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Arizona Supreme Court - profane rant not illegal


Arizona Supreme Court sides with Glendale student over profane rant

by Jeffrey Javier - Jan. 15, 2011 12:00 AM

The Arizona Republic

Criminal-abuse charges against a Glendale teen who yelled profanities at his teacher have been dismissed by the Arizona Supreme Court, raising questions about the boundaries of free speech.

The ruling says the abuse charges should be dropped because they aren't "fighting words" that could lead to a physical altercation with his teacher.

But that doesn't mean First Amendment protection for slurs: The court ruled Maricopa County prosecutors can charge the teen under other state laws, such as disorderly conduct.

First Amendment experts call the ruling a road map for prosecutors to navigate cases of students hurling obscenities at teachers and school employees. The case

In January 2009, a teen referred to as Nickolas S. was serving an on-campus suspension at Deer Valley High School in northwest Phoenix when he asked to be moved to a different classroom. The teacher, identified as B.B., told him that he would have to wait for administrative approval, according to records.

After about 15 minutes, Nickolas yelled that he wanted to change rooms and began playing with his cellphone. When the teacher asked him to put the phone away, they started arguing, records say. Nickolas unleashed a string of profanity against the teacher.

The Deer Valley Unified School District suspended Nickolas from school for 10 days and the Maricopa County Juvenile Court found him guilty of "abusing teachers or other school employees." He was placed on probation. The ruling

Nickolas appealed the Juvenile Court's decision, arguing a law that predates statehood doesn't define abuse and his profanity was protected under the First Amendment.

The Arizona Court of Appeals found Nickolas' profanity-laced rant constituted fighting words that were likely to provoke a violent response and the First Amendment did not offer protections.

Nickolas appealed the ruling, arguing the fighting-word doctrine was not correctly applied because it focused on the theoretical reaction of a reasonable person instead of the likely reaction of the teacher.

The Arizona Supreme Court issued an opinion Monday that dismissed the charges against Nickolas because his speech would not have caused the teacher to "exchange fisticuffs" with the student.

"We do not believe that the natural reaction of the average teacher to a student's profane and insulting outburst, unaccompanied by any threats, would be to beat the student," according to the opinion.

Although the state Supreme Court dismissed the charges, it did not question the district's decision to suspend Nickolas and rule out the fact that he could have been charged under other statutes, such as "disruptive conduct in schools."

The aftermath

David Hudson, a scholar for the Nashville-based First Amendment Center, said any criminalization of a student's free-speech rights is based on the context in which they are spoken.

Past U.S. Supreme Court cases ruled students do not have the right to engage in vulgar or lewd speech or speech that disrupts school activities.

He added that the Arizona Supreme Court opinion means prosecutors seeking criminal charges against students under the abuse statute may want to reconsider.

Phoenix media attorney Paul Eckstein said students don't have the full range of speech in a classroom.

"You don't have the right to disrupt the classroom while a teacher is answering questions or lecturing," he said.

He added that it depends on the context of the situation. Teachers are expected to act professionally. The case may have gone the other way had the student yelled profanities at another student, because "that could provoke a violent action."

Maricopa County Attorney's Office spokesman Jerry Cobb said attorneys charge individuals based on what will most likely end with a conviction.

The office will not prosecute Nickolas under other state laws.