B.E.S. v. State
Decision Date | 09 July 1993 |
Docket Number | CR-92-253 |
Citation | 629 So.2d 761 |
Parties | B.E.S. v. STATE. |
Court | Alabama Court of Criminal Appeals |
Julius H. Hunter, Jr., Phenix City, for appellant.
James H. Evans, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for appellee.
The appellant, B.E.S., was adjudicated delinquent based on a petition charging him with harassment. He was fined $50 and was placed on six month's unsupervised probation.
Robert Elder testified that he was outside "loading the truck" when these words were spoken to his wife. R. 7. He testified that both brothers "would just like get in [his] face and try to intimidate [him]." R. 6. At one point, D.S. "balled his fist up" in Elder's face and "str[uck] his [own] hand." R. 8-9. However, Mr. Elder could not remember what, if anything, D.S. said at the time.
Mrs. Elder testified that after they had loaded their car and truck, they left to go to Mr. Elder's son's house. Mrs. Elder was driving the truck and Mr. Elder was following her in the car. Mr. Elder's two grandchildren were riding in the truck with Mrs. Elder. After stopping to inform their landlady that they were leaving, the Elders came back by the rental unit in order to leave the property. Mrs. Elder testified that a vehicle driven by B.E.S. and occupied by D.S. and other people that she did not know began to follow her and her husband. This car "tailgat[ed]" first her husband, then her and nearly ran her off the road. R. 13. This vehicle also got in front of both her and her husband and D.S. shone a spotlight into their eyes.
The Elders' landlady, Tina Hurst, testified that when the Elders came by to tell her that they were leaving, Mrs. Elder "was almost in tears," and she "was very upset, she was crying, well practically, she was shaking." R. 18-19. She also stated that she had observed B.E.S., D.S., and some of their friends get into a vehicle and begin to follow the Elders. At this time, the people in the car "had a spotlight on." R. 20. Although she was not sure who was holding the spotlight, Mrs. Hurst testified that B.E.S. was driving the vehicle that "pulled out directly behind [the Elders]." R. 20.
The evidence adduced by the State might have supported a number of criminal charges, including reckless driving, 1 Ala.Code 1975, § 32-5A-190, reckless endangerment, § 13A-6-24, or menacing, § 13A-6-23. However, the petition charged the appellant only with verbal harassment, which is defined by § 13A-11-8(a)(1)(b) as follows: "A person commits the crime of harassment if, with intent to harass, annoy or alarm another person he ... [d]irects abusive or obscene language or makes an obscene gesture towards another person." 2
Section 13A-11-8(a)(1)(b) clearly seeks to restrict speech, which, under the First Amendment, states have only limited authority to regulate. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2335, 65 L.Ed.2d 319 (1980) (). However, "[g]overnment regulation of speech has been allowed when the purpose of the statute was to proscribe 'fighting words.' " J. Nowak & R. Rotunda, Constitutional Law § 16.37 (4th ed. 1991). As the United States Supreme Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942):
(Footnote omitted.)
In order to bring § 13A-11-8(a)(1)(b) within the range of constitutionally permitted legislation, we have held that the words "abusive or obscene language," as used in this statute, are to be " 'interpreted narrowly to apply only to "fighting words." ' " Robinson v. State, 615 So.2d 112, 113 (Ala.Cr.App.1992) ( ). See also Shinault v. City of Huntsville, 579 So.2d 696, 699-700 (Ala.Cr.App.1991) (Bowen, J., concurring in result). Consequently, the dispositive issue in this case is obviously whether the words spoken by the appellant to Mrs. Elder constitute "fighting words." The appellant maintains that they do not.
"Fighting words" are "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). The utterance itself must "tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. at 572, 62 S.Ct. at 769. See also Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). "It is not enough that [the words] merely arouse anger or resentment," Skelton v. City of Birmingham, 342 So.2d 933, 937 (Ala.Cr.App.), remanded on other grounds, 342 So.2d 937 (Ala.1976), or that the words are deemed "a socially unacceptable mode of communication," State v. Authelet, 120 R.I. 42, 385 A.2d 642, 649 (R.I.1978). It is clear that 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 at 936-37.
"[W]ords may or may not be 'fighting words,' depending upon the circumstances of their utterance." Lewis v. New Orleans, 415 U.S. at 135, 94 S.Ct. at 973 (Powell, J., concurring). Accord In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn.1978). Words must be evaluated in the era in which they are uttered--words that constitute fighting words change from generation to generation, or even more quickly. Compare Chaplinsky v. New Hampshire, 315 U.S. at 574, 62 S.Ct. at 770 ( ) with Robinson v. State, 588 N.E.2d 533, 536 (Ind.App.1992) (Shields, J., dissenting) ( ). As Justice Powell has noted, "[l]anguage likely to offend the sensibility of some listeners is now fairly commonplace in many social gatherings as well as in public performances." Eaton v. City of Tulsa, 415 U.S. 697, 700, 94 S.Ct. 1228, 1231, 39 L.Ed.2d 693 (1974) (Powell, J., concurring).
Robinson v. State, 615 So.2d at 114 (quoting Shinault v. City of Huntsville, 579 So.2d at 700 (Bowen, J., concurring). We note that other state courts also adhere to this position. See, e.g., Diehl v. State, 294 Md. 466, 451 A.2d 115, 122 (1982) (, )cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 363 (1983); In re Welfare of S.L.J., 263 N.W.2d at 419-20 ( ). But see, e.g., L.J.M. v. State, 541 So.2d 1321, 1322-23 (Fla.App.) (calling police officer "pussy-assed mother fucker" amounted to fighting words), review denied, 549 So.2d 1014 (Fla.1989); Robinson v. State, 588 N.E.2d 533, 535-36 (Ind.App.1992) ( ).
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