WYANDOTTE COUNTY, Kan.—Everyone knows that one of the so-called "exceptions" to the First Amendment's unqualified recognition of Americans' right to "free speech" is the prohibition against "yelling 'Fire!' in a crowded theater"—but who knew you could wind up doing 20 hours of community service for yelling "Bitch!"?
Earlier this month, the Kansas Court of Appeals upheld a state district court verdict sentencing the teenage girl known in court records only as "H.A.-G."—a minor—to six months' probation and the half-work-week of community service for essentially venting her anger at a (male) movie theater manager back in 2009.
According to a report by First Amendment scholar David L. Hudson, Jr. on the First Amendment Center's website, the unnamed manager saw "a large number of teenagers" going into one of the movie theaters in his complex. This prompted him to turn on the theater's lights and warn the audience waiting for the show to start that people would be asked to leave if he heard or was made aware of any excessive noise or use of cell phones.
After the movie started, however, the manager testified that he heard a "loud noise" coming from the area of the theater where H.A.-G. was sitting, so he asked H.A.-G. and another girl to leave the auditorium. It was as H.A.-G. was leaving that she yelled "Bitch!"—and found herself promptly arrested the theater's security guard, an off-duty policeman.
H.A.-G. was charged with "disorderly conduct," which under Kansas law means "brawling or fighting"; "[d]isturbing an assembly, meeting or procession"; or using "offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others." It's difficult to see how H.A.-G.'s utterance of "Bitch!" fits any of criteria for a conviction for disorderly conduct, but the trial court ruled that the single word was enough to trigger a violation for "[d]isturbing an assembly, meeting or procession."
Defense attorney James Yoakum had argued to the court that only if "Bitch!" could be construed as a "fighting word" under one of several Supreme Court-approved exceptions to the First Amendment could his client be convicted of the crime, but apparently the trial judge felt that the utterance together with the totality of events that took place in the theater at that time allowed for H.A.-G.'s conviction.
And indeed, on February 4, when the decision in the case known as "In The Matter of H.A.-G." was released by the Kansas Court of Appeals, that court upheld the trial court's ruling on the basis that H.A.-G.'s "disruptive conduct" in the movie theater, rather than the "Bitch!", was the trigger for the disorderly conduct charge, and that in fact the defendant's speech played no part in her conviction.
Yoakum has not decided whether to appeal the case further.
H/t to Howard Bashman of HowAppealing for bringing this case to our attention.
