The People of the State of Colorado, Petitioner-Appellee, In the Interest of R.C., Juvenile-Appellant.
County District Court No. 14JD140 Honorable Ingrid S. Bakke,
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Elizabeth
Porter-Merrill, Deputy State Public Defender, Denver,
Colorado, for Juvenile-Appellant
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.
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. 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
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.
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,
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.
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
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
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 - to immediate physical
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
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 ...