 Author: Attorney Philip B. Adams
The constitutionality of La. R.S 14:103A(2) is a nuanced issue that calls for considerable analysis. On its face, Louisiana Revised Statutes 14:103A(2) Disturbing the Peace (through use of profane words), as of 2019, reads as follows: “A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: … (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or … Amended by Acts 1960, No. 70, §1; Acts 1963, No. 93, §1; Acts 1968, No. 647, §1; Acts 1979, No. 222, §1; Acts 2006, No. 805, §1; Acts 2013, No. 30, §1, eff. May 29, 2013.” A statute (i.e., “law”) can be unconstitutional on its face (i.e., in its entirety) and/or unconstitutional as applied to the context of a particular person’s case. I believe that Louisiana Revised Statutes 14:103A(2) is unconstitutional on its face and as applied. For the purpose of illustration, consider the following hypothetical fact pattern. Suppose a law enforcement officer is told by a person “You’re an asshole.” because that person is upset by something the officer did. That person doesn’t scream and yell these words in public. He simply mutters these words in a normal tone of voice in the presence of the officer. Enraged by what he perceives as an affront to his authority, the officer handcuffs the person for having violated Louisiana Revised Statutes 14:103A(2)(Disturbing the Peace Through Profane Words), thereby arresting him. That person is then transported to jail. Can that person be validly prosecuted under La. R.S. 14:103A(2)? In other words, is it constitutional to arrest an individual under such a fact pattern? The following legal analysis will explore this interesting question in detail. The constitutional guarantee of freedom of speech forbids the States from punishing the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), “(i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP ‘ Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. Great care must be taken in the regulation of spoken words to punish only classes of speech not protected by the First and Fourteenth Amendments to the United States Constitution, viz., “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words—those which by their very utterance inflict injury and tend to incite an immediate breach of the peace.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Only “fighting words-those which by their very utterance inflict injury and tend to incite an immediate breach of the peace,” are punishable. White v. Morris, 345 So.2d 461 (La.1977), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Words not considered “fighting words” are constitutionally protected expressions. In addition, when such words are addressed to a police officer, the State must produce a stronger showing that the words are such as to incite the addressee to an immediate breach of the peace. City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979); White v. Morris, supra; State in Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984). As found by the court in Lyons, supra, police officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). Statutes must be carefully drawn or authoritatively construed so as to be insusceptible of application to protected expression; failing this, they are unconstitutionally overbroad. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). La. R.S. 14:103A(2) currently punishes only spoken words. It can therefore withstand a facial constitutional attack only if, as authoritatively construed by the courts of Louisiana, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments to the Constitution of the United States. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 284 (1972). Even if the statute was construed as punishing conduct, conduct is often a means of expression, and the same analysis would apply. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 408 (1972). “It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when ‘no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,’ Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,‘ id., at 486, 85 S.Ct., at 1121. . . .” Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. Id. Only a statute that is substantially overbroad may be invalidated on its face. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, supra. “We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application....” Id., at 630, 93 S.Ct., at 2925 (Brennan, J., dissenting). Instead, “[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Kolender v. Lawson, 461 U.S. 352, 359, n. 8, 103 S.Ct. 1855, 1859, n. 8, 75 L.Ed.2d 903 (1983). Criminal statutes must be scrutinized with particular care, e.g., Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948); those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. E.g., Kolender, supra, at 359, n. 8, 103 S.Ct., at 1859, n. 8. In Adams, the Louisiana Supreme Court struck down an earlier version of La. R.S. 14:103A(2). State v. Adams, 263 La. 286, 288, 268 So. 2d 228, 228 (1972). In that case, the defendant moved to quash a bill of information on the ground that the statute La.R.S. 14:103A(2) was unconstitutional and void on its face. Adams was charged with violating La. R.S. 14:103A(2) in that he: “did use unnecessarily loud, offensive and insulting language in such a manner as would foreseeably disturb and alarm the public.” The trial judge ordered that the information be quashed, and the State appealed. Id. The Louisiana Supreme Court held that La.R.S. 14:103(A)(2) on its face subjected persons exercising their constitutional right of expression to fear of criminal sanctions and was a curtailment of that right. Therefore, the statute was declared unconstitutional as being overly broad, and the trial court’s judgment that quashed the bill of information was upheld. Id. at 229. In Ganch, a Bill of Information was filed charging defendants with disturbing the peace in violation of La. R.S. 14:103A(7), as it read at the time, in that they “committed an act in such a manner as would foreseeably disturb and alarm the public.” State v. Ganch, 263 La. 251, 253, 268 So. 2d 214, 215 (1972). The information was quashed on motion of the defendants on the grounds that the statute under which they were charged was unconstitutional on its face. The State appealed. Id. Ultimately, the Court held that the statute on its face was susceptible of application to expression protected by the Louisiana Constitution (Art. 1, Sec. 3) and the First Amendment of the U.S. Constitution. Id. at 254. In Gooding v. Wilson, the United States Supreme Court struck down a Georgia state statute in its entirety. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972). The Georgia statute in question provided that “(a)ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor” and had not been narrowed by the Georgia courts to apply only to “fighting” words “which by their very utterance . . . tend to incite an immediate breach of the peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031. Id. at 1104. The defendant in the case had been convicted for saying to a police officer, who was attempting to restore access to a public building, “White son of a bitch, I’ll kill you” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” Id. at 1112. The United States Supreme Court set aside the defendant’s conviction because the Georgia state statute was unconstitutionally overbroad and vague on its face in violation of the First and Fourteenth Amendments. Id. at 1103. The dictionary definitions of words like “opprobrius”, “abusive”, and “breach of the peace” in the statute indicated that the statute swept too broadly and made it a crime merely to speak offensive words to someone who hears them. Id. at 1106-1108. In Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), the United States Supreme Court held invalid, because it violated the First and Fourteenth Amendments of the United States Constitution, an ordinance that declared it unlawful and a breach of the peace for any person “wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.” There was a mother in a pickup truck following a police car which was taking her son to the station after his arrest. A second police car stopped the truck, and the mother and the policeman from this car confronted each other. The policeman arrested her for violating the above ordinance when she “started yelling and screaming (about her son) and . . . wanted to know where he was . . . (She called the policeman) ‘you god damn m.f. police—I am going to (the Superintendent of Police) about this.’” See footnote one, at 131, 94 S.Ct. 971. The Louisiana Supreme Court held the quoted language to be in the category of “fighting words” and therefore outside the protection of permissive free speech afforded by the First Amendment. However, the Supreme Court of the United States held the ordinance in question to be “constitutionally overbroad” in that it could be applied to protected speech and reversed the conviction since the statute was void on its face. In reaching this result, the U.S. Supreme Court, however, did not pass on whether the statute was unconstitutional as applied (i.e., whether the quoted language was properly categorized by the Louisiana Supreme Court as not being protected speech) because it noted that it was “immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance.” See at 133, 94 S.Ct. 972. However, in a concurring opinion, one Justice reached the issue of the character of the quoted language in these words: “It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’ (Gooding v. Wilson), 408 U.S. 913, 92 S.Ct. 2499, (33 L.Ed.2d 321). See Model Penal Code s 250.1, Comment 4 (Tent. Draft No. 13, 1961).'” At 130, 135, 94 S.Ct. 970, 973. Indeed, the majority opinion of the U.S. Supreme Court noted in a footnote that trained police officers were held by some authorities to a “higher degree of restraint than the average citizen” in avoiding physical retaliation even to “fighting words.” See Footnote two, at 132, 94 S.Ct. 972. Relying upon Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the United States Supreme Court found that the statute under consideration, by its terms, was not limited to words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 972. Since the proscribed conduct was not limited to fighting words that constituted an exception to freedom of expression, the statute was found facially overly broad and constitutionally impermissible because it was susceptible of application to protected speech. In our hypothetical fact pattern discussed in the beginning of this analysis, our defendant has been charged with violating La. R.S. 14:103A(2), Disturbing the Peace, which reads as follows: “A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: … (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty[.]” La. R.S. 14:103A(2) on its face subjects persons exercising their constitutional right of expression to fear of criminal sanctions and is a curtailment of that right. The Louisiana Supreme Court has not limited the statute in application to expression which is not protected by the Louisiana Constitution under Article 1, Section 3 and the First Amendment and Fourteenth Amendment of the U.S. Constitution; in other words, La. R.S. 14:103A(2) has not been limited in application to “fighting words” or those which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The broad and vague dictionary definitions of words like “offensive”, “derisive”, “annoying”, “noise”, and “exclamation” in the statute indicate that the statute is substantially and frighteningly overbroad and makes it a crime merely to speak words to someone who hears them and disapproves of them. In fact, the language of La. R.S. 14:103A(2) is remarkably similar to statutory language found to be overbroad and vague in cases like Adams, Ganch, Gooding, and Lewis, supra. Given its wording, La. R.S. 14:103A(2) is broadly susceptible of application to protected speech and because the statute reaches such a substantial amount of protected speech, it is facially unconstitutional. Even if La. R.S. 14:103A(2) is not facially unconstitutional, it is unconstitutional as applied within the context of our hypothetical for the reasons that follow. In Fields, Deputy Fields and Marshal Wright testified that Peggie Dunn used profane language (without specifying what words) in her initial statement toward the officers. Malone v. Fields, 335 So. 2d 538, 541 (La. Ct. App. 1976). Without resolving the issue of fact, the appellate court assumed that her language did contain some curse words. Id. After citing observations of higher courts on the issue of freedom of speech, the appellate court also stated that it did not view the language and the actions of Mrs. Peggie Dunn as constituting either the crime of resisting an officer (R.S. 14:108) or the crime of criminal mischief (R.S. 14:59). Id. at 543. In a later case, the Louisiana Supreme Court, after considering Lewis, supra, held that Section 42—24(5) of the Code of the City of New Orleans that referred to “obscene, abusive (and) insulting” language was unconstitutional. City of New Orleans v. Lyons, 342 So. 2d 196 (La. 1977). Section 42—24(5) provided that “Disturbing the peace is the intentional performance of any of the following acts: …(5) Using obscene, abusive or insulting language directed to or in the presence of any police officer who is performing his duty in making an arrest, detaining, or questioning any person.” The court held that Section 42—24(5) was broad enough to cover words which do not “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In other words, the statute covered not just “fighting words”, which are not protected speech, but also covered protected speech. The words (“S____” and “F_____ Y______.”) uttered by the defendant in that case to an arresting officer when analyzed in context, were found to be protected speech. There was no evidence to show, nor did the context suggest, that the defendant's remarks tended to incite the police officer to an immediate breach of the peace. In fact, when such words are addressed to an officer, the court found that one would normally contemplate the need for a stronger showing that the words tend to incite the addressee to an immediate breach of the peace. Thus, there was lacking in that case the clear and present danger necessary in order to justify the state's interference with defendant's right to speak freely. Id. at 198. In Morris, the Louisiana Supreme Court addressed whether a boy’s refusal to identify himself or his response to an inquiring officer that he did not have to “give no damn I.D.” provided grounds for a legal arrest. White v. Morris, 345 So. 2d 461, 463 (La. 1977). The lower court of appeal had already ruled that the defendant's action in cursing the deputies constituted a clear violation of La. R.S. 14:59(7), which provided at the time that “Criminal mischief is the intentional performance of any of the following acts: …(7) Acting in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others”. After referencing City of New Orleans v. Lyons, supra, the Louisiana Supreme Court reiterated that abusive and profane words directed towards police were constitutionally protected speech. The Louisiana Supreme Court ultimately held that La. R.S. 14:59 was inapplicable to the defendant’s conduct and that his arrest could not be justified on that ground or any other ground. Id. at 465. In Norrell, Norrell told the police officer, who might have had sufficient reasonable suspicion under C. Cr. Proc. Art. 215.1 to demand an explanation of what Norrell was doing sitting near the ditch in a residential area before daylight, to “get the g_____ d_____ m_____ f_____ [light] out of my eyes” and when the officer told the defendant to stand up, the defendant stated “F___ Y___” to the officer. Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979). The Second Circuit noted in Norrell that the cursing of a police officer by a citizen does not justify an arrest for disturbing the peace, for resisting an officer, or for criminal mischief: “[Norrell's words and] actions may have justifiably angered the officer as an affront to his authority, [but this] did not constitute criminal activity.” Id. at 161. In State in the Interest of W.B., the Chief of the Winnsboro City Police responded to a call about a disturbance at the home of a woman. State in the Interest of W.B., 461 So.2d 366, 367 (La.App. 2d Cir.1984). When he got ready to depart, he saw several people, including W.B., in the back of a yard across the street. The chief approached, and an argument ensued between the chief and W.B. in which W.B. extensively cursed the chief, including calling him a “G_____ D_____ white M_____ F_____”. Id. at 367-368. The Second Circuit held that W.B.’s words were within the realm of protected free speech and not within the “fighting words exception” to constitutionally protected freedom of speech and for that reason did not constitute criminal activity. Id. at 369. In Woolverton, a defendant was charged by bill of information with a violation of La. R.S. 14:103A(2) in that: “he did willfully and unlawfully disturb the peace using obscene, abusive and threatening language, in such a manner as would foreseeably disturb and alarm the public…” State v. Woolverton, 474 So. 2d 1003, 1005 (La. Ct. App. 1985). At the time of the offense, La. R.S. 14:103A(2) provided in pertinent part: “A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: … (2) Addressing any offensive, derisive or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business, occupation or duty....” Id. Deputy Bradley and Deputy Ragsdale testified that Mr. Woolverton caused a disturbance during an eviction by being “argumentative”, by “complaining”, by “cursing” the officers, by not “shut[ing] up”, and by “using a little profanity.” Id. at 1005-1006. Accordingly, the deputies placed him under arrest. Id. at 1005. Citing First and Fourteenth Amendment case precedent by the United States Supreme Court and case precedent by the Louisiana Supreme Court, the Fifth Circuit Court of Appeal for Louisiana reversed Mr. Woolverton’s conviction for La. R.S. 14:103A(2) because it found that the defendant’s behavior did not constitute sufficient cause for his arrest for disturbing the peace, and thus the State failed to prove beyond a reasonable doubt the elements of the crime charged. Id. at 1006. In Hill, a defendant was charged for violating an ordinance by shouting at police in an attempt to divert their attention from his friend during a confrontation. City of Houston, Tex. v. Hill, 482 U.S. 451, 451, 107 S. Ct. 2502, 2504, 96 L. Ed. 2d 398 (1987). The ordinance made it unlawful “for any person to…in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” Code of Ordinances, City of Houston, Texas Section 34—11(a) (1984). Ultimately, the United States Supreme Court struck down the ordinance as being unconstitutionally overbroad under the First Amendment. Id. In its reasoning, the Court reflected that “Today's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are mindful that the preservation of liberty depends in part upon the maintenance of social order. Cf. Terminiello v. Chicago, supra, 337 U.S., at 37, 69 S.Ct., at 910 (dissenting opinion). But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.” Id. at 471-472. In Cox, defendants were convicted of city ordinance misdemeanor charges for disturbing the peace and resisting arrest, but the defendants appealed. City of W. Monroe v. Cox, 511 So. 2d 1200, 1200 (La. Ct. App. 1987). The Louisiana Second Circuit Court of Appeal found that the language of the city ordinances was similar to the language of La. R.S. 14:103A(2) & 108. Id. West Monroe Police Officer Perkins testified that he had written one or more offense tickets arising out of a traffic violation by Paul D. Cox about 9:00 p.m. before the incident occurred the next morning that resulted in the charges that were the subject of the appeal. About 2:30 a.m. the next morning, Perkins was alone in the radio room of the police station working in relief of the radio operator when Paul Cox and his brother, Bill, entered the public lobby of the station and walked up to the counter. Perkins left the adjacent radio room and walked to the opposite or private side of the counter to answer their inquiries. The counter was 25 feet from the front door of the station. Perkins related his version of the incident: “[Paul Cox] said he wanted my name and I told him it was on ... my report, which he could get a copy of. And, he said he ... didn't want to wait for the report, he wanted my name, so I gave it to him. What was his response ...? I think he asked me how to spell [my name] ... And then he said ... ‘I'm going to have you up on charges bubba’ ... I said I didn't care. And what did he say? [He said] ‘Shove it up your goddamn ass,’ and [he] turned around and walked out. ... [His words] annoyed me. What did you then do? Had to go outside the police station to, to try, he was walking out and I went outside the police station to stop him and arrest him ... for loud and profane language ... disturbing the peace. ... Well, he was already, there's two doors out, there an inner door and an outer door. He was at the outer door just outside of it. As I came through, I told him, hold it, he was under arrest. ... [f]or cussing, That's what I said, for cussing. I didn't say loud and profane language, I said cussing.” Id. at 1201. Ultimately, after citing First Amendment case precedent, the Second Circuit Court of Appeals found that the defendant’s actions did not constitute the crime of disturbing the peace. Id. at 1203. In McCoy, a defendant was charged by separate bills of information with disturbing the peace, in violation of La. R.S. 14:103A(2) and (3), and with resisting an officer, in violation of La. R.S. 14:108. State v. McCoy, 546 So. 2d 240, 241 (La. Ct. App. 1989). At the time of the defendant’s arrest, La. R.S. 14:103 read as follows: “§ 103. Disturbing the peace A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public: … (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or (3) Appearing in an intoxicated condition * * *.” Id. at 242. At trial, the officers testified that the defendant used “profanity and vulgarity.” The only phrases they reported to the trial court were “m----- f-----” and “damn.” Ultimately, the Second Circuit Court of Appeal for Louisiana held that the State failed to prove that the phrase “m---- f-----” was addressed to anyone and thus could not meet an essential element of La. R.S. 14:103A(2) that prohibited words addressed “to any other person.” Id. at 243. However, the Second Circuit also stated that even if it were to conclude that the phrase “m---- f----” was addressed to the deputies, it would fall into a category of constitutionally protected speech. See Footnote 1 of the opinion. In Murray, Mr. Murray was arrested and charged with disturbing the peace and flight from an officer. Murray v. Town of Mansura, 2006-355 (La. App. 3 Cir. 9/27/06), 940 So. 2d 832, 839, writ denied, 2006-2949 (La. 2/16/07), 949 So. 2d 419. Disturbing the Peace was defined in part at the time as “[T]he doing of any of the following in such manner as would foreseeably disturb or alarm the public: .... (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty[.]” Id. at 839-840. Chief Lucas testified at trial that Mr. Murray was “aggressive” in his actions and that he “cursed”, but he did not testify as to the specific language Mr. Murray used. Id. at 840. In light of the jurisprudence regarding the higher standard applicable to police officers with regard to insulting language and the First Amendment, the Third Circuit Court of Appeal found no error with the trial court’s conclusion that Chief Lucas did not have probable cause to arrest Mr. Murray with respect to his actions and language in relation to Chief Lucas or his officers. Id. In our hypothetical fact pattern, our defendant was arrested for violating La. R.S. 14:103A(2) because he muttered “You’re an asshole.” to a police officer. He did not make a physical threat or take physical action towards the officer. He simply became flustered and uttered a curse word to the officer. In response, the officer got angry because of an affront to his authority and took the defendant into custody. Essentially, the basis for our defendant’s arrest was because he used the word “asshole.” The expletive “asshole” that he used is mild and arguably even less offensive in comparison to speech that has been upheld as being protected in numerous other cases: City of New Orleans v. Lyons (“S____” and “F_____ Y______.” to arresting officer), supra; Morris (a boy’s response to an inquiring officer that he did not have to “give no damn I.D.”), supra; Norrell (the defendant stated to the officer to “get the g_____ d_____ m_____ f_____ [light] out of my eyes” and when the officer told the defendant to stand up, the defendant stated “F___ Y___” to the officer), supra; State in the Interest of W.B. (defendant extensively cursed the police chief, including calling him a “G_____ D_____ white M_____ F_____”), supra; Woolverton (defendant caused a disturbance during an eviction by being “argumentative”, by “complaining”, by “cursing” the officers, by not “shut[ing] up”, and by “using a little profanity”), supra; Cox (defendant stated to police officer to “Shove it up your goddamn ass”), supra; McCoy (appellate court noted that even if the words “m----- f-----” and “damn” had been specifically addressed to deputies, those words would have been protected speech), supra; Murray (no probable cause to arrest even though defendant was “aggressive” and “cursed”), supra. The use of the word “asshole” in the hypothetical situation described falls within constitutionally protected speech. As found by the court in Lyons, supra, and other cases, police officers are expected to exercise more restraint than others, and insulting language towards them is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. The events in the hypothetical constitute at best a mild affront to the officer’s authority and not a valid crime, especially given the higher standard of restraint law enforcement officers are expected to exercise. To hold otherwise would criminalize even mild verbal disapproval of police action and erode vital and significant First Amendment freedoms. Given the facts of this particular hypothetical and existing case law, our hypothetical defendant’s actions and words undoubtedly fall within protected speech. Accordingly, La. R.S. 14:103A(2) is unconstitutional as applied within the context of this case. As you can see from the above analysis, determining whether a law is unconstitutional in a criminal context is complex. Do not allow your free speech rights to potentially be violated. If you or someone you know has been arrested for having violated Louisiana Revised Statutes 14:103A(2), you may need legal advice. Comments are closed.
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