Constitutional Law

Teen's 'bitch' yell in theater ruled disorderly conduct

By By David L. Hudson Jr.
First Amendment schol

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A juvenile was guilty of disorderly conduct when she yelled "bitch" at a theater in Wyandotte County, Kan., a state appeals court has ruled.

The juvenile, known in court papers as ?H.A.-G.,? had argued that she did not commit disorderly conduct because her profane word did not constitute ?fighting words? ? words that are likely to incite an immediate breach of the peace.

The incident occurred in June 2009. When the theater manager saw a large number of teenagers going into one of the theaters, he turned on the lights and warned everyone against excessive noise and the use of cell phones. If there were such disturbances, he told the audience, people would be asked to leave.

After the movie started, the manager heard a loud noise coming from where H.A.-G was sitting. He asked her and another girl to leave. As she was leaving, H.A.-G. yelled ?bitch.? An off-duty police officer working as a security guard arrested her.

Kansas? disorderly conduct statute defines the offense as "brawling or fighting"; "[d]isturbing an assembly, meeting or procession"; or using "offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.?

At trial in Wyandotte District Court, H.A..-G?s attorney, James Yoakum, argued that the disorderly conduct statute could not apply to speech unless that speech constituted fighting words. Further, he argued, the word ?bitch? does not amount to fighting words.

The district court agreed that H.A-G. did not utter fighting words, but that she still committed disorderly conduct under the provision of the statute concerning ?disturbing an assembly, meeting, or procession.? It sentenced her to six months' probation and 20 hours of community service.

On appeal, the Kansas Court of Appeals agreed with the lower court in its Feb. 4 decision in In the Matter of H.A.-G. The appeals court concurred that the fighting-words limitation applied only to the part of the statute that prohibits ?offensive, obscene, or abusive language.?

?H.A.-G?s adjudication of disorderly conduct was based upon her disruptive conduct in the movie theatre and not based solely upon her speech,? the appeals court wrote.

The Kansas appeals court also determined that there was sufficient evidence of a disruption to uphold the judgment.

Yoakum said no decision had been made on whether to appeal.

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Full post as published by First Amendment Center on February 10, 2011 (boomark / email).