Olseston was charged with five counts of disorderly conduct for “hurling profanities and personal insults” (¶14) at Janesville police officers as they came and left the police station, as well as filming some of the encounters. Three of the five counts can’t be prosecuted because Oleston’s conduct was protected by the First Amendment; the other two can be, because they went beyond protected speech.
The profanity and insults yelled at the officers from the sidewalk (¶¶15-17) are solidly within the ambit of protected speech, and the state’s various arguments to the contrary fail:
- Profanity by itself, of course, isn’t necessarily outside the protection of the First Amendment, and the state makes no developed argument to the contrary. (¶¶19-23).
- Nor does the state’s “woefully underdeveloped” argument (¶28) show that Oleston’s language, “insulting and distasteful” as it might have been (¶29), amounted to unprotected “fighting words.” The state cites Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), but none of the subsequent line of cases—in particular, Terminiello v. Chicago, 337 U.S. 1 (1949), and Cohen v. California, 403 U.S. 15 (1971)—that limits Chaplinsky, and it doesn’t even attempt to show Oleston uttered the kind of “personally abusive epithets” that, “when addressed to the ordinary citizen, are … inherently likely to provoke a violent reaction,” Cohen, 403 U.S. at 20, or that are “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest,” Terminiello, 337 U.S. at 4. (¶¶24-30).
- As for the purported “right” of the officers “to be let alone” and not have to listen to Oleston (¶¶31-33), the state mistakenly relies on Hill v. Colorado, 530 U.S. 703 (2000), which upheld the constitutionality of a statute that placed content-neutral and reasonable time, place, and manner limits on sidewalk protesters personally approaching other persons. There’s no similar statute at issue here, and it’s evident the prosecution was motivated because the police found Oleston’s speech offensive and disturbing. “However, as the Court explained in Hill, the right to free speech ‘may not be curtailed simply because the speaker’s message may be offensive to his audience.’ Id. at 716.” (¶33).
- Finally, the non-speech elements of Oleston’s behavior in the three counts don’t remove it from First Amendment protection. The state complains he was “loud” and within “shouting distance” of various residences, but it hasn’t proven, and the jury wasn’t instructed or asked to find, that it was so loud as to be unreasonable or a substantial invasion of the rights of others. (¶¶34-36)
Two of the counts, however, are horses of a different color. One was based on Oleston following an officer to his car rather than staying on the sidewalk, approaching within five feet of the passenger side front door, and videotaping the officer until he drove off. The other involved Oleston moving to the curb and sticking his camera out in front of the vehicle of an officer attempting to leave. (¶¶38-39).
This conduct “includes non-speech elements that is not protected by the First Amendment and can be prosecuted as disorderly conduct.” (¶40).
¶41 Here, as to counts four and five, Oleston’s conduct “went beyond mere expression of ideas.” [State v.] Becker, 51 Wis. 2d [659,] 665[, 188 N.W.2d 449 (1971)]. His non-passive, physically confrontational conduct of approaching and targeting specific officers at close range while shouting in a loud, forceful manner could reasonably be construed as causing “substantial disorder” and “the invasion of the rights of others.” Therefore, I conclude that Oleston’s conduct in counts four and five involved penalizable non-speech elements and is not within the realm of First Amendment protection.