STATE OF MICHIGAN
COURT OF APPEALS
_______________________________
THE PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff-Appellee,
v.
Court of Appeals No. 225747
Circuit Court No. 99-6546-AR
District Court No. 98-1728-SM
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 J. Steinberg (P43085)
Kary L. Moss (P49759)
Attorney for DefendantAppellant
ACLU Fund of Michigan
1249 Washington Blvd.
Suite 2910
Detroit, MI 48226
313-961-7728
_____________________________
_______________________________
________________
AMICUS CURIAE BRIEF IN SUPPORT OF DEFEND ANT-APPELLANT'S APPLICATION
FOR LEAVE TO APPEAL
Attorneys for Amicus Curiae
Elizabeth A. Cabot (P36677)
Robert M. O'Neil
Sachs, Waldman, O'Hare,
J. Joshua Wheeler
Helveston, Bogas & Mclntosh, P.C.
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
3
I.
THE CIRCUIT COURT'S INTERPRETATION OF MCL 750.337 VIOLATED
FUNDAMENTAL FIRST AMENDMENT PRINCIPLES
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.
3
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."
4
Mr. Boomer's Speech Is Protected Under the First Amendment.
9
THE UNITED STATES SUPREME COURT HAS CLEARLY STATED THAT
THE STATE MAY NOT REDUCE PUBLIC DISCOURSE TO THAT WHICH
IS FIT FOR CHILDREN.
12
ONLY BY DISREGARDING THE SUPREME COURT'S HOLDING IN
COHEN V. CALIFORNIA CAN MR. BOOMER'S CONVICTION BE
AFFIRMED.
14
B.
C.
II.
III.
3
CONCLUSION
16
APPENDIX A
i
INDEX TO AUTHORITIES
Case
Page
Bolgers v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)
..................................................13
Breaux v. State, 230 Ga. 506 (1973) .........................................................................................9
Butler v. Michigan, 352 U.S. 380 (1957) ................................................................................ 12
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .........................................................8, 10
City of Macon v. Smith, 244 Ga. 157 (1979) ................................................................ 6, 7, 9
City of Oak Park v. Smith, 79 Mich. App. 757 (1977) ..............................................................6
City of Pontiac v. Klein, 67 Mich. App. 556 (1976) ................................................................5
Cohen v. California, 403 U.S. 15 (1971) ................................................ 1, 9, 10, 11, 14. 15, 16
Cottage Grove v. Farmer, 42 Or. App. 21 (1979) .....................................................................7
Cyberspace Communications, Inc. v. Engler, 55 F. Supp. 2d 737 (E.D. Mich. 1999)...............12
East Peoria v. Moushon, 45 111. App. 3d 719 (1977) ................................................................7
Erznoznik v. Jacksonville, 422 U.S. 205 (1975) .......................................................................13
Gooding v. Wilson, 405 U.S. 518 (1972)..................................................................................10
Meyer v. Grant, 486 U.S. 414 (1988 ........................................................................................15
Miller v. California, 413 U.S. 15 (1973)
................................................................................ 8
New York v. Ferber, 458 U.S. 747 (1982) .............................................................................13
People v. Boomer, No. 99-6546-AR (Feb. 17, 2000) ................................................................5
People v. Boomer, No. 98-1728-SM (Feb. 8, 1999) ................................................................8
People v. Price, 4 Cal. App. 3d 941 (1970) ............................................................................ 8
ii
Prak v. Gregart, 749 F. Supp. 825 (E.D. Mich.1990) .............................................................5
R.A.V. v. St. Paul, 505 US 377 (1992)...................................................................................... 10
Reno v. ACLU, 521 U.S. 844 (1997) ................................................................................. 12, 13
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989)........................................13
State v. Orange, 22 N.C. App. 220 (1974) ................................................................................ 7
State v. Profaci, 56 N. J. 346 (1970) .........................................................................................8
White v. Norwalk, 900 F.2d 1421 (9th Cir. 1990) ..................................................................7
Statutes
MCL 750.337 .................................................................................................................. passim
Constitution
US Const. Am I ................................................................................................................ passim
iii
SUMMARY OF ARGUMENT
“[O]ne man's vulgarity is another's lyric.” Cohen v. California, 403 U.S. 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 conveys a meaningful idea is protected by the First Amendment.
Thus, according to Appellee, if one man's lyric is another's vulgar lyric, it is no longer
protected by the First Amendment. Such an interpretation is completely at odds with the clear
import of Cohen.
In labeling Timothy Boomer a criminal for offensive words alone, the circuit court
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 circuit
court 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 circuit court made the
illogical determination that Mr. Boomer’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 circuit court 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 Mr. Boomer’s
speech does not fall within any such exception, this Court should grant his Application for
1
Leave to Appeal.1
_________________________
1
Amicus agrees with Appellant that MCL 750.337 is unconstitutional on its face. There is no
need to address that issue here, however, because it is comprehensively addressed in
Appellant’s Application for Leave to Appeal. Rather, this brief will focus on the fundamental
inconsistencies and mistakes of law made by the lower courts and the Appellee.
2
ARGUMENT
I. THE CIRCUIT COURT'S INTERPRETATION OF MCL 750.337 VIOLATED
FUNDAMENTAL FIRST AMENDMENT PRINCIPLES.
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.
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 itself or
a claim that a lower court applied the statute in an unconstitutional manner. Both the lower
courts' decisions in this case, as well as Plaintiff/Appellee’s Response to Defendant/Appellant’s
Application for Leave to Appeal, display a confusion between the analysis required to defend
the facial validity of a statute and the analysis needed to justify the application of MCL
750.337 to Mr. Boomer’s words.
The circuit court, in a ruling read from the bench,2 affirmed the district court’s
holding that narrowed the reach of MCL 750.337 to expression falling in the lesser-protected
categories of obscenity or fighting words. Nevertheless, the circuit court, having endorsed the
district court’s response to the facial challenge to MCL 750.337, 3 curiously proceeded to
allow an expansion of the reach of the statute by applying it to expression that is neither
____________________________
2
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 that “[t]he
court reporter has been present throughout this entire hearing.” Oral Argument Transcript, at 33.
3
The circuit court did not address the district court's narrowing of the statue. It merely agrees that
MCL 750.337 is constitutional on its face. See Oral Argument Transcript, at 29 (“If a statute is
constitutional, which this Court finds that this one is, as specifically applied to this case, at
least....”).
3
obscene nor fighting words. The State 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 Mr. Boomer’s speech did not fall into either
category — a holding that has not been challenged on appeal. Once those findings were
made, the prosecution against Mr. Boomer should have ended. Even if Amicus conceded
(which it does not) that Mr. Boomer’s expression was not protected under the First
Amendment, it was 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 do not support extending the reach of
MCL 750.337 to language other than obscenity and “fighting words.”
Modern 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. By characterizing Mr.
Boomer's speech as some sort of “non-speech” that is not entitled to protection under the First
Amendment, the circuit court violated this fundamental principle.
Though the circuit court did not repeat the term “non-speech” as coined by the district
court to describe the words spoken by Mr. Boomer, it clearly endorsed the illogical concept
that some spoken words can properly be considered not to be speech as protected by the First
Amendment. The circuit court stated:
[T]he conduct that Mr. Boomer was convicted for was determined by the district court,
4
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) (hereinafter
“Transcript”) at 30 (emphasis added); see also id. at 32 (“All noise is not protected speech.”).
The circuit court engages in what can only be described as legal alchemy by transforming Mr.
Boomer's verbal expression of vulgar but commonly understood words into a form of “nonspeech.” That this argument is legally untenable is evidenced by the fact neither the lower
courts nor the Appellee cite one case that directly supports this analytical sleight-of-hand.
Indeed, systematic examination of the cases cited by Appellee (Response, Argument IV, at 2324) 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 made a facial challenge in federal court to the
constitutionality of MCL 750.337. 749 F. Supp. 825 (E.D. Mich.1990). Although the federal
court refused to rule that the state statute was unconstitutional on its face, the court’s holding
was based in the finding “that a Michigan court may limit application of the statute to
‘fighting words.’” Id. at 829 (emphasis added).
In City of Pontiac v. Klein, 67 Mich. App. 556 (1976), the Michigan Court of Appeals
assessed the constitutionality of a statute similar to MCL 750.337 which prohibited “indecent,
profane, or obscene language in the presence of others.” The defendants in Klein submitted
jury instructions requesting the jury to convict only if they found the defendants to have
5
uttered “fighting words.” 67 Mich. App. at 557. The trial court rejected this request and
instructed the jury to convict if they found the defendants’ language to be merely “grossly
vulgar or profane.” Id. at 558. The Michigan Court of Appeals reversed finding that the jury
instructions did not limit the application of the statute to fighting words.
In City of Oak Park v. Smith, 79 Mich. App. 757, 761 (1977), the Michigan Court of
Appeals was confronted with a city ordinance that read: “It shall be unlawful for any person
to insult, accost, molest, or otherwise annoy, either by word of mouth, sign, or motion, any
person in any public place.” Following Klein, the court found the ordinance constitutional
only if its application was limited to “fighting words.” See City of Oak Park, 79 Mich. App.
at 762.
Appellee cites to a number of other jurisdictions where statutes or ordinances
criminalizing profane or obscene language had been upheld as constitutional. Close scrutiny
of these decisions, however, reveals a cautious and narrow application of these provisions
unlike that applied by the lower courts to MCL 750.337.
For example, Appellee cites City of Macon v. Smith, 244 Ga. 157 (1979), 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 Mr. Boomer’s
conviction under MCL 750.337. In City of 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.” City of
6
Macon, 244 Ga. at 159. The court, despite finding defendant's conduct and language “vulgar
and offensive,” refused to characterize her remarks as “fighting words.” Id. at 159.
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, 45 111. App. 3d 719 (1977), was an ordinance
prohibiting obscene, offensive, or profane language. 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 whom “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 N.C. 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 F.2d 1421, 1424 (9th Cir. 1990), was a California
locality’s ordinance that permitted the prosecution of any person who, at a city council
7
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.” Id. at 1425. Thus, the ordinance retained its validity due to the council-meeting
environment in which it was limited. See id.
Appellee also points to People v. Price, 4 Cal. App. 3d 941 (1970), as evidence of the
constitutionality of a statute that prohibits obscenity. Restrictions on obscenity, of course, are
acceptable under the doctrine of Miller v. California, 413 U.S. 15 (1973). Moreover, the
issue is irrelevant to the instant case because Judge Yenior correctly determined that Mr.
Boomer’s language falls outside the purview of obscenity. See People v. Boomer, No. 981728-SM (Feb. 8, 1999), at 3.
Only two of the eight cases from other jurisdictions cited by actually accepted the
constitutionality of their respective statutes without limiting their application to obscenity or
“fighting words.” In State v. Profaci, 56 N.J. 346 (1970), the court relied on Chaplinsky v.
New Hampshire in ruling that the statute in question was constitutional because its purpose
was to “preserve the peace.” 315 U.S. 568, 353 (1942). 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
8
“sensibilities” of persons is highly questionable after the U.S. Supreme Court’s 1973 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 tempered by that court’s 1979 decision in Macon v.
Smith (discussed supra., p. 19). 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).
Further, this open-ended definition of profane and vulgar is inconsistent with the more narrow
application required by the Georgia Supreme Court of a similar ordinance in Macon. 244 Ga.
at 159.
Thus, there is little, if any, judicial authority that 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 Mr. Boomer’s speech did not
constitute obscenity or “fighting words,” the prosecution against him should have been
dismissed.
C.
Mr. Boomer's Speech Is Protected Under the First Amendment.
Instead of grounding its holding in the relevant case law—all of which supports exactly
9
the opposite conclusion of that reached by the circuit court—the circuit court's treatment of
Mr. Boomer's words appears to be based on a normative judgment of the communicative value
of Mr. Boomer's expression. However, to regulate speech based on this factor is clearly
impermissible. 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.
Rather, the presumption created by the First Amendment is that speech is fully
protected unless it falls into a clearly defined and established category of unprotected
expression. Gooding v. Wilson, 405 U.S. 518, 521-22 (1972) (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 571 (1942); see also Cohen v. California, 403 U.S. 15, 19-20
(1971). For instance, it is clear that words that are integral to a criminal conspiracy,
solicitation or aiding and abetting are unprotected. In addition, the Supreme Court has held
that expression that constitutes “fighting words,” child pornography, defamation, or is legally
obscene is not accorded First Amendment protection. Beyond these limited classes of
exceptions, however, 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.” Id.
There is simply no recognized exception to First Amendment protection for verbal
expression that is labeled “non-speech.” Indeed, in R.A. V. v St. Paul, the Supreme Court
explicitly rejected a similar proposition:
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.”
10
505 U.S. 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 Mr. Boomer 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.
There is also a factually-based flaw in the lower courts’ analyses.
It is far from
obvious on the record that the defendant’s outburst was devoid of meaning or message. Had
that been as clear as the lower courts seemed to believe it was, listeners presumably would
have reacted with ridicule, humor or even compassion, and not with anger or hostility. Indeed,
the very premise underlying MCL 750.337 is that certain words are so charged with meaning
and content to listeners that the Michigan Legislature deemed their utterance worthy of
punishment. MCL 750.337 seems a rational expression of legislative decisionmaking only on
the assumption that “indecent” or “immoral” language, among others, is virtually certain to
have some cognitive or emotive impact on listeners. Unlike, for example, content-neutral
noise ordinances that restrict the use of words regardless of meaning or cognitive or emotive
impact on listeners, the very offense being targeted by the State in this case springs from the
content of Mr. Boomer’s words—that is, from the listener’s likely higher-order recognition of
what Mr. Boomer’s words mean in context. In this case as well as in Cohen, “[t]he only
‘conduct’ which the State sought to punish is the fact of communication.” Cohen, 403 U.S. at
18.
11
II.
THE UNITED STATES SUPREME COURT HAS CLEARLY STATED THAT THE
STATE MAY NOT REDUCE PUBLIC DISCOURSE TO THAT WHICH IS FIT
FOR CHILDREN.
To conform 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 U.S. 380, 383 (1957); see also Cyberspace Communications, Inc. v. Engler, 55
F. Supp. 2d 737, 747-48 (E.D. 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 U.S.
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 U.S. 844 (1997) (striking down provisions of the
Communications Decency Act 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 U.S. 115 (1989) (striking down a federal law criminalizing the transmission
of indecent, but nonobscene, commercial telephone messages to minors and adults); Bolgers v.
12
Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (striking down a federal law prohibiting the
mailing of unsolicited advertisements for contraceptives); Erznoznik v. Jacksonville, 422 U.S.
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, the protections afforded children against child
pornography have absolutely nothing to do with this case. Child pornography, as opposed to
pornography 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 U.S. 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 U.S. at 885. Mr. Boomer cannot be deprived of his
constitutionally protected speech rights to shelter children from language the State finds
offensive.
13
III.
ONLY BY DISREGARDING THE SUPREME COURT'S HOLDING IN COHEN V.
CALIFORNIA CAN MR. BOOMER'S CONVICTION BE AFFIRMED.
The conviction of Mr. Boomer is clearly at odds with the principles articulated in
Cohen v. California. Appellee seeks to distinguish this case from Cohen on the grounds that
Mr. Cohen's expression of “Fuck the Draft” was protected because of its political message.
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. Understandably, 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 v.
California, 403 U.S. 15, 24 (1971).
Appellee concludes its Response with the statement that Mr. Boomer’s “arguments
damage the integrity of the First Amendment.” Appellant’s Response at 24. 4 Perhaps no other
statement 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
_______________________________
4
The impact of this case extends far beyond the prosecution of Mr. Boomer. Since Mr.
Boomer's conviction, other Michigan counties have commenced prosecutions for violations of
MCL 750.337. For example, the Clare County Prosecutor's Office recently charged a high
school assistant volleyball coach with violating the statute for a heated exchange between the
school athletic director and the female head volleyball coach. See 2/8/00 misdemeanor
complaint in People v. Clevenger, 80th District Court No. 00-0156-SM; see also Mt. Pleasant
Morning Sun, 4/17/00, attached as Appendix A.
14
constitutional significance.” 403 U.S. at 15. On numerous occasions, the Supreme Court has
stated that for political speech, First Amendment protection is “at its zenith.” See, e.g., Meyer
v. Grant, 486 U.S. 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. In fact, the Court
specifically states that its decision has nothing to do with the underlying message of Mr.
Cohen’s speech. “Appellant’s conviction, then, rests squarely upon his exercise of the
‘freedom of speech’ protected from arbitrary governmental interference by the Constitution
and can be justified, if at all, only as a valid regulation of the manner in which he exercised
that freedom, not as a permissible prohibition on the substantive message it conveys.” Cohen,
403 U.S. at 19 (emphasis added).
The Cohen Court’s statement “one man’s vulgarity is another’s lyric” is one of the
most well known statements of First Amendment jurisprudence. But one has to question why
the Supreme Court would bother to describe differing emotional responses to the same words
if, as Appellee argued and the lower courts accepted, it intended its holding in Cohen to apply
only to meaningful expressions of ideas. The lower courts nor Appellee have not provided an
answer to that question. This Court should therefore grant Appellant's Application for Leave
to Appeal in order to learn the State’s answer.
In fact, the answer is provided in Cohen. “[W]e 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.” Id.
15
at 26. Thus, it was the “risk” of suppressing meaningful ideas, not the actual suppression of
those ideas that motivated the Court in Cohen. To eliminate the mere possibility that
governments might use the censorship of particular words as a guise for suppressing unpopular
views, the Supreme Court has drawn a line in the sand prohibiting the censorship of particular
words — whether they convey a meaningful thought or not.
CONCLUSION
For the foregoing reasons, Amicus Curiae respectfully urges this Court to grant
Appellant’s Application for Leave to Appeal.
Dated: 4/21/00
Elizabeth A. Cabot (P36677)
SACHS, WALDMAN, O'HARE,
HELVESTON, BOGAS & McINTOSH, P.C.
1000 Farmer
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
16
PROOF OF SERVICE
The undersigned hereby certifies that true and correct copies of the enclosed Amicus Curiae
Brief in Support of Defendant-Appellant's Application for Leave to Appeal were mailed on this 21st day
of April, 2000, first-class with postage prepaid, to :
Richard E. Vollbach, Jr.
Attorney for Appellee
Arenac County
Prosecutor's Office
120 N. Grove Street
P.O. Box 1309
Standish, MI 48658
Michael J. Steinberg
Attorney for DefendantAppellant
ACLU Fund of Michigan
1249 Washington Blvd.
Suite 2910
Detroit, MI 48226
_______________________________
Elizabeth Cabot
Counsel for Amicus Curiae
17
APPENDIX A
Approved, SCAO
STATE OF MICHIGAN
th
80 JUDICIAL DISTRICT
COMPLAINT
Key: 20 MISDEAMOR
CASE NO.
00-0156-5m
Court Address
Court Telephone No.
180025J
Court
telephone no. :
MI-
Courthouse, 225 W. Main, Harrison, MI 48625
m
THE PEOPLE OF
] The State of Michigan
Defendants name and address
STEVEN ROBERT CLEVENGER
517 539 7173
Victim of complaint
MICHAEL COON
V
Complaining witness
ALLAN WINTERS
:o-defendant(s)
Date: On or about
1/27/2000
City/twp./Village
9 E. Michigan, Surrey Twp.
Police agency report no.
SD-00-34-3
County in Michigan
Defendant CTN
18-00000115-01
Defendant SID
Defendant DOB
10/22/1979
Maximumpenalty
See Below
Charge
See Below
Witnesses
MICHAEL COON, ALLAN WINTERS, VID BECKEY, GELA ELLEN PAKLLEDINAZ
Defendant DLN
STATE OF MICHIGAN, COUNTY OF Clare____________________________________.
The complaining witness says that on the date and at the location described, the defendant, contrary to law,
Count 1 Defendant(s) 01 INDECENT LANGUAGE
id;use certain indecent, immoral, obscene, vulgar or insulting language in the
presence : hearing of a woman or a child; contrary to MCL 750.337; MSA 28.569.
[750.3373]
ISDEMEANDOR: 90 Days and/or $100.00
The complaining witness asks that defendant be apprehended and dealt with according to law.
(Peace Officers only) 1 declare that the statements above are that to the best of my information, knowledge, and belief.
Warrant authorized on February 4, 2000
Complaining witness signature
Judge/court clerk/magistrate
Cursing
lands
man in
trouble
MOUNT PLEASANT MORNING SUN, page 1,
April 17., 2000 ~
ByCHRISTY DARG1TZ
Cursing
Sun Staff Writer
(Continued from Page 1) .
Based on an 1897 Michigan law,
a 20 year-old Mt. Pleasant roar, was
charged in Clare County for
swearing in front .of a woman.
According to Attorney William Street, of Saginaw, Steven
Robert Clevenger's use of ob- . scene
or vulgar language occurred Jan. 27
during a discussion with the varsity
volleyball coach and tbe assistant
principal.
Clevenger -was fired as Far-veil
High. School's assistant volleyball
coach after school hours that day,
Street saidThe law Clevenger is accused
of violating states that it is unlawful
to use_ obscene or vulgar language
in front of women or children.
"Based on the police reports I've
seen, I believe this case has nothing
to do with using bad language in
front of children," Street said.
Street said details of the incident will be clarified by the judge
and attorneys at the pre-trial April
19..
If convicted, Clevenger could
serve up to 90 days in jail ,
and/or pay a $100 fine, he said…
Street, -who represents the
American Civil Liberties Union,
opposes the law and claims it violates
. the Fir$t Amendment.
"This law 'was unconstitutional
when it was written," he said.
The case mimics an incident of a
Standish canoeist named Timothy
Boomer, who was convicted last June
for swearing in front of children.
Boomer was canoeing with friends
when he fell out of his canoe
(See Cursing, Page 2)
and into the Rifle River • in
1998.
.
Street also ' represents
Boomer on behalf of the Arneri- .
can' Civil Liberties. Union.
Boomer is -waiting to hear the
.result of his appeal process
before he serves his sentence.
He was sentenced to pay a
$75 fine and work four days in
a child-care program, according
to associated press reports.
In Kalamazoo County and
other Michigan counties', the
law was declared unconstitutional, Street said.