# Whittington v. State > Indiana Supreme Court · August 7, 1996 · 669 N.E.2d 1363 URL: https://www.frixlaw.com/law-library/cases/9715431 ## Case - **Full name:** Eric WHITTINGTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below) - **Court:** Indiana Supreme Court - **Decided:** August 7, 1996 - **Citations:** 669 N.E.2d 1363; 1996 Ind. LEXIS 125; 1996 WL 450837 - **Precedential status:** Published - **Opinion:** Concurring in part by Dickson - **Judges:** Shepard, Debruler, Selby, Sullivan, Dickson - **Cited by:** 78 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9715431 ## How later opinions describe it (automated extraction) - holding that the evidence did not support an assertion that Whittington's expression was political and holding that "we must apply rationality review in determining whether the state could reasonably have concluded that Whittington's expressive activity, because of its volume,… - finding expression not political where the defendant “protested that he had not done anything and that the other witnesses were lying” because the “statements involve the conduct of private individuals, not state action” - noting that "[a]s we indicated in Price , the approach under § 9 might be different were the challenger's activity not pure expression-that is, were it mixed with non-expressive conduct" - noting that the focus of the free speech clause is on the “restrictive impact of state action” and that the clause is triggered when the “state imposes a direct and significant burden on a person’s opportunity to speak his or her mind” ## Opinion text DICKSON, Justice, dissenting and concurring in result. Because the majority bases its decision upon the controversial case of Price v. State, 622 N.E.2d 954 (Ind.1993), I dissent. This Court decided Price in a 3-2 opinion, and the denial of the rehearing petition by a 2-1 vote did not disclose the views of the two abstaining Justices who have joined this Court since the issuance of the original opinion 1 . I continue to believe that Price is an incorrect and harmfal interpretation of Article I, Section 9 of the Indiana Constitution. In today's decision, the majority perpetuates various aspects of Price that I contend are particularly mistaken. Price unnecessarily propounds, and superimposes upon the clear language of Section 9, its theory of "core constitutional values"-a concept that, *1372 by affording preferential treatment to political but not other speech, defies the express declaration in Section 9 that the right to speak, write, or print extends to "any subject whatever." Ind. Const. art. I, § 9. Likewise, I believe that the Price majority was mistaken to predicate its analysis upon a redefinition of the simple word "abuse" as "the use of a thing in a manner injurious to the order or arrangement from which it derives its function." Price, 622 N.E.2d at 958 . Defendant Whittington was convicted of disorderly conduct. His appeal contends that his words and actions were "protected speech." The unwieldy nature of Price is evident from the fact that the Court of Appeals, in an earnest attempt to apply Price, reversed this conviction that the majority, also applying Price, today affirms. See Whittington v. State, 634 N.E.2d 526 (Ind.Ct.App.1994). The questionable utility of Price is also demonstrated by the difficulties the Court of Appeals has encountered in applying its formulation in other decisions. In Hooks v. State, 660 N.E.2d 1076 (Ind.Ct.App.1996), a divided court affirmed the conviction over a strong dissent from Judge Robertson. The Price philosophy led the Court of Appeals in Radford v. State, 627 N.E.2d 1331 (Ind.Ct.App.1994), to overturn a conviction initially; then, on rehearing and after a change of personnel, the court reversed itself and affirmed the conviction. See Radford v. State, 640 N.E.2d 90 (Ind.Ct.App.1994). The Price framework does not facilitate the development of consistent, principled decisions. Without resorting to the Price methodology, I would affirm Whittington's conviction in the present case because it does not violate the plain and ordinary meaning of Article I, Section 9. The disorderly conduct statute, which is directed against the manner of expression and not its content, does not restrain or restrict "the right to speak, write, or print, freely, on any subject whatever." Regardless of the presence or absence of political content, Whittington's words are entitled to free speech protection. 2 However, because Section 9 insists that every person "shall be responsible for the abuse of that right," Whittington may be held criminally accountable. I would find the rights of free expression to have been abused when exercised contrary to laws prescribing reasonable time, place, and manner limitations. Indiana's disorderly conduct statute fairly establishes such parameters. . Furthermore, we do not know whether today's majority opinion reflects the views of Justice Boehm, who will be sworn in later today to replace the retiring Justice DeBruler, a member of the Price majority. . I would find the free expression rights recognized by Section 9 to prevail against state action based upon ordinary police power and would permit restriction of the rights only upon the reasonable exercise of those police powers that are actually necessary to safeguard the peace, safety, and well-being of the general public. See Clem v. Christole, 582 N.E.2d 780, 784 (Ind.1991). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715431. Public record. Not legal advice.