The Volokh Conspiracy
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Calling 10-Year-Old "Fucking Little Snitch" Isn't Punishable as "Obscene," "Threatening," or "Fighting Words"
From Commonwealth v. Hanner, decided last week by the Pennsylvania intermediate appellate court, in an opinion by Judge John Bender, joined by Judges Mary Jane Bowes and Megan Sullivan:
The facts, as taken in the light most favorable to the Commonwealth as the verdict winner, are straightforward. Sometime during 2021, Appellant's two children were in the foster care system while Appellant was dealing with an incident of domestic abuse in which she was the victim. Her two children stayed with N.M., who is the mother of the victim in this case, S.M. On September 11, 2021, N.M. permitted S.M., who was then ten years old, to ride his bike home from his grandmother's home. Shortly thereafter, S.M. returned to the house, crying and scared.
S.M. testified that he encountered Appellant while bicycling home. He saw a vehicle stopped in the road near a gas station. The driver asked S.M. "do you remember me? I'm [her children's] mom." S.M. recognized the driver as Appellant. Appellant then pulled into the station's parking lot and loudly and aggressively berated S.M., twice calling S.M. a "fucking little snitch." S.M. was scared, started crying, and biked back to his grandmother's home.
Appellant was charged with one count of harassment pursuant to 18 Pa.C.S. § 2709(a)(4), which states that a person commits harassment "when, with intent to harass, annoy or alarm another, the person … communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]" …
[Pennsylvania] decisions have accepted that a harassment conviction is valid only if the speech falls within a First Amendment exception…. In this case, the Commonwealth deferred to the trial court's decision to instruct the jury that any conviction must satisfy the Miller standard, i.e., a recognized exception to the First Amendment's prohibition against criminalizing speech. {We apply [the Miller standard for "obscenity"] as the Commonwealth pursued a theory equating "obscene language" with the Miller standard, and the jury was instructed accordingly.}
Therefore, given the Commonwealth's acquiescence on this point, we will assume for the limited purposes of this appeal that "obscene language" must appeal to the prurient interest in accordance with Miller. There is no doubt that uttering the phrase "fucking little snitch" does not appeal to a prurient interest in sex as the comment has nothing to do with sex. This is obvious on its face, and readily demonstrated by the disorderly conduct precedents discharging "obscene language" convictions for failing to meet the Miller standard. See Commonwealth v. Pennix (Pa. Super. 2017) (discharging conviction where the appellant, while detained at courthouse metal detector, shouted "Fuck you police" and similar variants); Commonwealth v. McCoy (Pa. Super. 2013) (discharging conviction where McCoy repeatedly shouted, "Fuck the police," while observing a funeral procession honoring an officer killed in the line of duty); Commonwealth v. Kelly (Pa. Super. 2000) (discharging conviction where appellant said, "Fuck you, asshole," and displayed middle finger to borough employee). See also Commonwealth v. Hock (Pa. 1999) (holding that police officer did not have probable cause to arrest for disorderly conduct under separate subsection concerning "fighting or threatening … behavior" where Hock, during encounter with police, stated, "Fuck you, asshole," to officer). The Commonwealth therefore failed to satisfy one of the elements of harassment as it understood the elements of the crime.
Next, we acknowledge that the jury was instructed that Appellant was guilty if her words were "threatening," which is likewise criminalized by subsection (a)(4) of the harassment statute. The trial judge informed the jury that the definition of "threatening" was self-evident. We respectfully disagree with the trial court's characterization. Again, accepting for purposes of our disposition that, as in Collins, an exception to the First Amendment must apply, the only plausible bases are "fighting words" or "true threats."
Concerning the former, the Commonwealth failed to establish sufficient evidence that Appellant used "fighting words." The basic formulation of that doctrine was stated in Cohen. "[T]he States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called 'fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." … [U]nder the factual circumstances, a rational fact-finder could not conclude that Appellant intended to goad S.M. into a violent encounter. Appellant's language was abusive and uncouth, especially when directed at a ten-year-old child, but her words were not likely to provoke a violent reaction.
We now address whether the speech qualified as a "true threat." "Speech which communicates a serious expression of intent to commit an act of unlawful violence against a particular individual or group of individuals — more commonly referred to as a 'true threat' — is another certain class of speech that … is beyond the protective ambit of the First Amendment." The hallmark of a "true threat" is that it "threatens unlawful violence." Appellant's statements were insulting but nothing in her diatribe, either as an individual statement or in the aggregate, threatened harm to S.M. We therefore conclude that a rational fact-finder could not conclude, even when granting all reasonable inferences to the Commonwealth as the verdict winner, that Appellant issued a "true threat." We therefore reverse Appellant's judgment of sentence and order her discharged.
Seems sound to me.
