# Price v. State > Indiana Supreme Court · November 1, 1993 · 622 N.E.2d 954 URL: https://www.frixlaw.com/law-library/cases/9717247 ## Case - **Full name:** Colleen PRICE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below) - **Court:** Indiana Supreme Court - **Decided:** November 1, 1993 - **Citations:** 622 N.E.2d 954; 1993 Ind. LEXIS 183; 1993 WL 437770 - **Precedential status:** Published - **Opinion:** Dissent by Dickson - **Judges:** Shepard, Debruler, Krahulik, Givan, Dickson - **Cited by:** 158 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/9717247 ## How later opinions describe it (automated extraction) - holding the language of a disorderly conduct statute did not "invite arbitrary or discriminatory enforcement" because the statute's "reasonableness standard provide[d] a constraining and intelligible enforcement guideline for police and prosecutors" - holding that the defendant’s overall complaint which included her statement that she had not done anything after being threatened with arrest constituted political speech - holding that defendant’s overall complaint, which included her statement that she had not done anything after being threatened with arrest, constituted political speech - concluding that the state imposes a material burden when it treats as an abuse political speech which does not harm any particular individual (“public nuisance”) - rejecting a vagueness challenge to disorderly conduct statute, finding that “the objective ‘reasonableness’ test is used in many areas of the law as an appropriate determinant of liability and thus a guide to conduct” ## Opinion text DICKSON, Justice, dissenting. The essence of the majority opinion is that a person facing arrest who protests by screaming vulgar profanities into the face of an arresting officer does not violate Indiana’s disorderly conduct statute prohibiting unreasonable noise. I strenuously disagree. In an apparent desire to give vitality to Art. 1, § 9, of the Indiana Constitution independent of its federal counterpart, the majority has chosen an ill-suited case and formulated a strained rationale. Today’s decision is contrary to the inten *968 tions and values of those who framed and ratified our constitution. The majority’s conclusion stems from several sources: its redefinition of the word “abuse,” its reliance on the concept of police power rather than the express language of our constitution to authorize penal sanctions for abusive speech, its recourse to a theory of “core constitutional value,” its elevation of political speech to a preferred position, and its decision to protect loud and profane epithets as political speech. First, it seems unnecessary and inappropriate for the majority to invent a new definition for the word “abuse” as it is used in responsibility clause of the free speech provision in our state constitution: No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible. Constitution of Indiana, Art. 1, § 9 (emphasis added). We have long recognized as “a cardinal principle of constitutional construction that words are to be considered as used in their ordinary sense; and that their ordinary and common meaning is to be attributed to them.” Tucker v. State (1941), 218 Ind. 614, 670 , 35 N.E.2d 270, 291 . The task of interpreting a particular provision of the Indiana Constitution is “a search for the common understanding of both those who framed it and those who ratified it.” Bayh v. Sonneburg (1991), Ind., 573 N.E.2d 398 , 412 cert. denied (1992), — U.S. -, 112 S.Ct. 1170 , 117 L.Ed.2d 415 (emphasis added); accord Kirkpatrick v. King (1950), 228 Ind. 236, 242-43 , 91 N.E.2d 785, 788 ; Bishop v. State ex rel. Griner (1898), 149 Ind. 223, 230 , 48 N.E. 1038, 1040 . In 1851, when ratifying the above-quoted language, Indiana citizens would have attributed to “abuse” its plain and ordinary meaning. In contrast, the majority today redefines “abuse” to mean “the use of a thing in a manner injurious to the order or arrangement from which it derives its function.” Op. at 958. From this definition the majority then weaves its theory that the responsibility clause was intended not to apply to political speech as a “core constitutional value.” The premise, however, is flawed. In determining the probable meaning perceived by the ratifiers, we look to dictionaries of common usage contemporaneous with the ratification. See McAnalley v. State (1987), Ind., 514 N.E.2d 831, 834 . In contrast to the majority’s primary reliance upon specialty dictionaries used within the legal profession, a more reliable source for the ordinary meaning understood by the ratifiers in 1851 is the following 1856 common usage dictionary definition of the noun “abuse:” Ill use; improper treatment or employment; application to a wrong purpose; as, an abuse of our natural powers; an abuse of civil rights, or of religious privileges; abuse of advantages, & c. 2. A corrupt practice or custom; as, the abuses of government. 3. Rude speech; reproachful language addressed to a person; contumely; reviling words. 4. Violation of a female. 5. Perversion of meaning; improper use or application; as, an abuse of words. Noah Webster, An American Dictionary of the English Language 6 (1856). Considering the ordinary meaning of “abuse” leads to the conclusion that the framers and ratifiers did not envision a restrained responsibility clause inapplicable to “core constitutional values,” but rather intended the free speech right extended in Section 9 to be limited so as to not grant protection to abusive speech. Our constitution-makers did not intend protection for rude or vile language, but instead assumed that citizens would remain civilly and criminally responsible for abuse of the right. Second, in its focus upon the extent of the police power as a limitation upon rights conferred by our constitution, the majority opinion fails to give credence to the responsibility clause of Section 9 as a separate and independent source of governmental *969 authority to enact and enforce penal sanctions for abusive speech. The police power certainly may provide one basis for the government to enact laws that may partially impede constitutional rights, and the majority concerns itself with this issue. However, it overlooks that the language of Section 9 itself contains an independent, express limitation: “for the abuse of that right, every person shall be responsible.” This limitation does not rely upon the extent of police power, nor should it be restricted by any overlay of police power analysis. Thus, while the majority’s discussion of police power and its redefinition of “abuse” may lead it to conclude that “the State may not punish an expression when doing so would impose a material burden upon a core constitutional value,” Op. at 960, this reasoning ignores that the State is additionally authorized by express language of the responsibility clause in Section 9 to provide for criminal responsibility for abuse of the free speech right. Third, there appears to be no need for the majority to devise its “core constitutional value” analysis. The “core” of Indiana’s free speech right is provided by the whole, not part, of Section 9. This is not an absolute right of completely unfettered, unlimited speech but one expressly tempered by its final clause, “for the abuse thereof, every person shall be responsible.” The majority disregards this responsibility clause in fashioning its “core constitutional value” theory. Further troubling is the inconsistency between the majority’s overbreadth analysis and its subsequent limitation upon the State’s authority to punish abusive speech. The majority initially rejects' the concept of overbreadth, noting that the history and structure of the Indiana Constitution do not evince any “preferred” position for expression. Later, however, the majority elevates political expression to a preferred position by defining it as a “core constitutional value” entitled to particular deference, making it immune from statutes prohibiting unreasonable noise. This rationale is then used to engraft a judicial exception declaring that the disorderly conduct statute cannot apply to political speech otherwise disorderly. Finally, the majority posits that unreasonable noise which would otherwise constitute disorderly conduct must be shielded from criminal penalty if it is an expression of “concern about the role of police.” Op. at 961. The majority thus concludes that the defendant's vulgar complaints constituted political speech. The message sent by today’s opinion is that persons confronted with imminent arrest may now react with unlimited noise and vulgarity — so long as such profanities include a protest about police conduct. The Indiana citizens who wrote and ratified our constitution did not intend to create a right to curse in public, let alone at a police officer. Obscenity was not intended to be cloaked with the protection of the free speech clause. Fordyce v. State (1991), Ind.App., 569 N.E.2d 357, 362 . It is true that speech not constituting disorderly conduct may not be criminalized merely because it includes political protest. On the other hand, speech which does constitute disorderly conduct should not be shielded from prosecution merely because it contains such a protest. I therefore dissent. If transfer must be granted for this Court to speak on Art. 1, § 9,1 would grant transfer only to express our affirmance and adoption of the opinion of the Court of Appeals. GIVAN, J., concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717247. Public record. Not legal advice.