Sexually Explicit Picture Not Fighting Words, Rules Colorado Appeals Court

A fourteen-year-old middle school student did not commit disorderly conduct when he drew a picture of an ejaculating penis next to a photo of a classmate, a divided Colorado Court of Appeals has ruled.

The juvenile – known in court papers as R.C. – took a photo of his classmate and then used Snapchat to draw a picture of an ejaculating penis next to his classmate’s mouth. He showed the photo to several other classmates. The targeted classmate told the principal, who then called the police.

The police charged R.C. with disorderly conduct. A trial judge adjudicated R.C. delinquent for violating the disorderly conduct law.

On appeal, R.C. contended that he did not commit disorderly conduct because the photo was a form of protected speech under the First Amendment.

A divided Colorado Court of Appeals ruled in People of State of Colorado, in the Interest of R.C. that R.C. did not commit disorderly conduct, because the statute applies only to fighting words – defined by the U.S. Supreme Court in Chaplinsky v. New Hampshire as words which by their utterance inflict injury or cause an immediate breach of the peace.

Traditionally, fighting words are reserved for direct, face-to-face, profanity-laced tirades. A question in the R.C. case was whether the photograph in question rose to the level of fighting words.

The majority of the Colorado appeals court determined this particular photograph was not fighting words. The majority noted that the display “was not accompanied by any hostile, aggressive, or threatening language or conduct.” The appeals court majority also noted that the targeted classmate did not respond with any violence.

The government argued that the photograph was akin to calling another person a “cocksucker.” However, the majority wrote that “more recent cases suggest that ‘cocksucker’ has lost its former incendiary quality.”

Ultimately, the majority reasoned that the photograph – as awful as it was – would not cause an average fourteen-year-old to fly into a violent rage.

The majority noted that the school could punish R.C. for engaging in vulgar and lewd expression under the Supreme Court decision of Bethel Sch. Dist. v. Fraser (1986) and that R.C. arguably could be in violation of an anti-cyberbullying policy.

Judge John Webb dissented, explaining that a photograph can constitute fighting words. He reasoned that the targeted classmate could have reacted with violence and that sexually derogatory words and photos can constitute fighting words.

David L. Hudson, Jr. is the author, co-author, or co-editor of more than 40 books, including: Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and First Amendment: Freedom of Speech (Thomson Reuters, 2012).

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