The court voted 4-1 to reverse a lower court decision that had found Marcus Suhn used unprotected fighting words — defined by the U.S. Supreme Court more than 60 years ago as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Marcus J. Suhn yelled a stream of profanities beginning with “Fucking cop” on the sidewalk at 2 a.m. after the bars closed on Sept. 2, 2007, as two police officers were riding down the street in their patrol car. One officer heard Suhn, got out of his patrol car, arrested him and charged him with disorderly conduct.
After a trial court convicted Suhn, he appealed to the South Dakota Supreme Court, which reversed the ruling in its Dec. 30, 2008, opinion in State v. Suhn. The majority, in an opinion written by Justice Judith Meierhenry, examined the origins and development of the “fighting words” doctrine articulated by the U.S. Supreme Court in the 1942 decision Chaplinsky v. New Hampshire. The Court affirmed the conviction of Walter Chaplinsky after he allegedly called a local marshal a “fascist” and a “racketeer,” which the Court held were fighting words unprotected by the First Amendment.
In subsequent decisions, the U.S. Supreme Court narrowed the fighting-words doctrine. In Cohen v. California (1971), the Court declined to apply the fighting-words exception to First Amendment protection in the case of a man who wore a jacket bearing the words “Fuck the Draft” in a California courthouse, holding the phrase to be protected speech. In later decisions — Gooding v. Wilson (1972) and Lewis v. New Orleans (1974) — the Court invalidated convictions of individuals who cursed police officers, finding that the ordinances in question were unconstitutionally overbroad.
Analyzing this development, Meierhenry wrote that “the United States Supreme Court has made it clear that in order for speech to fall within the ‘fighting words’ exception, the words by their very utterance have ‘to tend to incite an immediate breach of the peace’ under the circumstances of the case.”
According to Meierhenry, Suhn’s profanity about the police did not “tend to incite an immediate breach of the peace,” as the other people standing on Main Street did not react with any type of violence.
“The crowd merely responded with facial expressions of disbelief,” he wrote. “Just because someone may have been offended, annoyed, or even angered by Suhn’s words does not make them fighting words.”
In dissent, Justice Richard W. Sabers characterized the context of the case differently, referring to “the crowd in this mob-like setting.” He reasoned that “the facts of this case are such that defendant’s speech tended to incite a breach of the peace.”