How much speech is protected by the 1st Amendment? Can your words alone get you arrested and charged with Disorderly Conduct?
Chapters:
00:00 – Intro
00:40 – What qualifies as Disorderly Conduct?
01:20 – Doesn’t the First Amendment protect free speech?
02:17 – What are Fighting Words?
03:03 – What are you supposed to do?
03:27 – So, what can you do?
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It’s opening day! That means Baseball Season is just getting started. You’re looking forward to the popcorn, peanuts, and crackerjacks, but you’re not looking forward to the disorderly conduct in the stands by terrible fans and bad parents.
You know the ones – the ones whose team, or child, can do no wrong, and the umpires can do no right. The fans you hate to sit by, but love to beat. I mean beat on the field, not in the stands! (more on that in a minute)
These fans can have a negative effect on the children, the team, and the game as a whole. They can ruin a fun family outing or make your 7-year old feel like quitting. At what point does being a rowdy fan turn into disorderly conduct?
What qualifies as Disorderly Conduct?
Unfortunately, there is no law specifically aimed at terrible fans at little league games, or major league games for that matter. However, those fans may still face punishment for disorderly conduct if they cause too many problems. For example, starting fights or getting into other spectators’ faces could spell trouble for these overeager game goers.
A person can be arrested for disorderly conduct if they use abusive, indecent, profane, or vulgar language in public. They can also be arrested for disorderly conduct by making offensive gestures in a public place, or by threatening another in a public place.
—See Disorderly Conduct – Tex. Penal Code § 42.01(a)
Therefore, the parent or fan who is cursing at the umpire, or your child, may be arrested for disorderly conduct.
Doesn’t the First Amendment protect free speech?
Simply using profane or abusive language alone is not a criminal violation. Remember that pesky First Amendment Right to Freedom of Speech? Yeah, the same one our forefathers fought for which gives us the right to speak out against injustices.
The First Amendment to the U.S. Constitution states that Congress shall make no law abridging the freedom of speech. This means the speech of those terrible fans may be protected. Just because they’re yelling obscenities or making obscene gestures doesn’t automatically make their conduct “disorderly.”
—See U.S. Const. amend. I
So what makes their conduct rise to the level of disorderly? If their words or gestures tend to incite an immediate breach of the peace, then their conduct is considered disorderly and they are in violation of the law.
Breach of the peace means an act that “disturbs or threatens to disturb the tranquility enjoyed by the citizens.”
—See Ross v. State, 802 S.W.2d 308, 315 (Tex. App. – Dallas 1990, no pet.)
“Fighting words,” is one class of speech not afforded protection by the First Amendment. Words and gestures that tend to incite an immediate breach of the peace are “Fighting Words,” and therefore get no First Amendment protection.
What are Fighting Words?
The U.S. Supreme Court has upheld that fighting words are “what men of common intelligence would understand would be words likely to cause an average addressee to fight.” When we consider the “common intelligence” in this day and age, you realize that this is probably a really low bar.
—See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942);
Therefore, if a parent makes an offensive comment regarding a child, and it is so offensive that it causes a fight to ensue – the person who made the statement is probably exhibiting disorderly conduct. For example, one man was convicted of disorderly conduct for saying, “Hey, b**ch, what are you looking at?” to a 10-year old girl.
—See Ste-Marie v. State, 32 S.W.3d 446 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
What are you supposed to do?
Under the law you have no legal duty to stop, or try to stop, the person causing a scene or breaching the peace. We haven’t yet covered the Citizen’s Arrest, but trying to conduct a Citizen’s Arrest at your child’s little league game isn’t the answer.
Attempting to do so may only make things worse. Trying to stop another person from causing a riot may in turn cause enough of a scene to put you…
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Disorderly Conduct and Fighting Words
