The Volokh Conspiracy
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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)….
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Would a disturbing the peace charge have been more appropriate?
What part of “They thus can’t be punished under a disturbing the peace law that bans “obscene language,”” did you not understand?
It’s the first sentence of the article, so you shouldn’t have missed it.
I sense you may have misunderstood the question (which seems to recognize a world beyond subsection 3) and the “answer” (which does not), Mr. Slyfield.
Thank You.
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.
I’m glad they got it right on appeal, but embarrassing for the trial court and commonwealth at the initial level. Even assuming the defendant screwed up the briefing at the trial level, how in the hell did the court conclude that the law “clearly” establishes something that’s not actually in the law? Reads like the 1L method of legal argument– “here’s the statute, it clearly says what I want it to say, I win.”
Jadin Bliesath has escaped accountability for his disgusting conduct in this circumstance (consequent to a charging decision), but I doubt this will bring him much peace or make him anything near a decent or worthwhile person.
He likely is an ardent fan of the Volokh Conspiracy, though, so he has that going for him . . .
As ardent a fan as you?
I am not a member of the Volokh Conspiracy Fan Club. I doubt my application would be submitted or approved.
So you agree with Freud’s comment?
“I never want to belong to any club that would have someone like me as a member”
― Sigmund Freud, Wit and Its Relation to the Unconscious/The History of the Psychoanalytic Movement
Forgive me if I am missing a joke (which I may be!), but isn’t that line generally attributed to Groucho Marx?
Yes, among others.
I like and respect a number of organizations of which I am a member (and plenty of entities of which I am not a member).
I attend Federalist Society events but am not (and do not wish to be) a Federalist Society member.
“Would you like an olive in your martini, Sir?”
– The Reverend at the most recent Federalist Society meeting
Serious question: what do you do at FedSoc events? I thought you would find it stomach churning to contribute to their coffers, by paying the price of admission. But beyond that, do you protest or troll there, or listen to the lectures to get to know “the enemy“ better? I find this revelation surprising and somewhat fascinating. Thanks
I customarily attend with friends who almost always are conservative and sometimes are my former partners.
I listen to the presentation. I occasionally ask a question at or near the conclusion of the presentation, mostly if asked by one of the sponsors to do so. I often receive CLE credit. Sometimes, a meal is served or a reception conducted to conclude the event. Presentation quality is very uneven.
If I do not know the presenter(s) — they range from local lawyers and judges to national figures, at least in the context of conservative legal circles — I generally am introduced before or after the presentation. At least once, I was invited to join a speaker for dinner (and recall a pleasant discussion and meal).
More than once, I have been asked to suggest or invite a speaker for a program (for balance or for subject matter familiarity). In every case I can recall, I have done as asked. I also have helped with an event or two jointly sponsored by the Federalist Society and American Constitution Society.
I vaguely sense that CLE is free at Federalist Society events and payment is collected for meals and perhaps for receptions, but I could be wrong about all of that.
This is clearly right under Supreme Court case law, but if it had been a matter of first impression I’d think it could have gone either way.
I mean, there’s nothing special about sex, so if a court is asked whether racial slurs are obscene without any relevant precedents being available, it may well find that racial slurs are “offensive, rude, or disgusting according to accepted moral standards“.
Hey, how are those Dutch farmer protests going? Not much reportting on it here.
They’re still at it*, but when Trump isn’t expressing his support for the protestors without knowing where the Netherlands is or what they’re protesting about, I can imagine it doesn’t make the news in the US anymore.
* Since the Netherlands is a civilised country, the government has been in talks with representatives of the industry for the last few weeks aiming to resolve their differences. But so far they’re not making a lot of progress.
Any inkling as to how the public feels about this?
I’m originally from the countryside, where support has been overwhelming. Obviously less so in the big cities in the west. When the farmers started going too far, by creating blockades on motorways that were actually dangerous and caused accidents, or more recently by <a href="https://www.dutchnews.nl/news/2022/08/police-investigate-as-a-swastika-is-hung-on-dutch-bridge/"putting up a swastika flag, they lost support among substantial groups of society. Among their base, like my family, people started making a distinction between the “bad apples” and the rest. But even the Farmers Defence Force, the most extremist group of farmers’ representatives, still has a standing invitation to join the talks with the government.
Thanks. I am always suspicious of the appearance of Nazi symbolism at protest events. Too hard to determine if it is a false flag effort to discredit one side, I find it hard to believe that anyone in the Netherlands would think it was a good idea.
Is it possible it was being used to frame the government as being the equivalent of Nazi with their unilateral demands?
O, there’s no question that these protests aren’t exactly being run by the brightest bulbs in the set. They had overwhelming public support and then they did all sorts of things to blow it. And I’m sure those morons would see no contradiction in simultaneously embracing the extreme right and claiming they are victims just like the Jews.
(I was reading a book the other day about the life of Sicco Mansholt, the EU Commissioner who created the post-war EU Common Agricultural Policy, and who also supervised the first attempts to reform it around 1970. Even in 1970 the farmers already took their tractors to The Hague, blocked all the roads, and said they were being oppressed just like the Jews. Those idiots never learn, but then the government keeps humouring them. Because here we are, 50 years later, and the EU still spends almost 30% of its budget subsidising farmers.
“the Netherlands is a civilised country”
“Sukarno has entered the chat”
So your rebuttal to my statement in the present tense is a communist dictator who has been dead for 50 years?
Certainly you are aware that that is how the game is played today.
The Dutch are still calling it a “police action” so you haven’t really reckoned with it at all. Like a civilized country might.
Antifa has started burning down their farms.
“there’s nothing special about sex, ”
Some disagree I guess.
Certainly some gays males who will ride bareback with anyone and as often as possible.
As will some straight males. And some females.
Touche!
“I mean, there’s nothing special about sex,”
Are you sure you’re doing it right?
Define “right”.
Dirty, obviously.
This has nothing to do with Supreme Court case law. This is a straightforward interpretation of Pennsylvania law. And under the relevant PA law, “obscene” is that which “appeals to the prurient interest or depicts sexual conduct” – so yes, there is something special about sex, at least in this context..
The law in question:
“A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”
I might have convicted under item (1) based on the threat to shoot and kill. Or perhaps not because the presence of a police officer made the threat less believable.
Seems to me that “threatening” in (1), (2) or (4) might reasonably apply.
“Fighting words” is a defense for the puncher — the other person said something so outrageous I flipped and popped him.
It does not follow that therefore government may make it illegal to speak such phrases beforehand.
Because then you enter into illegal speech, where an offended reaction dictates illegality. At that point, it becomes another variation on the heckler’s veto. And it will have escaped the contained domains of business and education, out into the wild.
Maybe some of you think censorship can be safely wielded by democracy. History, including living history with tens of megadeaths, clearly show otherwise.
Interesting… (Not the free speech absolutism, that’s plain nonsense, but the question whether the existence of a fighting words defense necessarily implies a right to outlaw fighting words or not.)
Isn’t there Supreme Court case law on this? I’m pretty sure there is.
Regardless, if instances of fighting words result in lawful violence, and if you believe – as I do – that the government’s constitutional duty is to keep the amount of violence to a minimum, not just unlawful violence, then the combination of the two gets you to the conclusion that banning fighting words must be constitutionally permissible. But I agree that it doesn’t say so explicitly anywhere in the constitution. (But then neither does it say that obscenity is not protected.)
There is Supreme Court precedent: Chaplinsky, a 1940s case which held that fighting words were not protected by the 1A, because — notwithstanding Krayt’s personal beliefs about what the law should be — they do tend to provoke an immediate breach of the peace.
(It’s almost quaint: Chaplinsky called the cop who was hassling him a “a goddamned racketeer” and “a damned Fascist,” and these were considered fighting words back in the day.)
Chaplinsky has never been overruled by SCOTUS, but pretty much every court that has applied it since has done so as narrowly as possible. You will see people promiscuously use the term “fighting words” online to attempt to justify censorship, but the doctrine is essentially limited to something you say in person to someone’s face.
In Britain, it used to be the case, and may still be, that you can’t be convicted for breach of the peace if the object of your derision is a cop because it is their duty to keep the peace.
Yeah fighting words over mere racial slurs is clearly unworkable. If, and this is purely hypothetical, some ethnicities on average became violent when racial slurs were uttered and others did not, then the violent ethnicities would enshrine their violence into law– why, that slur is a fighting word, others can’t use it. Meanwhile, our ethnicity can use all the slurs we like because other ethnicities aren’t as violent. This is clearly unworkable.
Chaplinsky held that a person could be criminally punished for calling a police officer a “damned racketeer” and a “damned Fascist”. If that remains good law (and I’ll concede there are reasons for skepticism as far as how long that will be the case), why wouldn’t a state be able to punish the slurs here? They seem significantly more objectionable, and significantly more likely to incite a violent repsonse (to say the very least).
Under Gooding v. Wilson you can call someone a “white son of a bitch, I’ll kill you” and it’s fine. Same for “black mother fucking pig” (Brown v. Oklahoma). I believe both of those were rightly decided.
I’m not sure Chaplinsky was rightly decided in the first instance, I’d likely overrule it if I got a vote. But if we’re keeping it, I’d limit to its facts and distinguish that racketeer and fascist are implicitly accusations of a crime/aligning with a power the US at with at the time, whereas slurs are simply calling somebody a particular race, which isn’t a crime.
By that logic, for example, it might be fighting words to call a random Muslim a “terrorist” but not to use raghead, etc. But that is the absolute limit to how far I’d take the Fighting Words doctrine.
SomeGuy 2: Gooding v. Wilson held that the disorderly conduct statute in that case was overbroad, because state courts hadn’t limited it to Chaplinsky-like “fighting words.” Brown v. Oklahoma merely remanded the case for consideration in light of Cohen v. California. Neither say that face-to-face insults are constitutionally protected, whether racial insults or otherwise.
Look, it was clear long before the Republic was founded that whenever traditional norms might have made conduct justification for a duel, the state could instead outlaw dueling, prohibit the conduct directly, and require people to go to the constables and magistrates for redress instead of engaging in self-help.
Not only state can always prohibit a breach of the peace, it has a compelling interest in preserving the peace. The purpose of the fighting words doctrine is to preserve the peace.
Under your theory, whenever the police have the option of arresting someone, they could instead just beat the person senseless. After all, they were provoked! Actually, under your theory, they HAVE to beat the person senseless. They don’t have an option of arresting. Beating up is their only legal choice.
Let’s just say that that’s not the kind of society that the republic was founded to establish. Why not just dispense with courts of law entirely and go back to trial by combat for everything?
Under your theory, whenever the police have the option of arresting someone, they could instead just beat the person senseless. After all, they were provoked! Actually, under your theory, they HAVE to beat the person senseless. They don’t have an option of arresting. Beating up is their only legal choice.
That’s an exceeding bizarre take.
Krayt: Punching someone is illegal even if it was provoked by an insult. The provocation might lead the prosecutor or the judge (or, in those states that use sentencing juries, the jury) to give you a lesser sense, but it isn’t a legal defense.
What the heck is a prothonotary?
A small warbler of the southeastern United States, mostly yellow with darker wings.
A protonotary is the chief clerk of a court.
Harry Truman used stronger language when he asked that very question.
I never understood what are “fighting words” … do they depend on the temperament of the receiver? Can the same words be fighting to one person and not fighting to another?
The standard is the (sometimes mythical) ordinary reasonable person in society, which are assumed to be generally known to everybody. Individuals don’t get to make up the things they’ll fight over.
Yeah … I know about this ordinary, reasonable person … but I have no way to judge this up front. What is the race, religion, background of this person? Would they find the N-word offensive or friendly?
Seems odd that fighting words can be determined by the race of the person uttering it.
The legislative history of the PA Disorderly Conduct statute leads to the inference that the use of coarse or vulgar language was not an offense under the statute as enacted.
The first printed copy of the relevant bill (SB 455, Printer’s No. 470) includes the following language:
§ 5503. Disorderly conduct
(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(2) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present;
The bill was introduced and referred to the Senate Judiciary Committee on March 30, 1971. The next copy of the bill (SB 455, Printer’s No. 1379), as amended in committee, states:
§ 5503. Disorderly conduct
…
(2) makes unreasonable noise; or offensively coarse utterance, gesture or display, or addresses abusive language to any person present
(3) Uses obscene language, or makes an obscene gesture; or
Well that didn’t show-up as expected.
SB 455, as amended in committee, states:
§ 5503. Disorderly conduct
…
(2) makes unreasonable noise; [STRIKE OUT]or offensively coarse utterance, gesture or display, or addresses abusive language to any person present[STRIKE OUT]
[ADD](3) Uses obscene language, or makes an obscene gesture; or[ADD]
Appeal to prurient interest is a sine qua non of obscene expression. For example, the Supreme Court opined that the message “Fuck the draft” on Mr. Cohen’s jacket could not be obscene because it could not convey an erotic message.
My state’s Supreme Court has held that public nudity is a form of free expression protected by the state constitution, unless one has “the intent to arouse” … similar it seems.
Would his behavior be unreasonable noise?