Free Speech, What Can I Say?

CRIMINAL DEFENSE FORUM

By: Mark Eiglarsh

Introduction
The right to free speech. That phrase is repeated often, however, too few actually know what it means in a practical sense. What are we allowed to say? What speech is considered criminal? How far can we go? The case discussed below involving a juvenile named "L.A.T." assists in answering these questions.

The Facts
It was March 17, 1993. Police were dispatched to a Hardee's restaurant, located in South Miami. Three juveniles had refused to leave the restaurant. When the officers arrived, they approached L.A.T. and two other juveniles who were gathered outside. After officers spoke with them, the juveniles walked away and entered a nearby Publix. Shortly thereafter, for reasons unknown to L.A.T., one of his juvenile friends was arrested inside the supermarket. While police were putting the cuffs on the juvenile, L.A.T., who didn't approve of the officer's arrest, yelled at the top of his lungs, "Is everybody watching this?...Police brutality Rodney King style." L.A.T.'s screaming continued from inside the Publix to the officer's patrol car. Backup officers arrived on the scene. By that time, L.A.T.'s yelling had caused approximately 20-25 people to gather. L.A.T. then began to curse at the officers, "You f-ing cops, what the hell do you think you're doing?....You are full of bull sh-t...This is abuse...Police brutality... Look at this people, Rodney King style." Officers instructed L.A.T. on numerous occasions to "calm down" and "relax." L.A.T.'s reaction to the officers was just the opposite. He appeared to the officers to become even angrier by waiving his arms and continuing to scream obscenities. After several attempts failed to calm L.A.T. down, he was placed under arrest for disorderly conduct. Was his arrest lawful?

The Analysis
The facts above were those analyzed by the court in L.A.T. v. State, 650 So.2d 214 (Fla. 3d DCA 1995). The trial court found that L.A.T.'s conduct was unlawful. On appeal, L.A.T. argued that his conduct was protected by the First Amendment. In reversing his conviction, the Third District found that L.A.T. had been punished for simply passionately asserting his right to free speech. The court noted that even though L.A.T.'s actions may have been offensive to the police, they still warranted protection under the constitution. The Third District cited numerous examples where defendants, whose conduct included making derogatory and/or offensive remarks towards law enforcement officers, were constitutionally protected and did not constitute disorderly conduct. Furthermore, the court noted that the only category of speech that does not warrant first amendment protection are "fighting words." City of Houston v. Hill, 482 U.S. 461-62. (1987). Fighting words are "statements that inflict injury or tend to incite an immediate breach of the peace." Lewis v. City of New Orleans, 415 U.S. 130 (1974). Obvious examples of fighting words include yelling "fire" in a crowded movie theatre and/or inciting a crowd of gatherers by yelling, "Let's all beat up these police officers!!!" In L.A.T.'s case, although a number of people gathered at the scene to observe what was happening, the court found that L.A.T.'s words neither urged the crowd to respond nor had this effect. The court further noted that L.A.T.'s words did not cause anyone to interfere with the arrest or commit a breach of the peace. Therefore, L.A.T.'s rant, although loud and profane, was found to be a constitutionally justified expression of what he thought was the abusive conduct of the police.

Conclusion
This article should, in no way, encourage you to go out and yell profanities at law enforcement officers. While that may be good for my criminal defense business, it's certainly not recommended behavior, regardless of your new found knowledge concerning the first amendment. In short, the constitution grants citizens wide latitude to express themselves regardless of whether their actions are deemed offensive and/or popular.