STATE OF MICHIGAN COURT OF APPEALS THE PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff-Appellee,
Court of Appeals No. 225747
Circuit Court No. 99-6546-AR
District Court No. 98-1728-SM
v
TIMOTHY JOSEPH BOOMER,
Defendant-Appellant.
Richard E. Vollbach, Jr. (P46137)
Attorney for Plaintiff-Appellee
Arenac County Prosecutor's Office
120 N. Grove Street
P.O. Box 1309
Standish, MI 48658
517-846-4597
Michael 1. Steinberg (P43085)
Kary L. Moss (P49759)
Attorney for Defendant-Appellant
ACLU Fund of Michigan
1249 Washington Blvd.
Suite 2910
Detroit, MI 48226
313-961-7728
AMICUS CURIAE BRIEF IN SUPPORT OF DEfENDANT-APPELLANT
Attorneys for Amicus Curiae
Elizabeth A. Cabot (P36677)
Robert M. O'Neil
J. Joshua Wheeler
Sachs Waldman, Professional Corporation
Thomas Jefferson Center for the
1000 Farmer
Protection of Free Expression
Detroit, MI 48226
400 Peter Jefferson Place
313-965-3464
Charlottesville, VA 22911
804-295-4784
TABLE OF CONTENTS INDEX OF AUTHORITIES ........................................................................................................... ii SUMMARY OF ARGUMENT ....................................................................................................... 1 ARGUMENT ...................................................................................................................................2 I. MCL 750.337 IS EITHER UNCONSTITUTIONAL ON ITS FACE, OR ITS APPLICATION MUST BE LIMITED TO "FIGHTING WORDS" OR OBSCENITY .......................................................................................................................2 A. The Circuit Court Confused the Facial and As-Applied Challenges to MCL 750.337 by Narrowing and Then Impermissibly Expanding the Scope of that Statute ........................................................................2 B. The Judicial Precedent from Michigan and Other Jurisdictions Cited by Appellee and Relied Upon by the Courts Below Do Not Support Extending the Reach of MCL 750.337 to Language Other than Obscenity and "Fighting Words." ....................................................................3 II. MCL 750.337 IS A CONTENT-BASED REGULATION ..................................................7 III. APPELLANT'S SPEECH IS PROTECTED UNDER THE FIRST AMENDMENT....................................................................................................................9 IV. A. Appellant's Statements Constitute Speech ...............................................................9 B. Because Appellant's Speech Does Not Fall Into an Established and
Clearly Defined Category of Unprotected Expression, His Speech
is Fully Protected Under the First Amendment .................................................... .1 0
C. "Non-Speech" Is Not a Recognized Category of Unprotected Expression.............................................................................................................. 11 D. The Decision in Cohen v California Did Not Limit First Amendment Protection of Profanity to Use in Political Statements ...................... 13 THE UNITED STATES SUPREME COURT HAS CLEARLY STATED THAT THE STATE MAY NOT REDUCE PUBLIC DISCOURSE TO THAT WHICH IS FIT FOR CHILDREN ................................................................................................... 15 V.
CONCLUSION .................................................................................................................. 17 INDEX TO AUTHORITIES Cases
Page Arkansas Writers' Project, Inc. v Ragland, 481 US 221 (1987) ..................................................... 7 Barnes v Glen Theatre, Inc., 501 US 560 (1991) ................................................................... 12-13 Bolgers v Youngs Drug Prods. Corp., 463 US 60 (1983) ............ :............................................... .16 Breaux v State, 230 Ga 506 (1973) .................................................................................................. 6 Buckley v Valeo, 424 US 1 (1976) ................................................................................................. 10 Butler v Michigan, 352 US 380 (1957) .......................................................................................... 15 Cantwell v Connecticut, 310 US 296 (1940) .................................................................................. 7 Carey v Bro}vn, 447 US 455 (1980) ................................................................................................ 7 Chaplinsky v New Hampshire, 315 US 568 (1942) ............................................................. 6, 10, 12 Cohen v California, 403 US 15 (1971) ....................................................... .1, 3, 6, 9,10,12,13,14 Cottage Grove v Farmer, 42 Or App 21 (1979) .............................................................................. 5 Cyberspace Communications, Inc. v Engler, 55 F Supp 2d 737 (ED Mich, 1999) ........................ 15 Dykema v Bloss, 17 Mich App 318 (1969) .................................................................................... 12 Dykema v Bloss, 398 US 278 (1970) ............................................................................................. 12 East Peoria v Moushon, 45 III App 3d 719 (1977) ......................................................................... .4 Erznoznik v Jacksonville, 422 US 205 (1975) .............................................................................. .16 Gooding v Wilson, 405 US 518 (1972) .................................................................................... 10, 11 Macon v Smith, 244 Ga 157 (1979) ............................................................................................ .4, 6 11 Madsen v Women's Health Center, Inc., 512 US 753 (1994) ......................................................... 7 Metromedia, Inc. v San Diego, 453 US 490 (1981) ........................................................................ 7 Meyer v Grant, 486 US 414 (1988) .............................................................................................. .14 Miller v California, 413 US 15 (1973) ............................................................................................ 5 New York v Ferber, 458 US 747 (1982) ....................................................................................... .16 People v Boomer, No. 99-6546-AR (Feb. 17, 2000) ................................................................ .2, 11 People v Boomer, No. 98-1728-SM (Feb. 8, 1999) ................................................................... 6, 10 People v Price, 4 Cal App 3d 941 (1970) ........................................................................................ 5 People v Warriener, 113 Mich App 549; 317 NW2d 681 (1982) ................................................. 12 Prak v Gregart, 749 F Supp. 825 (ED Mich,1990) ........................................................................ .4 R.A. V. v St. Paul, 505 US 377 (1992) ................................................................................. 7, 8, 13 Regan v Time, Inc., 468 US 641 (1984) .......................................................................................... 7 Reno v ACLU, 521 US 844 (1997) ........................................................................................... 15,16 Sable Communications ofCal. , Inc. v FCC, 492 US 115 (1989) ................................................. .16 State v Orange, 22 NC App 220 (1974) .......................................................................................... 5 State v Profaci, 56 NJ 346 (1970) .................................................................................................... 6 Texas v Johnson, 491 US 397 (1989) ............................................................................................. 7 United States v O'Brien, 391 US 367 (1968) ................................................................................ 13 Ward v Rock Against Racism, 491 US 781 (1989) ......................................................................... 7 White v Norwalk, 900 F2d 1421 (CA 9, 1990) ................................................................................ 5 Statutes
MeL 750.337 ........................................................................................................................ passim 111 U.S. Constitution, First Amendment. ..................................................................................... passim Other
Appellee's Brief.......................................................................................... 2, 3, 8, 11, 12, 13, 14, 16 Lawrence Tribe, American Constitutional Law (Foundation Press, 2 nd Ed. 1988) ......................... 8 IV SUMMARY OF ARGUMENT
"[O]ne man's vulgarity is another's lyric." Cohen v California, 403 US 15,25 (1971).
The meaning of that statement is clear-what is a meaningless and offensive term to one person
can be meaningful and eloquent to another. But under the theory put forth by Appellee, only
speech that the government deems to convey a meaningful idea is protected by the First
Amendment. Thus, according to Appellee, if one man's lyric is another's vulgar lyric, the First
Amendment no longer protects it. Such an interpretation is completely at odds with the clear
import of Cohen.
In labeling Appellant Timothy Boomer a criminal for offensive words alone, the district
and circuit courts departed from basic principles of the First Amendment in an unconstitutional
attempt to reduce the public discourse to that which is fit for children. To uphold the conviction,
the lower courts had to engage in an awkward legal two-step-first narrowing the scope of MCL
750.337 to save it from a facial challenge, and then expanding the reach of the statute to apply to
conduct that is not covered by its provisions. In so doing, the lower courts made the illogical
determination that Appellant's spoken words did not constitute speech at all and thus fell outside
the umbrella of First Amendment protection. By creating an additional category of unprotected
speech, the lower courts violated the Supreme Court's clear instruction that a state may not
punish speech unless it falls within a discrete and narrowly defined exception to the free speech
protections embodied in the Constitution. As Appellant's speech does not fall within any such
exception, this Court should reverse the decision of the circuit court, overturning Appellant's
conviction and holding that MCL 750.337 is unconstitutional both on its face and as applied.
1
ARGUMENT I.
MeL 750.337 IS EITHER UNCONSTITUTIONAL ON ITS FACE, OR ITS
APPLICATION MUST BE LIMITED TO "FIGHTING WORDS" OR
OBSCENITY.
A. The Lower Courts Confused the Facial and As-Applied Challenges to MCL 750.337 by
Narrowing and Then Impermissibly Expanding the Scope of that Statute.
As this Court is well aware, a First Amendment challenge to a finding of guilt under a
criminal statute may take two forms-a challenge to the constitutionality of the statute on its face
or a claim that a lower court applied the statute in an unconstitutional manner. Both of the lower
courts' decisions in this case, as well as Appellee's Brief. display a confusion between the
analysis required to defend the facial validity of a statute and the analysis needed to justify the
application ofMCL 750.337 to Appellant's words.
The circuit court, in a ruling read from the bench,l affirmed the district court's holding
that narrowed the reach of MCL 750.337 to expression falling in the established exceptions to
First Amendment protection of obscenity or "fighting words." Nevertheless, the circuit court,
having endorsed the district court's response to the facial challenge to MCL 750.337/ curiously
proceeded to allow an expansion of the reach of the statute by applying it to expression that is
neither obscene nor "fighting words." Appellee cannot have it both ways. Either MCL 750.337
is unconstitutional on its face, or its application must be limited to speech that is either obscene
or "fighting words." The district court held that Appellant's speech did not fall into either
I The circuit court did not issue a written opinion, but rather, in response to defense counsel's inquiry as to whether there would be "a written decision of any nature," merely stated: "The court reporter has been present throughout this entire hearing." Oral Argument Transcript, People v Boomer, No. 99-6546-AR (Feb. 17,2000) at 33. 2 The circuit court did not address the district court's narrowing of the statute. It merely agrees that MCL 750.337 is constitutional on its face. See Oral Argument Transcript, People v Boomer, 2
category -
a holding that has not been challenged on appeal. Once those findings were made,
the prosecution against Appellant should have ended. Even if Amicus conceded (which it does
not) that Appellant's expression was not protected under the First Amendment, it would have
been reversible error to prosecute him under a statute that did not apply to his speech.
B. The Judicial Precedent from Michigan and Other Jurisdictions Cited by Appellee and
Relied Upon by the Courts Below Does Not Support Extending the Reach of MCL
750.337 to Language Other than Obscenity and "Fighting Words."
Modem First Amendment jurisprudence is rooted in the simple, yet profound, notion that
all words-whether they comport with or depart from societal norms of civility and decency,
whether they voice a popular or disfavored sentiment, and indeed, even if they voice no apparent
sentiment at all-are presumed to be constitutionally protected unless they fall within a few
discrete and narrowly defined categorical exceptions. See Cohen v California, 403 US 15 (1971)
("[W]e cannot overemphasize that, in our judgment, most situations where the State has a
justifiable interest in regulating speech will fall within one or more of the various established
exceptions, ... not applicable here, to the usual rule that governmental bodies may not prescribe
the form or content of individual expression.").
Although facial overbreadth can be cured by
limiting constructions, MCL 750.337 was unconstitutionally applied to Appellant because his
speech does not fall within one of those discrete categories of speech which are not afforded full
First Amendment protection. If the lower courts limit the scope of MCL 750.337 to "fighting
words" and obscenity to avoid a facial challenge to its constitutionality, the statute cannot be
applied to profanity alone, which does not fall into either category.
Indeed, an examination of the cases cited by Appellee for the proposition that state courts
No. 99-6546-AR (Feb. 17, 2000) at 29 ("If a statute is constitutional, which this Court finds that
this one is, as specifically applied to this case, at least .... ").
3
have upheld profanity and obscene language statutes (Appellee's Brief Arguments IV, V at 26­
28) reveals that, in extending the reach of MCL 750.337. the lower courts failed to defer to
federal and state court precedent.
In Prak v Gregart, a defendant sought an injunction in federal court to stop a pending
state court prosecution under MCL 750.337 on the grounds that the statute was unconstitutional.
749 F Supp 825 (ED Mich,1990). Citing abstention principles, the federal court declined to
enjoin the state court proceeding. Id. at 826-28. The court stated it was taking this action
because "a Michigan court may limit application of the statute to 'fighting words.'" Id. at 829
(emphasis added).
The clear inference of this statement is that MCL 750.337 would be
unconstitutional if its application was not limited to "fighting words."
Appellee also cites Macon v Smith, 244 Ga 151(sic.) (1979) (actual citation is 244 Ga
157), as an example of a court upholding the constitutionality of an ordinance prohibiting
profanity.
It is the exact outcome of that case, however, that would dictate the reversal of
Appellant's conviction under MCL 750.337. In Macon, the Georgia Supreme Court analyzed a
local ordinance which provided:
"It shall be unlawful for any person to act in a violent,
turbulent, boisterous, indecent or disorderly manner or to use profane, vulgar, or obscene
language in the city, tending to disturb good order, peace, and dignity in said city." Id. at 159.
The court, despite finding defendant's conduct and language "vulgar and offensive," refused to
characterize her remarks as "fighting words."
Id..
Accordingly, since the trial court had
convicted the defendant on grounds other than "fighting words," the court held the statute to be
unconstitutionally applied. Id.
At issue in East Peoria v Moushon, 45 III App 3d 719 (1977), was an ordinance
prohibiting obscene, offensive, or profane language.
4
The Illinois court found the
constitutionality of the ordinance to rest on a narrow interpretation. "Admittedly, vulgar or
profane words alone are not sufficient to permit criminal prosecution unless they are 'fighting
words. ,,, Id. at 722-23.
In Cottage Grove v Farmer, 42 Or App 21, 22 (1979), the court upheld an ordinance
defining disorderly conduct as someone who "uses abusive or obscene language, or makes an
obscene gesture likely to provoke a violent or disorderly response." Imperatively, this statute
contains the phrase, "likely to provoke a violent or disorderly response." Id.
Without this
demand for such "fighting words," this statute would have likely been found overbroad in its
application.
In State v Orange, 22 NC App 220, 223 (1974), the statute in question also had a clause
demanding a provocation of incitement. In complying with that state's precedents, the court
construed the statute to prohibit "only words and conduct likely to provoke ordinary men to
violence." Id. (emphasis added).
At issue in White v Norwalk, 900 F2d 1421. 1424 (CA 9, 1990), was a California
locality's ordinance that permitted the prosecution of any person who, at a city council meeting,
"makes such remarks, or who utters loud, threatening, personal or abusive language." Although
the Ninth Circuit found the ordinance constitutionally valid, it did so only after noting they were
"not dealing with words uttered on the street to anyone who chooses or chances to listen; we are
dealing with meetings of the Norwalk City Council. Principles that apply to random discourse
may not be transferred without adjustment to this more structured situation." Jd. at 1425. Thus,
the ordinance retained its validity due to the council-meeting environment to which it was
limited. See Id.
Appellee also points to People v Price, 4 Cal App 3d 941 (1970), as evidence of the
5
constitutionality of a statute that prohibits obscenity. Restrictions on obscenity, of course, are
constitutionally permissible under the doctrine of A1iller v California, 413 US 15 (1973).
Moreover, the issue is irrelevant to the instant case because District Court Judge Yenior correctly
determined that Appellant's language falls outside the purview of obscenity. See People v.
Boomer, No. 98-1728-SM (Feb. 8, 1999), at 3.
Only two of the eight cases from other jurisdictions cited by Appellee actually accepted
the constitutionality of their respective statutes without limiting the statutes' application to
obscenity or "fighting words."
In State v Profaci, 56 NJ 346 (1970), the court relied on
Chaplinsky v Nevil Hampshire, 315 US 568 (1942) in ruling that the statute in question was
constitutional because its purpose was to "preserve the peace." Id. at 353. The court held that
this purpose included protecting "the sensibilities of those persons within hearing of the person
uttering the language." Id. But it must be noted that the New Jersey Supreme Court decided
Profaci in 1970. The constitutional validity of criminalizing words that offend the individual
"sensibilities" of persons is highly questionable after the U.S. Supreme Court's 1971 decision in
Cohen v California.
Similarly, the persuasiveness of the Georgia Supreme Court's decision in Breaux v State,
230 Ga 506, 508 (1973), has been severely tempered by that court's 1979 decision in Macon v
Smith (discussed supra., p. 4)
In Breaux, the court upheld an ordinance making criminal
comments that are "obscene, vulgar, or profane." "Language is obscene, vulgar, or profane
when, under the circumstances and manner in which such utterance was made, it would clearly
offend a reasonable person's sense of decency." Id. As the dissent noted, this definition of
vulgar and profane language is too subjective, giving the statute an unconstitutionally vague and
overbroad construction. Id. at 510 (Gunter, J., dissenting). Fm1her, this open-ended definition of
6
profane and vulgar is inconsistent with the more narrow application later required by the Georgia
Supreme Court of a similar ordinance in Macon. 244 Ga. at 159.
The cases discussed above show there is little, if any, judicial authority which supports
the extension of a statute such as MCL 750.337 to expression other than obscenity or "fighting
words." Indeed, these cases require that the reach of the statutes be limited to these categories in
order to survive a facial attack.
When the district court specifically found that Appellant's
speech did not constitute obscenity or "fighting words," this prosecution should have been
dismissed.
II.
MCL 750.337 IS A CONTENT-BASED REGULATION
The First Amendment prohibits government from proscribing speech or expressive
conduct because it disapproves of the ideas expressed. R.A. V v City of St. Paul, 505 US 377,
382 (1992) (citing Cantwell v Connecticut, 310 US 296, 309-311 (1940); and Texas v Johnson,
491 US 397, 406 (1989)).
To that end, the Supreme Court has held that "[c]ontent-based
regulations are presumptively invalid." R.A. V, 505 US at 382.
"[The] principal inquiry in determining content neutrality is whether the government has
adopted a regulation of speech 'without reference to the content of the regulated speech. '"
Madsen v Women's Health Center, Inc., 512 US 753, 763 (1994) (quoting Ward v Rock Against
Racism, 491 US 781, 791 (1989)) (citing R.A. V, 505 US at 386; Arkansas Writers' Project, Inc.
v Ragland, 481 US 221, 230 (1987); Regan v Time, Inc., 468 US 641, 648-649 (1984);
Metromedia, Inc. v San Diego, 453 US 490, 514-515 (1981); Carey v Brown, 447 US 455,466
(1980)).
7
In the present case, Appellant was prosecuted because his statements included language
the state deemed to be "indecent, immoral, obscene, vulgar or insulting."
MCL 750.337.
Whether Appellant's speech fell within this prohibition depended on the words used--the content
of his speech. Indeed, the very premise underlying MCL 750.337 is that certain words are so
charged with meaning and content that the Michigan Legislature deemed their utterance worthy
of punishment.
MCL 750.337 seems a rational reflection of legislative purpose only by
assuming that "indecent, immoral, obscene, vulgar or insulting language" is virtually certain to
have some cognitive or emotive impact on listeners. Unlike, for example, content-neutral noise
ordinances that restrict the loud utterance of words regardless of meaning or cognitive or emotive
impact on listeners, the very offense being targeted by Appellee in this case springs from the
content of Appellant's words-that is, from the listener's likely higher-order recognition of what
Appellant's words mean in context.
The statute is therefore not content-neutral, and is
presumptively invalid under the First Amendment.
Contrary to the claims of Appellee, a regulation is not necessarily content-neutral if it is
viewpoint-neutral. See Appellee's Brie}; Argument I, p. 12 ("Thus, if the subject law does not
forbid an individual from expressing his or her ideas or views, it is 'content neutral' by
definition."). In fact, a regulation is content-based if it is "aimed at communicative impact"
(Lawrence Tribe, American Constitutional Law (Foundation Press, 2nd Ed. 1988) p. 79), even if
it does not necessarily favor a particular viewpoint. See R.A. V, 505 US at 391-392. Viewpoint­
based restrictions go beyond mere content-based regulations to favor or disfavor particular ideas
or viewpoints. Id.
Thus, a regulation need not impose viewpoint discrimination to be content­
based. While MCL 750.337 does not discriminate based on viewpoint, it is content-based, and
therefore is presumptively unconstitutional.
8
III. APPELLANT'S
AMENDMENT
SPEECH
IS
PROTECTED
UNDER
THE
FIRST
Contrary to basic First Amendment principles, the district court determined that
Appellant's verbal expression of commonly understood words was not speech and therefore did
not enjoy the protection of the First Amendment. The circuit court followed this same analysis.
Appellee argues that this Court should treat Appellant's speech as "non-speech." Precedent,
however, simply does not support this reasoning which would yield a lesser degree of
constitutional protection than is warranted under the First Amendment.
A. Appellant's Statements Constitute Speech.
In Cohen v California, 403 US 15, 19 (1971), the Court specifically rejected the
proposition that the government may reclassify certain types of speech as conduct in an effort to
afford such speech a lesser degree of protection.
Paul Cohen was convicted of violating a
California statute which prohibited "maliciously and willfully disturb[ing] the peace or quiet of
any neighborhood or person ... by ... offensive conduct. .. ·, for wearing a jacket which read
"Fuck the Draft" in a Los Angeles County Courthouse. 403 US at 16. The Court stated:
The conviction quite clearly rests upon the asserted offensiveness of the words Cohen
used to convey his message to the public. The only ·conduct' which the State sought to
punish is the fact of communication. Thus, we deal here with a conviction resting solely
upon 'speech,' ... not upon any separately identifiable conduct which allegedly was
intended by Cohen to be perceived by others as expressive of particular views but which,
on its face, does not necessarily convey any message and hence arguably could be
regulated without effectively repressing Cohen's ability to express himself.
Id. at 18 (emphasis added) (citations omitted). Thus the Court held that even when words do not
convey a particularly meaningful idea, they nonetheless constitute "speech" for purposes of First
9
Amendment analysis. 3 See also Buckley v Valeo, 424 US 1, 14 (1976) (" ... First Amendment
protections are not confined to 'the exposition of ideas."') (citations omitted). In explaining its
conclusion, the Cohen Court stated, "we cannot indulge in the facile assumption that one can
forbid particular words without also running a substantial risk of suppressing ideas in the
process. Indeed, governments might soon seize upon the censorship of particular words as a
convenient guise for banning the expression of unpopular views."
!d. at 26. The actual
suppression of meaningful ideas, therefore, was not necessary to overturn the conviction in
Cohen; the mere risk of suppression was sufficient.
B. Because Appellant's Speech Does Not Fall Into an Established and Clearly Defined
Category of Unprotected Expression, His Speech IS Fully Protected Under the First
Amendment.
The presumption created by the First Amendment is that all speech is fully protected
unless it falls into a clearly defined and established category of unprotected expression. Gooding
v Wilson, 405 US 518, 521-22 (1972) (quoting Chaplinsky
l'
New Hampshire, 315 US 568, 571
(1942»; see also Cohen v California, 403 US 15, 19-20 (1971). For example, expression that
constitutes "fighting words," child pornography, defamation, or is legally obscene is not
accorded First Amendment protection. However, Appellant's words do not fall into any of these
established categories of unprotected speech. The district court found that "Mr. Boomer's words
were not obscene as that word has been defined by the by the United States Supreme Court."
The Cohen Court held that Cohen's profanity constitutes speech, not conduct, even though the
statute in question sought to prohibit disturbances of the peace. !d. at 16. By contrast, MCL
750.337 explicitly seeks to punish only speech. MCL 750.337, provides that "[a]ny person who
shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing
of any woman or child shall be guilty of a misdemeanor." MCL 750.337. This statute does not
mention disorderly conduct or disturbing the peace, and thus it does not involve conduct linked
to speech. It punishes solely based on the speaker's choice of words, the content of the speech.
10
3
People v Boomer, No. 98-1728-SM (Feb. 8, 1999), at 3. Further, Appellee does not dispute
Circuit Court Judge Bergeron's statement "I really don't think that either side is really claiming
that Appellant's conduct is covered by the "fighting words exception to the more general free
o·
speech protections offered by the First Amendment of the United States Constitution." Oral
Argument Transcript, People v Boomer, No. 99-6546-AR (Feb. 17, 2000) at 28. Thus
Appellant's speech did not constitute obscenity, "fighting words," or any of the other established
exceptions to First Amendment protection.
Beyond these limited classes of exceptions, the
Supreme Court has repeatedly cautioned that "the constitutional guarantees of freedom of speech
forbid the States to punish the use of words or language." Gooding, 405 US at 521-522. By
characterizing Appellant's spoken words as "non-speech." the lower courts violated this
fundamental principle.
C. "Non-Speech" Is Not a Recognized Category of Unprotected Expression.
Appellee argues that the Court should apply a lower standard of protection to Appellant's
speech because it falls within a category of unprotected expression which it names "non-speech."
Appellee's Brief at 16. Verbal expression of commonly understood words is not speech, Appellee
argues, when it does not communicate a meaningful message. Id. At 18-19.
Though the circuit
court did not repeat the term "non-speech" which the district court used to describe the words
spoken by Appellant, it clearly endorsed the illogical concept that some spoken words should not
be considered speech for purposes of First Amendment analysis:
[T]he conduct that Appellant was convicted for was determined by the district court, and
rightly so, not to be speech as protected by and thought of under the First Amendment of
the United States Constitution. Every noise and/or utterance does not constitute protected
free speech that falls within the protection umbrella of the First Amendment.
Oral Argument Transcript, People v Boomer, No. 99-6546-AR (Feb. 17, 2000) at 30 (emphasis
11 added); see also id. at 32 ("All noise is not protected speech."). The lower courts engaged in
what can only be described as legal alchemy by transforming Appellant's verbal expression of
vulgar but commonly understood words into something called "non-speech.,,4
The frailty of the "non-speech" theory is evidenced by the fact neither the lower courts
nor the Appellee cite one case that directly supports the theory (See Appellee's Brief, Argument
III, at 16-19). For example, while Dykema v Bloss, 17 Mich App 318; 169 NW2d 367 (1969),
rev'd per curiam, 398 US 278 (1970), does state that "the unconditional phrasing of the First
Amendment was not intended to protect every utterance," the speech in question was obscenity,
not mere profanity.
The case thus deals with an already established exception to the First
Amendment which all parties agree does not encompass the speech at issue in the present case.
Similarly, Chaplinsky v New Hampshire, 315 US 568 (1942) provides little support for
Appellee's "non-speech" theory in that the Court permitted the prohibition of the statements at
issue in the case because they fell within the "fighting words" category of unprotected speech.
See Cohen, 403 US at 20.
Appellee also misapplies several cases dealing with the issue of when conduct can be
considered speech for First Amendment purposes. In People v Warriener, 113 Mich App 549;
317 NW2d 681 (1982), the matter in question was Mr. Warriener's "disruptive, contemptuous
behavior in a courtroom." Id. at 555. The Court merely found that such behavior does not
amount to constitutionally protected symbolic speech. Id. It never mentioned the content of any
4 While the Supreme Court has stated that "the exclusion of 'fighting words' from the scope of
the First Amendment simply means that, for purposes of that Amendment, the unprotected
features of the words are, despite their verbal character, essentially a 'nonspeech' element of
communication," the Court was describing the status of previously defined, unprotected
categories of speech. R.A. V, 505 US at 386. The Court was not creating a standard for
determining which speech is not protected. Appellee is essentially putting the cart before the ox
in deeming "non-speech" to be unprotected.
12
statements accompanying Mr. Warriener's behavior; the matter in question was solely the time
and location ofWarriener's outburst. Similarly, Barnes v Glen Theatre, Inc., 501 US 560 (1991)
and United States v O'Brien, 391 US 367 (1968), analyzed conduct, not speech, to determine ifit
constituted symbolic speech. None of the above cases cited by Appellee addressed the question
of when verbal expression of commonly understood words can be considered something other
than "speech" for purposes of First Amendment analysis.
The reason for this lapse is that there is no recognized exception to First Amendment
protection for verbal expression that is labeled "non-speech." Any such exception would be
completely at odds with the Court's holding in Cohen. See 403 US at 18. Similarly, in R.A. V v
Sf. Paul, the Supreme Court rejected the concept of a "non-speech" exception to First
Amendment protection.
We have sometimes said that ... categories of expression "are not within the area of
constitutionally protected speech," or that "the protection of the First Amendment does not
extend" to them. Such statements must be taken in context, however, and are no more
literally true than is the occasionally repeated shorthand characterizing obscenity "as not
being speech at all."
505 US 377, 384 (1992) (emphasis added) (citations omitted). The claim that purely verbal
expression of commonly understood words is "non-speech" is both constitutionally and logically
untenable. The words Appellant uttered were highly offensive, but only that. As evidenced by
the additional elements that are always required for speech to be deemed obscene or "fighting
words," offensiveness by itself does not strip speech of its First Amendment protection.
D. The Decision In Cohen v California Did Not Limit First Amendment Protection of
Profanity to Use In Political Statements.
Appellee asserts that the purpose of MCL 750.337 is to "protect children from the
ullilecessary exposure to profanity and obscene language." Appellee's Brief at 19. Because
13 Appellant's conviction is based largely on his use of the same offensive word at issue in Cohen,
Appellee attempts to distinguish that case on the grounds that Mr. Cohen's expression of "Fuck
the Draft" was protected because of its political message. Id.
The logical extension of this
argument is that the harm young children allegedly suffer from being exposed to the word "fuck"
is lessened when that term is followed by "the draft" or some similar political statement. The
Supreme Court in Cohen made no such finding. Rather, the Court considered that unwitting
listeners might indeed be exposed to offensive language but nonetheless held that such utterances
are "necessary side effects of the broader enduring values which the process of open debate
permits us to achieve." Cohen, 403 US at 24.
Appellee argues that Appellant's "arguments damage the integrity of the First
Amendment." Appellee's Brief at 29. Perhaps no other statcment by Appellee better evidences
its misunderstanding of Cohen in which the Supreme Court began its analysis with the statement,
"[t]his case may seem at first blush too inconsequential to find its way into our books, but the
issue it presents is of no small constitutional significance." 403 US at 15.
On numerous
occasions, the Supreme Court has stated that First Amendment protection is "at its zenith" for
political speech, See, e.g., Meyer v Grant, 486 US 414, 425 (1988). If, as Appellee argues, the
key to the Court's analysis in Cohen was the political message of Mr. Cohen's speech, there
would have been no need for the Court's concern that some might view the case as
inconsequential. Contrary to Appellee's claim otherwise, the concern in this case is the same as
that expressed by the Court in Cohen when it stated, "the principle contended for by the State
seems inherently boundless. How is one to distinguish this from any other offensive word?"
Cohen, 403 US at 25.
Instead of grounding its holding in the relevant casc law--all of which supports exactly
14
the opposite conclusion--the lower courts' treatment of Appellant's words appears to be based on
a normative judgment of the communicative value of Appellant's expression.
regulate speech based on this factor is clearly impermissible.
However, to
Even if some categories of
unprotected speech might seem to share a diminished or attenuated communicative value, it is
incorrect to assume that all speech having such a characteristic is unprotected because of that
trait alone.
IV. THE UNITED STATES SUPREME COURT HAS CLEARLY STATED
THAT THE STATE MAY NOT REDUCE PUBLIC DISCOURSE TO
THAT WHICH IS FIT FOR CHILDREN.
To comply with MCL 750.337, a communicant must use only language suitable for
children.
However, the United States Supreme Court has emphatically declared that the
government may not defend its suppression of constitutionally protected speech under the claim
of protecting children because this design would "burn the house to roast the pig." Butler v
Michigan, 352 US 380, 383 (1957); see also Cyber.space Communications, Inc. v Engler, 55 F
Supp 2d 737, 747-48 (ED Mich, 1999). In 1957, in Butler v Michigan, the Supreme Court
considered a Michigan statute making it an offense to make available to the general public any
book that would "tend[] to the corruption of the morals of youth." Butler, 352 US at 525. The
Supreme Court found that "[t]he incidence of the enactment is to reduce the adult population of
Michigan to reading only what is fit for children[,]" thereby limiting an individual freedom
guaranteed by the Constitution. Id. at 526. For the subsequent forty years, the Supreme Court
has consistently maintained that the First Amendment does not tolerate the restriction of the
constitutionally protected speech of adults to protect minors from hearing such speech. See Reno
v ACLU, 521 US 844 (1997) (striking down provisions of the Communications Decency Act
15 prohibiting transmission of obscene or indecent communications on the Internet to persons under
age eighteen on the grounds that the provisions were unconstitutional content-based blanket
restrictions on speech); Sable Communications of Cal., Inc. v FCC, 492 US 115 (1989) (striking
down a federal law criminalizing the transmission of indecent, but nonobscene, commercial
telephone messages to minors and adults); Bolgers v Youngs Drug Prods. Corp., 463 US 60
(1983) (striking down a federal law prohibiting the mailing of unsolicited advertisements for
contraceptives); Erznoznik v Jacksonville, 422 US 205 (1975) (rejecting city's argument that
ordinance penalizing drive-in movie theaters for showing nudity in films visible to passersby was
justified for the protection of children.)
Contrary to the claims of Appellee (Appellee's Brief at 20-21), the protections afforded
children against child pornography have absolutely nothing to do with this case. Child
pornography, as opposed to sexually explicit material involving only adults, is accorded a lower
standard of protection because the "distribution of photographs and films depicting sexual
activity of children is intrinsically related to sexual abuse .... ' New York v Ferber, 458 US 747,
759 (1982) (emphasis added). In producing child pornography, there is an obvious and tangible
harm to the children involved. To equate that harm with the harm a child allegedly suffers from
hearing someone curse demonstrates a fundamental misunderstanding of the basis for excluding
child pornography from First Amendment protection. In Reno v ACLU, the Supreme Court
stated, "[t]he interest in encouraging freedom of expression in a democratic society outweighs
any theoretical but unproven benefit of censorship." 521 US at 885. Appellant may not be
deprived of his constitutionally protected rights in order to shelter children from language
Appellee finds offensive.
16
CONCLUSION
For the foregoing reasons, Amicus Curiae respectfully urges this Court to reverse the
rulings of the lower courts.
(L/ ~ /
Dated: ~/
':7/ _'I
I
I
:/~
Elizabeth A. Cabot (P36677)
SACHS WALDMAN, Professional Corporation
1000 Farmer Street
Detroit, MI 48226
313-965-3464
Robert M. O'Neil
J. Joshua Wheeler
Thomas Jefferson Center for the
Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
804-295-4784
17 STATE OF MICHIGAN IN THE COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
COA No. 225747
Circuit Ct No. 99-6546-AR
District Ct No. 98-1728-SM
v
TIMOTHY JOSEPH BOOMER,
Defendant-Appellant.
Richard E. Vollbach, Jr. (P46137)
Arenac County Assistant Prosecutor
120 N. Grove Street, P.O. Box 1309
Standish, MI 48658
517-846-4597
Michael 1. Steinberg (P43085)
Attorney for Defendant-Appellant
ACLU Fund of Michigan
1249 Washington Blvd., Suite 2910
Detroit, MI 48226
313-961-7728
CERTIfiCATE OF SERVICE
Elizabeth Cabot certifies that true and correct copies of the enclosed BRIEF AJ\I1JCUS
CURIAE ON BEHALF OF DEFENDANT-APPELLANT were mailed on this 19th day of April,
2001, first-class with postage prepaid, to:
Richard E. Vollbach, Jr.
Arenac County Prosecutor's Office
120 N. Grove Street
P.O. Box 1309
Standish, MI 48658
Michael J. Steinberg
ACLU Fund of Michigan
1249 Washington Blvd.
Suite 2910
Detroit, MI 48226
Counsel for Amicus Curiae