Stream of Slurs, Threats Not Protected Under Constitution

Complainer-Yelling-Phone-into-Man-Person

The SF Chronicle reported this weekend on a decision by the Fourth District Court of Appeal in San Diego affirming that loud, angry, aggressive, and disruptive language is not constitutionally protected speech.

The case, In re Curtis S. (2013) Cal. Super. Ct. No. JCM230237, came on appeal after a conviction in juvenile court of three counts:  1) petty theft (Pen. Code,  § 484); 2) assault (§ 240); and 3) disturbing another person by loud and unreasonable noise (§ 415, subd. (2)). Testimony revealed that Curtis S., a minor, stole a cell phone from another student and was pursued by a good Samaritan who stopped her car in front of Curtis S., preventing him from getting away. He threw the phone into a construction site and then began yelling obscenities and threatening language at the woman. When she attempted to grab his arm to detain him, he swung at her with a closed fist. According to testimony, Curtis S. called someone on his own cell phone during the altercation and said, “you better get this lady, because I’m about to.” Police arrived and arrested Curtis S. for the theft and for threatening the woman.

On appeal, Curtis S. argued that the purpose of his speech was to communicate and that such speech was protected by the First Amendment. Section 415, subdivision (2) makes it a crime for any person to “maliciously and willfully disturb[] another person by loud and unreasonable noise.” The appellate court relying on In re Brown (1973) 9 Cal.3d 612, 621, found that creating a disturbance by making loud noises, shouting obscenities, and making threats verbally is not protected speech.

Further, the Supreme Court has recognized, “the protections afforded by the First Amendment, however, are not absolute, and . . . the government may regulate certain categories of expression consistent with the Constitution.”  (Virginia v. Black (2003) 538 U.S. 343, 358.)  Words may be restricted under the First Amendment where they 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.” ‘ ”  (Id. at pp. 358-359, citing R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382-383.)

In California, when is speech not protected? When it communicates nothing!

“The loud shouting of obscenities and threats was disruptive, rather than communicative in nature.”

Via SF Chronicle.

Read the opinion.

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