#24817-r-JKM 

2008 SD 128 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

MARCUS J. SUHN, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE THIRD JUDICIAL CIRCUIT 

BROOKINGS COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE VINCENT A. FOLEY 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

ANN C. MEYER 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

ROBERT G. FITE of 

Fite & Pierce Law Office Attorneys for defendant 

Brookings, South Dakota and appellant. 

* * * * 

ARGUED ON SEPTEMBER 29, 2008 

 OPINION FILED 12/30/08 
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MEIERHENRY, Justice 

[¶1.] In a trial to the court, 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. 

FACTS 

[¶2.] Suhn’s utterances occurred on September 2, 2007, at approximately 

2:00 a.m. in Brookings, South Dakota. The bars on Brookings’ Main Avenue had 

just closed, and the bar patrons were gathering on the sidewalks outside the bars. 

Suhn was among an estimated 100 people gathered on the sidewalk. At this same 

time, two Brookings’ police officers patrolled Main Avenue in their vehicle. Officer 

David Gibson sat on the passenger seat of the vehicle. He had his window fully 

open as the vehicle approached the area where the sidewalk crowd was gathered. 

[¶3.] As the patrol car passed the sidewalk crowd, 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. 
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[¶4.] 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. Suhn appeals, raising one issue: 

Whether the circuit court’s application of the disorderly 

conduct statute to Suhn’s utterances amounted to an 

abridgement of speech in violation of the First Amendment. 

ANALYSIS 

[¶5.] 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.

 

1. Suhn did not challenge the constitutionality of the statute, only its 

application. 
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Fighting Words Unprotected by First Amendment

[¶6.] In Chaplinsky v. New Hampshire, the United States Supreme Court 

determined that First Amendment protection does not extend to all speech. 315 US 

568, 571-72, 62 SCt 766, 769, 86 LEd 1031 (1942). Unprotected speech “include[s] 

the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ 

words-those which by their very utterance inflict injury or tend to incite an 

immediate breach of the peace.”2 Id. at 572, 62 SCt at 769, 86 LEd 1031 (emphasis 

added). The Court said that these “well-defined and narrowly limited classes of 

speech” need not be afforded the same protection as other speech. Id. at 571-72, 62 

SCt at 769, 86 LEd 1031. The Supreme Court reasoned that “such utterances are 

no essential part of any exposition of ideas, and are of such slight social value as a 

step to truth that any benefit that may be derived from them is clearly outweighed 

by the social interest in order and morality.” Id. at 572, 62 SCt at 769, 86 LEd 1031 

(citations omitted). The Court upheld the challenged New Hampshire law because 

the New Hampshire court narrowly construed the law to cover only words that had 

a “direct tendency to cause acts of violence by the person to whom, individually, the 

remark [was] addressed.” Id. at 573, 62 SCt at 770, 86 LEd 1031. The words had to 

be “what men of common intelligence would understand would be words likely to 

cause an average addressee to fight.” Id. 

 

2. Suhn’s utterances do not fit under the “obscene” category of unprotected 

speech. Obscene speech “must be, in some significant way, erotic.” Cohen v. 

California, 403 US 15, 20, 91 SCt 1780, 1785, 29 LEd2d 284 (1971) (citing 

Roth v. United States, 354 US 476, 77 SCt 1304, 1 LEd2d 1498 (1957)). 
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[¶7.] In decisions since the 1942 Chaplinsky decision, the United States 

Supreme Court has narrowed the “fighting words” doctrine.3 The Court recognized 

that some “verbal tumult, discord, and even offensive utterance” is necessary for 

free expression and debate. Cohen v. California, 403 US 15, 24-25, 91 SCt 1780, 

1788, 29 LEd2d 284 (1971). In Cohen, the defendant was convicted of disturbing 

the peace for wearing a jacket bearing the words “Fuck the draft” to a California 

courthouse. Id. at 16, 91 SCt at 1783-84, 29 LEd2d 284. The Supreme Court per 

Justice Harlan reversed Cohen’s conviction and held that “while the particular fourletter word being litigated here is perhaps more distasteful than most others of its 

genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” Id. 

at 25, 91 SCt at 1788, 29 LEd2d 284. 

[¶8.] The Cohen Court determined that the words “Fuck the draft” did not 

rise to the level of fighting words because Cohen did not direct the epithet at any 

person in particular. Id. at 20, 91 SCt at 1785-86, 29 LEd2d 284. The Court 

explained that for speech to fit under the unprotected fighting words category, the 

speech, “when addressed to the ordinary citizen, [must be], as a matter of common 

knowledge, inherently likely to provoke violent reaction.” Id. at 20, 91 SCt at 1785 

(citing Chaplinsky, 315 US at 572, 62 SCt at 769, 86 LEd 1031). The Court pointed 

 

3. Some courts and scholars have concluded that the two part definition of 

“fighting words” enunciated in Chaplinsky has since been reduced to only the 

second part of the definition, which only includes speech that “tend[s] to 

incite an immediate breach of the peace.” Purtell v. Mason, 527 F3d 615, 

623-24 (7th Cir 2008); see UWM Post, Inc. v. Bd. of Regents of Univ. of 

Wisconsin, 774 FSupp 1163, 1169-70 (EDWis 1991); Smolla, Rodney A., 

Overview of current doctrine—Outdated categorical approach of Chaplinsky v. 

New Hampshire, 1 Smolla & Nimmer on Freedom of Speech § 2:70 (2008).
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out that the presence of unwilling listeners to an expletive did not justify a breach 

of the peace conviction “where . . . there was no evidence that persons powerless to 

avoid appellant’s conduct did in fact object to it.” Id at 22, 91 SCt at 1786, 29 

LEd2d 284. The Cohen Court also emphasized the right of American citizens to 

criticize the government “‘not only [through] informed and responsible criticism but 

[through] the freedom to speak foolishly and without moderation.’’’ Id at 26, 91 SCt 

at 1788, 29 LEd2d 284 (quoting Baumgartner v. United States, 322 US 665, 673-74, 

64 SCt 1240, 1245, 88 LEd 1525 (1944)). In Gooding v. Wilson, the United States 

Supreme Court reaffirmed the constitutional restriction that laws punishing 

“fighting words” must be “carefully drawn statutes not also susceptible of 

application to protected expression. . . .” 405 US 518, 523, 92 SCt 1103, 1106, 31 

LEd2d 408 (1972) (citations omitted). The Gooding Court struck down the Georgia 

statute because the Georgia lower court defined the term “breach of the peace” too 

broadly. Id. The Court said that the broad definition “makes it a ‘breach of peace’ 

merely to speak words offensive to some who hear them, and so sweeps too broadly.” 

Id. at 527, 92 SCt 1108, 31 LEd2d 408. 

[¶9.] Again in Lewis v. City of New Orleans, the United States Supreme 

Court struck down a city ordinance that made it a crime for a person “wantonly to 

curse or revile or to use obscene or opprobrious language toward or with reference to 

any member of the city police while in the actual performance of his duty.” 415 US 

130, 132, 94 SCt 970, 972, 39 LEd2d 214 (1974) (quoting New Orleans Ordinance 

828 MCS § 49-7). The Louisiana Supreme Court had ruled the ordinance 

constitutional because it was written narrowly to include only “‘fighting words’ 
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uttered to specific persons at a specific time. . . .” Id. at 132, 94 SCt at 972, 39 

LEd2d 214 (quoting City of New Orleans v. Lewis, 263 La 809, 826, 269 So2d 450, 

456 (1972)). The United States Supreme Court disagreed and held that because the 

law punished “only spoken words,” it was facially overbroad, and unconstitutional. 

“Fighting words,” the Lewis Court reiterated are “‘those (words) which by their very 

utterance inflict injury or tend to incite an immediate breach of the peace.’” Id. at 

133, 94 SCt at 972, 39 LEd2d 214 (citing Gooding, 405 US at 522, 92 SCt at 1106, 

31 LEd2d 408). 

[¶10.] In reference to Lewis, and Gooding, 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 1976) (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. 

Id. at 240. 

[¶11.] In In re S.J.N-K., our Court was also faced with the question of 

whether profanity and offensive gestures constituted “fighting words.” 2002 SD 70, 
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¶31, 647 NW2d 707, 714-15. In that case, a juvenile encountered his former middle 

school principal while the principal and his family were shopping at a local 

business. The juvenile directed the words “fuck you” accompanied with extending 

his middle finger at the principal, and drove his vehicle close to the principal’s 

vehicle as the principal was leaving the business’s parking lot. Id. ¶¶3-4, 647 

NW2d at 709-10. We were unable to reach a consensus on whether the juvenile’s 

speech was constitutionally protected. Two Justices determined that the juvenile’s 

speech was not protected; one Justice joined in result but did not reach the question 

of whether the words and gestures without the conduct were protected speech; and 

two Justices dissented, finding the speech and conduct protected. Therefore, S.J.NK. provides no precedent for the case before us. 

[¶12.] Nevertheless, the United States Supreme Court has made it clear that 

in order for speech to fall within the “fighting words” exception, the words by their 

very utterance have to “tend to incite an immediate breach of the peace” under the 

circumstances of the case. Chaplinsky, 315 US at 572, 62 SCt at 769, 86 LEd 1031. 

Suhn’s words do not meet the exception. Although it may not be necessary to show 

that those who hear the words are actually provoked to violence, a telling 

commentary as to how “ordinary citizens” would likely react was how the people 

standing on Main Avenue in Brookings did react. The crowd merely responded with 

facial expressions of disbelief.4

 

 (continued . . .) 

4. In his dissent, Justice Sabers cites to City of Eastlake v. Kirkpatrick, 2007 

WL 4485183 (OhioCtApp Dec 21, 2007) (unpublished). The circumstances in 

Kirkpatrick and the other referenced cases from the Ohio Court of Appeals 

are distinguishable from the circumstances here. In Kirkpatrick, it was “a 
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[¶13.] The circuit court’s findings do not support a conclusion that Suhn’s 

words were “fighting words.” The circuit court simply relied on its findings that one 

person might have “taken offense,” been sensitive to, or been “offended” by Suhn’s 

epithet to the police. In this context, the circuit court concluded that words 

constituted “fighting words,” unprotected by the First Amendment. We disagree. 

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. 

[¶14.] We reverse. 

[¶15.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, 

Justices, concur. 

[¶16.] SABERS, Justice, dissents. 

__________________ 

(. . . continued) 

very emotional situation for all parties involved.” Id. at *5. Further, in the 

other Ohio cases cited, a crowd at an abortion protest and a crowd 

surrounding a fight were similarly “excited or angered.” Id. (citing State v. 

Dickey, 600 NE2d 365 (OhioCtApp 1991); State v. Callahan, 549 NE2d 1230 

(OhioCtApp 1989)). The crowd here was not excited, emotionally charged, or 

angered.
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SABERS, Justice (dissenting). 

[¶17.] I respectfully dissent. As recognized by the majority, fighting words 

are “those [words] which by their very utterance inflict injury or tend to incite an 

immediate breach of the peace.” Chaplinsky, 315 US at 572, 62 SCt at 769, 86 LEd 

1031 (emphasis added). Under this definition, the words spoken need not actually

incite an immediate breach of the peace. Rather, they need only tend to incite an 

immediate breach. Furthermore, “[t]he test is what men of common intelligence 

would understand would be words likely to cause an average addressee to fight.” 

Id. at 573, 62 SCt at 770, 86 LEd 1031. 

[¶18.] Under the facts of this case – where an individual spewed the most 

distasteful profanities at police officers at two o’clock in the morning amidst 

hundreds of people, the majority of whom were likely intoxicated or under the 

influence of alcohol – the defendant’s words had the tendency to provoke not only an 

average addressee but also a member of the crowd in this mob-like setting. See City 

of Eastlake v. Kirkpatrick, 2007 WL 4485183, at *4 (OhioCtApp Dec. 21, 2007) 

(unpublished). In discussing a case similarly involving police and a nearby crowd, 

the Ohio Appellate Court stated: 

[I]f the defendant’s words are likely to incite others, profanity in 

the presence of a police officer may constitute fighting words. In 

State v. Dickey, [600 NE2d 365 (OhioCtApp 1991),] several 

officers responded to a fight at an apartment complex. The 

officers arrested one individual, and a second individual began 

to strike an officer. Thereafter, the defendant taunted the police 

officers, calling one of them an “‘asshole pig.’” This court held 

that the appellant’s comments were not protected speech, 

because they could have enticed other members of the crowd into 

further action against the police. In State v. Callahan, [549 

NE2d 1230 (OhioCtApp 1989),] the defendant made several 

derogatory comments to a police officer at an abortion protest. 
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The First District held that the defendant’s conduct of berating 

the officer, in the midst of a crowd that was excited and angered, 

and after requests to desist, was such that it was likely to 

produce violence. 

Id. (internal citations omitted). In this case, the crowd’s reaction seems atypical, or 

at least unexpected for the situation, especially considering that the bar patrons 

congregating on the sidewalk may have been looking for further action. It is 

surprising to me that no one joined the defendant in yelling profanities at the police 

or even hurled objects at the patrol car. Thankfully, defendant’s words did not 

incite an actual breach of the peace. However, the facts of this case are such that 

defendant’s speech tended to incite a breach of the peace. Such speech is not 

protected under the Constitution, and the trial court’s determination of the same 

was reasonable.