Reversing a ruling by Boulder County District Judge Ingrid S. Bakke, a panel of the Court of Appeals of Colorado voted 2-1 that a 14-year-old middle school student did not commit an actionable “breach of the peace” when he drew a picture of “an ejaculating penis” over the cellphone photo he took of one of his classmates and then exhibited it to the subject as well as other friends. People of the State of Colorado, Petitioner-Appelleee, In the Interest of R.C., Juvenile-Appellant, 2016 COA 166, 2016 Colo. App. LEXIS 1612, 2016 WL 6803065 (Nov. 17, 2016).
Writing for the panel, Justice Elizabeth Harris related the facts: “During class one afternoon, R.C. used his cell phone to take a photo of L.P. Then, using the mobile application Snapchat, he drew a picture of an ejaculating penis next to L.P.’s mouth. R.C. showed the altered photo to L.P. and three other friends. R.C. was ‘giggling’ when he showed the other boys the photo. One of the other boys laughed too, but L.P. felt ‘bad.’ About five minutes later, class ended and the boys went to lunch. In the cafeteria, a few other students looked at the photo and laughed, which made L.P. feel even worse. Two of L.P.’s friends told R.C. to apologize and R.C. agreed to, but when he approach L.P., L.P. pushed R.C. away. L.P. and his friends reported the incident to the principal later that day.”
In the way these things escalate in the age of “zero tolerance” for bullying conduct, the principal instituted criminal charges against R.C. under the disorderly conduct statute, and District Judge Bakke ruled “that R.C. knew that his drawing would make L.P. feel humiliated and ashamed and would have tended to incite an immediate breach of the peace, in large part because the drawing implied that L.P. was ‘homosexual or behaves in that kind of behavior or has some sort of demeanor about that.’ The court sentenced R.C. to three months of probation, therapy, and eight hours of work crew.”
The statute in question, Colorado R.S. Sec. 18-9-106(1)(a), provides that a person commits disorderly conduct if he or she “intentionally, knowingly, or recklessly:. . . makes a coarse or obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace.”
In reversing the conviction, the majority of the appeals court held that the disorderly conduct statute has been narrowed in interpretation to cover “fighting words” only, and that what R.C. had done failed to come within that narrow class of communicative conduct that is subject to criminal prosecution. Dissenting Judge John Webb sharply disagreed, asserting, with Judge Bakke, that fighting words include those that “inflict injury” even when they may not incite immediate violence. The majority rejected this reasoning, pointing out, strikingly, that the Supreme Court has so shrunken the category of “fighting words” that it has “overturned every single fighting words conviction it has reviewed since Chaplinsky [the historic Supreme Court case recognizing a “fighting words” exception to First Amendment protection] was decided in 1942.”
“The district court concluded that the drawing constituted fighting words because its display would tend to make the subject of the photo feel humiliated and ashamed,” wrote Judge Harris. “But speech that embarrasses or disgraces another is insufficient to qualify as fighting words. Even vulgar and insulting speech that is likely to arouse animosity or inflame anger, or even to provoke a forceful response from the other person, is not prohibited,” she continued, pointing to a 10th Circuit case from 1993, Cannon v. City of Denver, 998 F.2d 867. “Rather, fighting words are limited to ‘speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline.’” (This vivid quote is from a 2015 Vermont Supreme Court decision.)
“Our position would not change even if we believed, as the district court apparently did, that the photo might have implied that L.P. was gay. Indeed, this assumption was the basis of the court’s ruling; if R.C. had drawn a mustache or a big nose on the photo, the court explained, it would not have amounted to disorderly conduct, even, presumably, if the big-nose photo had hurt L.P.’s feelings. But R.C. drew a picture that was ‘sexual in nature’ and went ‘directly to L.P.’s gender being male,’ which made the photograph much more offensive, according to the court; so much so that, upon seeing the photo, L.P. would reasonably have been incited to violence.”
Two problems with this, wrote Harris: “First, there was, in fact, no evidence that R.C. intended to imply that L.P. was gay or that L.P. perceived the photograph as any sort of commentary on his sexual orientation. Second, even if we assume such commentary, we cannot conclude that, as a matter of law, the mere insinuation that a person is gay amounts to ‘fighting words.’ We disagree with the district court, and the dissent, that the suggestion of homosexuality or homosexual conduct is so shameful and humiliating that it should be expected to provoke a violent reaction from an ordinary person.”
Furthermore, the court doubted that such a characterization would be appropriate in the full context of what happened. The court found no authority to support the idea that the label “fighting words” automatically applied to this particular doctored photo. And, indeed, L.P. did not react violently, and “there was no evidence that R.C.’s display of the photo caused any sort of commotion or that it was even noticed by other children or the teacher.” In this case, said the court, disagreeing with the dissenter, “R.C.’s display of the photo did not amount to fighting words because it was not likely to incite an immediate breach of the peace. We certainly have not foreclosed the possibility that, under other circumstances, references to a person’s sexual orientation might indeed rise to the level of fighting words.”
The court also rejected the state’s argument that “the photo was akin to R.C. calling L.P. a ‘cocksucker,’ a term that by its mere utterance qualifies as fighting words.” Responded Harris, “The word ‘cocksucker’ is not an innocuous expression; it is vulgar and profane. But uttering the word is not a crime unless its mere utterance would tend to provoke a reasonable person to immediately retaliate with violence.” Although the state could point to several past cases where that word had been deemed a “fighting word” in context, those cases were all distinguishable from the circumstances of this case, and the court found that “more recent cases suggest that ‘cocksucker’ has lost its former incendiary quality.” Indeed, in some circles it is now a term of endearment as “street language,” although Harris dropped a footnote pointing out how Maine Governor Paul LePage recently inspired criticism — but no criminal consequences — for using the word directed in a communication to a legislative opponent, and commented, sarcastically, “We are reluctant to hold a middle school student to a higher standard than the Governor of Maine.”
“A middle school student of average sensibilities and maturity might have told R.C. that the photo was not funny, as L.P.’s friends did, or reported the hurtful conduct to a school administrator, as L.P. and his friends did later that day. But the average person – even an average fourteen-year-old – would not be expected to fly into a violent rage upon being shown a photo of himself with a penis drawn over it. R.C.’s display simply does not fall within the ‘exceedingly narrow’ class of insults for which violence is a reasonably expected response.” The court found that a school administrator could discipline R.C. for such conduct, and that a state bullying statute even authorized principals to impose discipline in appropriate cases, but that criminal prosecution was definitely overdoing it.
Judge Webb dissented at length, concluding, “I would hold that the image R.C. created and circulated showing an ejaculating penis adjacent to L.P.’s mouth constituted fighting words. Therefore, I would deny it First Amendment protection and affirm the judgment of conviction.”
Public Defender Douglas K. Wilson and Deputy Public Defender Elizabeth Porter-Merrill represented R.C. in appealing his conviction.