Welfare of S. L. J., Matter of

Citation263 N.W.2d 412
Decision Date17 February 1978
Docket NumberNo. 47186,47186
PartiesIn the Matter of the WELFARE OF S. L. J.
CourtSupreme Court of Minnesota (US)

Syllabus by the Court

1. That part of our disorderly conduct statute, Minn.St. 609.72, subd. 1(3), as construed in this opinion is not unconstitutionally vague or overly broad when limited to authorizing punishment only for spoken "fighting words" "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" or which, under the circumstances surrounding their utterance, are "inherently likely to provoke violent reaction" or have "the immediate tendency to provoke retaliatory violence or tumultuous conduct by those to whom such words are addressed."

2. Under the facts and circumstances surrounding the utterance of vulgar, offensive, and insulting words by appellant, a 14-year-old girl, directed at police officers, a finding of delinquency based upon appellant's conviction for disorderly conduct in violation of § 609.72, subd. 1(3), cannot stand when the state has failed to prove that under the circumstances the words uttered were fighting words.

Carolyn F. Rusch, Legal Asst. of Ramsey County, Inc., St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.

Heard before SHERAN, C. J., and ROGOSHESKE, PETERSON, TODD, WAHL and IVERSON, JJ., and considered and decided by the court en banc.

ROGOSHESKE, Justice.

This is an appeal from an order of the juvenile division of the district court which confirmed a referee's finding of delinquency based on a conviction for disorderly conduct under Minn.St. 609.72, subd. 1(3), for saying "fuck you pigs" to two police officers. Because we find that the conviction for disorderly conduct cannot stand under § 609.72, subd. 1(3), as narrowly construed to punish only "fighting words," we reverse the finding of delinquency.

On August 13, 1975, at about 9:30 p. m., appellant, S. L. J., a 14-year-old girl, and her friend of the same age were questioned by two police officers who had just apprehended some teenage boys for paint sniffing. Based only on a hunch that the girls were somehow involved in either the original crime or the taking of the boys' bicycles, they were questioned about the whereabouts of the bicycles, the identities of the apprehended boys, and their own identities. According to appellant's testimony, Officer Anderson, one of the officers involved, also threatened to take them to the police station and then informed them that they had better hurry home because it was past their curfew.

After starting down the alley, appellant and her friend, at a point somewhere between 15 and 30 feet from the squad car in which the officers were sitting, turned and said to them "fuck you pigs." The officers conferred and then pursued the girls down the alley and arrested them for disorderly conduct under § 609.72, subd. 1, which reads as follows:

"Whoever does any of the following in a public or private place, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

"(1) Engages in brawling or fighting; or

"(2) Disturbs an assembly or meeting, not unlawful in its character; or

"(3) Engages in offensive, obscene, or abusive language or in boisterous and noisy conduct tending reasonably to arouse alarm, anger, or resentment in others."

A petition was filed in juvenile court alleging that appellant was a delinquent person because she

"* * * did wrongfully and unlawfully engage in offensive, obscene or abusive language at Greenbrier and Case Sts., a public place, knowing or having reasonable grounds to know that such conduct would or would tend to arouse resentment in others." (Italics supplied.)

At the trial before a referee of juvenile court, Officer Anderson testified that he was "mad" and "upset" at the words used by the girls:

"I was mad. I was upset. They didn't have any right to say that to me. One of the thoughts that went through my head, I have a daughter four years younger. Should my daughter say something like that to an officer or anybody I'd be upset and ashamed as a parent. It would bother me."

During cross-examination, Officer Anderson admitted that he had received some sensitivity training on how to respond to name calling, and that, although angry, he did not react violently in this case or even consider such behavior because of the speaker's age, sex, and relative size. Appellant testified that she was upset by the officers' questions, but that she had not expected them to react to her remark.

The matter was continued to permit the parties to submit briefs on the constitutionality of the statute. After a hearing, the referee found that appellant was a delinquent. The juvenile court, in confirming this finding of delinquency, credited the testimony of the police officer over that of the child and concluded that the officer had suffered "resentment," a conclusion that is binding on this court unless clearly erroneous.

The issues presented for decision in this appeal are: (1) Whether § 609.72, subd. 1(3), is unconstitutionally overly broad or vague on its face under the First and Fourteenth Amendments of the United States Constitution; (2) whether the statute can be narrowly construed to sustain its constitutionality; and (3) whether the evidence supports appellant's conviction for disorderly conduct 1 under the statute as narrowly construed.

We are confronted for the first time with a constitutional challenge to § 609.72, 2 which was adopted in 1963 as part of the revision of Minnesota's criminal laws. Clause (3) of § 609.72, subd. 1, under which appellant was charged, replaced Minn.St.1961, § 615.15, which read as follows:

"Any person who shall use in reference to and in the presence of another, or in reference to or in the presence of any member of the family of another, abusive or obscene language, intended, or naturally tending to provoke an assault or any breach of the peace, shall be guilty of a misdemeanor."

Although the authors of the revision recognized that "the crime of disorderly conduct is commonly used by the police against those unable to defend themselves," Advisory Committee Comment, 40A M.S.A. p. 63, the statute as rewritten broadened, rather than narrowed, police discretion.

Whenever offensive language is the basis of a criminal charge, the court must determine whether that language is protected speech under the First and Fourteenth Amendments of the United States Constitution. Although this case arises in state court, state courts have a duty imposed by U.S.Const. art. VI, clause 2, to protect their citizens' enjoyment of Federal as well as state rights. As noted in Mr. Justice Douglas' dissent in Karlan v. City of Cincinnati, 416 U.S. 924, 928, 94 S.Ct. 1922, 1925, 40 L.Ed.2d 280, 281 (1974):

"* * * Under our constitutional scheme, federal courts were not designated as the only protectors of federal rights. Article VI, Clause 2, expressly directs that the 'Constitution, and the Laws of the United States * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' Thus '(s)tate courts are bound equally with the federal courts' to protect federal rights. * * * The decisions of this Court are to guide state courts in the exercise of this duty."

The fact that the words used by appellant are vulgar, offensive, and insulting, and that their use is condemned by an overwhelming majority of citizens does not make them punishable under the criminal statutes of this state unless they fall outside the protection afforded to speech by the First Amendment. 3

To be a constitutional exercise of the police power of the state, a statute that punishes speech must be neither overly broad nor unduly vague. The United States Supreme Court has more vigilantly scrutinized statutes that regulate speech than those that control only conduct because vague and overly broad statutes threaten both to ensnare the unwary who are not provided with fair notice of what behavior is prohibited and to curtail protected speech by those fearful of violating the law. Thus, the court has required statutes proscribing speech alone to be more narrowly and specifically drawn.

Appellant alleges that § 609.72, subd. 1(3), is unconstitutional on its face because it is both vague and overly broad. The rationale of the void-for-vagueness doctrine was set out in Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972):

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to ' "steer far wider of the unlawful zone" * * * than if the boundaries of the forbidden areas were clearly marked.' "

See, also, Papachristou v. City of Jacksonville, 405 U.S. 156, 92...

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