So you’re among people streaming out of the bars at closing time on Labor Day weekend and, being a considerate and insightful person, decide it’s a prime opportunity to yell obscenities at the cops driving by. Perhaps not the wisest idea in the world but you might simply be exercising your First Amendment rights. At least that’s the conclusion of the South Dakota Supreme Court in a new decision.
As Marcus Suhn was amidst a group estimated at about 100 people in downtown Brookings, he saw a police car go by. He yelled: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.” For some reason, one of the police officers in the car took offense. Suhn was arrested for and convicted of disorderly conduct. In a 4-1 vote, the Supreme Court reversed the conviction, agreeing that it violated his First Amendment rights.
The main issue was whether Suhn’s language fell within the so-called “fighting words” exception to the First Amendment. Under the doctrine, first enunciated by the U.S. Supreme Court in 1942, fighting words are among “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The South Dakota Supreme Court said that as offensive or abusive as Suhn’s words were, they didn’t meet that test.
Although it may not be necessary to show that those who hear the words are actually provoked to violence, a telling commentary as to how “ordinary citizens” would likely react was how the people standing on Main Avenue in Brookings did react. The crowd merely responded with facial expressions of disbelief.
…. Just because someone may have been offended, annoyed, or even angered by Suhn’s words does not make them fighting words.
Retiring Justice Richard Sabers disagreed. He said because Suhn “spewed the most distasteful profanities at police officers at two o’clock in the morning amidst hundreds of people, the majority of whom were likely intoxicated or under the influence of alcohol,” they had a tendency to not only provoke an ordinary citizen “but also a member of the crowd in this mob-like setting.” Sabers found the reaction of the crowd “atypical, or at least unexpected for the situation, especially considering that the bar patrons congregating on the sidewalk may have been looking for further action. It is surprising to me that no one joined the defendant in yelling profanities at the police or even hurled objects at the patrol car.”
Initially, his dissent left me pondering this question: if one other person in the crowd had yelled profanities, would Suhn then have incited a breach of peace? I realized, though, it was too much like a law school Socratic method question to be pursuing on the last day of the year. Instead, I thought back to my days
stumbling out of leaving downtown Brookings bars during college. I’m not sure if the crowds I was in were wiser or cowardly — no one generally yelled things like that loud enough for the cops to hear.
[W]hile the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.
Cohen v. California, 403 U.S. 15 (1971)