City of Owosso v. Pouillon

• Citation: 254 Mich. App. 210,657 N.W.2d 538
• Decision Date: 20 February 2003
• Docket Number: Docket No. 236837.
• Parties: People of the CITY OF OWOSSO, Plaintiff-Appellee, v. James Lawrence POUILLON, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

657 N.W.2d 538

254 Mich. App. 210

People of the CITY OF OWOSSO, Plaintiff-Appellee, v. James Lawrence POUILLON, Defendant-Appellant.

Docket No. 236837.

Court of Appeals of Michigan.

Submitted November 6, 2002, at Lansing.

Decided December 3, 2002, at 9:00 a.m.

Released for Publication February 20, 2003.

William C. Brown, City Attorney, Owosso, for the city of Owosso.

J. Kevin McKay, Owosso, for the defendant.

Before: WHITBECK, C.J., and HOOD and MICHAEL J. KELLY, JJ.

PER CURIAM.

Defendant entered a conditional plea of no contest to causing public disorder, contrary to § 19-82 of the Owosso City Code. He was sentenced to one year's probation. The Shiawassee Circuit Court upheld the conviction. This Court denied defendant's application for leave to appeal. Subsequently, in lieu of granting leave to appeal, our Supreme Court remanded the case to this Court for consideration as on leave granted. Owosso v. Pouillon, 465 Mich. 877, 636 N.W.2d 136 (2001). We reverse.

I. Background Facts and Proceedings

This case arises from an incident in which defendant stood, on city property, approximately thirty feet from the front of a dentist's office and approximately three hundred feet away from a church. As mothers were dropping off their children at the day care/preschool operated by the church, defendant yelled, "They kill babies in that church! Why are you going in there?" According to the police report used to establish the factual basis of the no contest plea, the children became frightened and visibly upset. Defendant claimed that he chose his location near the dentist office because the dentist publicly supported Planned Parenthood and abortion. Defendant claimed that he opposed the church because, several years before, it held an anniversary celebration for Planned Parenthood. Defendant has a history of persistently "protesting abortion" while directing statements at people or businesses with whom he has had previous relationships.¹

Defendant was charged with causing public disorder under § 19-82 of the Owosso City Code. Defendant tendered a conditional no contest plea before the district court. The conditions placed on the record preserved his defenses to the charge, including his contention that the ordinance did not serve a compelling state interest, was vague and overbroad, and was unconstitutional as applied to him.

II. Standard of Review

Constitutional questions are reviewed de novo. In re Hawley, 238 Mich.App. 509, 511, 606 N.W.2d 50 (1999). Statutes are presumed to be constitutional unless their unconstitutionality is clearly apparent. In re AH, 245 Mich.App. 77, 82, 627 N.W.2d 33 (2001). Statutes must be construed as proper under the constitution if possible. In re Trejo Minors, 462 Mich. 341, 355, 612 N.W.2d 407 (2000). The party opposing the statute bears the burden of overcoming the presumption and proving the statute unconstitutional. Id.; In re AH, supra at 82

, 627 N.W.2d 33.

III. Time, Place, and Manner Restrictions

Defendant first argues that the ordinance impermissibly restricted his freedom of speech and was unconstitutional for a lack of a compelling governmental interest. We disagree.

The Michigan Constitution states, "Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press." Const. 1963, art. 1, § 5. The First Amendment of the United States Constitution similarly states that "Congress shall make no law ... abridging the freedom of speech." U.S. Const., Am. I. The rights to free speech under the Michigan and federal constitutions are coterminous. Up & Out of Poverty Now Coalition v. Michigan, 210 Mich.App. 162, 168, 533 N.W.2d 339 (1995). Thus, federal authority construing the First Amendment may be used in construing Michigan's constitutional free speech rights. See id. at 168-169, 533 N.W.2d 339.

Defendant was charged under § 19-82 of the Owosso City Code, which provides:

A person shall be deemed guilty of a misdemeanor if, with the purpose of causing public danger, alarm, disorder or nuisance, or if his or her conduct is likely to cause public danger, alarm, disorder or nuisance, such person willfully uses abusive or obscene language or makes an obscene gesture to any other person when such words by their very utterance inflict injury or tend to incite an immediate breach of the peace.

The ordinance is content-neutral because it applies to all speech "`without reference to the content of the regulated speech.'" Madsen v. Women's Health Ctr., 512 U.S. 753, 763, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Regardless of the speaker's subject matter or underlying message, "abusive or obscene" language spoken with the requisite intent may be prohibited "when such words by their very utterance inflict injury or tend to incite an immediate breach of the peace." See RAV v. St. Paul, 505 U.S. 377, 381, 383-384, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). The ordinance at issue does not restrict access to other channels of communication. See Up & Out, supra at 173, 533 N.W.2d 339. Further, it is well settled that the state has a significant interest in protecting the health and safety of its citizens. Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); Schenck v. Pro-Choice Network, 519 U.S. 357, 371, 375-376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997). In light of the foregoing, and because the ordinance is "`narrowly tailored to serve a significant government interest,'" it is a constitutional time, place, and manner restriction. Madsen, supra at 764, 114 S.Ct. 2516, quoting Ward, supra at 791, 109 S.Ct. 2746; see also Hill, supra at 725-726, 107 S.Ct. 2502.

IV. Unconstitutionally Vague

Defendant next argues that the ordinance was unconstitutionally vague. We disagree.

"[T]here are at least three ways a ... statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms." People v. Lino, 447 Mich. 567, 575-576, 527 N.W.2d 434 (1994); see also People v. White, 212 Mich.App. 298, 309-313, 536 N.W.2d 876 (1995); In re Gentry, 142 Mich.App. 701, 707, 369 N.W.2d 889 (1985). The second prong includes conferring "`unstructured and unlimited discretion... to determine whether an offense has been committed.'" White, supra at 309, 536 N.W.2d 876, quoting Michigan State AFL-CIO v. Civil Serv. Comm. (After Remand), 208 Mich.App. 479, 492, 528 N.W.2d 811 (1995), rev'd on other grounds 455 Mich. 720, 566 N.W.2d 258 (1997).

In addition to prescribing reasonable time, place, and manner restrictions, the government remains free to impose "restrictions upon the content of speech in a few limited areas, which 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.'" RAV, supra at 382-383, 112 S.Ct. 2538, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (allowing the regulation of "fighting words"). In this case, the ordinance tracks the definition of "fighting words" by prohibiting "abusive or obscene" language "when such words by their very utterance inflict injury or tend to incite an immediate breach of the peace." See Chaplinsky, supra at 572, 62 S.Ct. 766.² The ordinance makes no content-based distinctions and is "narrowly drawn and limited to define and punish" only fighting words. See Chaplinsky, supra at 573-574, 62 S.Ct. 766. Thus, the ordinance does not "sweep[ ] too broadly, covering a substantial amount of protected free speech," nor does "every application ... create[ ] an unreasonable risk of censorship." See Up & Out, supra at 170, 533 N.W.2d 339. Therefore, on its face, the ordinance is not unconstitutionally overbroad.

Regarding defendant's fair notice argument, we conclude that the incorporation of the extensively construed definition of "fighting words" precludes a finding that this ordinance is impermissibly vague.³ See Lino, supra at 575, 527 N.W.2d 434; see also In re Gosnell, 234 Mich.App. 326, 334, 594 N.W.2d 90 (1999). Further, because the ordinance is not vague, it does not confer unstructured and unlimited discretion on the trier of fact. White, supra at 313, 536 N.W.2d 876.

V. Unconstitutional as Applied

Defendant also argues that the ordinance was unconstitutional as applied to him. We agree.

Fighting words are "words likely to cause an average addressee to fight." See Chaplinsky, supra at 573, 62 S.Ct. 766. The rationale behind the fighting words exception is that certain words or phrases, when directed toward another, may be regulated consistent with the First Amendment because of their constitutionally proscribable content. See RAV, supra at 383

, 112 S.Ct. 2538. The exclusion of fighting words from the scope of the First Amendment simply means that the unprotected features of the words are essentially a nonspeech element of communication subject to state regulation because they do not constitute an essential part of any expression of ideas. See id. at 385, 112 S.Ct. 2538.

According to the police report, which defendant agreed could be used to establish a factual basis for his plea, the children entering the church "were visibly frightened and upset" when defendant told them that "[t]hey kill babies in that church! Why are you going in there?" The message relayed by defendant's words was that babies were killed in the church and that children should not go there. On their face, defendant's words do not appear to have anything to do with abortion. However, accepting that exaggeration and creativity are used to express ideas, we conclude that defendant's comments...