State appeals court won’t allow free-speech plea for cop-cursing defendant

Friday, September 17, 1999

A man convicted of disorderly conduct for yelling profanities at police officers has no First Amendment defense, a Minnesota appeals court has ruled.

Nathan Webb Clay was arrested in May 1998 after he called a Winona police officer responding to a report of a fight a “white racist motherf—-r.” Clay then told that officer and a second officer, whom he also accused of racism, he hoped their mothers would die.

A state district court convicted Clay later that year, finding that his words were egregious enough to violate the disorderly conduct statute.

On appeal, Clay argued that his conviction violated his First Amendment free-speech rights. However, the Court of Appeals of Minnesota ruled on Sept. 14 that Clay’s speech amounted to fighting words, a category of speech not protected by the First Amendment.

(In its 1942 decision Chaplinsky v. New Hampshire the U.S. Supreme Court first ruled that fighting words are not protected by the First Amendment. The court defined these as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”)

The state appeals court ruled that in order to be convicted of disorderly conduct, the defendant must utter personal insults that are “inherently likely to provoke retaliatory violence.”

Clay argued that, because the police officers did not respond to his comments with violence, that his speech could not have been fighting words.

However, the appeals court in State v. Clay rejected that argument, writing that “the focus is properly on the nature of the words and the circumstances in which they were spoken rather than on the actual response.”

“The actual response of the addressee or object of the words is relevant, but not determinative, of the issue of whether the utterances meet the fighting words test,” the court wrote.

The appeals court concluded: “Finally, appellant’s [Clay's] language was directed at the officers and was not merely the expression of a controversial opinion; while calling the officers ‘racist white motherf—–s’ may be protected, wishing death upon an officer’s mother is not.”


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