In June 2020, Brittany Martin attended a Black Lives Matter protest in Sumter, South Carolina. There, she used strong language when speaking to police officers. "Some of us gon' be hurting. And some of y'all gon' be hurting," she said. "We ready to die for this. We tired of it. You better be ready to die for the blue. I'm ready to die for the black."
While Martin did not physically attack officers, she was arrested on June 4 and charged with five counts of threatening the life of a public official and one count of instigating, aiding, or participating in a riot. She was later indicted on a "breach of peace, high and aggravated" charge. According to the Associated Press, the jury acquitted Martin of the riot-related charge and reached no verdict on whether she threatened police officers' lives. The jury only found Martin guilty of "breaching the peace," which is typically punishable by a $500 fine and 30 days in jail. But prosecutors filed the charge as a "high and aggravated" crime, and Martin was ultimately sentenced to four years in prison.
"She's in jail because she talked in America," Sybil Dione Rosado, Martin's trial attorney told the A.P. "She's a dark-skinned Black woman who is unapologetically Black and radical."
Breach of peace laws typically pertain to conduct that is categorically exempted from First Amendment protection, like playing loud music late at night or fighting in public. But they can also cover obscene or abusive language in public spaces. Martin's speech occurred at a protest though, making the situation more difficult to categorize.
However, if Martin's conviction were to be challenged on free speech grounds, it is possible it would still be upheld under the "fighting words doctrine." Many state courts have found that cussing and yelling at police officers is a form of fighting words. While Martin did not curse at the police, the fighting words doctrine does not require speech to be profane. Rather, as Supreme Court Justice Frank Murphy wrote in Chaplinsky v. New Hampshire (1942), fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
It is difficult to know precisely how a court would rule on Martin's speech. "While the Court has invalidated many convictions in fighting words cases, the doctrine remains alive and well in some state courts," law professor David L. Hudson Jr. wrote for the Foundation for Individual Rights and Expression in 2017. "Even so, the cases are all over the map as to whether an individual's profane outbursts cross the line into unprotected fighting words."
Further, Rosado claims that during Martin's trial, the judge did not allow her to explain to the jury that the "high and aggravated" distinction would lead to the possibility of a longer sentence for Martin.
Most state courts prohibit defense attorneys from telling juries the sentencing impact of a guilty verdict. What often results is "the jury decides to split the baby…. They don't like the prosecution, they don't like the case, and they will acquit on a number of charges," Missy Owen, a lawyer who serves on the board of the National Association of Criminal Defense Attorneys, tells Reason, "and then maybe convict on what sounds to be the most minor of charges, which sometimes ends up not being minor at all."
"Ms. Martin's sentence of four years of active time for her conviction of BOPHAN [breach of peace, high and aggravated] is more than four times as long as even the lengthiest sentences for the same offense in the Third Circuit," wrote civil rights lawyer and former South Carolina state lawmaker Bakari Sellers in a memorandum in support of a motion to reconsider Martin's sentence, which was obtained by Reason. "In addition to that disparity, it is worth noting that numerous individuals convicted of federal crimes for violently assaulting police officers while storming the United States Capitol on January 6th, 2021 received lower sentences than Ms. Martin."
Martin is pregnant and due in November. According to the A.P., "Martin said her body 'can't get comfortable with the baby' and as of July, she lost 12 pounds while incarcerated, despite the pregnancy." During her imprisonment, she has twice been rushed to the hospital by ambulance, once due to contractions and another time because she began preterm labor at 25 weeks.
According to Sellers' memorandum, while South Carolina bans the shackling of incarcerated women during childbirth, if Martin remains in prison, South Carolina Department of Corrections policy mandates that she be separated from her newborn within hours of delivery and returned to prison. Her child will be placed into foster care.
All because she talked trash to a cop at a protest against police abuse.