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Case tests city's speech ordinance

The U.S. Supreme Court has said controversial and insulting speech is protected by the First Amendment, but speech that would lead to violence is not.

By Michael G. Walsh

Muskegon Chronicle, August 12, 2000

MANISTEE - A single syllable has kicked off a court battle over whether cities in Michigan can regulate the difference between free speech and illegal "fighting words."

To Janice Barton, what she said to her mother should be protected by the First Amendment as free speech in a free land. But to those who overheard her anti-Hispanic slur, what she said was a word that can prompt violence - "fighting words" - speech that carries no constitutional protection.

Barton's case has moved from Manistee's 85th District Court to the county's 19th Circuit Court and now is before the Michigan Court of Appeals. Barton is asking the higher court to look at her case and reverse her conviction and jail sentence.

A decision to accept or reject the appeal can come at any time.

Although Barton now regrets uttering the slur, she said she believes she's the one who was wronged - not the Mexican-American family who overheard her comment.

Barton said she believes immigrants to America should speak English, not their native tongues. And Americans should be able to make political discourse - ethnic and racial slurs included - without fear of prosecution or other reprisal, Barton said.

Political speech or racist slur?

It was a little past 11 a.m. on an August day in 1998 when Barton, 45, was leaving the Peppermill Restaurant in this Lake Michigan shoreline community with her mother and daughter. As Barton and her family tried to make their way through the crowd, a man - in Spanish - asked his wife to make room for them.

Barton, who does not understand Spanish, told her mother: "I wish these damned 'spics' would learn to speak English."

Carol Benitez, one of the Spanish speakers and an off-duty Manistee County Sheriff's deputy, followed Barton outside and copied her license plate number as Barton "flipped her off," according to both police reports and Barton. Benitez later called city police and filed a complaint. She did not return a reporter's phone call.

Almost two weeks later, Barton was charged with disturbing the peace. But when she appeared in court Oct. 13, 1998, Barton was charged with "insulting conduct in a public place."

In court that December, Barton testified that she thinks immigrants should speak English when in the United States and that it angered her when Mexican-Americans and others opt to speak their native tongues in public.

"It incenses me," Barton told her 85th District Court jurors, according to transcripts reviewed by The Chronicle. "It's very insulting to me when someone doesn't speak English in our country." She added that Hispanics "don't mind being called 'spics.' "

The U.S. Supreme Court in several rulings said controversial and even insulting speech is protected by the First Amendment. However, speech that would lead to an imminent breach of the peace - violence - is not.

The district court jury agreed with the judge that Barton's words were "fighting words" - not free speech - and convicted her of the misdemeanor.

The housewife was sent to jail for 45 days, but released four days later after her attorney worked out an unusual deal: The jury verdict would be vacated and she would plead guilty and be freed - as long as she dropped all appeal rights.

Her case, Barton said, is similar to Timothy Boomer's - the so-called "cussing canoeist" - whose profane rantings were overheard by families sharing the Rifle River in 1998. Boomer, 26, convicted of the misdemeanor, was sentenced to four days of community service and a small fine. But his punishment was deferred until an appeal is decided.

"(Boomer) was convicted, but he got all his rights," Barton said. "I got none of my rights."

Constitutional concerns

"Hate speech" - vilifying others through insulting terms - is constitutionally protected, although "fighting words" are not, according to the nation's highest court. But finding the difference is sometimes difficult.

Nazis, for example, have the right to march in largely Jewish communities despite the propensity that such conduct could spark violence. Members of the Ku Klux Klan may refer to nonmembers with whatever terms they like - depending on the setting and the propensity for violence. And it's certainly legitimate to discuss whether to make English the official language of a community or state. But does such speech remain protected if an ethnic slur is attached?

The Manistee city ordinance under which Barton was charged is similar to city ordinances across the state, including Muskegon's. All of them, says Matthew Posner, Barton's appellate attorney, are too broadly worded and therefore make both protected speech and fighting words illegal.

Manistee's ordinance simply says, "No person shall engage in any indecent, insulting, immoral or obscene conduct in any public place."

"(The) Manistee ordinance is overbroad because its ban of all 'insulting conduct' prohibits a wide range of protected speech," Posner told the appellate court. In addition, its "vague" wording invites "arbitrary and inconsistent enforcement."

Further, Barton didn't utter "fighting words" - only an opinion that should be constitutionally protected, Posner said.

But not all lawyers share Posner's views.

John Roy Castillo, former director of the Michigan Department of Civil Rights and the Detroit Human Rights Department, said Barton's comment not only was offensive, it likely could have sparked a fight - exactly what Manistee's ordinance was trying to prevent.

"I'm nonviolent, but I might have confronted her and who knows the personality of that person," said Castillo, who is of Mexican descent. "The ordinance was intended to prevent potential violence."

Barton's use of the word "spic" as an ethnic slur is offensive, and it's also not protected political speech, he said. "In this situation, I'd be insulted," said Castillo. "Here, she said it, and she shouldn't have said it because it could develop into a far more serious condition that it did."

Barton said she now regrets using the epithet, but she stands by its use. "I do feel they should speak English in this country," Barton said. "It's a political statement. You have states and cities voting on this."

Room for rudeness

Stephen Safranek, professor of constitutional law at the Ave Maria School of Law in Ann Arbor, said Manistee's ordinance "chills" political speech.

"In this particular case, using 'insulting' (in the statute) is so overbroad I don't know how you correct it to not make it unconstitutional," Safranek said. "How do you fix the term 'insulting' so it doesn't include protected speech because much speech is insulting."

Laws that try to limit our use of insults face First Amendment barriers, Safranek said. "This (ordinance) is pretty much across-the-board restrictive. Its difficulty is its overbreadth ... (Barton's) got a good claim."

Posner's court filings echo Safranek's reasoning. Political discourse in Michigan and across the country is often coarse, Posner said, and ordinances should be flexible enough to allow for crude opinions.

"For better or worse, present political and social discourse frequently includes (personal) remarks intended to insult (people)," Posner said.

"Under the ... (Manistee city) ordinance, however, anyone claiming in a public forum that his mayor was immoral or county commissioner dishonest, or her neighbor a fatso or employer a cheat could be a criminal under the ordinance."