which is imminent and personal.

Judge Danielson expanded the definition of “fighting words” to include merely hurtful words. That again shows that the “abusive language” statute is susceptible to words which are protected by the First Amendment. The Ordinance must be struck down.

C. The “Fighting Words” Doctrine Requires More Precision Than Just An Invitation to “Some Kind of a Physical Altercation:”

Judge Danielson may have been closest to the mark when he discussed Barton’s remark as an invitation to “some kind of a physical altercation.” T. 23. But his understanding was faulty for at least two reasons: first, the invitation to violence must be explicit, and that was not the case here, where Barton uttered one slur as part of a larger political opinion. Even Benitez recognized Barton’s “opinion.” T. 55. She walked away “because obviously I can’t change her point of view.” T. 57-8.

Second, the presence of objectionable language cannot taint the rest of the protected speech. R.A.V., 505 U.S. at 386 (power to proscribe one element does not convey the power to proscribe other content elements). In fact, the First Amendment works the other way, forbidding governments from limiting speech even if there is the slightest chill on protected speech. “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. at 433. The U.S. Supreme Court has held that an “abusive language” statute is facially unconstitutional if it is merely “susceptible” of an interpretation that would apply it to protected speech. Gooding, 405 U.S. at 528.

The failure here is one of narrow tailoring. Even if there were objectionable language in Barton’s statement, the Ordinance sweeps too broadly because it also affects protected speech. Id. The trial court did not recognize or apply the distinction.

The fact that the judge below did not understand the modern “fighting words” doctrine led to his erroneous denial of the Motion to Dismiss, and his erroneous instruction to the jury. In addition, the judge permitted the jury to hear inaccurate and misleading explanations of the extent of protections afforded by the First Amendment. The resulting taint demonstrates that the conviction must be overturned.

III.       EVEN UNDER THE “FIGHTING WORDS” EXCEPTION,  BARTON’S SPEECH WAS PROTECTED AND THE CONVICTION MUST BE OVERTURNED:

This is a case in which a woman was sentenced to 45 days in jail for saying “I wish you people would just learn English.” T. 48 (C. Benitez Test.).

“Q. 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. I’m entitled to my opinion according to the First and Fourteenth Amendment.”

“Mr. Swain: Thank you, Mrs. Barton. I don’t have anything else.”

T. 85, lines 10-16 (emphasis added).

This issue permeated the proceedings and must have affected the jury’s decision. If these views were legitimate political opinion, then, as shown above, she was convicted wrongfully and in violation of the First Amendment.

A. Barton Was Convicted For Speaking About English:

Barton was convicted for uttering a sentence^[11] about learning and speaking English in the United States. This issue permeated the proceedings, and not in a balanced way.

Judge Danielson in pre-trial proceedings said: “This isn’t just some generalized stupid speech where someone is just engaging in fascist,^[12] Xenophobic logorrhea.” T. 23. At sentencing, Judge Danielson imposed the maximum possible probation time on Barton; when Barton’s counsel asked why, the judge replied: “The reasons are, she is a bigot, she said words that were calculated to incite violence. . . . I think these are words that are intended to do that very thing. They are hurtful by their very nature.” T. 128.

Though there was some discrepancy in the testimony of Carol Benitez and the other witnesses about what Barton actually first said in the restaurant,^[13] every witness said that Barton did say at least once that people should learn English. See, e.g., T. 55 (C. Benitez Test. “she had her own opinion, I wish you people would just learn English. And that’s why I said, well, I am with the Sheriff’s Department and I do speak English. . . . Because of her remarks, saying, I wish you people would just learn English.”).

Because there was no limiting instruction from the judge, the verdict on Barton had to have been predicated at least in part on whether Barton had said that “I wish you people would just learn English.” Id.  In fact, because the instructions suggested to the jury that they should be looking for more than one word, it was probable that the jury looked at the entire phrase, and thus at the view, as the prosecutor put it, that a statement like that would be insulting if made “Even in the presence of Spanish people?”

Even without considering the factors discussed below (demonstrating that most Hispanic Americans actually believe that everyone in the United States should learn English), this consideration of protected speech taints the proceedings. A reasonable reading of the verdict below is that one cannot discuss whether everyone should learn English in Manistee, Michigan. And if one does so in the presence of “Spanish people,” one will go to jail. This kind of prior speech restraint violates the First Amendment on its face.

B. Barton’s Speech about Learning and Speaking English Was Legitimate and Recognized Political Speech, Fully Protected by the First Amendment:

Speech about English is not “engaging in fascist, Xenophobic logorrhea.” T. 23. Speech about English does not show that the speaker is “a bigot,” that the “words that were calculated to incite violence. . . . [or that] these are words that are intended to do that very thing. They are hurtful by their very nature.” T. 128.

Prosecutor Swain, in the presence of the jury, suggested that speech about English in the presence of Hispanics is suspect: “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?” T. 85 (emphasis added). In summation, Mr. Swain told the jury that “Mrs. Barton is a bigot. . . . It is not protected speech.” T. 106.

During sentencing this anti-English attitude became even more apparent. Mr. Swain said that Barton deserved the maximum sentence because she “truly doesn’t even see that her attitude, as she expressed it, constitutes a wrong in this community.” T. 125-26. And Judge Danielson explained that he was sentencing Barton to 45 days in jail because “The reasons are, she is a bigot, she said words that were calculated to incite violence. . . The words were calculated to incite violence, they were spoken in another person’s presence. I think these are words that are intended to do that very thing. They are hurtful by their very nature.” T. 128.

If, as shown above, the judge and jury based their decisions, even in part, on Barton’s views about English, the decision below offends the First Amendment. Views on English have been political speech since before the United States was formed, and they are hot topics of current political debate in Michigan and around the country. Immigrant and ethnic groups, including Hispanic-Americans, support learning and using English, since English useage is universally regarded as an important indicator of success and opportunity in modern America. Contrary to the positions of the prosecutor and judge below, the First Amendment must protect this speech, “even in the presence of Spanish people.”

1. Throughout American History, Discussions About Learning and Speaking English Have Been A Part of Reasonable Political Discourse:

Citing Plessy v. Ferguson, 163 U.S. 537 (1898) and Brown v. Board of Education, 347 U.S. 483 (1954), the prosecutor below urged the jury to find Mrs. Barton guilty of insulting speech. T. 115. American history, in fact, demonstrates that discussions of English language usage have been common, including heated references to ethnic groups. Prior to the Constitutional Convention, the primacy of English was well-established. “[T]he English language dominated all public life. It was the only official language and as such was used in the courts, the assemblies, and the press.” J.R. Pole, Foundations of American Independence, 1763-1815, 18 (1972). 

There were large numbers of German speakers in Revolutionary-era Pennsylvania. Yet Congress, led by Frederick Augustus Muhlenberg, a German-American from Pennsylvania, repeatedly voted not to provide its material in German. 4 Annals of the Congress of the United States 1082, quoted in Dennis Baron, The English-Only Question 88 (1990). In 1810, Congress rejected a request from Michigan to translate the federal laws into French. Id., at 90.

More directly, the Founders made it clear that such linguistic decisions could and were made in the presence of, and with potentially insulting statements about, ethnic minorities. Most  famous is Benjamin Franklin’s 1751 statement:

"Why should the Palatine Boors be suffered to swarm into our Settlements, and by herding together establish their Language and Manners to the exclusion of ours? Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our Complexion?

4, Leonard W. Labaree, ed., The Papers of Benjamin Franklin, New Haven: Yale Univ. Press, 1959. vol 4:234. The fact that Franklin’s statement was offensive to some does not diminish the fact that he was uttering a political opinion, speech of the type the Founders intended to protect with the First Amendment.

2. Debates About Learning and Using English Are Reasonable Topics of Current Political Debate:

Examples of current political speech involving language and ethnicity are recent and legion:

a. Bilingual Education Reform Debates Have Resulted In More Language-Minority Children Scoring Higher on School Tests:

One of the “hottest” of current political debates involving ethnicity and language involves the replacement of failed “bilingual education” programs with programs which teach English to children of limited English proficiency. See, e.g., “Teach English,” The Washington Post, August 9, 2001, A18, col. 1 (“Immersion classes may not be a silver bullet solution. But the status quo is not acceptable.”); Lynda Gorov, “Scores rise as Calif. Schools immerse; Gains follow halt to bilingual ed.,” The Boston Globe, September 9, 2001, Front Page.

In 1998, for example, California voters overwhelmingly adopted Proposition 227, an initiative driven by parents of limited-English proficiency (“LEP”) children who wanted their kids to learn English. Steinberg, “Increase in Test Scores Counters Dire Forecasts for Bilingual Ban,” The New York Times, August 20, 2000, P. A1. The initiative, known as “English for the Children,” eliminated most existing bilingual education programs, which taught children in their native languages (“native language instruction”). The English for the Children initiative substituted an intensive program of English language instruction, teaching the children English by teaching them in English. Id. Three school years later, test scores indicate that teaching the children in English was a smashing success. Test scores in most school districts jumped dramatically. Id. The U.S. Court of Appeals for the Ninth Circuit just upheld California’s English for the Children initiative. Calif. Teachers Assoc. v. State Bd. of Education, No. 99-56784 (9^th Cir. August 29, 2001).

The success of California’s reform of bilingual education spurred a similar successful 2000 ballot initiative in Arizona, as well as current efforts in Colorado, Massachusetts, New York and other states. Id. The success of those bilingual education reforms, driven by immigrant and limited-English proficient parents who want their children to learn English, demonstrates that saying people should learn English may not be offensive, even to “Spanish people.”

b. The Courts Regularly Consider Challenges to Reasonable English-Language Policies:

English-language policy has been a regular topic in the courts as well. Throughout American history, the Supreme Court has permitted States to use English. Patterson v. De La Ronde, 8 Wall. 292, 299-300 (1869)(Court reconciled French and English versions of Louisiana mortgage law); Meyer v. Nebraska, 262 U.S. 390, 402 (1923)(“The power of the State to . . . make reasonable requirements for all schools, including a requirement that they shall give instructions in English, is not questioned.”).

Just a few months ago, the U.S. Supreme Court decided that an individual does not have a private right of action under federal agency regulations implementing Title VI of the Civil Rights Act of 1964. Alexander v. Sandoval, __ U.S. __, 121 S.Ct. 1511 (2001). See also, Arizonans for Official English v. Arizona, 520 U.S. 43 (1996)(rejecting challenge to Arizona’s Official English initiative).

c. Legislative Debates Over English Policy Demonstrate That A Choice for Government to Use and Encourage English Is Reasonable:

Half the States have declared English their official language, sometimes following heated ballot initiative campaigns.^[14] Last November Utah became the latest State to adopt an official English policy, codified at § 63-13-1.5, Utah Code (2001), which was recently upheld by the Utah courts. Anderson v. Utah, Third Judicial District Court, Salt Lake County, No. 909680 (March 5, 2001).

English-language policy also has been a source of heated recent debate in Congress. On August 1, 1996, the U.S. House of Representatives passed H.R. 123, the Bill Emerson English Language Empowerment Act of 1996, by a vote of 259-169. Cong. Rec. (daily ed.), Aug. 1, 1996, H9771-72. Rep. Linder, floor manager for the Rule which crafted H.R. 123 from disparate legislation, summed up the basic rationale:

For over 200 years, the glue that held the fabric of this society together was a common language. Thirty years ago, we began to change that. We began to deal with people in different languages. That isolated them. This bill is going to bring them back together. The isolation that was created by putting people in pockets of communities that spoke a different language kept them apart and out of the American dream. This is a modest effort to change that.

Cong. Rec. (daily ed.) Aug. 1, 1996, H9737.

All of these political activities indicate that an opinion, however poorly-expressed, that people should learn and speak English in the United States is neither obsolete nor unprotected. A significant and growing political effort is suggesting that using English, particularly in schools, is critical to ensuring the future success and opportunity of those who do not speak English well. Contrary to Judge Danielson’s view that supporting English is “engaging in fascist Xenophobic logorrhea,” T. 23, those who support English are engaging in political speech.

d. Language Minorities Also Support Learning and Speaking English:

The prosecutor’s belief that one would be insulting “Spanish people” by saying that they should speak English is not supported by evidence. In fact, it is clear from the immigrant-parent-led bilingual education reform effort described above that language minorities strongly want their children to learn English. Indeed, in a recent poll, 81% of Hispanic parents rejected bilingual education for their children; only 12% supported it. Equal Opportunity Foundation, Hispanic Parents Study, August 20, 1996, P. 49.

The fundamental reason is the basic American dream: as Ernesto Ortiz, a ranch foreman in Texas, said: “My children learn Spanish in school so they can grow up to be busboys and waiters. I teach them English at home so they can become lawyers and doctors.” Cong. Rec. (daily ed.) Aug. 1, 1996, H9762 (Remarks of Rep. Knollenberg).

The same is true, at least in part, for other political efforts to support English-language useage in America. The late Sen. S.I. Hayakawa, for example, an immigrant and reknowned semanticist, was the founder of the modern Official English movement and, through projects of Petoskey, Michigan-based U.S., Inc., promoted passage of state laws declaring English their official languages. Linda Chavez, Out of the Barrio, 88 (1991). Chavez herself was a national leader of Hayakawa’s organization, and continues to promote the use of English. Id. And public opinion polls indicate that language minority groups support English as the official language. Frank Viviano, “Poll Contradicts Stereotypes,” San Francisco Chronicle, March 28, 1990, A1 (“Among the poll’s surprising findings are that Asians and Hispanics overwhelmingly favor making English the official language of California.”).

The presence of these historical examples does not justify Barton’s ethnic slur, but they do suggest that the conviction below had more to do with the judge’s and prosecutor’s concerns about the content of Barton’s speech than with whether they were provocations to violence.

It was thus merely uninformed stereotypes which induced the prosecutor and judge to believe that advocating for English-language usage would be offensive, in and of itself, to “Spanish people.” This inability of government officials to keep up with developments is one of the reasons that the First Amendment so strongly forbids them from using prior restraint on political speech. As shown by the bilingual education discussion above, today’s orthodoxy may become tomorrow’s failure, and “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.” West Va. State Bd. Of Education v. Barnette, 319 U.S. 624, 643 (1943).

The Ordinance, under the decision below, bans advocacy of learning and speaking English because of its emotive impact on “Spanish people.” This is exactly what the First Amendment prohibits. Texas v. Johnson, 491 U.S. at 403-04.

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. at 45. It has not done so, and in light of the discussion supra of legitimate political views involved, it can never do so. The Ordinance therefore violates the First Amendment and must be struck down.

CONCLUSION

                For these reasons, the Manistee County Ordinance must be struck down. Barton’s conviction must be reversed.

RESPECTFULLY SUBMITTED,