The Volokh Conspiracy

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Pennsylvania Court on "Obscene Language" and Criminalizing Fighting Words


From Commonwealth v. Muhammad, decided Wednesday, by Judge John Bender, joined by Judges Maria McLaughlin and Correale Stevens:

On August 12, 2021, Appellant was charged with disorderly conduct, pursuant to Sections 5503(a)(2) and (a)(3), in connection with an incident which the trial court summarized as follows:

The incident which resulted in the disorderly conduct charges occurred at the Judge Bernard C. Brominski building[,] which contains the domestic relations and child custody divisions of the Luzerne County Court of Common Pleas. [Appellant] attempted to enter the Brominski building without a mask at a time when masks were required. After obtaining a mask, [Appellant] was permitted to enter the building. As she was entering, [Appellant] told a security officer, "I'm not fucking talking to you." She then entered and said "fuck you" to a deputy sheriff and the security officer. [Appellant] then said "fuck you" again as she walked in the direction of the elevator. After entering the elevator, [Appellant] began screaming for help. As a result of her actions, [Appellant] was charged with one count of disorderly conduct for using obscene language and one count for making unreasonable noise. She was found guilty of [disorderly conduct for] using obscene language on April 6, 2022….

The relevant statute, though, prohibits "obscene language" or "obscene gesture[s]," and Pennsylvania courts had interpreted that (rightly or wrongly) to mean "obscene" in the First Amendment sense of being hard-core pornography; vulgarities don't count, so the conviction was reversed. (The court noted that the trial court never entered a disposition as to the "citation for disorderly conduct under 18 Pa.C.S. § 5503(a)(2), for making 'unreasonable noise.')

But the entire panel also joined Justice Stevens' concurring opinion:

"Why is nice bad? What kind of a sick society are we living in when nice is bad?" George Costanza on Seinfeld.

While "nice" may be elusive at times, our society cannot permit the type of public display of abusive, disrespectful, insulting and obnoxious behavior such as Appellant directed toward law enforcement officers in this case.

Appellant deserves to be punished for her public use of explicit, offensive language directed at Luzerne County deputies in the Courthouse annex, especially in a place where the rule of law is sacrosanct. Because of the wording of the statute in question and relevant case law, however, Appellant escapes responsibility for her actions.

The deputies were merely enforcing court rules that required individuals to wear a mask entering the building during the time of the pandemic. Appellant, who obtained a mask after first refusing to wear one, cursed at a security officer and shouted "fuck you" in a public hallway several times to a deputy and security officer as she was walking to the elevator.

The Majority correctly follows precedent that the evidence here was insufficient to uphold her conviction for Disorderly Conduct under 18 Pa.C.S.A. § 5503(a)(3). Such precedent holds that the offensive language used in this case does not meet the legal definition of "obscene" in that it does not appeal to anyone's prurient interest, nor did it describe in a patently offensive way, sexual conduct. Thus, I reluctantly agree with the Majority decision to reverse the conviction.

However, I urge the Pennsylvania Legislature to criminalize, even by using just a fine as punishment, within of course constitutional standards, such abusive and belligerent conduct toward law enforcement officers and other first responders. The blatant offensive behavior and language by Appellant erodes confidence and respect toward those whose responsibility it is to protect the rights and lives of others. Moreover, such behavior and language in public can incite an escalation of combative language and actions, including violence, by others toward police officers.

While the law cannot require people to be "nice," public displays of language and conduct such as in this case directed toward those who are sworn to enforce the law should be prohibited.

I take it that the concurrence is urging the legislature to criminalize face-to-face insults that are likely to cause a fight, which fit within the First Amendment "fighting words" exception; for more on the special question of whether the fighting words exception should be applied to speech said to police officers, see State v. Baccala, pp. 9-12 (Conn. 2017).