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Thread: SC Deputy Sheriff Fucks Up 1st Amendment

  1. #31
    quichierbichen
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    Quote Originally Posted by Madeline View Post
    That law is unconstitutional. Disturbing the peace cannot possibly be committed if there is no one (other than the cop) to observe the conduct.

    And "swearing" cannot be made a criminal act, in every instance. It is protected free speech.

    Disturbing the peace is like resisting arrest -- cops use it as a catch-all to bully any citizen whose behavior gets up their noses. But being annoying is not a crime without MORE.
    So you think the law in your own state is also unconstitutional? Here it is, in part:
    2917.11 Disorderly conduct.
    (A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:

    (1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;

    (2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person;

    (3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;

    (4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender;

    (5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.
    Lawriter - ORC - 2917.11 Disorderly conduct.
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  2. #32
    Veteran Member Madeline's Avatar
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    Quote Originally Posted by Rasselas View Post
    I think if someone started to pray, loudly and in a manner that kept others from enjoying the game, that would be prohibited too. I can't imagine them letting someone shout prayers during the conduct of a sporting event, even in South Carolina.

    Regulating speech based on time, place, and manner is a normal part of the law.
    Yes, but not regulating speech for CONTENT. Any law that attempts to do a content-only ban on speech will be subjected to strict scrutiny, and most will fail as unconstitutional.

    SC CAN outlaw any shouting whatsoever at a children's sporting event....it cannot outlaw shouting ONLY if the words are abusive or "contain foul language".

  3. #33
    Veteran Member Madeline's Avatar
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    Quote Originally Posted by John T Ford View Post
    It's not the fact that the arrest occurred that makes it fake news.

    It's the spin that makes it out that she was arrested for exercising her free speech rights that makes it fake.

    This is something that so many miss about fake news.

    Fake news often times takes a factual event and then spins it into something it is not.

    This also constitutes fake news.
    The only "spinner" was me.

    I assure you, I actually exist.
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  4. #34
    quichierbichen
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    Quote Originally Posted by Madeline View Post
    I am aware this is an issue.

    BUT if this justification is not applicable, everything I said in the Op is still correct!

    LOLOL.
    I don't understand.

  5. #35
    Veteran Member Madeline's Avatar
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    Quote Originally Posted by Rasselas View Post
    Can you cite a precedent?

    I don't know. I think the police have to be given some discretion in their enforcement of the law. Swearing at a cop has never been a good idea. I don't think there are many Americans who would object to such enforcement, and I can't imagine any American parent who wouldn't teach their kids the dangers of such conduct.

    So how would you craft a disorderly conduct law so as to pass constitutional muster, in your view?
    Appellant was convicted of violating that part of Cal.Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction.

    Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.
    https://supreme.justia.com/cases/fed...3/15/case.html

    The very next year, in Gooding v. Wilson, 405 U.S. 518 (1972), the Court cited Cohen and stated that speech that is “vulgar or offensive…is protected by the First and Fourteenth Amendments.” Then, the very next term, the Court reaffirmed this stance in Hess v. Indiana, 414 U.S. 105 (1973) by finding that the pronouncement “we’ll take the fucking street later” did not constitute fighting words.

    In assessing the fighting words doctrine at this point, it is important to note the speech involved in Gooding. While assaulting a police officer, Gooding shouted, “White son of a bitch, I’ll kill you.” “You son of a bitch, I’ll choke you to death.” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” If this speech doesn’t constitute fighting words, one would be hard-pressed to think of speech that would qualify.

    Gooding was the nail in the coffin—if the fighting words exception has any real vitality left at all (and many commentators, including Nadine Strossen, think it is essentially dead) the Supreme Court has effectively limited the exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction.

    It now seems clear that lewd, vulgar, or profane speech doesn’t fall within the fighting words exception.
    https://www.thefire.org/misconceptio...rds-exception/

  6. #36
    Veteran Member Madeline's Avatar
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    Quote Originally Posted by Amelia View Post
    Exactly. If you had one of those street corner preachers hollering that the pitcher needed to repent, he'd probably also be asked to leave.
    Also unconstitutional. Nobody loves the good old first amendment anyone?

    TERMINIELLO v. CHICAGO, 337 U.S. 1 (1949); Snyder v. Phelps, 562 U.S. 443 (2011). The content of speech cannot be regulated by the state on the grounds that it will likely give offense.

    Content regulations are constitutional as to military news during wartime, and similar remarks that undermine a public disaster response effort.
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  7. #37
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    Quote Originally Posted by Madeline View Post
    Yes, but not regulating speech for CONTENT. Any law that attempts to do a content-only ban on speech will be subjected to strict scrutiny, and most will fail as unconstitutional.
    Again, I'd really like for you to show a precedent where a court made a decision about such a case as this one.

    SC CAN outlaw any shouting whatsoever at a children's sporting event....it cannot outlaw shouting ONLY if the words are abusive or "contain foul language".
    That seems ridiculous to me. That would mean crowds could not shout encouragement, or cheer for a home run. There are social customs associated with sporting events in our country. There are differences between a professional contest (where players are expected to put up with whatever fans say or do as long as they don't come on to the field) and amateur contests.

    I don't think the distinctions I make here (which are generally accepted social rules) are so fastidious that they can't be recognized in the law. If they are, the law is "a ass, a idiot" in this case--quite literally.

  8. #38
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    Quote Originally Posted by Madeline View Post
    Also unconstitutional. Nobody loves the good old first amendment anyone?

    TERMINIELLO v. CHICAGO, 337 U.S. 1 (1949); Snyder v. Phelps, 562 U.S. 443 (2011). The content of speech cannot be regulated by the state on the grounds that it will likely give offense.

    Content regulations are constitutional as to military news during wartime, and similar remarks that undermine a public disaster response effort.
    Not sure your argument makes sense. I just did a very brief examination of the Snyder case, and it was specific to "matters of public concern." I don't see how the performance of a high school athlete is a matter of public concern.

    The Terminiello case was also decided based on the expectation that the First Amendment protects POLITICAL speech, even if it is likely to move people to a public disturbance.
    Justice Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
    https://www.oyez.org/cases/1940-1955/337us1]Nothing about this woman's conduct "invited dispute" over an issue of public concern.

    In both the cases you cite, the content of the speech is specifically related to the protections it earns under the 1A, which flies in the face of your original point, which is that content is immaterial to the protection of any instance of speech.

    Let me ask you a question, Madeline. If you would interpret the 1A so broadly, would its protections include, for example, speech that is sexually harassing or intimidating? If I were walking with my 15 year old daughter and someone shouted at us "You know you're daughter is a whore! Show me your pussy you dirty little girl!" Would that be first amendment protected speech? It wouldn't protect such a person from my fists. Would my assault be illegal but his provocation legal?
    Last edited by Rasselas; 10th June 2017 at 09:42 AM.

  9. #39
    Veteran Member Madeline's Avatar
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    Quote Originally Posted by Rasselas View Post
    So you think the law in your own state is also unconstitutional? Here it is, in part: Lawriter - ORC - 2917.11 Disorderly conduct.
    It's a logic question and I don't know the answer.

    Fighting words used to incite a riot are not protected.

    Every other abusive language is.

    The "audience" to be protected from fighting words cannot be the cops. There must be at least one member of the public.

    So....no. I don't think the Ohio statute passes constitutional muster, IF it is read to allow the cops to make anticipatory arrests for "attempted inciting a riot".

    But it likewise seems illogical that cops cannot arrest for disturbing the peace until a riot is underway.

    So.....you need smarter people than I to reply to your excellent question.
    Last edited by Madeline; 10th June 2017 at 09:52 AM.

  10. #40
    The Un-Holy One The Man's Avatar
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    Quote Originally Posted by pragmatic View Post
    She needs to hire you as her lawyer.


    (Btw......if i was the deputy i would have shot her.)
    Typical trigger happy American...

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