APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA HONORABLE VINCENT A. FOLEY Judge
The opinion of the court was delivered by: Meierhenry, Justice
ARGUED ON SEPTEMBER 29, 2008
[¶1.] In a trial to the court, Marcus J. Suhn was convicted of disorderly conduct for yelling profanities at a passing police car in Brookings, South Dakota. He appeals his conviction and contends that his utterances are protected speech under the First and Fourteenth Amendments to the United States Constitution. The State argues that Suhn's utterances fall under the "fighting words" exception to First Amendment protection. We hold that Suhn's words are protected speech and reverse.
[¶2.] Suhn's utterances occurred on September 2, 2007, at approximately 2:00 a.m. in Brookings, South Dakota. The bars on Brookings' Main Avenue had just closed, and the bar patrons were gathering on the sidewalks outside the bars. Suhn was among an estimated 100 people gathered on the sidewalk. At this same time, two Brookings' police officers patrolled Main Avenue in their vehicle. Officer David Gibson sat on the passenger seat of the vehicle. He had his window fully open as the vehicle approached the area where the sidewalk crowd was gathered. [¶3.] As the patrol car passed the sidewalk crowd, Gibson heard Suhn yell obscenities in the direction of the police car. Specifically, Suhn yelled: "Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes." Officer Gibson leaned out of the window of the police car and made eye contact with Suhn. He identified Suhn as the speaker. Gibson also observed that the others on the sidewalk had expressions of "what are you doing?" in response to Suhn's comments.
[¶4.] Officer Gibson immediately left the patrol car and walked toward Suhn, who was then standing with his back to the patrol car. The officer grabbed Suhn by the arm and arrested him for his earlier utterance. Suhn was charged and convicted of disorderly conduct. Suhn appeals, raising one issue:
Whether the circuit court's application of the disorderly conduct statute to Suhn's utterances amounted to an abridgement of speech in violation of the First Amendment.
[¶5.] The State charged Suhn with disorderly conduct under SDCL 22-18-35 (2). The relevant portion of the statute provides that "[a]ny person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by: . . . (2) Making unreasonable noise; . . . is guilty of disorderly conduct." Id. (emphasis added). Suhn asserts that his disorderly conduct conviction violates his right to free speech under the First Amendment to the United States Constitution.*fn1 We review alleged violations of constitutional rights de novo. State v. Hayen, 2008 SD 41, ¶5, 751 NW2d 306, 308 (quoting State v. Muller, 2005 SD 66, ¶12, 698 NW2d 285, 288). The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech." US Const amend I; amend XIV (imposing the right of free speech on the states). Emphasizing its importance, we have said that "[f]reedom of speech is one of our most cherished and zealously guarded Constitutional liberties." State v. Martin, 2003 SD 153, ¶17, 674 NW2d 291, 297.
Fighting Words Unprotected by First Amendment
[¶6.] In Chaplinsky v. New Hampshire, the United States Supreme Court determined that First Amendment protection does not extend to all speech. 315 US 568, 571-72, 62 SCt 766, 769, 86 LEd 1031 (1942). Unprotected speech "include[s] the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."*fn2 Id. at 572, 62 SCt at 769, 86 LEd 1031 (emphasis added). The Court said that these "well-defined and narrowly limited classes of speech" need not be afforded the same protection as other speech. Id. at 571-72, 62 SCt at 769, 86 LEd 1031. The Supreme Court reasoned that "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id. at 572, 62 SCt at 769, 86 LEd 1031 (citations omitted). The Court upheld the challenged New Hampshire law because the New Hampshire court narrowly construed the law to cover only words that had a "direct tendency to cause acts of violence by the person to whom, individually, the remark [was] addressed." Id. at 573, 62 SCt at 770, 86 LEd 1031. The words had to be "what men of common intelligence would understand would be words likely to cause an average addressee to fight." Id.
[¶7.] In decisions since the 1942 Chaplinsky decision, the United States Supreme Court has narrowed the "fighting words" doctrine.*fn3 The Court recognized that some "verbal tumult, discord, and even offensive utterance" is necessary for free expression and debate. Cohen v. California, 403 US 15, 24-25, 91 SCt 1780, 1788, 29 LEd2d 284 (1971). In Cohen, the defendant was convicted of disturbing the peace for wearing a jacket bearing the words "Fuck the draft" to a California courthouse. Id. at 16, 91 SCt at 1783-84, 29 LEd2d 284. The Supreme Court per Justice Harlan reversed Cohen's conviction and held that "while 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." Id. at 25, 91 SCt at 1788, 29 LEd2d 284.
[¶8.] The Cohen Court determined that the words "Fuck the draft" did not rise to the level of fighting words because Cohen did not direct the epithet at any person in particular. Id. at 20, 91 SCt at 1785-86, 29 LEd2d 284. The Court explained that for speech to fit under the unprotected fighting words category, the speech, "when addressed to the ordinary citizen, [must be], as a matter of common knowledge, inherently likely to provoke violent reaction." Id. at 20, 91 SCt at 1785 (citing Chaplinsky, 315 US at 572, 62 SCt at 769, 86 LEd 1031). The Court pointed out that the presence of unwilling listeners to an expletive did not justify a breach of the peace conviction "where . . . there was no evidence that persons powerless to avoid appellant's conduct did in fact object to it." Id at 22, 91 SCt at 1786, 29 LEd2d 284. The Cohen Court also emphasized the right of American citizens to criticize the government "'not only [through] informed and responsible criticism but [through] the freedom to speak foolishly and without moderation."' Id at 26, 91 SCt at 1788, 29 LEd2d 284(quoting Baumgartner v. United States, 322 US 665, 673-74, 64 SCt 1240, 1245, 88 LEd 1525 (1944)). In Gooding v. Wilson, the United States Supreme Court reaffirmed the constitutional restriction that laws punishing "fighting words" must be "carefully drawn statutes not also susceptible of application to protected expression. . . ." 405 US 518, 523, 92 SCt 1103, 1106, 31 LEd2d 408 (1972) (citations omitted). The Gooding Court struck down the Georgia statute because the Georgia lower court defined the term "breach of the peace" too broadly. Id. The Court said that the broad definition "makes it a 'breach of peace' merely to speak words offensive to some who hear them, and so sweeps too broadly." Id. at 527, 92 SCt 1108, 31 LEd2d 408.
[¶9.] Again in Lewis v. City of New Orleans, the United States Supreme Court struck down a city ordinance that made it a crime for a person "wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." 415 US 130, 132, 94 SCt 970, 972, 39 LEd2d 214 (1974) (quoting New Orleans Ordinance 828 MCS § 49-7). The Louisiana Supreme Court had ruled the ordinance constitutional because it was written narrowly to include only "'fighting words' uttered to specific persons at a specific time. . . ." Id. at 132, 94 SCt at 972, 39 LEd2d 214 (quoting City of New Orleans v. Lewis, 263 La 809, 826, 269 So2d 450, 456 (1972)). The United States Supreme Court disagreed andheld that because the law punished "only spoken words," it was facially overbroad, and unconstitutional. "Fighting words," the Lewis Court ...