Conviction dismissed because judge failed to give free-speech instructions

Tuesday, September 21, 1999

Prosecutors must retry a West Palm Beach, Fla., woman for disorderly conduct because the judge failed to instruct the jury on First Amendment free-speech rights.

Donna Chandler was charged with battery of a police officer and disorderly conduct after allegedly reacting violently to the arrest of her sister in February 1998. Prosecutors alleged that Chandler kicked and screamed at the officer.

Later that year, a jury acquitted Chandler of the battery charge but found her guilty of disorderly conduct.

On appeal, Chandler contended that her disorderly conduct conviction should be set aside because the judge had prevented her attorney from questioning prospective jurors about a possible free-speech defense and had failed to instruct the jury on the First Amendment.

Chandler’s attorney had sought to question prospective jurors during the jury-selection phase of the trial known as voir dire. Upon objection by the prosecutor, the trial judge refused to allow mention of a First Amendment defense.

Chandler’s attorney had also asked the judge to give the jury an instruction on the First Amendment that said: “Verbal conduct is protected by the First Amendment. Mere words cannot amount to disorderly conduct unless they are fighting words or words, known to be false, reporting some physical hazard where such a report creates a clear and present danger of bodily harm to others, such as shouting ‘fire’ in a crowded theater.”

The judge refused to do so.

A Florida appeals court ruled Sept. 17 in Chandler v. State that the failure to allow questioning about the First Amendment during voir dire and the failure to instruct the jury about freedom of speech invalidated the conviction.

“Because Chandler’s words formed a basis for the disorderly conduct charge, First Amendment protections and limitations were relevant,” the court wrote.

The appeals court noted that in 1976 the Florida Supreme Court had severely limited the occasions when a defendant could be convicted of disorderly conduct based on his or her speech alone. After the state high court’s opinion, the Florida appeals court wrote that “there are only two instances where words can amount to disorderly conduct: ‘fighting words’ and words like shouts of ‘fire’ in a crowded theater.”

Chandler’s attorney submitted a jury instruction which complied with Florida law, the appeals court ruled, and the conviction must be thrown out because the jury “may have convicted Chandler of disorderly conduct based solely on her screaming and shouting.”