South Dakota court asked whether profanity is disorderly

The South Dakota Supreme Court on Monday heard arguments over whether yelling profanities at a passing police officer is protected speech under the U.S. Constitution.

Attorneys for Marcus Suhn argued the First and 14th Amendments protected him and a misdemeanor disorderly conduct conviction should be overturned. He appealed to the high court after being convicted for a Sept. 2, 2007, exchange with Police Officer David Gibson.

The Constitution gives Americans to express ideas and opinions freely, Suhn's attorney, Robert Fite said. "That right also gives us the right to criticize our government and its agencies without fear of retribution."

But Assistant Attorney General Ann Meyer countered that a lower court judge was right in concluding Suhn's exclamations fell under the "fighting words" exception of the First Amendment.

Meyer also said the disorderly conduct charge was appropriate because Suhn uttered the profanities among a crowd of bar patrons, which created a risk, Meyer said.

"You've got 100 people coming out of the bars who presumably have been drinking," Meyer said.

Suhn, 23, and dozens of other patrons were gathered on the sidewalk in downtown Brookings, home of South Dakota State University and its nearly 12,000 students.

Gibson was on patrol when he saw and heard Suhn let out a string of obscenities that included several derogatory references to police officers.

Fite described the statement as 16 words amounting to profane criticism toward police. The lawyer, acknowledging the decorum of the court, told justices he would not expound unless they wanted him to read the entire quote.

Gibson confronted Suhn, but he was ignored until Gibson grabbed Suhn's arm and arrested him for disorderly conduct for the vulgar diatribe.

Fite argued it was only Suhn's words that prompted the arrest because Suhn had no direct confrontation with the officer, so the fighting words argument doesn't apply.

"I don't think there's any way Suhn can be convicted for speech only," Fite said.

Some justices asked the prosecutor whether there would be more arrests for language that has become common.

"Those particular words during my era, you would get your mouth washed out with soap. Now you hear them on television," said Justice Judith Meierhenry.

But Meyer argued that it was also the context, not only the words, that violated the law and created the risk.

"He just let it fly with his profanity towards police officers and the public and everybody's caught up in it and that's unreasonable noise," she said.

Suhn had been sentenced to 30 days in jail and fined $150, plus court fees. His jail sentence was suspended before he served any jail time.

The high court is meeting this week at South Dakota State University. It's ruling in Suhn's case is expected in several months.