From the recitation of facts in the Supreme Court of South Dakota’s recent decision reversing a defendant’s disorderly conduct conviction on the grounds of free speech:

[A]t 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. [The defendant] 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.


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.


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.



The decision hits some of the highlights of 20th Century First Amendment Supreme Court jurisprudence, citing Chaplinsky v. New Hampshire, Cohen v. California (AKA “Fuck the Draft”), Gooding v. Wilson and Lewis v. City of New Orleans among others. I don’t get to dip my foot in First Amendment waters all that often, so it’s always fun to have a refresher course.


The court reverses the conviction finding that:


As offensive or abusive as Suhn’s invective to the police may have been, “when addressed to the ordinary citizen,” Suhn’s words were not “inherently likely to provoke violent reaction.” See Cohen, 403 US at 20, 91 SCt at 1785, 29 LEd2d 284 (citing Chaplinsky, 315 US 568, 62 SCt 766, 86 LEd 1031). The circuit court erred in determining that Suhn’s utterances were unprotected speech.


While I applaud the result, I don’t know that I agree that the defendant’s words were indeed not “likely to provoke a violent reaction”. In fact, let’s take a look at the dissent’s version of the “fighting words” exception to the free speech doctrine:


Under this definition, the words spoken need not actually incite an immediate breach of the peace. Rather, they need only tend to incite an immediate breach.


Furthermore, “[t]he test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Chaplinsky at 573, 62 SCt at 770, 86 LEd 1031.


An average addressee… that is, in this case, a police officer? The dissent wants the conviction to stand, because even though it didn’t actually happen in this case, the defendant’s words are the type that would provoke an average cop to beat the hell out of someone? Is that what they’re saying?


The irony here is that I agree with the result of the majority, but agree with some (all?) of the reasoning of the dissenters. Criminal defense lawyers are quite used to clients coming in with bruises and scrapes of all kinds in cases where they didn’t exactly show the proper amount of respect to the badge. Sometimes police do overreact to this kind of situation, and our clients – while they bring it on themselves – do suffer for it. Right there in the middle of the street.


So if fighting words aren’t free speech, and the legal test to determine whether the speaker is using fighting words is whether or not the listener is likely to react violently to them, doesn’t your free speech depend on whether or not your audience has anger management problems? That seems like an odd way to measure it.


More disturbing though is the dissent’s acknowledgment that police in general would react violently to this type of speech. Don’t they teach police that they are likely to hear this kind of nonsense, especially right after closing time? And no matter how vile the words spoken may be, isn’t actually expecting a violent reaction from the police a sad comment in and of itself?