Petition for Writ of Certiorari — Aaron Matthew Oleston, Petitioner v. Wisconsin

No.

In the

Supreme Court of the United States

Aaron M. Oleston,

Petitioner

V.

State of Wisconsin

Respondent

On Petition for Writ of Certiorari to the Supreme Court of

Wisconsin

Petition for Writ of Certiorari

Steven Roy

Attorney for the Petitioner

Supreme Court Bar No. 314918

1310 O'Keeffe Ave. #315

Sun Prairie, WI 53590

608.571.4732

Steven@stevenroylaw.com

1

Question Presented

The freedom of individuals to verbally oppose or challenge police

action without risking arrest is one of the principle characters which

distinguishes a free nation from a police state. Disorderly conduct

statutes must be narrowly tailored, as to only criminalize speech with

threatens an immediate breach of the peace.. This Court has

consistently invalidated laws which provide police with unfettered

discretion to arrest individual for words or conduct which merely

annoys or offends them. This Court has also suggested law

enforcement may be held to a higher degree of restraint as to what

consists "fighting words".

While the Federal Courts have overwhelmingly accepted this

Court's suggestion and held law enforcement to a higher degree of

restraint, state courts are fiercely divided. Fifteen states have agreed

to hold law enforcement to a higher standard than the general

population. Thirteen have rejected this view. Not only have states

split on the standard they hold law enforcement to, there is also fierce

division as to what constitutes fighting words.

Aaron Oleston dared to verbally oppose police actions at his local

police precinct on five occasions. He stood and paced on the sidewalk,

speaking to police officers and recording his interactions. While the

1

words he used were frequently crass, and he occasionally raised his

voice to carry over other noise, his physical actions were calm and nonthreatening. The fifth time he did so, police arrested him for

"harassing people off duty". The Wisconsin Court of Appeals reversed

three of Mr. Oleston's convictions, but upheld two others based on his

conduct of approaching the officers while talking to them.

The question presented is:

Does the First Amendment protect the right of the people to

approach law enforcement and criticize police actions in an

opprobrious manner?

2

Parties to the Proceeding

The petitioner is Aaron Oleston who was the defendant in the

circuit court, defendant-appellant in the Wisconsin Court of Appeals,

and the defendant-appellant-petitioner in the Supreme Court of

Wisconsin.

The respondent is the State of Wisconsin, who was the the

plaintiff in the circuit court, and the plaintiff-respondent in subsequent

appellate proceedings.

Statement of Related Proceedings

This case arises from the following proceedings:

• State of Wisconsin v. Aaron Oleston No. 2020-AP-952-CR

• State of Wisconsin v. Aaron Oleston Rock County 18-CM-937

There are no other proceedings in state or federal trial or appellate

courts, or in this Court directly related to this case within the meaning

of this Court's Rule 14.1(b)(iii).

3

Table of Contents

Question Presented

1

Parties to the Proceeding

3

Statement of Related Proceedings

3

Table of Authorities

5

Petition for Writ of Certiorari

8

Opinions Below

13

Jurisdiction

13

Constitutional, Statutory, and Regulatory Provisions Involved

13

Statement of the Case

14

Reasons for Granting the Petition

18

I. This Court should resolve the jurisdictional differences in the

application of the fighting words doctrine to words spoken to law

enforcement

18

II. This case presents a timely opportunity for this court to reinforce

our Nation's commitment to free debate and the free exchange of

ideas

23

Conclusion

27

4

Table of Authorities

Cases

11, 21

Alamogordo v. Ohlrich

95 N.M. 725 (N.M. Ct. App 1981)

11, 21

Anniskette v. State

489 P.2d 1012 (Alaska 1971)

12, 21

Bismarck v. Schoppert

469 N.W.2d 808 (N.D. 1991)

12, 21

Bousquet v. State

261 Ark. 263 (Ark. 1977)

11, 20

Braun v. Baldwin

346 F.3d 761 (7th Cir 2003)

Cantwell v. Conn

18

310 U.S. 296, 60 S. Ct. 900, 84 L. Ed.1213 (1940)

Chaplinsky v. N H

18, 19

315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)

11, 21

Chicago v. Blakemore

15 Ill. App. 3d. 994 (Ill. App. Ct. 1973)

Cohen v. Cal

19

403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 2d 284 (1971)

Colten v. Ky

26

407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed. 2d 584 (1972)

De Jong v. Oregon

23, 24

299 U.S. 353, 365, 57 S.Ct. 255 (1937)

Diehl v. State

12, 21

294 Md. 466 (Md. 1981)

11, 20

Ford v. City of Yakima

706 F.3d 1188 (9th Cir. 2013)

11, 20

Glik v. Cunniffe

655 F.3d 78 (1st Cir. 2011)

19, 25

Gooding v. Wilson

405 U.S. 518, 92 S.Ct. 1103, 31 L. Ed. 408

11, 21

Harrington v. City of Tulsa

1988 OK CR 231 (Okla. Crim. App. 1988)

9, 10, 20

Houston v. Hill

482 U.S. 451, 107 S. Ct. 2502, 96 L.ed. 2d 398 (1987)

12, 21

In re Alejandro G

37 Cal. App. 4th 44 (Cal. Ct. App. 1995)

11, 21

In re Nickolas

245 P.3d 446 (Ariz. 2011)

5

In re V.C.R

12,21

227 N.C.App. 80 (N.C. Ct. App. 2013)

In re Welfare of S.L.J

12, 21, 22

263 N.W.2d 412 (Minn. 1978)

In the Interest of Doe

11, 21

869 P.2d 1304 (Haw. 1994)

Jackson v. Oliver

22

680 S.W.2d 406 (Mo. Ct. App. 1984)

Kennedy v. Villa Hills

11, 20

635 F.3d 210, 216 (6th Cir. 2011)

Knowles v. State

11, 21

340 Ga. App. 274 (Ga. Ct. App. 2017)

Lewis v. City of New Orleans

9, 19, 20

415 U.S. 130, 135, 94 S. Ct. 970, 39 L.Ed. 2d 214 (1974)

L.J.M. v. State

12, 21

541 So. 2d 1321 (Fla. Dist. Ct. App. 1989)

Marttilla v. City of Lynchburg

11, 21

33 Va. App. 592 (Va. Ct. App.2000)

Mesa v. Prejean

11, 20

543 F.3d 264 (5th Cir. 2008)

New Orleans v. Lyons

11, 21

342 So. 2d 196 (La. 1977)

Odem v. State

11, 21

881 So. al 940 (Miss. Ct. App. 2004)

People v. Baker

11, 21

20 N.Y.3d 354 (N.Y. 2013)

People ex rel. R.0

22

411 P.3d 1105 (Colo. App. 2016).

Posr v. Court Officer Shield #207

11, 20

180 F.3d 409 (2d Cir. 1999)

Terminiello v. Chicago

10, 24

337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)

Skop v. City of Atlanta

11, 20

485 F.3d 1130 (11th Cir 2007)

Smith v. City of Anniston

11, 21

668 So. 2d 96 (Ala. Crim. App. 1995)

State v. Baccala

11, 21

326 Conn. 262 (Conn. 2017)

State v. Fratzke

11, 21

446 N.W.2d 781 (Iowa 1989)

State v. Groves

12, 21, 22

219 Neb. 382 (Neb. 1985)

6

12, 21

State v. Keck

9 Kan. App. 2d 459 (Kan Ct. App. 1984)

12, 21

State v. Matthews

111 A.3d 390 (R.I. 2015)

11, 21

State v. Montgomery

1982).

31 Wn. App. 745 (Wash. Ct. App.

3, 13

State v. Oleston

2021 WI App 63, 399 Wis. 2d 323, 964 N.W.2d 549 (Wis. Ct App

2021)

12, 21

State v. Read

165 Vt. 141 (Vt. 1996).

State v. Robinson

12, 21

2003 MT 364 (Mont. 2003)

State v. Suhn

12, 21

2008 SD 128 (S.D. 2008)

State v. Thurman

11, 21, 22

2016 Ohio 3002 (Ohio Ct. App 2016)

State v. W

11,21

418 A.2d 1097 (Me. 1980)

Stearns v. Clarkson

11, 20

615 F.3d 1278 (10th Cir. 2010)

Thurairajah v. City of Fort Smith

11, 20

925 F.3d 979 (8th Cir. 2019)

Constitutional Provisions

U.S. Const. Amed. I

2, 8, 10, 13, passim

Statutory Provisions

Wis. Stat. §947.01

13

7

Petition for Writ of Certiorari

The pen is mightier than the sword.

As lawyers and jurists we know this to be true. Rather than

fighting battles with brutal weapons of death and destruction, we

chose to forge a better world through principled debate and argument.

In the war of words, no lives are lost and change is allowed to come

peacefully; through the ballot box, legislation, and the market place of

ideas.

Ideas, and the words which we choose to represent them can

spark revolution. Tyranny seeks to maintain its power through the

suppression of ideas with force. Our founding fathers understood this.

To prevent their fledgling nation from following the path of tyrants,

the founders enacted the First Amendment to our constitution. The

freedom of speech shall not be abridged.

In instances of disorderly conduct, this Court has routinely

struck down statutes which permit the criminalization of speech unless

these words are lewd and obscene, profane, libelous, or fighting words.

This Court has suggested when the fighting words doctrine is applied

to words directed at police officers, the doctrine may require a

narrower application as law enfacement may be reasonably expected to

8

exercise a higher degree of restraint than the average citizen. Houston

v. Hill 482 U.S. 451, 461-462, 107 S. Ct. 2502, 96 L.ed. 2d 398 (1987),

quoting Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S. Ct. 970,

39 L.Ed. 2d 214 (1974)(Powell, J., Concurring). This conforms with the

history of free speech in the colonies.

In 1735 New York State sought to convict publisher John Peter

Zenger for misdemeanor libel. Mr. Zenger dared to irritate and annoy

those in authority. There was no dispute as to the facts of the matter;

Mr. Zenger published the works he was accused of publishing. The

Crown argued it was a great offense to speak evil of those in authority.

Counsel for Mr. Zenger, Mr. Andrew Hamilton, argued all people are

entitled to complain when they are hurt; they have the natural right to

publicly assert the abuses of power and the violences of authority. It is

through this speech that neighbors can be place upon their guard, and

when the house of assembly sees the injustices to the people it can

work to restore justice. (Peleg W. Chandler, 1816-1889. American

Criminal Trials (1841)(App.162-222)

The People of New York acquitted Mr. Zenger in spite of the

overwhelming evidence.

9

In 2018, Mr. Oleston made himself irritating and annoying to

those in authority. Mr. Oleston questioned law enforcement about his

perceived abuses of police power. For doing so, he was forcibly

arrested, and convicted of five counts of disorderly conduct. At every

opportunity Mr. Oleston has asserted his conduct and speech was

protected by the First Amendment's guarantee: Provocative and

challenging speech is protected from censorship unless the government

can show it was likely to produce a clear and present danger of some

serious substantive harm which rises above public inconvenience,

annoyance, or unrest. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct.

894, 93 L.Ed. 1131 (1949).

While the Court's rationale in Hill may differ from Mr.

Hamilton's, it is consistent with our fundamental view of free speech.

Speech invites dispute; it can be provocative, challenging, and

profoundly unsettling. The vitality of our civil and political

institutions depends on this. Free speech allows for a government

which remains responsive to the will of the people and allows for

peaceful change. The right to speak freely and to promote a diversity

of ideas is one of the chief distinctions which sets us apart from the

world's totalitarian regimes. Terminallo, at 4-5.

10

The majority of federal courts have seized upon this Court's

suggestion the doctrine of fighting words should be narrowly applied in

cases involving words addressed to law enforcement.1 In all but eight

states, federal courts hold law enforcement to a higher degree of

restraint than the average citizen, ensuring police do not have

unfettered discretion to arrest those whose words or conduct merely

annoys or offends them.

The states, where many of these minor offenses are prosecuted,

are much more divided. Just fifteen states have determined this

narrower application is appropriate.2 Thirteen states have rejected

1 See e.g. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Posr u. Court Officer

Shield #207, 180 F.3d 409 (2d Cir. 1999); Mesa v. Prejean, 543 F.3d 264 (5th

Cir. 2008); Kennedy v. Villa Hills, 635 F.3d 210, 216 (6th Cir. 2011); Braun v.

Baldwin, 346 F.3d 761 (7th Cir 2003); Thurairajah v. City of Fort Smith, 925

F.3d 979 (8th Cir. 2019); Ford v. City of Yakima, 706 F.3d 1188 (9th Cir.

2013); Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010); Skop v. City of

Atlanta, 485 F.3d 1130 (11th Cir 2007).

2 See e.g., Smith v. City of Anniston, 668 So. 2d 96 (Ala. Crim. App. 1995);

Anniskette v. State, 489 P.2d 1012 (Alaska 1971); In re Nickolas S., 245 P.3d

446 (Ariz. 2011); State u. Baccala, 326 Conn. 262 (Conn. 2017); Knowles v.

State, 340 Ga. App. 274 (Ga. Ct. App. 2017); In the Interest of Doe, 869 P.2d

1304 (Haw. 1994); Chicago v. Blakemore, 15 III. App. 3d. 994 (III. App. Ct.

1973); State v. Fratzke, 446 N.W.2d 781 (Iowa 1989); New Orleans v. Lyons,

342 So. 2d 196 (La. 1977); State v. W., 418 A.2d ; (Me. 1980); Odem v. State,

881 So. 2d 940 (Miss. Ct. App. 2004).Alamogordo v. Ohlrich, 95 N.M. 725

(N.M. Ct. App 1981); People v. Baker, 20 N.Y.3d 354 (N.Y. 2013); State v.

Thurman, 2016 Ohio 3002 (Ohio Ct. App 2016); Harrington v. City of Tulsa,

1988 OK CR 231, (Okla. Crim. App. 1988), Marttilla v. City of Lynchburg, 33

Va. App. 592 (Va. Ct. App.2000); State u. Montgomery, 31 Wn. App. 745

(Wash. Ct. App. 1982).

11

this proposition.3 Even within the thirteen states charting a different

course for the First Amendment, there is severe conflict.

The First Amendment provides a floor in protecting provocative

and challenging speech. This is not a level floor. This Court should

grant certiorari to level this floor, reinforce our nation's commitment to

preventing the abuses of tyranny, and ensure peaceful change

continues at the hand of the pen, not the sword.

3 See e.g. Bousquet v. State, 261 Ark. 263 (Ark. 1977); In re Alejandro G., 37

Cal. App. 4th 44 (Cal. Ct. App. 1995); L.J.M. v. State, 541 So. 2d 1321 (Fla.

Dist. Ct. App. 1989); State v. Keck, 9 Kan. App. 2d 459 (Kan Ct. App. 1984);

Diph., vRtat.e. 294 Md. 466 (Md. 19R1): in ro WpiforP of R.L.J. 262 N.W.2d

412 (Minn. 1978);State v. Robinson, 2003 MT 364 (Mont. 2003); State v.

Groves, 219 Neb. 382 (Neb. 1985); In re V.C.R., 227 N.C.App. 80 (N.C. Ct.

App. 2013); Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991); State v.

Matthews, 111 A.3d 390 (R.I. 2015); State v. Suhn, 2008 SD 128 (S.D. 2008);

State v. Read, 165 Vt. 141 (Vt. 1996).

12

Opinions Below

The Wisconsin Supreme Court's decision denying the petition for

review is not reported, but has been reproduced at App.101-103. The

court of appeals opinion affirming in part and reversing in part the

decision of the circuit court is unpublished, but can be found at State v.

Oleston, 2021 WI App 63, 399 Wis. 2d 323, 964 N.W.2d 549 (Wis. Ct.

App 2021). and is reproduced at App.104-113 The circuit court's oral

decision is reproduced at App. 113-157.

Jurisdiction

The Supreme Court of Wisconsin issued its opinion on December

17, 2021. A copy of this decision is reproduced at Appendix 101-104.

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

Constitutional. Statutory. and Regulatory Provisions Involved

The First Amendment to the United States Constitution and

relevant portions of the Wisconsin statutes are reproduced at App.

158-162.

13

Statement of the Case

The facts giving rise to this case are straightforward and

were all captured on Mr. Oleston's cameras. Mr. Oleston

disagrees with many police actions including their harassment of

the homeless, failure to identify themselves, and wasting

taxpayer funds. On August 13, 2018, Mr. Oleston went to the

Janesville police department, positioned himself on the sidewalk

near the rear entrance, and began to record what he saw. Counts

1-4 of the criminal complaint occurred on this date.

Count 1

Officer Jeremy Wiley was walking into the building to

begin his shift when he saw Mr. Oleston and said "Hi". Mr.

Oleston responded by saying "I don't talk to terrorists, so fuck

you... suck a dick... you fucking thug".

Count 2

Officer Daniel Schoonover was walking into the building to

begin his shift. Like Officer Wiley, Officer Schoonover said "Hi"

to Mr. Oleston. Mr. Oleston replied, "You work for this piece of

shit organization, you Nazi ISIS organization."

14

Count 3

Officers Robert Gruenwald and Ryan Nabler were leaving

the police department at the end of their shift. Mr. Oleston asked

them if they were janitors. When Officer Nabler responded they

were officers, Mr. Oleston remarked, "Oh, off duty". He then

asked the officers if they were going home to beat their wives,

and called them assholes.

Count 4

Officers Pearson, Smith, and Rau were leaving the station.

As they were walking towards their vehicles, Mr. Oleston walked

towards them and asked them if they were "having fun fucking

with peoples' lives", and noted "citizens are forced to talk, we ask

questions and you don't talk."

Count 5

On August 15, 2018, Mr. Oleston resumed his position on

the sidewalk. Officer Bentley noticed Mr. Oleston grumbling.

Mr. Oleston noticed Officer Vitaioli's vehicle did not have a front

license plate. Another officer tested the siren on their patrol car.

After the siren stopped, Mr. Oleston could be heard pointing out

the missing license plate in a raised voice. Officer Wiley was

15

present, and arrested Mr. Oleston for harassing off-duty place

officers.

On September 13, 2018, a criminal complaint was filed

charging Mr. Oleston with five counts of disorderly conduct in

violation of Wis. Stat. §947.01, and one charge of obstructing a

police officer. On March 19, 2019, Counsel for Mr. Oleston filed a

motion to dismiss all charges as Mr. Oleston's conduct and speech

are protected by the First Amendment to the United States

Constitution and Article 1 Section 3 of the Wisconsin

Constitution. The parties briefed the issues; on April 30, 2019

the circuit court held a hearing on the motion, and denied the

motion to dismiss. In its ruling, the circuit court placed

significant emphasis on the right of officers to be let alone, the

lack of social value to Mr. Oleston's comments, and Mr. Oleston's

initiation of contact.

Counsel for Mr. Oleston filed a petition for leave to appeal

on June 27, 2019. The petition was denied, and Mr. Oleston

proceeded to trial. At trial, Mr. Oleston was convicted on each

count of disorderly conduct, but was found not guilty of

obstructing a police officer. On December 11, 2019, Mr. Oleston

16

was placed on two years probation with sentences withheld. Mr.

Oleston filed a notice of intent to pursue post-conviction relief the

next day. A timely notice of appeal was filed on May 26, 2020.

An unpublished, one judge decision was issued on July 15,

2021 which affirmed the circuit court in part and reversed in

part. The court held Mr. Oleston's speech and conduct tp be

protected by the First Amendment in counts 1-3. Without

discussion of whether Mr. Oleston's conduct was sufficiently

imbued with elements of communication to fall within the scope

of the First Amendment, or whether the speech and non speech

elements were combined in the same course of conduct, the court

of appeals "conclude[d] that Oleston's conduct in counts four and

five involved penalizable non-speech elements and is not within

the realm of First Amendment protection."

Mr. Oleston electronically filed a petition for review in the

Wisconsin Supreme Court on August 16, 2021. As the clerk did

not file paper copies of the petition until the next day, the Court

dismissed the petition as untimely. Mr. Oleston now requests

this Court grant certiorari.

17

Reasons for Granting the Petition

I. This Court should resolve the jurisdictional differences in the

application of the fighting words doctrine to words spoken to law

enforcement.

Over the course of the past century, this Court has provided

significant guidance for the lower courts, government officials, and the

public regarding the First Amendment. Largely, this is a welldeveloped, cohesive body of law. The doctrine of fighting words is an

exception to this rule.

In 1940, this court first considered the constitutionality of a

"breach of the peace" statute in respect to an appellant's right to

convey their viewpoints. Cantwell u. Conn., 310 U.S. 296, 60 S. Ct.

900, 84 L. Ed.1213 (1940). The Court rightly noted no one would

suggest freedom of speech sanctions incitement to riot, or exhorting

others to physically attack someone. Only when there is a clear and

present danger or threat to public safety, peace, or order may the state

criminalize the expression of views. Cantwell, 310 at 308. Two years

later, this Court would announce four categories of unprotected speech:

the lewd and obscene, the profane, the libelous, and fighting words—

"those which by their very utterance inflict injury or tend to incite an

immediate breach of the peace". Chaplinsky v. N.H., 315 U.S. 568,

572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Whether speech crossed into

fighting words was based on what the ordinary person would

18

understand to cause an average addressee to fight. Chaplinsky, 315,

at 573.

This Court has restricted the doctrine of fighting words in

subsequent decisions. In Cohen v. Cal., this Court held it was

impermissible to criminalize the wearing of a jacket displaying the

words, "Fuck the Draft" as there was no intended addressee and as

such, no person could have reasonably regarded those words as a

personal insult. Cohen v. Cal., 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 2d

284 (1971). One year later, this Court struck down a Georgia statute

which was overbroad and allowed the state to criminalize harsh,

insulting language which conveyed disgrace, but was not sufficient to

incite an immediate breach of the peace. Gooding v. Wilson, 405 U.S.

518, 92 S.Ct. 1103, 31 L. Ed. 408. In doing so, the Court cited to the

Supreme Court of New Hampshire's decision in Chaplinsky which

stated derisive and annoying words only escalate to fighting words

"when they have this characteristic of plainly tending to excite the

addressee to a breach of the peace". Gooding, 405 U.S. at 523

(emphasis added). The next year, this Court again struck down an

overbroad ordinance which gave New Orleans law enforcement the

authority to arrest those espousing opprobrious language directed at

law enforcement. Lewis v. New Orleans, 415 U.S. 130. In his

concurring opinion, Justice Powell suggested a properly trained officer

19

may be expected to exercise a higher degree of restraint than an

average addressee, particularly as these types of ordinances tend "to be

invoked only where there is no other valid basis for arresting an

objectionable or suspicious person." Lewis, 415 U.S. at 135-136

(Powell, J., Concurring). The majority opinion in Houston v. Hill

favorably cited Justice Powell's suggestion, yet did not elaborate on it,

or adopt it as a statement of law. Houston v. Hill, 482 U.S. at, 462.

Justice Powell's suggestion remains just that: a suggestion.

Nearly all of the federal circuits have seized upon this

suggestion, and have held police officers are expected to exercise a

higher degree of restraint than the average addressee when confronted

with words which may incite an immediate breach of the peace.4

Despite this Court's favorable citation and the federal circuit's

widespread adoption of this narrowing of the fighting words doctrine,

state courts remain fiercely divided. Just fifteen states have joined the

federal circuits, and hold law enforcement to a higher degree of

4 See e.g. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Posr v. Court Officer

Shield #207, 180 F.3d 409 (2d Cir. 1999); Mesa v. Prejean, 543 F.3d 264 (5th

Cir. 2008); Kennedy v. Villa Hills, 635 F.3d 210, 216 (6th Cir. 2011); Braun v.

Baldwin, 346 F.3d 761 (7th Cir 2003); Thurairajah v. City of Fort Smith, 925

F.3d 979 (8th Cir. 2019); Ford v. City of Yakima, 706 F.3d 1188 (9th Cir.

2013); Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010); Shop v. City of

Atlanta, 485 F.3d 1130 (11th Cir 2007);

20

restraint.5 Thirteen states have decided not to hold law enforcement to

a higher degree of restraint.6

While this significant difference in the interpretation of the

First Amendment is troubling, the application of these interpretations

is equally alarming. Maryland does not hold law enforcement to a

higher degree of restraint than the general public. In reaching this

decision, the court also held telling Chief of Police, Vincent Gavin,

"Fuck you Gavin" was insufficient to constitute fighting words. Diehl

v. State, 294 Md. 466 (Md. 1981). North Carolina has also declined to

adopt Justice Powell's concurrence, but has held yelling "What the

[f--], man" was sufficient to stop a juvenile for disorderly conduct. In re

5 See e.g., Smith v. City of Anniston, 668 So. 2d 96 (Ala. Crim. App. 1995);

Anniskette v. State, 489 P.2d 1012 (Alaska 1971); In re Nickolas S., 245 P.3d

446 (Ariz. 2011); State v. Baccala, 326 Conn. 262 (Conn. 2017); Knowles v.

State, 340 Ga. App. 274 (Ga. Ct. App. 2017); In the Interest of Doe, 869 P.2d

1304 (Haw. 1994); Chicago v. Blakemore, 15 III. App. 3d. 994 (III. App. Ct.

1973); State v. Fratzke, 446 N.W.2d 781 (Iowa 1989); New Orleans v. Lyons,

342 So. 2d 196 (La. 1977); State v. W, 418 A.2d ; (Me. 1980); Odem v. State,

881 So. 2d 940 (Miss. Ct. App. 2004).A/amogordo v. Ohl rich, 95 N.M. 725

(N.M. Ct. App 1981); People v. Baker, 20 N.Y.3d 354 (N.Y. 2013); State v.

Thurman, 2016 Ohio 3002 (Ohio Ct. App 2016); Harrington v. City of Tulsa,

1988 OK CR 231, (Okla. Crim. App. 1988), Marttilla u. City of Lynchburg, 33

Va. App. 592 (Va. Ct. App.2000); State v. Montgomery, 31 Wn. App. 745

(Wash. Ct. App. 1982).

6 See e.g. Bousquet v. State, 261 Ark. 263 (Ark. 1977); In re Alejandro G., 37

Cal. App. 4th 44 (Cal. Ct. App. 1995); L.J.M. v. State, 541 So. 2d 1321 (Fla.

Dist. Ct. App. 1989); State v. Keck, 9 Kan. App. 2d 459 (Kan Ct. App. 1984);

Diehl v. State, 294 Md. 466 (Md. 1981); In re Welfare of S.L.J., 263 N.W.2d

412 (Minn. 1978);State v. Robinson, 2003 MT 364 (Mont. 2003); State v.

Groves, 219 Neb. 382 (Neb. 1985); In re V.C.R., 227 N.C.App. 80 (N.C. Ct.

App. 2013); Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991); State v.

Matthews, 111 A.3d 390 (RI. 2015); State v. Suhn, 2008 SD 128 (S.D. 2008);

State v. Read, 165 Vt. 141 (Vt. 1996).

21

V.C.R., 227 N.C.App. 80 (N.C. Ct. App. 2013). In a nearly identical

scenario, the Supreme Court of Minnesota held yelling "fuck you pigs"

was insufficient to constitute fighting words. In re Welfare of S.L.J.,

263 N.W.2d 412 (Minn. 1978). Ohio claims to hold police officers to a

higher degree of restraint, but has held "You're a fucking jackass", and

"what are you going to do, asshole, pig? You going to arrest me?" to be

fighting words. See, State v. Thurman, 2016 Ohio 3002, ¶17 (Ohio Ct.

App 2016).

In a Missouri case, Jackson v. Oliver, the defendant was

arrested for calling an officer a "mother-fucking pig". The Missouri

Court of Appeals did not adopt Justice Powell's concurrence, but

considered the word "mother-fucking pig" to be "opprobrious" language

which does not undergo a "linguistic metamorphosis to 'fighting words'

by judicial declaration." Jackson v. Oliver, 680 S.W.2d 406 (Mo. Ct.

App. 1984). Nebraska, sharing a border with Missouri, has explicitly

held the term "motherfucker" to be a fighting word. State v. Groves,

219 Neb. 382, 386, 363 N.W.2d 507 (Neb. 1985). Continuing one state

westward, Colorado has yet to address Justice Powell's concurrence,

but the Court of Appeals has written on the shrinking category of

"fighting words" and cautioned "words alone, no matter how offensive

or cruel, cannot justify violence." People ex rel. R.C., 411 P.3d 1105

(Colo. App. 2016).

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If the freedom of individuals to verbally oppose or challenge

police action without risking arrest is one of the principle

characteristics which distinguish a free nation from a police state, we

must face the unfortunate truth: nearly one-third of the country lives

in quasi-police states.

This Court should grant certiorari, resolve the differences

between the many states by formally adopting Justice Powell's

concurrence and provide our nation with modern guidance for the

doctrine of fighting words.

II. This case presents a timely opportunity for this court to reinforce

our Nation's commitment to free debate and the free exchange of

ideas.

It is no secret, the state of policing, and police reform are

current pressing political issues. There are groups which

fervently support officers, those who wish to see significant

reform, those who would outright abolish the police, and myriad

of options in between. While addressing individual officers, or

small groups of officers is unlikely to be the most effective

method of generating large scale change, addressing individuals

and small groups of officers is still an important function of our

freedom of speech. Only through free debate and free exchange of

ideas can the government remain responsive to the will of the

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people, and change may occur peacefully. De Jong v. Oregon, 299

U.S. 353, 365, 57 S.Ct. 255 (1937). Speech serves its highest

purpose when it creates dissatisfaction with the status quo.

Terminiello v. Chicago, 337 U.S. 4. Speech must be protected a

the instrument of peaceful change unless it is likely to produce a

clear and present danger of serious evil. Id.

The suppression of free speech is a distinguishing trait of

authoritarian regimes. In England, the notorious Star Chamber

was used to punish those who spoke against the Crown and its

ministers, even if the words they spoke were true.7 In Nazi

Germany, editors were required to omit any thing which was

"calculated to weaken the strength of the Reich abroad or at

home."8 Two years ago, Cuban authorities harassed and detained

scores of people who intend to protest the killing of a young man

by police.8 As Russian troops invade sovereign Ukraine, Russian

authorities have cracked down on independent news media,

7 The Case De Libellis Famosis, 77 Eng. Rep. 250 (KB. 1606)(Coke)(Appendix

7,p

)

8 Editors Law — United States Holocaust Memorial Museum, Ushmm.org

(2022), https://www.ushmm.org/learn/timeline-of-events/1933-1938/editors-

law (last visited Mar 14, 2022).

9 Cuba: Protest Over Police Killing Suppressed, Human Rights Watch (2022),

https://www.hrw.org/news/2020/07/28/cuba-protest-over-police-killingsuppressed (last visited Mar 15, 2022).

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banned Facebook and Twitter, passed legislation punishing

independent reporting on the invasion, and have arrested nearly

14,000 people protesting Putin's war.10 After George Floyd was

murdered, and Breonna Taylor was killed, protests erupted

across our own country. More than 14,000 people were arrested

in the protests in the next month." More than 100 journalists

were arrested.12

The line between speech which is unconditionally

guaranteed and speech which may be regulated and punished is

finely drawn. Gooding v. Wilson, 405 U.S 522. Unfortunately,

this fine line is less than clear as the lower courts have

interpreted the federal constitution differently. What constitutes

protected free expression in one state may be per se unprotected

speech in the next. A decision by this Court in this case will help

10 Russia: Kremlin's ruthless crackdown stifles independent journalism and

anti-war movement, Amnesty International (2022), https://www.amnesty.org/

en/latest/news/2022/03/russia-kremlins-ruthless-crackdown-stiflesindependent-journalism-and-anti-war-movement/ (last visited Mar 14, 2022).

11 Meg Kelly & Elyse Samuels, Who Caused the violence at Protests? It

wasn't antifa The Washington Post (2022), https://www.washingtonpost.com/

politics/2020/06/22/who-caused-violence-protests-its-not-antifa/ (last visited

Mar 15, 2022).

12 Eric Neugeboren, Police Response to Press at Black Lives Matter Protests

Tests First Amendment VOA (2022), https://www.voanews.com/a/pressfreedom_police-response-press-black-lives-matter-protests-tests-firstamendment/6194785.html (last visited Mar 15, 2022).

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law enforcement, government officials, and the general public

understand where the fine line of protected speech and

punishable conduct is drawn. This clarity will only serve to

better the civil discourse needed in the charged debates on law

enforcement, and other heated issues. This Court should grant

certiorari in this case to reaffirm our nation's commitment to free

speech, even when the speech is impolite, opprobrious, and

provoking. As Justice Douglas said:

Since when have we Americans been expected to bow

submissively to authority and speak with awe and reverence to

those who represent us. The constitutional theory is that we the

people are the sovereigns, the state and federal officials only our

agents. We who have the final word can speak softly or angrily.

We can seek to challenge and annoy, as we need not stay docile

and quiet... at the constitutional level speech need not be a

sedative; it can be disruptive.

Colten v. Ky., 407 U.S. 104, 122, 92 S.Ct. 1953, 32 L.Ed. 2d 584

(1972)(Douglas, J., dissenting)

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Conclusion

For the foregoing reasons, the Court should grant certiorari.

Dated: Thursday, March 17, 2022

Respectfully submitted,

teven Roy

Counsel of Record

1310 O'Keeffe Ave. #315

Sun Prairie, WI 53590

608.571.4732

Steven@StevenRoyLaw.com

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