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People ex rel. R.C.

Court of Appeals of Colorado, Second Division

November 17, 2016

The People of the State of Colorado, Petitioner-Appellee, In the Interest of R.C., Juvenile-Appellant.

         Boulder County District Court No. 14JD140 Honorable Ingrid S. Bakke, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant


          HARRIS, JUDGE

          ¶ 1 R.C., a fourteen-year-old middle school student, took a photo of his friend, L.P., and then drew a penis over the photo. He showed the doctored photo to L.P. and some other friends. L.P. reported R.C. to the principal, who called the police. The police charged R.C. with disorderly conduct and, after a bench trial, the court adjudicated R.C. a delinquent.

         ¶ 2 On appeal, R.C. challenges the sufficiency of the evidence, arguing, primarily, that the prosecution failed to prove that his display of the photograph tended to incite an immediate breach of the peace. We agree and therefore reverse.

         I. Background

         ¶ 3 During class one afternoon, R.C. used his cell phone to take a photo of L.P. Then, using the mobile application Snapchat, he drew a picture of an ejaculating penis next to L.P.'s mouth.[1] R.C. showed the altered photo to L.P. and three other friends. R.C. was "giggling" when he showed the other boys the photo. One of the other boys laughed too, but L.P. felt "bad." About five minutes later, class ended and the boys went to lunch.

         ¶ 4 In the cafeteria, a few other students looked at the photo and laughed, which made L.P. feel even worse. Two of L.P.'s friends told R.C. to apologize and R.C. agreed to, but when he approached L.P., L.P. pushed R.C. away. L.P. and his friends reported the incident to the principal later that day.

          ¶ 5 R.C. was charged with disorderly conduct, and the case proceeded to trial. The court ruled that R.C. knew that his drawing would make L.P. feel humiliated and ashamed and would have tended to incite an immediate breach of the peace, in large part because the drawing implied that L.P. was "homosexual or behaves in that kind of behavior or has some sort of demeanor about that." The court sentenced R.C. to three months of probation, therapy, and eight hours of work crew.

         II. Discussion

         ¶ 6 A person commits disorderly conduct if he or she "intentionally, knowingly, or recklessly: . . . [m]akes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace." § 18-9-106(1)(a), C.R.S. 2016.

         ¶ 7 R.C. contends that the prosecution failed to prove beyond a reasonable doubt every element of the offense of disorderly conduct. According to R.C., his drawing was protected speech because, consistent with the First Amendment, only "fighting words" are prohibited under the statute, and the altered photo did not qualify as fighting words. Even if it did, R.C. says, the prosecution failed to prove that he knew, or recklessly disregarded a substantial risk, that displaying the photo was likely to provoke an immediate, violent response.[2]

         A. Standard of Review

         ¶ 8 On a challenge to the sufficiency of the evidence, we review the record de novo to determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is both "substantial and sufficient" to support the defendant's guilt beyond a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). In applying this test, "we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence." People v. Atencio, 140 P.3d 73, 75 (Colo.App. 2005). And we will not disturb the fact finder's determinations of witness credibility and the weight to be given to the evidence. People v. McIntier, 134 P.3d 467, 471 (Colo.App. 2005).

         B. Analysis

         ¶ 9 The United States and Colorado Constitutions prohibit the enactment of laws abridging or impairing freedom of speech. U.S. Const. amend. I; Colo. Const. art. II, § 10; see also NAACP v. Button, 371 U.S. 415, 444-45 (1963) (The "Constitution protects expression . . . without regard . . . to the truth, popularity, or social utility of the ideas and beliefs which are offered."). Still, the constitutional prohibition is not absolute: courts have upheld the constitutionality of statutes that prohibit obscenity, see Miller v. California, 413 U.S. 15 (1973); libel, see N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964); incitement, see Brandenburg v. Ohio, 395 U.S. 444 (1969); invasion of substantial privacy interests of the home, see Rowan v. U.S. Post Office Dep't, 397 U.S. 728 (1970); and, as relevant here, "fighting words." Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

         ¶ 10 Fighting words are those "which by their very utterance tend to incite others to unlawful conduct or provoke retaliatory actions amounting to a breach of the peace." Hansen v. People, 190 Colo. 457, 461, 548 P.2d 1278, 1281 (1976), superseded by statute, Ch. 227, sec. 1, § 18-9-106(1)(a), 1981 Colo. Sess. Laws 1010, as recognized in People v. Smith, 862 P.2d 939, 942 n.6 (Colo. 1993). To qualify as speech likely to incite a breach of the peace, it is not enough that words, gestures, or displays "stir[] the public to anger, " "invite dispute, " or "create a disturbance"; they must "produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949); see also Gooding v. Wilson, 405 U.S. 518, 525 (1972) (stating that "opprobrious" and "abusive" words that convey disgrace and include harsh insulting language are not necessarily fighting words).

         ¶ 11 Colorado's disorderly conduct statute is narrowly drawn to ban only "fighting words, " as that term has been interpreted by our supreme court and the United States Supreme Court. See Hansen, 190 Colo. at 461, 548 P.2d at 1281 (to pass constitutional muster, the disorderly conduct statute may prohibit only "fighting words").

         ¶ 12 Citing Chaplinsky, the dissent defines fighting words to include words that by their very utterance "inflict injury, " and it then appears to endorse R.C.'s conviction on the theory that the photo amounted to bullying that was likely to inflict injury on L.P. But soon after Chaplinsky, the Supreme Court either dropped the "inflict injury" category of fighting words altogether or recited the full definition of fighting words without further reference to any distinction between merely hurtful speech and speech that tends to provoke an immediate breach of the peace. See Purtell v. Mason, 527 F.3d 615, 623 (7th Cir. 2008) (discussing the evolution of the fighting words doctrine). The Supreme Court has "never held that the government may, consistent with the First Amendment, regulate or punish speech that causes emotional injury but does not have a tendency to provoke an immediate breach of the peace." Id. at 624; see Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for its Interment, 106 Harv. L. Rev. 1129, 1129 (1993) ("The jurisprudential history of the Chaplinsky doctrine has led some commentators to conclude that the Court has sub rosa overruled the entire fighting words doctrine, or at least the 'inflict injury' prong."). In any case, the Colorado statute does not prohibit utterances, gestures, or displays that "inflict injury, " but only those that "tend[] to incite an immediate breach of the peace." § 18-9-106(1)(a).

          ¶ 13 The question, then, is not, as the dissent suggests, whether L.P. might have suffered reputational injury, or, as a "highly sensitive" middle schooler (as most middle schoolers are), might have become "upset" by the photo, Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir. 2008), but rather whether R.C.'s display of the doctored photo tended to incite an immediate breach of the peace; that is, whether the display was, "as a matter of common knowledge, inherently likely to provoke a violent reaction" from a reasonable person. Coggin v. State, 123 S.W.3d 82, 90 (Tex. App. 2003) (quoting Cohen v. California, 403 U.S. 15, 20 (1971)).

         ¶ 14 As a preliminary matter, we must disagree with the dissent's characterization of the Snapchat photo as a "sexually explicit image of a minor" engaging in "fellatio." Under federal law, a "sexually explicit" image of fellatio is one that depicts "graphic . . . oral-genital" contact "between persons of the same or opposite sex." 18 U.S.C. § 2256 (2)(B)(i) (2012). The Snapchat photo was not introduced at trial and is not part of the record on appeal (because it was automatically deleted after some number of hours), but there was no testimony (or argument) that the photo depicted graphic oral-genital contact between two people. Instead, the evidence established that R.C. used the Snapchat app to hand draw a penis over an existing photo. Saying that a hand-drawn, cartoon-like picture of a penis superimposed on a photo is a "sexually explicit image" of a minor engaging in fellatio is like saying that the picture contained in footnote 1 (Figure 2) is a graphic depiction of rhinoplasty.

         ¶ 15 So we turn to the issue of whether the cartoon drawing of a penis on a photo is likely to incite a reasonable person - or even a reasonable middle schooler[3] - to immediate physical violence.

          ¶ 16 In this day and age, the notion that any set of words - much less a crayon-type drawing of a penis on a photograph - is "so provocative that [it] can reasonably be expected to lead an average [person] to immediately respond with physical violence is highly problematic." State v. Tracy, 130 A.3d 196, 209 (Vt. 2015). The cases cited at the outset of the dissenting opinion make this very point: words alone, no matter how offensive or cruel, cannot justify violence. And, as the Vermont Supreme Court has pointed out, that is a principle people ordinarily learn as children:

In a society in which children are admonished to 'use your words' rather than respond to anger and frustration by physically lashing out - and are taught the refrain, 'Sticks and stones will break my bones, but words will never hurt me, ' as an appropriate response to taunts - the class of insults for which violence is a reasonably expected response, if it exists at all, is necessarily exceedingly narrow.

Id. at 209-10.

         ¶ 17 That the category of "fighting words" has been shrinking is obvious - the Supreme Court has overturned every single fighting words conviction it has reviewed since Chaplinsky was decided in 1942. Id. at 205; see also Burton Caine, The Trouble With "Fighting Words": Chaplinsky v. New Hampshire is a Threat to First Amendment Values and Should be Overruled, 88 Marq. L. Rev. 441, 536 (2004).

         ¶ 18 The district court concluded that the drawing constituted fighting words because its display would tend to make the subject of the photo feel humiliated and ashamed. But speech that embarrasses or disgraces another is insufficient to qualify as fighting words. Even vulgar and insulting speech that is likely to arouse animosity or inflame anger, or even to provoke a forceful response from the other person, is not prohibited. "The fact that speech arouses some people to anger is simply not enough to amount to fighting words in the constitutional sense." Cannon v. City & Cty. of Denver, 998 F.2d 867, 873 (10th Cir. 1993). Rather, fighting words are limited to ...

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