In re Nickolas S.

• Decision Date: 10 January 2011
• Docket Number: No. CV-10-0092-PR.,CV-10-0092-PR.
• Citation: 226 Ariz. 182,245 P.3d 446
• Parties: In re NICKOLAS S.
• Court: Arizona Supreme Court

245 P.3d 446

226 Ariz. 182

In re NICKOLAS S.

No. CV-10-0092-PR.

Supreme Court of Arizona.

Jan. 10, 2011.

Christina M. Phillis, Maricopa County Juvenile Public Defender By Ellen Edge Katz, Deputy Juvenile Public Defender, Phoenix, Attorneys for Nickolas S.

Maricopa County Attorney's Office By Linda Van Brakel, Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

OPINION

BALES, Justice.

¶ 1 Nickolas S. was adjudicated delinquent for violating Arizona Revised Statutes ("A.R.S.") section 15-507 (2009), which makes it a crime for a person to "knowingly abuse[ ]" teachers or other school employees. The court of appeals held, and the State does not contest, that when pure speech is involved, the statute applies only to "fighting words." The limited issue before us is therefore whether this case involves fighting words as defined by the United States Supreme Court. Although Nickolas insulted a teacher with derogatory and offensive words (and was suspended from school for doing so), we must vacate his juvenile adjudications because his words were not inherently likely to provoke a violent reaction by the teacher.

I.

¶ 2 Nickolas was adjudicated delinquent for two counts of violating A.R.S § 15-507. The first count concerned an incident when Nickolas was assigned to a classroom for students serving on-campus suspension. Nickolas refused to give the teacher his cell phone after she saw him using it in class. She called security, and Nickolas said "bitch" under his breath.

¶ 3 The second count stemmed from an incident two days later involving the same teacher. Nickolas asked to be sent to another classroom. The teacher told him to wait while she obtained administrative approval. After ten or fifteen minutes, Nickolas yelled, "This is stupid, I want to go to [Room] 205." The teacher again asked him to wait. Nickolas began playing with his cell phone. When the teacher told him to put it away, he refused and began arguing. Other students noticed the disruption and some stood up; the teacher testified that the "whole room basically lost control." Nickolas yelled "This is fucking bull shit" and "You're a fucking bitch" while looking at the teacher in a challenging manner from about ten feet away. Disregarding his teacher's instructions, Nickolas left the classroom, yelling "Fucking bitch" and "You stupid bitch." When the teacher looked out the door to see where hewas going, he shouted "Get away from me you fucking bitch."

¶ 4 Nickolas was suspended from school for ten days for his outbursts. Apart from his suspension, Nickolas was also charged with violating A.R.S § 15-507. At his adjudication hearing, Nickolas did not dispute the facts but argued that his speech was protected by the First Amendment. The juvenile court rejected this argument, adjudicated him delinquent on both counts, and placed him on summary probation.

¶ 5 The court of appeals vacated the adjudication for the first incident but affirmed as to the second. In re Nickolas S., 224 Ariz. 52, 59 ¶ 29, 226 P.3d 1038, 1045 (App.2010). Noting that A.R.S. § 15-507 may encompass constitutionally protected speech, and thus is facially overbroad, the court of appeals held that the statute could be constitutionally applied in cases involving speech only if it is narrowed to fighting words—"[t]hose personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Id. at 58 ¶¶ 22-23, 226 P.3d at 1044 (citation omitted). The court concluded that the first incident, when Nickolas said "bitch" under his breath, could not support a delinquency charge under A.R.S § 15-507. Id. at 58-59 ¶ 25, 226 P.3d at 1044-45. The court concluded, however, that the second incident was one in which "a reasonable person in these circumstances might well react violently when confronted with such repeated, angry, and personal epithets." Id. at 59 ¶ 28, 226 P.3d at 1045.

¶ 6 Nickolas petitioned for review, arguing that the court of appeals misapplied the fighting words doctrine by focusing on the theoretical reaction of a hypothetical reasonable person instead of the likely reaction of the teacher addressed by the speech. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶ 7 Before we turn to the precise issue presented, "it is useful first to canvass various matters which this record does not present." Cohen v. California, 403 U.S. 15, 18, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

A.

¶ 8 This case does not concern the propriety of school discipline. Although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), schools may discipline students for certain speech that would be constitutionally protected if made by non-student speakers outside a school setting, see, e.g., Morse v. Frederick, 551 U.S. 393, 409-10, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (upholding discipline for displaying, at a school-sanctioned event, a banner encouraging illegal drug use); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)(upholding discipline for a student's "offensively lewd and indecent speech" at a school assembly). Nickolas acknowledged below that his conduct was appropriately subject to school discipline, and he has not challenged his ten-day suspension. Recognizing that a school may discipline a student for a profanity-laced classroom outburst, we need not here address more generally the constitutional limits on school discipline for student comments.

¶ 9 We also do not consider the application of other criminal statutes to conduct like that displayed by Nickolas. Arizona's criminal code includes provisions that not only punish threats, intimidation, assaults, and disorderly conduct in general, but also more specifically prohibit assaults and disruptive conduct in schools. See A.R.S. §§ 13-1202 (threatening and intimidation), -1203 (assault), -1204(A)(8)(d) (aggravated assault of school employee), -2904 (disorderly conduct), -2911 (interference with or disruption of educational institution). Consistent with the First Amendment, states and local governments may impose criminal sanctions under narrowly drawn statutes for conduct that disrupts classrooms or other school activities. See Grayned v. City of Rockford, 408 U.S. 104, 118-19, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Nickolas, however, wasnot charged with violating any statute targeting the disruption of school activities.

B.

¶ 10 Nickolas was instead charged with violating A.R.S. § 15-507, which appears among Arizona's education statutes and provides:

A person who knowingly abuses a teacher or other school employee on school grounds or while the teacher or employee is engaged in the performance of his duties is guilty of a class 3 misdemeanor.

¶ 11 Although § 15-507 has a long history that predates statehood, this Court has never interpreted its scope. When first adopted, the statute made it a crime for a person to "insult or abuse any teacher in the presence of the school." 1901 Territorial Code § 606; see also Ariz. Penal Code, tit. XIV, § 696 (1913) (same). In 1978, the statute was expanded to make it unlawful for a person to "knowingly insult[ ] or abuse[ ] a teacher on school grounds or while the teacher is engaged in the performance of his duties." 1978 Ariz. Sess. Laws, ch. 201, § 255. The legislature last amended the statute in 1989 by deleting the proscription on "insults" while extending the statute to prohibit the "abuse" not only of teachers but also other school employees. 1989 Ariz. Sess. Laws, ch. 124, § 1.

¶ 12 We have no occasion here to conclusively define the reach of A.R.S. § 15-507. The court of appeals held, and the State does not dispute, that Nickolas was prosecuted based solely on his speech. Nickolas did not argue below that the statute does not apply to pure speech, an interpretation that could be supported by the fact that the 1989 amendment deleted the word "insults" from the statute. The State, without advocating this interpretation, acknowledged before this Court that the history of A.R.S. § 15-507 may reflect an intent by some legislators to limit the statute to cases involving physical abuse. We assume, but do not decide, that the current statute may apply to certain speech absent any physical abuse.

¶ 13 But if the statute does apply to pure speech, the question then becomes "what kind of speech?" The First Amendment bars states from punishing "the use of words or language not within 'narrowly limited classes of speech.' " Gooding v. Wilson, 405 U.S. 518, 521-22, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). The limited categories of unprotected speech include fighting words. Id. at 523, 92 S.Ct. 1103; see also United States v. Stevens, --- U.S. ----, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (discussing traditional categories of unprotected speech). A "statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression." Gooding, 405 U.S. at 522, 92 S.Ct. 1103.

¶ 14 Nickolas argued below that A.R.S. § 15-507 is unconstitutionally overbroad and vague. The court of appeals held that Nickolas has standing to assert these constitutional challenges and that the statute is overbroad, but that the statute could withstand a First Amendment challenge if it is limited to fighting words in cases involving pure speech. 224 Ariz. at 58 ¶ 22, 226 P.3d at 1044. The State has not challenged the court of appeals' holding regarding standing, and we therefore today assume Nickolas has standing to raise the overbreadth argument. Cf. State v. W. Union Fin. Servs., Inc., 220 Ariz. 567, 569 ¶ 10, 208 P.3d 218, 220 (...