COLORADO COURT OF APPEALS 2016COA166
Court of Appeals No. 14CA2210 Boulder County District Court No. 14JD140 Honorable Ingrid S. Bakke, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of R.C.,
Juvenile-Appellant.
JUDGMENT REVERSED
Division II Opinion by JUDGE HARRIS Ashby, J., concurs Webb, J., dissents
Announced November 17, 2016
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant ¶1 R.C., a fourteen-year-old middle school student, took a photo
of his friend, L.P., and then drew a penis over the photo. He
showed the doctored photo to L.P. and some other friends. L.P.
reported R.C. to the principal, who called the police. The police
charged R.C. with disorderly conduct and, after a bench trial, the
court adjudicated R.C. a delinquent.
¶2 On appeal, R.C. challenges the sufficiency of the evidence,
arguing, primarily, that the prosecution failed to prove that his
display of the photograph tended to incite an immediate breach of
the peace. We agree and therefore reverse.
I. Background
¶3 During class one afternoon, R.C. used his cell phone to take a
photo of L.P. Then, using the mobile application Snapchat, he drew
a picture of an ejaculating penis next to L.P.’s mouth.1 R.C. showed
1 Snapchat is a popular mobile application that allows cell phone users to send photos and videos to their friends or contacts. Once the photo or video is sent to another person and viewed, it automatically deletes within a few seconds. However, the user can save a photo for up to twenty-four hours using the “Snapchat story” feature.
1 the altered photo to L.P. and three other friends. R.C. was
“giggling” when he showed the other boys the photo. One of the
other boys laughed too, but L.P. felt “bad.” About five minutes
later, class ended and the boys went to lunch.
¶4 In the cafeteria, a few other students looked at the photo and
laughed, which made L.P. feel even worse. Two of L.P.’s friends told
R.C. to apologize and R.C. agreed to, but when he approached L.P.,
L.P. pushed R.C. away. L.P. and his friends reported the incident to
the principal later that day.
The app has another feature that allows the cell phone user to use a finger to draw or write over the photo with what looks like a marker or a crayon. Figure 1 shows the Snapchat drawing app on a cell phone; Figure 2 is an example of a finished product. Figure 1 Figure 2
See Appamatix, 3 Best Snapchat Secrets of 2014, October 12, 2014, available at http://appamatix.com/3-best-snapchat-secrets-2014/; Daily Mail, Now You Can Make Your Own Snapchat Lenses, July 21, 2016, available at http://www.dailymail.co.uk/sciencetech/article- 3701038/Now-make-Snapchat-lenses-Fun-Face-Paint-feature-lets- draw-selfies.html.
2 ¶5 R.C. was charged with disorderly conduct, and the case
proceeded to trial. The court ruled that R.C. knew that his drawing
would make L.P. feel humiliated and ashamed and would have
tended to incite an immediate breach of the peace, in large part
because the drawing implied that L.P. was “homosexual or behaves
in that kind of behavior or has some sort of demeanor about that.”
The court sentenced R.C. to three months of probation, therapy,
and eight hours of work crew.
II. Discussion
¶6 A person commits disorderly conduct if he or she
“intentionally, knowingly, or recklessly: . . . [m]akes a coarse and
obviously offensive utterance, gesture, or display in a public place
and the utterance, gesture, or display tends to incite an immediate
breach of the peace.” § 18-9-106(1)(a), C.R.S. 2016.
¶7 R.C. contends that the prosecution failed to prove beyond a
reasonable doubt every element of the offense of disorderly conduct.
According to R.C., his drawing was protected speech because,
consistent with the First Amendment, only “fighting words” are
prohibited under the statute, and the altered photo did not qualify
as fighting words. Even if it did, R.C. says, the prosecution failed to
3 prove that he knew, or recklessly disregarded a substantial risk,
that displaying the photo was likely to provoke an immediate,
violent response.2
A. Standard of Review
¶8 On a challenge to the sufficiency of the evidence, we review the
record de novo to determine whether the evidence, viewed as a
whole and in the light most favorable to the prosecution, is both
“substantial and sufficient” to support the defendant’s guilt beyond
a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.
2005). In applying this test, “we must give the prosecution the
benefit of every reasonable inference that might fairly be drawn
from the evidence.” People v. Atencio, 140 P.3d 73, 75 (Colo. App.
2005). And we will not disturb the fact finder’s determinations of
2 R.C. also contends, for the first time on appeal, that the disorderly conduct statute requires proof of an actual breach of the peace, rather than proof that the display tended to incite a breach of the peace, and that the prosecution failed to prove that element as well. We need not decide the standard of review to apply in the event of an error because we perceive no error. The statute requires that the obviously offensive display “tend[] to incite an immediate breach of the peace.” People in Interest of K.W., 2012 COA 151, ¶ 29 (quoting § 18-9-106(1)(a), C.R.S. 2016). Whether a breach of the peace actually occurs “is not determinative of a violation.” Id. at ¶ 32.
4 witness credibility and the weight to be given to the evidence.
People v. McIntier, 134 P.3d 467, 471 (Colo. App. 2005).
B. Analysis
¶9 The United States and Colorado Constitutions prohibit the
enactment of laws abridging or impairing freedom of speech. U.S.
Const. amend. I; Colo. Const. art. II, § 10; see also NAACP v. Button,
371 U.S. 415, 444-45 (1963) (The “Constitution protects
expression . . . without regard . . . to the truth, popularity, or social
utility of the ideas and beliefs which are offered.”). Still, the
constitutional prohibition is not absolute: courts have upheld the
constitutionality of statutes that prohibit obscenity, see Miller v.
California, 413 U.S. 15 (1973); libel, see N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964); incitement, see Brandenburg v. Ohio, 395 U.S.
444 (1969); invasion of substantial privacy interests of the home,
see Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970); and, as
relevant here, “fighting words.” Chaplinsky v. New Hampshire, 315
U.S. 568 (1942).
¶ 10 Fighting words are those “which by their very utterance tend
to incite others to unlawful conduct or provoke retaliatory actions
amounting to a breach of the peace.” Hansen v. People, 190 Colo.
5 457, 461, 548 P.2d 1278, 1281 (1976), superseded by statute, Ch.
227, sec. 1, § 18-9-106(1)(a), 1981 Colo. Sess. Laws 1010, as
recognized in People v. Smith, 862 P.2d 939, 942 n.6 (Colo. 1993).
To qualify as speech likely to incite a breach of the peace, it is not
enough that words, gestures, or displays “stir[] the public to anger,”
“invite dispute,” or “create a disturbance”; they must “produce a
clear and present danger of a serious substantive evil that rises far
above public inconvenience, annoyance, or unrest.” Terminiello v.
City of Chicago, 337 U.S. 1, 4 (1949); see also Gooding v. Wilson,
405 U.S. 518, 525 (1972) (stating that “opprobrious” and “abusive”
words that convey disgrace and include harsh insulting language
are not necessarily fighting words).
¶ 11 Colorado’s disorderly conduct statute is narrowly drawn to
ban only “fighting words,” as that term has been interpreted by our
supreme court and the United States Supreme Court. See Hansen,
190 Colo. at 461, 548 P.2d at 1281 (to pass constitutional muster,
the disorderly conduct statute may prohibit only “fighting words”).
¶ 12 Citing Chaplinsky, the dissent defines fighting words to
include words that by their very utterance “inflict injury,” and it
then appears to endorse R.C.’s conviction on the theory that the
6 photo amounted to bullying that was likely to inflict injury on L.P.
But soon after Chaplinsky, the Supreme Court either dropped the
“inflict injury” category of fighting words altogether or recited the
full definition of fighting words without further reference to any
distinction between merely hurtful speech and speech that tends to
provoke an immediate breach of the peace. See Purtell v. Mason,
527 F.3d 615, 623 (7th Cir. 2008) (discussing the evolution of the
fighting words doctrine). The Supreme Court has “never held that
the government may, consistent with the First Amendment, regulate
or punish speech that causes emotional injury but does not have a
tendency to provoke an immediate breach of the peace.” Id. at 624;
see Note, The Demise of the Chaplinsky Fighting Words Doctrine: An
Argument for its Interment, 106 Harv. L. Rev. 1129, 1129 (1993)
(“The jurisprudential history of the Chaplinsky doctrine has led
some commentators to conclude that the Court has sub rosa
overruled the entire fighting words doctrine, or at least the ‘inflict
injury’ prong.”). In any case, the Colorado statute does not prohibit
utterances, gestures, or displays that “inflict injury,” but only those
that “tend[] to incite an immediate breach of the peace.”
§ 18-9-106(1)(a).
7 ¶ 13 The question, then, is not, as the dissent suggests, whether
L.P. might have suffered reputational injury, or, as a “highly
sensitive” middle schooler (as most middle schoolers are), might
have become “upset” by the photo, Nuxoll ex rel. Nuxoll v. Indian
Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir. 2008), but
rather whether R.C.’s display of the doctored photo tended to incite
an immediate breach of the peace; that is, whether the display was,
“as a matter of common knowledge, inherently likely to provoke a
violent reaction” from a reasonable person. Coggin v. State, 123
S.W.3d 82, 90 (Tex. App. 2003) (quoting Cohen v. California, 403
U.S. 15, 20 (1971)).
¶ 14 As a preliminary matter, we must disagree with the dissent’s
characterization of the Snapchat photo as a “sexually explicit image
of a minor” engaging in “fellatio.” Under federal law, a “sexually
explicit” image of fellatio is one that depicts “graphic . . . oral-
genital” contact “between persons of the same or opposite sex.” 18
U.S.C. § 2256 (2)(B)(i) (2012). The Snapchat photo was not
introduced at trial and is not part of the record on appeal (because
it was automatically deleted after some number of hours), but there
was no testimony (or argument) that the photo depicted graphic
8 oral-genital contact between two people. Instead, the evidence
established that R.C. used the Snapchat app to hand draw a penis
over an existing photo. Saying that a hand-drawn, cartoon-like
picture of a penis superimposed on a photo is a “sexually explicit
image” of a minor engaging in fellatio is like saying that the picture
contained in footnote 1 (Figure 2) is a graphic depiction of
rhinoplasty.
¶ 15 So we turn to the issue of whether the cartoon drawing of a
penis on a photo is likely to incite a reasonable person — or even a
reasonable middle schooler3 — to immediate physical violence.
3 Protected speech is not transformed into “fighting words” by the peculiar sensibilities of the listener. Zamecnik v. Indian Prairie Sch. Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) (“Statements that while not fighting words are met by violence or threats or other unprivileged retaliatory conduct by persons offended by them cannot lawfully be suppressed because of that conduct.”); see also Street v. New York, 394 U.S. 576, 592 (1969) (speech cannot be restricted simply because some listeners, “shocked” by the defendant’s disrespectful conduct of burning a flag, might be “moved to retaliate” against him). If First Amendment rights are subject to a middle schooler’s “heckler’s veto,” the level of discourse might be limited “to that which would be suitable for a sandbox.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 875, 880 (1997) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75 (1983)). But even taking L.P.’s age into consideration, we do not believe violence would have been a reasonable response to R.C.’s display of the photo.
9 ¶ 16 In this day and age, the notion that any set of words — much
less a crayon-type drawing of a penis on a photograph — is “so
provocative that [it] can reasonably be expected to lead an average
[person] to immediately respond with physical violence is highly
problematic.” State v. Tracy, 130 A.3d 196, 209 (Vt. 2015). The
cases cited at the outset of the dissenting opinion make this very
point: words alone, no matter how offensive or cruel, cannot justify
violence. And, as the Vermont Supreme Court has pointed out, that
is a principle people ordinarily learn as children:
In a society in which children are admonished to ‘use your words’ rather than respond to anger and frustration by physically lashing out — and are taught the refrain, ‘Sticks and stones will break my bones, but words will never hurt me,’ as an appropriate response to taunts — the class of insults for which violence is a reasonably expected response, if it exists at all, is necessarily exceedingly narrow.
Id. at 209-10.
¶ 17 That the category of “fighting words” has been shrinking is
obvious — the Supreme Court has overturned every single fighting
words conviction it has reviewed since Chaplinsky was decided in
1942. Id. at 205; see also Burton Caine, The Trouble With “Fighting
Words”: Chaplinsky v. New Hampshire is a Threat to First
10 Amendment Values and Should be Overruled, 88 Marq. L. Rev. 441,
536 (2004).
¶ 18 The district court concluded that the drawing constituted
fighting words because its display would tend to make the subject
of the photo feel humiliated and ashamed. But speech that
embarrasses or disgraces another is insufficient to qualify as
fighting words. Even vulgar and insulting speech that is likely to
arouse animosity or inflame anger, or even to provoke a forceful
response from the other person, is not prohibited. “The fact that
speech arouses some people to anger is simply not enough to
amount to fighting words in the constitutional sense.” Cannon v.
City & Cty. of Denver, 998 F.2d 867, 873 (10th Cir. 1993). Rather,
fighting words are limited to “speech that, in the context in which it
is uttered, is so inflammatory that it is akin to dropping a match
into a pool of gasoline.” Tracy, 180 A.3d at 210.
¶ 19 Our position would not change even if we believed, as the
district court apparently did, that the photo might have implied that
L.P. was gay. Indeed, this assumption was the basis of the court’s
ruling: if R.C. had drawn a mustache or a big nose on the photo,
the court explained, it would not have amounted to disorderly
11 conduct, even, presumably, if the big-nose photo had hurt L.P.’s
feelings. But R.C. drew a picture that was “sexual [in] nature” and
went “directly to [L.P.’s] gender being male,” which made the
photograph much more offensive, according to the court; so much
so that, upon seeing the photo, L.P. would reasonably have been
incited to violence.
¶ 20 We discern two problems with the court’s reasoning. First,
there was, in fact, no evidence that R.C. intended to imply that L.P.
was gay or that L.P. perceived the photograph as any sort of
commentary on his sexual orientation.
¶ 21 Second, even if we assume such commentary, we cannot
conclude that, as a matter of law, the mere insinuation that a
person is gay amounts to “fighting words.” We disagree with the
district court, and the dissent, that the suggestion of homosexuality
or homosexual conduct is so shameful and humiliating that it
should be expected to provoke a violent reaction from an ordinary
person.
¶ 22 In any event, the words — or the display of the Snapchat
photo in this case — cannot be evaluated in a vacuum; context is
critical. “[A] defendant’s words are considered as a ‘package’ in
12 combination with conduct and physical movements, viewed in light
of the surrounding circumstances.” In re Welfare of M.A.H., 572
N.W.2d 752, 757 (Minn. Ct. App. 1997); see also People in Interest
of K.W., 2012 COA 151, ¶ 30 (“The context or circumstances in
which the language is used must also be considered.”). Thus,
whether speech or a display constitutes fighting words must be
determined on a case-by-case basis, considering all of the particular
facts and circumstances. Conkle v. State, 677 So. 2d 1211, 1215
(Ala. Crim. App. 1995); see also Texas v. Johnson, 491 U.S. 397,
409 (1989) (“[W]e have not permitted the government to assume
that every expression of a provocative idea will incite a riot, but
have instead required careful consideration of the actual
circumstances surrounding such expression . . . .”).
¶ 23 With this standard in mind, we have been unable to uncover
any authority to support the proposition that a mere statement that
someone is a homosexual or engages in homosexual conduct
(assuming the meaning ascribed to the photo by the district court
and the dissent) constitutes fighting words. See also K.W., ¶ 34
(affirming juvenile’s conviction for disorderly conduct where
evidence showed more than juvenile’s single utterance of offensive
13 words; rather, juvenile was threatening to harm other students,
“she was hostile” — requiring security guard to intervene, and she
“repeatedly yelled the base obscenities at the security officer in an
aggressive manner”); cf. Gilles v. State, 531 N.E.2d 220, 221-23
(Ind. Ct. App. 1988) (holding that the defendant’s loud and
boisterous shouting at large group of people that they were
“fuckers,” “sinners,” “whores,” “queers,” “AIDS people,” and “scum
of the earth” who were going to hell, which occurred at a festival
where alcohol was served and continued despite police officers’
repeated requests for the defendant to stop, constituted disorderly
conduct). We note, however, that the display of swastikas during a
march through a community inhabited by Holocaust survivors — a
display that many might consider more likely to incite a violent
response than a hand-drawn picture of a penis — has been held not
to amount to “fighting words.” Village of Skokie v. Nat’l Socialist
Party of Am., 373 N.E.2d 21, 25-26 (Ill. 1978). Nor could the City of
St. Paul use its disorderly conduct statute to ban a defendant’s
conduct of burning a cross on a black family’s lawn. See R.A.V. v.
City of St. Paul, 505 U.S. 377, 391-92 (1992).
14 ¶ 24 Here, the circumstances surrounding R.C.’s display of the
photograph do not support the finding that the display was likely to
lead to immediate violence. To begin, R.C. and L.P. were friends.
R.C.’s display was not accompanied by any hostile, aggressive, or
threatening language or conduct. When R.C. showed L.P. and the
other boys the altered photo, they were in a classroom where,
presumably, a teacher was nearby and available to intervene or
mediate if tempers flared or feelings were hurt. There was no
evidence that R.C.’s display of the photo caused any sort of
commotion or that it was even noticed by other children or the
teacher. And, the display did not, in fact, arouse an immediate
violent response from L.P.; instead, L.P.’s immediate reaction was to
shrug off the incident, by pretending to laugh along with his
friends. See M.A.H., 572 N.W.2d at 757-58 (fact that the target of
alleged fighting words does not retaliate is relevant to question of
whether speech constitutes fighting words, but is not
determinative); see also Purtell, 527 F.3d at 625 (noting that display
was present for weeks without causing any disruption and
emphasizing that, to qualify as fighting words, the speech must
15 “have a tendency to provoke an average person to commit an
immediate breach of the peace”).
¶ 25 The dissent misunderstands our position, insisting that we
have concluded that case law does “not support treating references
to sexual orientation as fighting words.” Our position, though, is
simply that, under the circumstances presented in this case, R.C.’s
display of the photo did not amount to fighting words because it
was not likely to incite an immediate breach of the peace. We
certainly have not foreclosed the possibility that, under other
circumstances, references to a person’s sexual orientation might
indeed rise to the level of fighting words.
¶ 26 Adopting the district court’s reasoning, and undaunted by the
absence of any aggravating circumstances, the People argue for the
first time on appeal that the photo was akin to R.C. calling L.P. a
“cocksucker,” a term that by its mere utterance qualifies as fighting
words. We are not persuaded.
¶ 27 The requirement that we consider the language in context
means that we must also evaluate its harshness in the current
climate: “what may have constituted ‘classical fighting words’ in
1942 might comprise nothing more than an innocuous expression”
16 today. Svedberg v. Stamness, 525 N.W.2d 678, 683 (N.D. 1994).
Indeed, in Chaplinsky, the Court deemed it incontrovertible that the
language at issue — “damn racketeer” and “damn Fascist” — would
tend to incite a breach of the peace. 315 U.S. at 574. We have no
difficulty concluding that those terms would qualify for First
Amendment protection in 2016.
¶ 28 The word “cocksucker” is not an innocuous expression; it is
vulgar and profane. But uttering the word is not a crime unless its
mere utterance would tend to provoke a reasonable person to
immediately retaliate with violence. The People point us to three
cases, the most recent of which is nearly twenty-five years old, in
which courts upheld disorderly conduct convictions where one of
the words spoken was “cocksucker.” See City of Little Falls v.
Witucki, 295 N.W.2d 243 (Minn. 1980); State v. Broadstone, 447
N.W.2d 30 (Neb. 1989); City of Shaker Heights v. Marcus, No.
61801, 1993 WL 27676 (Ohio Ct. App. 1993). But in each of those
cases, the words (which included more than “cocksucker”) were
accompanied by violent or threatening gestures. In Marcus, for
example, the defendant was described as “extremely agitated, loud,
[and] combative.” 1993 WL 27676, at *1. Witnesses thought he
17 might “use force against” the bank manager. Id. In Broadstone, the
defendant not only cursed at the witness, but also assaulted him
with a stick. 447 N.W.2d at 32-33. And in Witucki, the court
characterized the defendant’s speech as threatening because it
scared the victim who was working alone in a bar. 295 N.W.2d at
244.
¶ 29 Later cases from these jurisdictions make clear that the
decisions turned on the totality of the circumstances, particularly
the threatening nature of the defendant’s speech and conduct. See
City of Chillicothe v. Lowery, No. 97 CA 2331, 1998 WL 396316, at
*5, *7 (Ohio Ct. App. 1998) (discussing disorderly conduct cases in
Ohio, including Marcus, and concluding that “[i]n all of the cases
upholding convictions for disorderly conduct involving profane
language, the courts found that the profanity was used in a
situation that likely could have become violent”); see also M.A.H.,
572 N.W.2d at 757 (citing Witucki and noting that “[e]very speech-
related disorderly conduct conviction upheld by Minnesota
appellate courts since [1978] has involved either an explicit verbal
or physical threat of violence or a situation where the victims were
placed in fear of imminent physical harm”).
18 ¶ 30 Thus, even if we otherwise found these cases persuasive, their
facts are distinguishable from the circumstances presented in this
case.
¶ 31 In any event, more recent cases suggest that “cocksucker” has
lost its former incendiary quality.4 See People v. Pierre-Louis, 927
N.Y.S.2d 592, 593 (N.Y. Dist. Ct. 2011) (holding that defendant’s
tirade against district attorney, in which he stated that district
attorney was a “piece of shit faggot fucking cock sucking cock,” did
not constitute fighting words); ARMCO, Inc. v. United Steelworkers of
Am., No. 2002CA0071, 2003 WL 22300027, at *7 (Ohio Ct. App.
2003) (holding that the insult “Afro cock sucker” was “mere words”
and would not tend to incite immediate violence); see also State v.
Swoboda, 658 S.W.2d 24, 25, 27 (Mo. 1983) (though unpleasant,
the words used by defendant — “motherfucker” and “cocksucker” —
4 The word also appears to have entered our coarsened political discourse. In August 2016, the Governor of Maine, Paul LePage, left a profanity-laden voicemail for a state legislator in which he called the legislator a “little son of a bitch, socialist cocksucker” and lamented that he could not challenge the legislator to a duel. Eric Russell & Scott Thistle, LePage Effectively Endorses Racial Profiling in Maine’s Battle Against Drug Addiction, Portland Press Herald, Aug. 26, 2016, https://perma.cc/5A6F-JMUF. We are reluctant to hold a middle school student to a higher standard than the Governor of Maine.
19 are “by no means uncommon” and constitute “everyday street
language”) (citation omitted); State v. McKenna, 415 A.2d 729, 732
(R.I. 1980) (“[A] group of people with normal sensibilities would not
likely retaliate against a woman who called them [cocksuckers] and
made wild, idle threats.”).
¶ 32 In light of the surrounding circumstances, we conclude that
the crude, sophomoric Snapchat photo does not rise to the level of
“fighting words.” A middle school student of average sensibilities
and maturity might have told R.C. that the photo was not funny, as
L.P.’s friends did, or reported the hurtful conduct to a school
administrator, as L.P. and his friends did later that day. But the
average person — even an average fourteen-year-old — would not
be expected to fly into a violent rage upon being shown a photo of
himself with a penis drawn over it. R.C.’s display simply does not
fall within the “exceedingly narrow” class of insults for which
violence is a reasonably expected response.
¶ 33 Our decision does not leave the school without a remedy for
inappropriate student behavior. A school administrator may,
consistent with the First Amendment, discipline a student for
broadcasting vulgar and offensive speech. See Bethel Sch. Dist. No.
20 403 v. Fraser, 478 U.S. 675, 685 (1986) (students’ First Amendment
rights are circumscribed in light of special characteristics of the
school environment). And Colorado, like most states, has an anti-
bullying statute that gives schools the specific authority to
prescribe consequences for conduct that satisfies the definition of
bullying. See § 22-32-109.1, C.R.S. 2016.
¶ 34 In sum, we agree with R.C. that his display of the altered
photo did not amount to fighting words. Accordingly, the
government failed to prove an element of the offense.
¶ 35 In light of our resolution of the first question, we need not
reach the second question — whether the evidence was sufficient to
prove that R.C. knew, or recklessly disregarded a substantial risk,
that his display would result in an immediate breach of the peace.
III. Conclusion
¶ 36 The judgment of conviction is reversed.
JUDGE ASHBY concurs.
JUDGE WEBB dissents.
21 JUDGE WEBB, dissenting.
¶ 37 Because the image that R.C. created depicting L.P. is not in
the record and the trial court did not make detailed findings,
exactly what it looked like is indeterminable. But for two reasons,
my sufficiency review assumes that the image showed L.P.’s face
with an adjacent ejaculating penis pointing at his open mouth.1
¶ 38 First, L.P. testified that R.C. had taken a picture of him with
his mouth open. A student who saw a later version of this image
testified that it showed L.P. with a penis drawn “on his face” which
was “[p]ointing more towards his mouth.” That student also
testified that the penis was ejaculating because “there was stuff
coming out of it.” Another student testified that the image had a
penis “[t]owards [L.P.’s] face” and “the penis was
[ejaculating] . . . because there were . . . white lines everywhere.”
¶ 39 Second, even if the record leaves any reasoned doubt about
exactly what the image depicted — which to my reading it does not
1 The majority’s characterization of the image as “cartoon-like” has no support in the record. And in any event, the law also gives legal effect to cartoons. See, e.g., Yorty v. Chandler, 91 Cal. Rptr. 709, 711 (Cal. Ct. App. 1970) (“A cartoon, of course, remains subject to the law of libel and, like any other form of depiction or representation, it may be found libelous if it maliciously presents as fact defamatory material which is false.”) (citation omitted).
22 — the content of the image must be treated in the light most
favorable to the prosecution. People v. Taylor, 131 P.3d 1158, 1164
(Colo. App. 2005).
¶ 40 No one who appears before us suggests that such a sexually
explicit image of a minor is innocuous.2 Even so, the novel question
of whether a photograph, (or here, a digital image), as opposed to
spoken words, even constitutes fighting words must be answered.3
If so, the remaining question is whether this particular image was
reasonably likely to provoke a violent response by L.P. Because I
would answer both questions “yes,” I respectfully dissent.
I. For First Amendment Purposes, Does A Digital Image Trigger the Fighting Words Doctrine?
¶ 41 True enough, the picture of L.P. with an ejaculating penis
superimposed near to or touching his face does not fit the
traditional model of fighting words because no words were included.
2 “‘Sexually exploitative material’ means any photograph . . . that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.” § 18-6-403(2)(j), C.R.S. 2016. 3 Other cases to have addressed non-spoken fighting words include
Texas v. Johnson, 491 U.S. 397 (1989) (flag burning), R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (cross burning), and World Wide Street Preachers’ Fellowship v. City of Owensboro, 342 F. Supp. 2d 634 (W.D. Ky. 2004) (picture of aborted fetus).
23 Still, “one picture is worth a thousand words.” People v. Sepeda,
196 Colo. 13, 22, 581 P.2d 723, 730 (1978).
¶ 42 Not surprisingly, then, pictures have legal significance. For
example, the law of libel, which also balances First Amendment
interests, has long recognized that a photograph can be as
defamatory as a printed word. See Knapp v. Post Printing & Publ’g
Co., 111 Colo. 492, 496, 144 P.2d 981, 983-84 (1943) (“A definition
of libel which has received general acceptance and approbation is to
be found in 33 American Jurisprudence, page 38, section 3. It
reads: ‘A libel is a malicious publication, expressed either in
printing or writing or by signs and pictures . . . .’”) (emphasis
added). As well, tort law gives effect to pictures. See, e.g., Ford
Motor Co. v. Lemieux Lumber Co., 418 S.W.2d 909 (Tex. Civ. App.
1967) (holding that sales brochure with pictures of truck capable of
crossing streams and ditches and climbing mountains could be
construed as an express warranty).
¶ 43 I do not perceive any doctrinal ground on which to avoid
balancing the fighting word exception against First Amendment
rights merely because a picture is at issue.
24 ¶ 44 Acknowledging that forms of communication other than
spoken words may convey fighting words also reflects the evolving
nature of how we communicate. Today, communication —
especially among the young — has become increasingly digital and
visual. See Doninger v. Niehoff, 594 F. Supp. 2d 211, 223 (D. Conn.
2009) (“[S]tudents are connected to each other through email,
instant messaging, blogs, social networking sites, and text
messages.”), aff’d in part and rev’d in part, 642 F.3d 334 (2d Cir.
2011).4
¶ 45 For these reasons, I would apply the fighting words doctrine to
test whether the penis image of L.P. enjoys First Amendment
protection.
4 See Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 Fla. L. Rev. 1027, 1037 (2008) (“Rather than harass their classmates in the locker room, hallways, and bathrooms, students engage in ‘electronic aggression,’ often in the form of malicious rumors or humiliating or threatening speech spread on social networking sites, e-mails, instant messages, chat rooms, text messages, and blogs.”); see also People in Interest of T.B., 2016 COA 151, ¶ 93 n.3 (Fox, J., dissenting) (“The cell phone is the most direct and most widely used mode of communication between young people. Seventy-one percent of teens own a cell phone and seventy- six percent of teens have sent text messages — in fact, of teens with cell phones, twenty-five percent of teens aged twelve to fourteen text daily and fifty-one percent of teens aged fifteen to seventeen text daily.”).
25 II. Did the Image of L.P. Constitute Fighting Words?
¶ 46 Everyone would agree that “[t]he unprotected category of
speech called ‘fighting words’ is an extremely narrow one.” Johnson
v. Campbell, 332 F.3d 199, 212 (3d Cir. 2003). Such words are
“those which by their very utterance inflict injury or tend to incite
an immediate breach of the peace.” Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942). And “[t]he potential to elicit an
immediate violent response exists only where the communication
occurs face-to-face or in close physical proximity.” City of Billings v.
Nelson, 322 P.3d 1039, 1045 (Mont. 2014).
¶ 47 But how great must be the risk of a violent response? To
determine whether a communication includes fighting words, “the
inquiry is not whether a reasonable person ‘might’ react violently,
but instead whether someone in the circumstances of the addressee
would likely react violently in the context in which the words were
spoken.” In re Nickolas S., 245 P.3d 446, 452 (Ariz. 2011). At the
same time, whether violence actually occurred is irrelevant, as a
matter of law. See State v. Parnoff, 125 A.3d 573, 579 (Conn. App.
Ct. 2015) (“To be considered ‘fighting words,’ the speech at issue
need not actually cause those who hear the speech to engage in
26 ‘violent, tumultuous or threatening behavior,’ but must have ‘the
tendency to provoke imminent retaliation’ from them.” (quoting
State v. Szymkiewicz, 678 A.2d 473, 477-78 (Conn. 1996))) (cert.
granted in part Nov. 30, 2015).5
¶ 48 So, what aspects of this case make such a violent response
likely? As the majority recognizes, the context must be considered.
Three contextual factors leap out.
¶ 49 First, the record shows that R.C. was in close physical
proximity to L.P., who could have immediately retaliated with a
violent act. Because of this proximity, displaying the image to L.P.
differs from cases dealing with an electronic communication where
no contemporaneous, in-person confrontation could have occurred.
See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496
F. Supp. 2d 587, 602 (W.D. Pa. 2007) (“A ‘MySpace’ internet page is
not outside of the protections of the First Amendment under the
fighting words doctrine because there is simply no in-person
5 Based on this principle, which the majority recognizes, its statement that the image “did not, in fact, arouse an immediate violent response from L.P.,” while factually correct, is legally inconsequential.
27 confrontation in cyberspace such that physical violence is likely to
be instigated.”), aff’d in part, 650 F.3d 205 (3d Cir. 2011).6
¶ 50 Second, a contextual approach requires that the age of the
listener be considered. See Svedberg v. Stamness, 525 N.W.2d 678,
684 (N.D. 1994) (“No one would argue that a different reaction is
likely if a thirteen-year-old boy and a seventy-five-year-old man are
confronted with identical fighting words.”); see also Nuxoll ex rel.
Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir.
2008) (adults “can handle such remarks better than kids can”).
¶ 51 Yet, the majority concludes that the image does not constitute
fighting words because an “average person — even an average
fourteen-year-old — would not be expected to fly into a violent rage
upon being shown a photo of himself with a penis drawn over it.”
The majority relies on State v. Tracy, 130 A.3d 196, 209 (Vt. 2015),
6 See also State v. Drahota, 788 N.W.2d 796, 804 (Neb. 2010) (“[E]ven if a fact finder could conclude that in a face-to-face confrontation, [defendant’s] speech would have provoked an immediate retaliation, [the recipient] could not have immediately retaliated. [He] did not know who sent the e-mails, let alone where to find the author.”); but see Davidson v. Seneca Crossing Section II Homeowner’s Ass’n, 979 A.2d 260, 283 (Md. Ct. Spec. App. 2009) (Series of e-mails “consisted of the use of ‘fighting words’” where they “regularly employed ‘personally abusive epithets which . . . [were] . . . inherently likely to provoke violent reaction.’”) (alterations in original) (citation omitted).
28 where the court explained that children are taught to use words
“rather than respond to anger and frustration by physically lashing
out.”
¶ 52 The reasoning in Tracy falls short because it is at odds with
capital and life without parole sentencing cases that recognize
children’s “lack of maturity and . . . underdeveloped sense of
responsibility,” coupled with their vulnerability to outside
influences. Roper v. Simmons, 543 U.S. 551, 569 (2005) (quoting
Johnson v. Texas, 509 U.S. 350, 367 (1993)). These cases also
acknowledge that children’s characters “are ‘not as well formed.’”
Graham v. Florida, 560 U.S. 48, 68 (2010) (quoting Roper, 543 U.S.
at 569-70).
¶ 53 Consistent with the Supreme Court’s observations on the
infirmities of youth — as applied to fighting words — at least one
court has held that “adolescent schoolchildren, are highly sensitive”
and “easily upset by comments,” such as those “about their race,
sex, etc.” Nuxoll, 523 F.3d at 671. This court explained that such
29 comments relate to “major components of [a person’s] personal
identity” and “can strike a person at the core of his being.” Id.7
¶ 54 Based on these authorities, I believe that L.P.’s age makes a
violent response more — not less — likely than if a similar penis
image of an adult had been displayed to the adult. But the
contextual inquiry does not end with age.
¶ 55 Third, the calculus of violence ratchets up even higher
because some of L.P.’s peers were present and saw the image when
R.C. displayed it to him. Cf. City of Landrum v. Sarratt, 572 S.E.2d
476, 478 (S.C. Ct. App. 2002) (One factor “to consider in
determining if profanity constitutes fighting words [is] the presence
of bystanders.”).8
7 In other contexts, the Supreme Court has found exceptions to First Amendment protections when the speech at issue involves minors. See United States v. Stevens, 559 U.S. 460, 471 (2010) (“[C]ategories of speech . . . fully outside the protection of the First Amendment” include child pornography because the state has “a compelling interest in protecting children from abuse.”). 8 Kathleen Hart, Sticks and Stones and Shotguns at School: The
Ineffectiveness of Constitutional Antibullying Legislation as a Response to School Violence, 39 Ga. L. Rev. 1109, 1119 (2005) (“One researcher has found that peers witness approximately 85% of bullying episodes that occur at school. Bystanders may be active participants by encouraging other kids to fight, or passive participants by merely laughing and doing nothing, perhaps
30 ¶ 56 The majority also rejects the trial court’s reasoning that the
penis image conveyed fighting words because, according to the
majority, the court incorrectly perceived the image as implying that
L.P. was gay and more recent cases generally do not support
treating references to sexual orientation as fighting words. That
may be so, but the record is devoid of any evidence — such as
accompanying statements by R.C. — from which a reasonable
person standing in L.P.’s shoes would have taken the image as a
reference to sexual orientation. And even assuming that the sexual
orientation of such a person might be relevant, L.P.’s sexual
orientation is unknown. Because of the barren record, gay bashing
is only a straw man who suffers the predictable fate.
¶ 57 In any event, whether the image constituted fighting words is a
question of law subject to de novo review. See Connick v. Myers,
461 U.S. 138, 150 n.10 (1983) (“‘[W]e are compelled to examine for
ourselves the statements in issue and the circumstances under
which they are made to see whether or not they . . . are of a
character which the principles of the First Amendment . . . protect.’
because they fear that they will be the bully’s next victim.”) (footnotes omitted).
31 Because of this obligation, we cannot ‘avoid making an independent
constitutional judgment on the facts of the case.’”) (citations
omitted). Given that the trial court’s reasoning is not binding on
appellate review, I decline to join the majority in dismembering it.
¶ 58 Returning, then, to whether the image showing L.P. engaged in
fellatio constituted fighting words, based on the contextual factors
discussed above, I am persuaded by the cases the Attorney General
cites holding that the colloquial term “cocksucker” does not enjoy
First Amendment protection under the fighting words doctrine. See
City of Little Falls v. Witucki, 295 N.W.2d 243 (Minn. 1980); State v.
Broadstone, 447 N.W.2d 30 (Neb. 1989); City of Shaker Heights v.
Marcus, No. 61801, 1993 WL 27676 (Ohio Ct. App. 1993).9
Although the majority distinguishes these cases as also including
threatening conduct, “threats are not, for First Amendment
purposes, treated identically with either fighting words or
expression tending to incite imminent lawless action.” In re M.S.,
9 These cases are not alone in treating some sexually derogatory statements as fighting words. See, e.g., State v. Groves, 363 N.W.2d 507, 510 (Neb. 1985) (holding that “fuckhead” and “mother fucker” are fighting words, not constitutionally protected speech).
32 896 P.2d 1365, 1373 (Cal. 1995). As well, threatening conduct was
not present here.10
¶ 59 With all of this in mind, I would hold that the image R.C.
created and circulated showing an ejaculating penis adjacent to
L.P.’s mouth constituted fighting words. Therefore, I would deny it
First Amendment protection and affirm the judgment of conviction.
10 The majority asserts that “more recent cases suggest that ‘cocksucker’ has lost its former incendiary quality.” But the cases cited do not carry the weight that the majority places on them. For example, in People v. Pierre-Louis, 927 N.Y.S.2d 592, 595 (N.Y. Dist. Ct. 2011), the alleged fighting words were from voicemails, not face- to-face interaction. Similarly, in State v. Swoboda, 658 S.W.2d 24, 26 (Mo. 1983), the alleged fighting words were overheard by a neighbor, but the “conduct took place entirely on [the defendant’s] own property and was not in any way directed towards the complainant.” And in State v. McKenna, 415 A.2d 729, 731 (R.I. 1980), the defendant “addressed her remarks to a group of five men. She spoke to them as a group, not individually nor face-to- face.” Finally, in ARMCO, Inc. v. United Steelworkers of America, No. 2002CA0071, 2003 WL 22300027, at *7 (Ohio Ct. App. 2003), the court was “unable to determine” if “Afro cock sucker” constituted fighting words.