Com. v. Collins, J.

2022 Pa. Super. 195, 286 A.3d 767

• Court: Superior Court of Pennsylvania
• Decided: November 18, 2022
• Docket: 1419 MDA 2021
• Status: Published

Opinion

J-S16018-22

2022 PA Super 195

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JOHN WILLIAM COLLINS : : Appellant : No. 1419 MDA 2021

Appeal from the Judgment of Sentence Entered September 9, 2021, in the Court of Common Pleas of Huntingdon County, Criminal Division at No(s): CP-31-CR-0000227-2020.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

DISSENTING OPINION BY KUNSELMAN, J.: FILED: NOVEMBER 18, 2022

I agree with the Majority that there was sufficient evidence to support

Mr. Collins’ conviction for harassment under 18 Pa.C.S.A. § 2709(a)(3) and

join that section of the Majority Opinion in full. However, because the First

Amendment to the Constitution of the United States bars Pennsylvania from

prosecuting Mr. Collins’ speech under the facts of this case, I must respectfully

dissent.

In his as-applied claim of unconstitutionality, Mr. Collins argues that

subject to well-defined exceptions, all speech in America comes under the

protections of the First Amendment, even when rude, vulgar, or offensive. He

observes that the Supreme Court of the United States recognized specific

categories of speech that a state may punish including obscenity, defamation,

and fighting words. See C.W. v. Swillinger, 676 A.2d 687, 689 (Pa. Super. ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S16018-22

1996) (citing R.A.V. v. St. Paul, 505 U.S. 377 (1992)); see also United

States v. Alvarez, 576 U.S. 709, 717-18 (2012) (opinion of Kennedy, J.)

(listing “historic and traditional categories” of unprotected speech); United

States v. Stevens, 559 U.S. 460, 468-69 (2010). In his view, the poster

and letters regarding Mr. Hoffman are none of those types of speech. I agree.

My learned colleagues in the Majority do not identify any recognized

exception to the First Amendment that would apply to Mr. Collins’ speech.1

This deficiency should end our analysis, and Mr. Collins’ conviction should be

overturned. Nevertheless, the Majority denies his speech constitutional

protection by crafting a new exception to the First Amendment, the “shame

and provoke” exception. Id.

If this novel exception gains acceptance, it will swallow the whole

purpose of the rule – i.e., that “Congress shall make no law . . . abridging the

freedom of speech.” U.S. Const. amend. I.2 If the Majority’s novel,

amorphous “shame or provoke” exception is added to the corpus of

constitutional law, it will overshadow and impede an important purpose of this

rule – to facilitate the free flow of ideas in society. See Virginia St. Bd. of

____________________________________________

1 The Majority’s reliance on Commonwealth v. Hendrickson, 724 A.2d 315,

318 (Pa. 1999) to support Mr. Collins’ harassment conviction is misplaced. See Majority Opinion at 14. That case is distinguishable because it dealt with punishing the harassing conduct and not the speech itself. Here, by contrast, Mr. Collins was convicted not for his actions but for the content of his speech.

2 The Due Process Clause of the Fourteenth Amendment incorporated the freedom of speech against the States. See Gitlow v. New York, 268 U.S. 652 (1925).

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Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765

(1976). The Framers did not draft the First Amendment to shield blessings or

compliments from censorship. Kind and complimentary speech does not need

constitutional protection. Speech that criticizes, however, does. The First

Amendment deliberately protects speech that some might find offensive.

Thus, speech that might shame or provoke people falls under this protection.

Unlike the Majority, I would enforce only the limited exceptions to free speech

that the Supreme Court of the United States has articulated over the

centuries, and not create a new one.

The Majority’s reliance on Snyder v. Phelps, 562 U.S. 443 (2011), to

support its conclusion is bewildering. My colleagues cite this case for the

general premise that “Not all speech is of equal First Amendment importance,

[] and where matters of purely private significance are at issue, First

Amendment protections are often less rigorous.” Id. at 452. In Snyder, the

Supreme Court of the United States noted, “Speech is powerful. It can stir

people to action, move them to tears of both joy and sorrow, and—as it did

here—inflict great pain.” Id. at 460-61. Even still, the court recognized that

it could not “react to that pain by punishing the speaker.” Id. at 461. The

court explained, “As a Nation we have chosen a different course—to protect

even hurtful speech on public issues to ensure that we do not stifle public

debate.” Id.

The speech at issue in Synder involved a church picketing the funeral

for a deceased military member. The picket signs reflected the church's view

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that “the United States is overly tolerant of sin and that God kills American

soldiers as punishment.” Id. at 447. The family of the deceased soldier sued

for intentional infliction of emotional distress and other torts. The High Court,

however, determined that under the First Amendment tort liability could not

be imposed on the church for what it said.

Here, the speech at issue was far less shameful and provocative than in

Snyder, and the penalty was more stringent, as it involved criminal rather

than civil consequences. While speech here is not of public concern or

regarding public figures and thus may arguably be of lesser importance under

the First Amendment, that does not mean that the speech forfeits all

protections. For the state to criminalize private speech, the speech must fall

neatly in one of the exceptions recognized by the Supreme Court of the United

States. See Stevens, 559 U.S. at 471-72.

In the landmark case of Chaplinsky v. New Hampshire, 315 U.S. 568

(1942), the High Court identified certain types of speech that the First

Amendment allows the States to prosecute. “There are certain well-defined

and narrowly limited classes of speech, the prevention and punishment of

which have never been thought to raise any Constitutional problem.” Id. at

571-72. Sanctionable speech includes “the lewd and obscene, the profane,

the libelous, and the insulting or ‘fighting’ words—those which by their very

utterance inflict injury or tend to incite an immediate breach of the peace.”

Id. at 572.

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Such “utterances are no essential part of any exposition of ideas and

are of such slight social value . . . that any benefit that may be derived from

them is clearly outweighed by the social interest in order and morality.” Id.

“Resort to epithets or personal abuse is not in any proper sense

communication of information or opinion safeguarded by the Constitution, and

its punishment as a criminal act would raise no question under that

instrument.” Id. (quoting Cantwell v. Connecticut, 310 U.S. 296 (1940)).

In its brief, the Commonwealth latches on to that quotation from

Cantwell. It uses the statement to suggest that Mr. Collins’ poster and letters

are proper subjects for prosecution. See Commonwealth’s Brief at 3 n.4.

However, the Commonwealth has taken the excerpt out of context. In

the sentence prior to that statement, the Cantwell Court offered a proviso:

“the provocative language which was held to amount to a breach of the peace

consisted of profane, indecent, or abusive remarks directed to the person

of the hearer.” Cantwell, 310 U.S. at 309 (emphasis added). In other

words, the epitaphs or personal abuses that the First Amendment allows

States to prosecute are those likely to incite the hearer to assault someone

else or to riot — i.e., to breach the peace. See id. Otherwise, the State has

no compelling interest to justify curtailing the speaker’s freedom of speech.

In this case, both parties agree that Mr. Collins did not distribute the

poster or letters to the person they ridiculed (Mr. Hoffman) or anyone else

who would have likely reacted in a violent manner to the content (such as Mr.

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Hoffman’s family or close friends).3 As such, the posters and letters do not

constitute “abusive remarks directed to the person of the hearer.” Cantwell,

supra. Instead, they were directed to disinterested third parties, and the

record does not indicate that any of those people were likely to breach the

Commonwealth’s peace upon reading Mr. Collins’ poster or letters.

In fact, every person who read them reacted peaceably. The mail carrier

removed the poster from the mailboxes, Ms. Snyder took the poster down and

threw it in the trash, and Mrs. Heester turned her letter over to the postal

clerk. Thus, everyone’s reactions to them were calm, rational, and peaceful.

No one took Mr. Collins’ bizarre, immature rant in the poster or letters

seriously. His communications did not stir any of his readers to anger, much

less hostility. This incident created no possibility that the peace would be

breached by violence against Mr. Collins or anyone else.

“When clear and present danger of riot, disorder, interference with

traffic upon the public streets, or other immediate threat to public safety,

peace, or order, appears, the power of the state to prevent or punish is

obvious.” Cantwell, 310 U.S. at 308. Here, no such threats to public safety

even potentially manifested themselves. Therefore, I conclude that neither

the poster nor the letters contained any “fighting words” over which the

Commonwealth could assert a compelling governmental interest in curtailing.

3 In this way, the constitutional analysis differs from the sufficiency analysis

cogently articulated by the Majority. Majority Opinion at 7-10.

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Additionally, the words did not amount to a “true threat” against Mr.

Hoffman that would justify criminal prosecution. As the Supreme Court of

Pennsylvania observed, the Constitution of the United States allows states to

criminalize threatening speech that is specifically intended to terrorize or

intimidate. Commonwealth v. Knox, 190 A.3d 1146, 1158 (Pa. 2018)

(citing Virginia v. Black, 635 U.S. 343 (2003)). In evaluating whether the

speaker acted with an intent to terrorize or intimidate, evidentiary weight

should be given to contextual circumstances such as those referenced in

Watts v. United States, 394 U.S. 705 (1969) (per curiam) (explaining that

the government may criminalize “true threat[s]” but not mere political

hyperbole).4

Our Supreme Court in Knox applied this framework to assess whether

song lyrics threatening two police officers were “true threats” such that the

4 Watts was convicted under a federal statute making it a crime to threaten

the President. See 18 U.S.C. § 871(a). The Supreme Court found the statute facially valid considering the “overwhelming” interest in protecting the President's safety and allowing him to perform his duties unhampered by threats of violence. Watts, 394 U.S. at 707. Nevertheless, the Court concluded that Watts' conviction could only be upheld if his words conveyed an actual threat as opposed to political hyperbole. Considering the full context of the statement – it was uttered during a political debate which often involves inexact and abusive language, the alleged threat was conditioned on an event Watts vowed would never occur (his induction into the military), and the audience reacted by laughing – the Court determined that the statement could only reasonably be interpreted as an expression of political dissent and not a true threat. Thus, the Court overturned Watts' conviction. See Watts, 394 U.S. at 708.

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First Amendment did not prevent prosecuting Knox for his speech. The

analysis is instructive.

Our Supreme Court examined the lyrics and concluded that they

primarily portrayed violence toward the police, ostensibly due to the officers'

interference with Knox’s activities. The lyrics included unambiguous threats;

they referenced “soldiers” that will “f--k over” the police, a plan to make false

emergency calls and “bust[ ] heavy metal” toward the officers who respond

to the call, and a desire to “jam this rusty knife all in [the officer's] guts.”

Id. at 614.

The lyrics also appeared to express a consciousness that they step

beyond the realm of fantasy or fiction because Knox wanted the whole city to

“believe” him. Similarly, he vowed that the activities described would be “real”

once a certain named individual returned from military service.

These aspects of the song tended to detract from any claim that Knox’s

words were only meant to be understood as an artistic expression of

frustration. Most notably along these lines, Knox mentioned the officers by

name, stating that the lyrics are “for” them, and then proceeded to describe

in graphic terms how he intended to kill those officers. In this way, the lyrics

were both threatening and highly personalized to the victims.

The lyrics also referenced Knox’s purported knowledge of when the

officers’ shifts end and, in light of such knowledge, that Knox would “f--k up

where you sleep.”

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Additionally, the threats were directed at the officers based on the

complaint, tied to interactions which had recently taken place between them

and Knox, that the police had been “knockin' my riches” – as one officer did

by confiscating cash from Knox upon his arrest – and vowing that the police

“won't keep” doing so (reflecting the officer’s testimony that “knocking riches”

is a slang phrase which refers to a police officer confiscating cash during an

arrest where drugs are involved). Along these same lines, they refered to the

police having “tak[en] money away from” Beasley “and all my s--t away from

me.” Such harm to Appellant's personal wealth, and the officers' interference

with his drug-selling activities, together with the upcoming criminal

proceedings at which the latter were scheduled to testify against Appellant,

were stated in the lyrics to provide the primary motivation for Appellant's

desire to exact violent retribution.

Finally, the lyrics suggested a knowledge of the identity of the officers'

confidential informants and a plan to murder at least one such informant with

a Glock. The words themselves were not the only component of Knox’s

expressive conduct which tends to make the song threatening. The soundtrack

included bull horns, police sirens, and machine-gun fire ringing out over the

words, “bustin' heavy metal.” Examining the words in this context, our High

Court found the lyrics amounted to a true threat and upheld Knox’s criminal

convictions for terroristic threats and witness intimidation.

Here, by contrast, the language of Mr. Collins’ poster and letters did not

truly threaten Mr. Hoffman. Instead, they were mere hyperbole. Mr. Collins

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did not express a desire to harm Mr. Hoffman, nor did he communicate the

message on the documents directly to Mr. Hoffman. Therefore, Mr. Collins’

speech was not a “true threat” that the government could prosecute.

Having determined that Mr. Collins’ poster and letters did not amount

to fighting words or true threats, I also note that they could not be classifiable

as “the lewd and obscene, the profane, [or] the libelous.” Chaplinsky, 315

U.S. at 572. Nothing in the poster or letters was sexually suggestive, and

there was no profanity or obscenity. Additionally, no reasonable reader could

interpret them as making factual allegations concerning Mr. Hoffman’s

ancestry as being half goat and half pig. Thus, they are incapable of being

deemed libelous publications, because they have no defamatory meaning.

See, e.g., Burns v. Cooper, 244 A.3d 1231, 1236 (Pa. Super.

2020), reargument denied (Oct. 14, 2020), appeal denied, 252 A.3d 235 (Pa.

2021) (explaining that “statements which are merely annoying or

embarrassing, no more than rhetorical hyperbole, or a vigorous epithet are

not defamatory”).

Any reasonable reader would interpret them for what they are — childish

(even absurd) vitriol and the opinions of someone who personally dislikes Mr.

Hoffman. In fact, that is exactly how every reader dismissed them, until the

Commonwealth decided to prosecute.

The reliance of the Commonwealth and the trial court upon this Court’s

plurality decision in Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super.

1976) (en banc), does not persuade me otherwise. There, of the seven judges

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on the panel, three upheld the constitutionality of the harassment statute in

the face of a First Amendment challenge, while one judge concurred in result,

and three dissented.

The facts of Duncan are distinguishable from this case. There, a man

repeatedly asked a college student (whom he did not know) to allow him to

perform oral sex on her while she attempted to study in the lounge of her

residence hall. The woman continuously rejected his advances and eventually

reported him to the resident assistant. Campus police arrested him for

harassment. In affirming the conviction, this Court held that the man’s “lewd

. . . suggestions do not . . . have the protection of the First Amendment.” Id.

at 806. Thus, unlike the speech at issue in this appeal, the comments in

Duncan fell under the first category of unprotected speech, “lewd and

obscene” words. Chaplinsky, 315 U.S. at 275. The Commonwealth’s

attempt to support its conviction of Mr. Collins based upon Duncan fails.

That said, I recognize that the poster and letters Mr. Collins printed,

authored, and distributed were crass and likely offended Mr. Hoffman once he

learned of them. However, to any rational reader, Mr. Collins’ speech says

more about himself than Mr. Hoffman.

Additionally, I understand why public servants like Ms. Snyder would

not desire such rubbish on her post office’s bulletin board or in her customers’

mailboxes. Ms. Snyder’s remedy was to remove the poster, as she did. To

be clear, I do not support or condone Mr. Collins’ immature name-calling, but

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the First Amendment protects his right to engage in such speech without the

risk of criminal prosecution.

We must remember that the First Amendment does not exist to protect

kind and desirable speech. The Framers adopted it to shield words (such as

Mr. Collins’) that most citizens do not want to hear, with limited exceptions

for speech that is obscene, that falsely damages one’s reputation, or that will

likely cause an imminent breach of the peace. Here, none of these exceptions

applies. See Majority Opinion at 16. Therefore, although the trial court

correctly interpreted Pennsylvania’s harassment statute, the First Amendment

preempts that state law5 and bars Mr. Collins’ prosecution and conviction on

these facts.6

I would vacate the judgment of sentence, reverse the order denying

post-sentence judgment of acquittal, and discharge Mr. Collins.

5 See U.S. Const. art. VI (dictating, “This Constitution . . . shall be the supreme

Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the . . . Laws of any State to the Contrary notwithstanding.”) Hence, “the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument [i.e., the constitution].” Marbury v. Madison, 5 U.S. 137, 180, (1803) (emphasis in original).

6 I need not—and, therefore, do not—address Mr. Collins’ third appellate issue

regarding the discretionary aspects of his sentence. Given my disposition of his constitutional issue, his third issue should be dismissed as moot.

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