Excerpts from the Ruling of the Supreme Court of South Dakota:
"...Marcus J. Suhn was convicted of disorderly conduct for yelling profanities at a passing police car in Brookings, South Dakota. He appeals his conviction and contends that his utterances are protected speech under the First and Fourteenth Amendments to the United States Constitution. The State argues that Suhn’s utterances fall under the “fighting words” exception to First Amendment protection. We hold that Suhn’s words are protected speech and reverse."
"The State charged Suhn with disorderly conduct under SDCL 22-18-35 (2). The relevant portion of the statute provides that “[a]ny person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by: . . . (2) Making unreasonable noise; . . . is guilty of disorderly conduct.” Id. (emphasis added). Suhn asserts that his disorderly conduct conviction violates his right to free speech under the First Amendment to the United States Constitution.1 We review alleged violations of constitutional rights de novo. State v. Hayen, 2008 SD 41, ¶5, 751 NW2d 306, 308 (quoting State v. Muller, 2005 SD 66, ¶12, 698 NW2d 285, 288). The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” US Const amend I; amend XIV (imposing the right of free speech on the states). Emphasizing its importance, we have said that “[f]reedom of speech is one of our most cherished and zealously guarded Constitutional liberties.” State v. Martin, 2003 SD 153, ¶17, 674 NW2d 291, 297."
"As the patrol car passed the sidewalk crowd, [Officer] Gibson heard Suhn yell obscenities in the direction of the police car. Specifically, Suhn yelled: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.” Officer Gibson leaned out of the window of the police car and made eye contact with Suhn. He identified Suhn as the speaker. Gibson also observed that the others on the sidewalk had expressions of “what are you doing?” in response to Suhn’s comments."
"Officer Gibson immediately left the patrol car and walked toward Suhn, who was then standing with his back to the patrol car. The officer grabbed Suhn by the arm and arrested him for his earlier utterance. Suhn was charged and convicted of disorderly conduct."
"...the Eighth Circuit Court of Appeals noted in Hammond v. Adkisson that “[i]t is now clear that words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment.” 536 F2d 237, 239 (8thCir 1974) (citations omitted). Hammond’s conviction was based on her verbal response to police officers. She said, “You m.f. son-of-a-bitches think you all can come out and do anything that you want to do.” Id. at 238. The Eighth Circuit Court of Appeals reversed her conviction because the trial court had determined that her words were “abusive and profane” but had not found that her words were “likely to incite the addressee to a violent reaction under the circumstances of the case.” Id. at 239-40. Consequently, the Eighth Circuit Court of Appeals found that her response to the officers did not constitute “fighting words” and, therefore, was constitutionally protected speech."
"Just because someone may have been offended, annoyed, or even angered by Suhn’s words does not make them fighting words. As offensive or abusive as Suhn’s invective to the police may have been, “when addressed to the ordinary citizen,” Suhn’s words were not “inherently likely to provoke violent reaction.” See Cohen, 403 US at 20, 91 SCt at 1785, 29 LEd2d 284 (citing Chaplinsky, 315 US 568, 62 SCt 766, 86 LEd 1031). The circuit court erred in determining that Suhn’s utterances were unprotected speech. We reverse."