Dawn Brandt argued she could not be convicted for disorderly because she did not utter "fighting words" when she cursed at a police officer. But the Superior Court of Pennsylvania upheld the conviction, reasoning that the local city ordinance prohibits "abusive language which distrubs any police officer in the discharge of his/her duty."
A Lebanon, Pennsylvania, woman who cursed at a police officer and called him a racial slur committed disorderly conduct, the Superior Court of Pennsylvania ruled.
The incident arose after Dawn Brandt’s next-door neighbor called the police on her allegedly for littering. The police officer, Enoc Ayala, approached Brandt to query her about the littering. Brandt used the word “motherfucker,” stated that the neighbor was “fucking lying” and called Ayala “a spic.”
Ayala then cited Brandt for violating a Lebanon City Ordinance, which reads:
Disorderly conduct towards a police officer is defined as follows:
(a) By violent, tumultuous, or obstreperous conduct or carriage, or by loud or unusual noises, or by abusive language which disturbs any police officer in the discharge of his/her duty.
A Magisterial District Court found Brandt guilty of disorderly conduct and littering. The Lebanon County Court of Common Pleas affirmed on the disorderly conduct charge but not the littering charge.
Woman argues cursing at cop not 'fighting words'
On further appeal, Brandt contended that she could not be convicted of disorderly conduct, because she did not utter “fighting words” – a category of unprotected speech that the U.S. Supreme Court defined in Chaplinsky v. New Hampshire (1942) as “words which by their very utterance inflict injury or cause an immediate breach of the peace.”
However, the Superior Court of Pennsylvania in its October 16, 2018, decision in Commonwealth v. Brandt affirmed her disorderly conduct conviction. The court did not address whether Brandt’s profanity and racial slur amounted to fighting words. Instead, the court reasoned that Brandt could be convicted under the ordinance simply for abusive speech that disturbed a police officer in his duties.
“The trial court clearly found that referring to Officer Ayala as a ‘spic’ constituted abusive language that disturbed Officer Ayala in the discharge of his duty,” the court wrote. “The record supports this finding.”
Pennsylvania Superior Court upholds conviction based on abusive language
The court’s ruling is interesting in that it upheld a disorderly conduct conviction based on a defendant’s language that the court said did not have to constitute fighting words. Courts sometimes have upheld disorderly conduct convictions based on words. However, usually those cases involved defendants who crossed the line from protected speech to unprotected fighting words.
The Pennsylvania court in this case convicted a defendant because she uttered abusive language that disturbed a police officer. The Lebanon City Ordinance is susceptible to a constitutional challenge. The U.S. Supreme Court famously wrote in City of Houston v. Hill (1987) that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”
David L. Hudson, Jr. is a First Amendment expert and the author of numerous books on freedom of expression, including Documents Decoded: Freedom of Speech (ABC-ClIO, 2017), The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Let the Students Speak!: A History of the Fight for Freedom of Expression in American Schools (Beacon Press, 2011).