The Volokh Conspiracy

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Free Speech

Racial Slurs Aren't "Obscene"

They thus can't be punished under a disturbing the peace law that bans "obscene language," though under the right circumstances they could be punished under separate provisions that generally ban "fighting words" (whether racially offensive or otherwise).


In Commonwealth v. Bliesath, decided Friday by the Pennsylvania Superior Court (Judge John Bender, joined by Judge Maria McLaughlin, with Judge Daniel McCaffery concurring in the judgment), the defendant had been convicted of disorderly conduct under 18 Pa.C.S. § 5503(a)(3), which covers anyone who, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," "uses obscene language, or makes an obscene gesture." (He was sentences to 90 days' probation.)

The Commonwealth presented evidence that [Appellant] was seen by [City of Reading Police] Officer [Sean] Driscoll yelling at random people in the area of 6th and Penn Streets in the City of Reading. After being asked to stop by the [o]fficer, and failing to do so, the [o]fficer got out of the vehicle and approached [Appellant] to again ask him to stop and ask[ ] for his identification. When the [o]fficer was writing down [Appellant's] information, the [o]fficer observed [Appellant] yell racial slurs and threats at two males walking down the street while the [o]fficer was standing right in front of [Appellant]….

Specifically, Officer Driscoll stated that Appellant "yelled at the people to the southwest corner[, ']shut up you niggers[,'] and then he yelled again[, ']shut up I'm going to kill you because you are niggers[,'] and then he shouted[, ']I have two guns on me.[']"

The appellate court noted that Pennsylvania cases had read "obscene" to mean obscenity in the First Amendment sense—essentially, hard-core pornography. As a result, past precedents have found that, for instance, "chant[ing] 'fuck the police' during a funeral procession of a fallen police officer," "responding 'fuck you, asshole' to a street department employee and accompanying the response with the extension of his middle finger," and saying "go to hell Betsy," all didn't qualify as obscene.

The government's lawyers acknowledged on appeal that,

[I]n this case, [Appellant's] words[,] while obscene under the common parlance, do not fit the statutory definition of obscene from the case law cited above. There is nothing about his use of the derogatory words 'nigger' which appeals to the prurient interest or depicts sexual conduct. Additionally, while [Appellant's] words likely would have qualified to sufficiently fit the crime under subsections (a) as fighting words, or subsection (b) as unreasonable noise[, it] is unfortunately not up for debate as they were not charged. The Commonwealth is tasked with proving the case which it has charged, and that is a result that did not happen here.

And the appellate court agreed:

We appreciate the Commonwealth's candor with this Court, and we concur with the parties that Appellant's conviction must be reversed. Although the trial court found that "[t]he racial slurs" used by Appellant "were clearly [']obscene language['] within [the meaning of] the statute[,]" the court offered no legal authority to support that conclusion. [Pennsylvania caselaw] interprets 'obscene language' in the statute as meaning something that describes a sexual act or appeals to one's prurient interest. Here, the racial slurs spoken by Appellant, although deplorable and highly offensive, do not constitute 'obscene language' under section 5503(a)(3)….