Teen asks S.D. high court to overturn disorderly conduct conviction

By Associated Press

03.29.02

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VERMILLION, S.D. — A teen-ager who flipped up his middle finger and mouthed the f-word several times at a school official was within his free-speech rights and should not have been convicted of disorderly conduct, the state Supreme Court was told March 27.

The case involves a boy, identified only as S.J.N-K. to protect his identity in accordance with a state privacy policy for juveniles, who made the obscene gestures to Yankton Middle School Principal Wayne Kindle.

Kindle and his family had stopped at a grocery store on Aug. 27, 2000, and were about to leave in their van when S.J.N-K. began harassing them. The Kindles drove off, and S.J.N-K. followed in a pickup driven by his brother. The boys then cut diagonally across a parking lot and swerved in front of the Kindles as they pulled onto the street.

Kindle slowed his van, but the pickup S.J.N-K. was riding in also slowed, and he stuck his head out the window and again made the obscene gestures. The two vehicles traveled about a mile before the pickup driver went south and Kindle went north.

Police were notified, and S.J.N-K., then 14, was charged with disorderly conduct. He pleaded not guilty, and a trial was held. Finding the boy guilty, Circuit Judge Glen Eng placed him on probation for six months and ordered him to do 20 hours of community service.

Marcia Brevik, who is S.J.N-K.'s lawyer, told the Supreme Court that her client's behavior was admittedly vulgar but did not amount to disorderly conduct.

Disorderly conduct is defined in state law as causing serious public inconvenience, annoyance or alarm, or as fighting, threatening or violent behavior. But Brevik said extending the middle finger and mouthing the f-word are constitutionally protected forms of free speech.

"There was no physical or verbal struggle for victory. No hostile encounter, affray or altercation," Brevik said.

All that was proved in juvenile court was that S.J.N-K.'s behavior was objectionable and inappropriate, his lawyer said. The boy's conduct was protected by the freedom of expression guaranteed in the First Amendment, Brevik said.

Kindle should have just shrugged off the unpleasant encounter, she said.

"I don't think that there's a remedy in the courts for hurting feelings," she told the justices. "I don't think a legitimate interest of state government is to regulate conduct that hurts the feelings of other people."

Had Kindle felt threatened, he could have turned off the street at any of the numerous intersections along the one-mile stretch, Brevik said.

"It is well within the ability of a middle-school administrator to anticipate an adolescent might continue to display offensive conduct where its recipient willfully and actively makes himself available to continue to receive it," the juvenile's lawyer said. "Such response by the recipient might predictably be viewed as encouragement."

S.J.N-K. was not protected by the free-speech provisions of the First Amendment because he intimidated the Kindles by making the lewd gestures several times, argued Frank Geaghan, an assistant attorney general.

"It seems obvious that the defendant's behavior was intended to provoke Kindle," Geaghan said.

The school principal told police he felt threatened because the boy mouthed the f-word as least four times and held his extended middle finger out of the pickup window during most of the episode, the state lawyer said.

The continuous nature of the boy's actions amounted to disorderly conduct and were far outside the realm of free speech, Geaghan argued.

"The right of free speech is never absolute at all times and under all circumstances," he said. "Taunts and other harassing conduct is ... not protected by the First Amendment."

Justice John K. Konenkamp wondered aloud how judges would decide when someone has gone overboard in speech and gestures.

"How do we distinguish between the right to use your finger once and the right to use your finger 100 times?" the justice asked.

Brevik told the high court that use of the f-word has become more common, and it hardly has the same shock value as in the past.

"It's just not a word that we now believe would taunt any one of us," she said.

Brevik said the boy has already completed his probation but appealed the verdict in order to clear his record. She said the boy had had several run-ins in seventh grade with Kindle in his job as middle school principal. S.J.N-K. had studied several hours each day during the summer of 2000 in an attempt to avoid further conflicts with the principal, hoping to skip eighth grade and go straight to high school, Brevik said.

The encounter with Kindle and his family may have occurred because the principal had refused to allow S.J.N-K. to skip eighth grade, Brevik said.

"He's simply expressing his opinion and his disrespect for Mr. Kindle," she said of her client's actions.

The boy later managed to skip eighth grade and start high school by transferring to Vermillion, Brevik said.

The high court will announce its ruling later.

Update

S.D. high court: Teen's obscene gestures weren't protected speech
But two justices dissent, saying boy shouldn't have been convicted of disorderly conduct for flipping up middle finger, mouthing f-word at school principal.  06.15.02

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