COLORADO COURT OF APPEALS 2016COA166 

Court of Appeals No. 14CA2210 

Boulder County District Court No. 14JD140 

Honorable Ingrid S. Bakke, Judge 

The People of the State of Colorado, 

Petitioner-Appellee, 

In the Interest of R.C., 

Juvenile-Appellant. 

JUDGMENT REVERSED 

Division II 

Opinion by JUDGE HARRIS 

Ashby, J., concurs 

Webb, J., dissents 

Announced November 17, 2016 

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant 

Attorney General, Denver, Colorado, for Petitioner-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, 

Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant
1 

¶ 1 R.C., a fourteen-year-old middle school student, took a photo 

of his friend, L.P., and then drew a penis over the photo. He 

showed the doctored photo to L.P. and some other friends. L.P. 

reported R.C. to the principal, who called the police. The police 

charged R.C. with disorderly conduct and, after a bench trial, the 

court adjudicated R.C. a delinquent. 

¶ 2 On appeal, R.C. challenges the sufficiency of the evidence, 

arguing, primarily, that the prosecution failed to prove that his 

display of the photograph tended to incite an immediate breach of 

the peace. We agree and therefore reverse. 

I. Background 

¶ 3 During class one afternoon, R.C. used his cell phone to take a 

photo of L.P. Then, using the mobile application Snapchat, he drew 

a picture of an ejaculating penis next to L.P.’s mouth.1 R.C. showed 

 

1 Snapchat is a popular mobile application that allows cell phone 

users to send photos and videos to their friends or contacts. Once 

the photo or video is sent to another person and viewed, it 

automatically deletes within a few seconds. However, the user can 

save a photo for up to twenty-four hours using the “Snapchat story” 

feature. 
2 

the altered photo to L.P. and three other friends. R.C. was 

“giggling” when he showed the other boys the photo. One of the 

other boys laughed too, but L.P. felt “bad.” About five minutes 

later, class ended and the boys went to lunch. 

¶ 4 In the cafeteria, a few other students looked at the photo and 

laughed, which made L.P. feel even worse. Two of L.P.’s friends told 

R.C. to apologize and R.C. agreed to, but when he approached L.P., 

L.P. pushed R.C. away. L.P. and his friends reported the incident to 

the principal later that day. 

 

 The app has another feature that allows the cell phone user to 

use a finger to draw or write over the photo with what looks like a 

marker or a crayon. Figure 1 shows the Snapchat drawing app on 

a cell phone; Figure 2 is an example of a finished product. 

Figure 1 Figure 2 

 See Appamatix, 3 Best Snapchat Secrets of 2014, October 12, 2014, 

available at http://appamatix.com/3-best-snapchat-secrets-2014/; 

Daily Mail, Now You Can Make Your Own Snapchat Lenses, July 21, 

2016, available at http://www.dailymail.co.uk/sciencetech/article3701038/Now-make-Snapchat-lenses-Fun-Face-Paint-feature-letsdraw-selfies.html. 
3 

¶ 5 R.C. was charged with disorderly conduct, and the case 

proceeded to trial. The court ruled that R.C. knew that his drawing 

would make L.P. feel humiliated and ashamed and would have 

tended to incite an immediate breach of the peace, in large part 

because the drawing implied that L.P. was “homosexual or behaves 

in that kind of behavior or has some sort of demeanor about that.” 

The court sentenced R.C. to three months of probation, therapy, 

and eight hours of work crew. 

II. Discussion 

¶ 6 A person commits disorderly conduct if he or she 

“intentionally, knowingly, or recklessly: . . . [m]akes a coarse and 

obviously offensive utterance, gesture, or display in a public place 

and the utterance, gesture, or display tends to incite an immediate 

breach of the peace.” § 18-9-106(1)(a), C.R.S. 2016. 

¶ 7 R.C. contends that the prosecution failed to prove beyond a 

reasonable doubt every element of the offense of disorderly conduct. 

According to R.C., his drawing was protected speech because, 

consistent with the First Amendment, only “fighting words” are 

prohibited under the statute, and the altered photo did not qualify 

as fighting words. Even if it did, R.C. says, the prosecution failed to 
4 

prove that he knew, or recklessly disregarded a substantial risk, 

that displaying the photo was likely to provoke an immediate, 

violent response.2

A. Standard of Review 

¶ 8 On a challenge to the sufficiency of the evidence, we review the 

record de novo to determine whether the evidence, viewed as a 

whole and in the light most favorable to the prosecution, is both 

“substantial and sufficient” to support the defendant’s guilt beyond 

a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo. 

2005). In applying this test, “we must give the prosecution the 

benefit of every reasonable inference that might fairly be drawn 

from the evidence.” People v. Atencio, 140 P.3d 73, 75 (Colo. App. 

2005). And we will not disturb the fact finder’s determinations of 

 

2 R.C. also contends, for the first time on appeal, that the disorderly 

conduct statute requires proof of an actual breach of the peace, 

rather than proof that the display tended to incite a breach of the 

peace, and that the prosecution failed to prove that element as well. 

We need not decide the standard of review to apply in the event of 

an error because we perceive no error. The statute requires that 

the obviously offensive display “tend[] to incite an immediate breach 

of the peace.” People in Interest of K.W., 2012 COA 151, ¶ 29 

(quoting § 18-9-106(1)(a), C.R.S. 2016). Whether a breach of the 

peace actually occurs “is not determinative of a violation.” Id. at 

¶ 32. 
5 

witness credibility and the weight to be given to the evidence. 

People v. McIntier, 134 P.3d 467, 471 (Colo. App. 2005). 

B. Analysis 

¶ 9 The United States and Colorado Constitutions prohibit the 

enactment of laws abridging or impairing freedom of speech. U.S. 

Const. amend. I; Colo. Const. art. II, § 10; see also NAACP v. Button, 

371 U.S. 415, 444-45 (1963) (The “Constitution protects 

expression . . . without regard . . . to the truth, popularity, or social 

utility of the ideas and beliefs which are offered.”). Still, the 

constitutional prohibition is not absolute: courts have upheld the 

constitutionality of statutes that prohibit obscenity, see Miller v. 

California, 413 U.S. 15 (1973); libel, see N.Y. Times Co. v. Sullivan, 

376 U.S. 254 (1964); incitement, see Brandenburg v. Ohio, 395 U.S. 

444 (1969); invasion of substantial privacy interests of the home, 

see Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970); and, as 

relevant here, “fighting words.” Chaplinsky v. New Hampshire, 315 

U.S. 568 (1942). 

¶ 10 Fighting words are those “which by their very utterance tend 

to incite others to unlawful conduct or provoke retaliatory actions 

amounting to a breach of the peace.” Hansen v. People, 190 Colo. 
6 

457, 461, 548 P.2d 1278, 1281 (1976), superseded by statute, Ch. 

227, sec. 1, § 18-9-106(1)(a), 1981 Colo. Sess. Laws 1010, as 

recognized in People v. Smith, 862 P.2d 939, 942 n.6 (Colo. 1993). 

To qualify as speech likely to incite a breach of the peace, it is not 

enough that words, gestures, or displays “stir[] the public to anger,” 

“invite dispute,” or “create a disturbance”; they must “produce a 

clear and present danger of a serious substantive evil that rises far 

above public inconvenience, annoyance, or unrest.” Terminiello v. 

City of Chicago, 337 U.S. 1, 4 (1949); see also Gooding v. Wilson, 

405 U.S. 518, 525 (1972) (stating that “opprobrious” and “abusive” 

words that convey disgrace and include harsh insulting language 

are not necessarily fighting words). 

¶ 11 Colorado’s disorderly conduct statute is narrowly drawn to 

ban only “fighting words,” as that term has been interpreted by our 

supreme court and the United States Supreme Court. See Hansen, 

190 Colo. at 461, 548 P.2d at 1281 (to pass constitutional muster, 

the disorderly conduct statute may prohibit only “fighting words”). 

¶ 12 Citing Chaplinsky, the dissent defines fighting words to 

include words that by their very utterance “inflict injury,” and it 

then appears to endorse R.C.’s conviction on the theory that the 
7 

photo amounted to bullying that was likely to inflict injury on L.P. 

But soon after Chaplinsky, the Supreme Court either dropped the 

“inflict injury” category of fighting words altogether or recited the 

full definition of fighting words without further reference to any 

distinction between merely hurtful speech and speech that tends to 

provoke an immediate breach of the peace. See Purtell v. Mason, 

527 F.3d 615, 623 (7th Cir. 2008) (discussing the evolution of the 

fighting words doctrine). The Supreme Court has “never held that 

the government may, consistent with the First Amendment, regulate 

or punish speech that causes emotional injury but does not have a 

tendency to provoke an immediate breach of the peace.” Id. at 624; 

see Note, The Demise of the Chaplinsky Fighting Words Doctrine: An 

Argument for its Interment, 106 Harv. L. Rev. 1129, 1129 (1993) 

(“The jurisprudential history of the Chaplinsky doctrine has led 

some commentators to conclude that the Court has sub rosa 

overruled the entire fighting words doctrine, or at least the ‘inflict 

injury’ prong.”). In any case, the Colorado statute does not prohibit 

utterances, gestures, or displays that “inflict injury,” but only those 

that “tend[] to incite an immediate breach of the peace.” 

§ 18-9-106(1)(a). 
8 

¶ 13 The question, then, is not, as the dissent suggests, whether 

L.P. might have suffered reputational injury, or, as a “highly 

sensitive” middle schooler (as most middle schoolers are), might 

have become “upset” by the photo, Nuxoll ex rel. Nuxoll v. Indian 

Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir. 2008), but 

rather whether R.C.’s display of the doctored photo tended to incite 

an immediate breach of the peace; that is, whether the display was, 

“as a matter of common knowledge, inherently likely to provoke a 

violent reaction” from a reasonable person. Coggin v. State, 123 

S.W.3d 82, 90 (Tex. App. 2003) (quoting Cohen v. California, 403 

U.S. 15, 20 (1971)). 

¶ 14 As a preliminary matter, we must disagree with the dissent’s 

characterization of the Snapchat photo as a “sexually explicit image 

of a minor” engaging in “fellatio.” Under federal law, a “sexually 

explicit” image of fellatio is one that depicts “graphic . . . oralgenital” contact “between persons of the same or opposite sex.” 18 

U.S.C. § 2256 (2)(B)(i) (2012). The Snapchat photo was not 

introduced at trial and is not part of the record on appeal (because 

it was automatically deleted after some number of hours), but there 

was no testimony (or argument) that the photo depicted graphic 
9 

oral-genital contact between two people. Instead, the evidence 

established that R.C. used the Snapchat app to hand draw a penis 

over an existing photo. Saying that a hand-drawn, cartoon-like 

picture of a penis superimposed on a photo is a “sexually explicit 

image” of a minor engaging in fellatio is like saying that the picture 

contained in footnote 1 (Figure 2) is a graphic depiction of 

rhinoplasty. 

¶ 15 So we turn to the issue of whether the cartoon drawing of a 

penis on a photo is likely to incite a reasonable person — or even a 

reasonable middle schooler3 — to immediate physical violence. 

 

3 Protected speech is not transformed into “fighting words” by the 

peculiar sensibilities of the listener. Zamecnik v. Indian Prairie Sch. 

Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) (“Statements that 

while not fighting words are met by violence or threats or other 

unprivileged retaliatory conduct by persons offended by them 

cannot lawfully be suppressed because of that conduct.”); see also 

Street v. New York, 394 U.S. 576, 592 (1969) (speech cannot be 

restricted simply because some listeners, “shocked” by the 

defendant’s disrespectful conduct of burning a flag, might be 

“moved to retaliate” against him). If First Amendment rights are 

subject to a middle schooler’s “heckler’s veto,” the level of discourse 

might be limited “to that which would be suitable for a sandbox.” 

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 875, 880 (1997) 

(quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75 

(1983)). But even taking L.P.’s age into consideration, we do not 

believe violence would have been a reasonable response to R.C.’s 

display of the photo. 
10 

¶ 16 In this day and age, the notion that any set of words — much 

less a crayon-type drawing of a penis on a photograph — is “so 

provocative that [it] can reasonably be expected to lead an average 

[person] to immediately respond with physical violence is highly 

problematic.” State v. Tracy, 130 A.3d 196, 209 (Vt. 2015). The 

cases cited at the outset of the dissenting opinion make this very 

point: words alone, no matter how offensive or cruel, cannot justify 

violence. And, as the Vermont Supreme Court has pointed out, that 

is a principle people ordinarily learn as children: 

In a society in which children are admonished 

to ‘use your words’ rather than respond to 

anger and frustration by physically lashing out 

— and are taught the refrain, ‘Sticks and 

stones will break my bones, but words will 

never hurt me,’ as an appropriate response to 

taunts — the class of insults for which violence 

is a reasonably expected response, if it exists 

at all, is necessarily exceedingly narrow. 

Id. at 209-10. 

¶ 17 That the category of “fighting words” has been shrinking is 

obvious — the Supreme Court has overturned every single fighting 

words conviction it has reviewed since Chaplinsky was decided in 

1942. Id. at 205; see also Burton Caine, The Trouble With “Fighting 

Words”: Chaplinsky v. New Hampshire is a Threat to First 
11 

Amendment Values and Should be Overruled, 88 Marq. L. Rev. 441, 

536 (2004). 

¶ 18 The district court concluded that the drawing constituted 

fighting words because its display would tend to make the subject 

of the photo feel humiliated and ashamed. But speech that 

embarrasses or disgraces another is insufficient to qualify as 

fighting words. Even vulgar and insulting speech that is likely to 

arouse animosity or inflame anger, or even to provoke a forceful 

response from the other person, is not prohibited. “The fact that 

speech arouses some people to anger is simply not enough to 

amount to fighting words in the constitutional sense.” Cannon v. 

City & Cty. of Denver, 998 F.2d 867, 873 (10th Cir. 1993). Rather, 

fighting words are limited to “speech that, in the context in which it 

is uttered, is so inflammatory that it is akin to dropping a match 

into a pool of gasoline.” Tracy, 180 A.3d at 210. 

¶ 19 Our position would not change even if we believed, as the 

district court apparently did, that the photo might have implied that 

L.P. was gay. Indeed, this assumption was the basis of the court’s 

ruling: if R.C. had drawn a mustache or a big nose on the photo, 

the court explained, it would not have amounted to disorderly 
12 

conduct, even, presumably, if the big-nose photo had hurt L.P.’s 

feelings. But R.C. drew a picture that was “sexual [in] nature” and 

went “directly to [L.P.’s] gender being male,” which made the 

photograph much more offensive, according to the court; so much 

so that, upon seeing the photo, L.P. would reasonably have been 

incited to violence. 

¶ 20 We discern two problems with the court’s reasoning. First, 

there was, in fact, no evidence that R.C. intended to imply that L.P. 

was gay or that L.P. perceived the photograph as any sort of 

commentary on his sexual orientation. 

¶ 21 Second, even if we assume such commentary, we cannot 

conclude that, as a matter of law, the mere insinuation that a 

person is gay amounts to “fighting words.” We disagree with the 

district court, and the dissent, that the suggestion of homosexuality 

or homosexual conduct is so shameful and humiliating that it 

should be expected to provoke a violent reaction from an ordinary 

person. 

¶ 22 In any event, the words — or the display of the Snapchat 

photo in this case — cannot be evaluated in a vacuum; context is 

critical. “[A] defendant’s words are considered as a ‘package’ in 
13 

combination with conduct and physical movements, viewed in light 

of the surrounding circumstances.” In re Welfare of M.A.H., 572 

N.W.2d 752, 757 (Minn. Ct. App. 1997); see also People in Interest 

of K.W., 2012 COA 151, ¶ 30 (“The context or circumstances in 

which the language is used must also be considered.”). Thus, 

whether speech or a display constitutes fighting words must be 

determined on a case-by-case basis, considering all of the particular 

facts and circumstances. Conkle v. State, 677 So. 2d 1211, 1215 

(Ala. Crim. App. 1995); see also Texas v. Johnson, 491 U.S. 397, 

409 (1989) (“[W]e have not permitted the government to assume 

that every expression of a provocative idea will incite a riot, but 

have instead required careful consideration of the actual 

circumstances surrounding such expression . . . .”). 

¶ 23 With this standard in mind, we have been unable to uncover 

any authority to support the proposition that a mere statement that 

someone is a homosexual or engages in homosexual conduct 

(assuming the meaning ascribed to the photo by the district court 

and the dissent) constitutes fighting words. See also K.W., ¶ 34 

(affirming juvenile’s conviction for disorderly conduct where 

evidence showed more than juvenile’s single utterance of offensive 
14 

words; rather, juvenile was threatening to harm other students, 

“she was hostile” — requiring security guard to intervene, and she 

“repeatedly yelled the base obscenities at the security officer in an 

aggressive manner”); cf. Gilles v. State, 531 N.E.2d 220, 221-23 

(Ind. Ct. App. 1988) (holding that the defendant’s loud and 

boisterous shouting at large group of people that they were 

“fuckers,” “sinners,” “whores,” “queers,” “AIDS people,” and “scum 

of the earth” who were going to hell, which occurred at a festival 

where alcohol was served and continued despite police officers’ 

repeated requests for the defendant to stop, constituted disorderly 

conduct). We note, however, that the display of swastikas during a 

march through a community inhabited by Holocaust survivors — a 

display that many might consider more likely to incite a violent 

response than a hand-drawn picture of a penis — has been held not 

to amount to “fighting words.” Village of Skokie v. Nat’l Socialist 

Party of Am., 373 N.E.2d 21, 25-26 (Ill. 1978). Nor could the City of 

St. Paul use its disorderly conduct statute to ban a defendant’s 

conduct of burning a cross on a black family’s lawn. See R.A.V. v. 

City of St. Paul, 505 U.S. 377, 391-92 (1992). 
15 

¶ 24 Here, the circumstances surrounding R.C.’s display of the 

photograph do not support the finding that the display was likely to 

lead to immediate violence. To begin, R.C. and L.P. were friends. 

R.C.’s display was not accompanied by any hostile, aggressive, or 

threatening language or conduct. When R.C. showed L.P. and the 

other boys the altered photo, they were in a classroom where, 

presumably, a teacher was nearby and available to intervene or 

mediate if tempers flared or feelings were hurt. There was no 

evidence that R.C.’s display of the photo caused any sort of 

commotion or that it was even noticed by other children or the 

teacher. And, the display did not, in fact, arouse an immediate 

violent response from L.P.; instead, L.P.’s immediate reaction was to 

shrug off the incident, by pretending to laugh along with his 

friends. See M.A.H., 572 N.W.2d at 757-58 (fact that the target of 

alleged fighting words does not retaliate is relevant to question of 

whether speech constitutes fighting words, but is not 

determinative); see also Purtell, 527 F.3d at 625 (noting that display 

was present for weeks without causing any disruption and 

emphasizing that, to qualify as fighting words, the speech must 
16 

“have a tendency to provoke an average person to commit an 

immediate breach of the peace”). 

¶ 25 The dissent misunderstands our position, insisting that we 

have concluded that case law does “not support treating references 

to sexual orientation as fighting words.” Our position, though, is 

simply that, under the circumstances presented in this case, R.C.’s 

display of the photo did not amount to fighting words because it 

was not likely to incite an immediate breach of the peace. We 

certainly have not foreclosed the possibility that, under other 

circumstances, references to a person’s sexual orientation might 

indeed rise to the level of fighting words. 

¶ 26 Adopting the district court’s reasoning, and undaunted by the 

absence of any aggravating circumstances, the People argue for the 

first time on appeal that the photo was akin to R.C. calling L.P. a 

“cocksucker,” a term that by its mere utterance qualifies as fighting 

words. We are not persuaded. 

¶ 27 The requirement that we consider the language in context 

means that we must also evaluate its harshness in the current 

climate: “what may have constituted ‘classical fighting words’ in 

1942 might comprise nothing more than an innocuous expression” 
17 

today. Svedberg v. Stamness, 525 N.W.2d 678, 683 (N.D. 1994). 

Indeed, in Chaplinsky, the Court deemed it incontrovertible that the 

language at issue — “damn racketeer” and “damn Fascist” — would 

tend to incite a breach of the peace. 315 U.S. at 574. We have no 

difficulty concluding that those terms would qualify for First 

Amendment protection in 2016. 

¶ 28 The word “cocksucker” is not an innocuous expression; it is 

vulgar and profane. But uttering the word is not a crime unless its 

mere utterance would tend to provoke a reasonable person to 

immediately retaliate with violence. The People point us to three 

cases, the most recent of which is nearly twenty-five years old, in 

which courts upheld disorderly conduct convictions where one of 

the words spoken was “cocksucker.” See City of Little Falls v. 

Witucki, 295 N.W.2d 243 (Minn. 1980); State v. Broadstone, 447 

N.W.2d 30 (Neb. 1989); City of Shaker Heights v. Marcus, No. 

61801, 1993 WL 27676 (Ohio Ct. App. 1993). But in each of those 

cases, the words (which included more than “cocksucker”) were 

accompanied by violent or threatening gestures. In Marcus, for 

example, the defendant was described as “extremely agitated, loud, 

[and] combative.” 1993 WL 27676, at *1. Witnesses thought he 
18 

might “use force against” the bank manager. Id. In Broadstone, the 

defendant not only cursed at the witness, but also assaulted him 

with a stick. 447 N.W.2d at 32-33. And in Witucki, the court 

characterized the defendant’s speech as threatening because it 

scared the victim who was working alone in a bar. 295 N.W.2d at 

244. 

¶ 29 Later cases from these jurisdictions make clear that the 

decisions turned on the totality of the circumstances, particularly 

the threatening nature of the defendant’s speech and conduct. See 

City of Chillicothe v. Lowery, No. 97 CA 2331, 1998 WL 396316, at 

*5, *7 (Ohio Ct. App. 1998) (discussing disorderly conduct cases in 

Ohio, including Marcus, and concluding that “[i]n all of the cases 

upholding convictions for disorderly conduct involving profane 

language, the courts found that the profanity was used in a 

situation that likely could have become violent”); see also M.A.H., 

572 N.W.2d at 757 (citing Witucki and noting that “[e]very speechrelated disorderly conduct conviction upheld by Minnesota 

appellate courts since [1978] has involved either an explicit verbal 

or physical threat of violence or a situation where the victims were 

placed in fear of imminent physical harm”). 
19 

¶ 30 Thus, even if we otherwise found these cases persuasive, their 

facts are distinguishable from the circumstances presented in this 

case. 

¶ 31 In any event, more recent cases suggest that “cocksucker” has 

lost its former incendiary quality.4 See People v. Pierre-Louis, 927 

N.Y.S.2d 592, 593 (N.Y. Dist. Ct. 2011) (holding that defendant’s 

tirade against district attorney, in which he stated that district 

attorney was a “piece of shit faggot fucking cock sucking cock,” did 

not constitute fighting words); ARMCO, Inc. v. United Steelworkers of 

Am., No. 2002CA0071, 2003 WL 22300027, at *7 (Ohio Ct. App. 

2003) (holding that the insult “Afro cock sucker” was “mere words” 

and would not tend to incite immediate violence); see also State v. 

Swoboda, 658 S.W.2d 24, 25, 27 (Mo. 1983) (though unpleasant, 

the words used by defendant — “motherfucker” and “cocksucker” — 

 

4 The word also appears to have entered our coarsened political 

discourse. In August 2016, the Governor of Maine, Paul LePage, 

left a profanity-laden voicemail for a state legislator in which he 

called the legislator a “little son of a bitch, socialist cocksucker” and 

lamented that he could not challenge the legislator to a duel. Eric 

Russell & Scott Thistle, LePage Effectively Endorses Racial Profiling 

in Maine’s Battle Against Drug Addiction, Portland Press Herald, 

Aug. 26, 2016, https://perma.cc/5A6F-JMUF. We are reluctant to 

hold a middle school student to a higher standard than the 

Governor of Maine. 
20 

are “by no means uncommon” and constitute “everyday street 

language”) (citation omitted); State v. McKenna, 415 A.2d 729, 732 

(R.I. 1980) (“[A] group of people with normal sensibilities would not 

likely retaliate against a woman who called them [cocksuckers] and 

made wild, idle threats.”). 

¶ 32 In light of the surrounding circumstances, we conclude that 

the crude, sophomoric Snapchat photo does not rise to the level of 

“fighting words.” A middle school student of average sensibilities 

and maturity might have told R.C. that the photo was not funny, as 

L.P.’s friends did, or reported the hurtful conduct to a school 

administrator, as L.P. and his friends did later that day. But the 

average person — even an average fourteen-year-old — would not 

be expected to fly into a violent rage upon being shown a photo of 

himself with a penis drawn over it. R.C.’s display simply does not 

fall within the “exceedingly narrow” class of insults for which 

violence is a reasonably expected response. 

¶ 33 Our decision does not leave the school without a remedy for 

inappropriate student behavior. A school administrator may, 

consistent with the First Amendment, discipline a student for 

broadcasting vulgar and offensive speech. See Bethel Sch. Dist. No. 
21 

403 v. Fraser, 478 U.S. 675, 685 (1986) (students’ First Amendment 

rights are circumscribed in light of special characteristics of the 

school environment). And Colorado, like most states, has an antibullying statute that gives schools the specific authority to 

prescribe consequences for conduct that satisfies the definition of 

bullying. See § 22-32-109.1, C.R.S. 2016. 

¶ 34 In sum, we agree with R.C. that his display of the altered 

photo did not amount to fighting words. Accordingly, the 

government failed to prove an element of the offense. 

¶ 35 In light of our resolution of the first question, we need not 

reach the second question — whether the evidence was sufficient to 

prove that R.C. knew, or recklessly disregarded a substantial risk, 

that his display would result in an immediate breach of the peace. 

III. Conclusion 

¶ 36 The judgment of conviction is reversed. 

JUDGE ASHBY concurs. 

JUDGE WEBB dissents. 
22 

JUDGE WEBB, dissenting. 

¶ 37 Because the image that R.C. created depicting L.P. is not in 

the record and the trial court did not make detailed findings, 

exactly what it looked like is indeterminable. But for two reasons, 

my sufficiency review assumes that the image showed L.P.’s face 

with an adjacent ejaculating penis pointing at his open mouth.1

¶ 38 First, L.P. testified that R.C. had taken a picture of him with 

his mouth open. A student who saw a later version of this image 

testified that it showed L.P. with a penis drawn “on his face” which 

was “[p]ointing more towards his mouth.” That student also 

testified that the penis was ejaculating because “there was stuff 

coming out of it.” Another student testified that the image had a 

penis “[t]owards [L.P.’s] face” and “the penis was 

[ejaculating] . . . because there were . . . white lines everywhere.” 

¶ 39 Second, even if the record leaves any reasoned doubt about 

exactly what the image depicted — which to my reading it does not 

 

1 The majority’s characterization of the image as “cartoon-like” has 

no support in the record. And in any event, the law also gives legal 

effect to cartoons. See, e.g., Yorty v. Chandler, 91 Cal. Rptr. 709, 

711 (Cal. Ct. App. 1970) (“A cartoon, of course, remains subject to 

the law of libel and, like any other form of depiction or 

representation, it may be found libelous if it maliciously presents as 

fact defamatory material which is false.”) (citation omitted). 
23 

— the content of the image must be treated in the light most 

favorable to the prosecution. People v. Taylor, 131 P.3d 1158, 1164 

(Colo. App. 2005). 

¶ 40 No one who appears before us suggests that such a sexually 

explicit image of a minor is innocuous.2 Even so, the novel question 

of whether a photograph, (or here, a digital image), as opposed to 

spoken words, even constitutes fighting words must be answered.3 

If so, the remaining question is whether this particular image was 

reasonably likely to provoke a violent response by L.P. Because I 

would answer both questions “yes,” I respectfully dissent. 

I. For First Amendment Purposes, Does A Digital Image Trigger 

the Fighting Words Doctrine? 

¶ 41 True enough, the picture of L.P. with an ejaculating penis 

superimposed near to or touching his face does not fit the 

traditional model of fighting words because no words were included. 

 

2 “‘Sexually exploitative material’ means any photograph . . . that 

depicts a child engaged in, participating in, observing, or being used 

for explicit sexual conduct.” § 18-6-403(2)(j), C.R.S. 2016. 

3 Other cases to have addressed non-spoken fighting words include 

Texas v. Johnson, 491 U.S. 397 (1989) (flag burning), R.A.V. v. City 

of St. Paul, 505 U.S. 377 (1992) (cross burning), and World Wide 

Street Preachers’ Fellowship v. City of Owensboro, 342 F. Supp. 2d 

634 (W.D. Ky. 2004) (picture of aborted fetus). 
24 

Still, “one picture is worth a thousand words.” People v. Sepeda, 

196 Colo. 13, 22, 581 P.2d 723, 730 (1978). 

¶ 42 Not surprisingly, then, pictures have legal significance. For 

example, the law of libel, which also balances First Amendment 

interests, has long recognized that a photograph can be as 

defamatory as a printed word. See Knapp v. Post Printing & Publ’g 

Co., 111 Colo. 492, 496, 144 P.2d 981, 983-84 (1943) (“A definition 

of libel which has received general acceptance and approbation is to 

be found in 33 American Jurisprudence, page 38, section 3. It 

reads: ‘A libel is a malicious publication, expressed either in 

printing or writing or by signs and pictures . . . .’”) (emphasis 

added). As well, tort law gives effect to pictures. See, e.g., Ford 

Motor Co. v. Lemieux Lumber Co., 418 S.W.2d 909 (Tex. Civ. App. 

1967) (holding that sales brochure with pictures of truck capable of 

crossing streams and ditches and climbing mountains could be 

construed as an express warranty). 

¶ 43 I do not perceive any doctrinal ground on which to avoid 

balancing the fighting word exception against First Amendment 

rights merely because a picture is at issue. 
25 

¶ 44 Acknowledging that forms of communication other than 

spoken words may convey fighting words also reflects the evolving 

nature of how we communicate. Today, communication — 

especially among the young — has become increasingly digital and 

visual. See Doninger v. Niehoff, 594 F. Supp. 2d 211, 223 (D. Conn. 

2009) (“[S]tudents are connected to each other through email, 

instant messaging, blogs, social networking sites, and text 

messages.”), aff’d in part and rev’d in part, 642 F.3d 334 (2d Cir. 

2011).4

¶ 45 For these reasons, I would apply the fighting words doctrine to 

test whether the penis image of L.P. enjoys First Amendment 

protection. 

 

4 See Mary-Rose Papandrea, Student Speech Rights in the Digital 

Age, 60 Fla. L. Rev. 1027, 1037 (2008) (“Rather than harass their 

classmates in the locker room, hallways, and bathrooms, students 

engage in ‘electronic aggression,’ often in the form of malicious 

rumors or humiliating or threatening speech spread on social 

networking sites, e-mails, instant messages, chat rooms, text 

messages, and blogs.”); see also People in Interest of T.B., 2016 COA 

151, ¶ 93 n.3 (Fox, J., dissenting) (“The cell phone is the most 

direct and most widely used mode of communication between young 

people. Seventy-one percent of teens own a cell phone and seventysix percent of teens have sent text messages — in fact, of teens with 

cell phones, twenty-five percent of teens aged twelve to fourteen text 

daily and fifty-one percent of teens aged fifteen to seventeen text 

daily.”). 
26 

II. Did the Image of L.P. Constitute Fighting Words? 

¶ 46 Everyone would agree that “[t]he unprotected category of 

speech called ‘fighting words’ is an extremely narrow one.” Johnson 

v. Campbell, 332 F.3d 199, 212 (3d Cir. 2003). Such words are 

“those which by their very utterance inflict injury or tend to incite 

an immediate breach of the peace.” Chaplinsky v. New Hampshire, 

315 U.S. 568, 572 (1942). And “[t]he potential to elicit an 

immediate violent response exists only where the communication 

occurs face-to-face or in close physical proximity.” City of Billings v. 

Nelson, 322 P.3d 1039, 1045 (Mont. 2014). 

¶ 47 But how great must be the risk of a violent response? To 

determine whether a communication includes fighting words, “the 

inquiry is not whether a reasonable person ‘might’ react violently, 

but instead whether someone in the circumstances of the addressee 

would likely react violently in the context in which the words were 

spoken.” In re Nickolas S., 245 P.3d 446, 452 (Ariz. 2011). At the 

same time, whether violence actually occurred is irrelevant, as a 

matter of law. See State v. Parnoff, 125 A.3d 573, 579 (Conn. App. 

Ct. 2015) (“To be considered ‘fighting words,’ the speech at issue 

need not actually cause those who hear the speech to engage in 
27 

‘violent, tumultuous or threatening behavior,’ but must have ‘the 

tendency to provoke imminent retaliation’ from them.” (quoting 

State v. Szymkiewicz, 678 A.2d 473, 477-78 (Conn. 1996))) (cert. 

granted in part Nov. 30, 2015).5

¶ 48 So, what aspects of this case make such a violent response 

likely? As the majority recognizes, the context must be considered. 

Three contextual factors leap out. 

¶ 49 First, the record shows that R.C. was in close physical 

proximity to L.P., who could have immediately retaliated with a 

violent act. Because of this proximity, displaying the image to L.P. 

differs from cases dealing with an electronic communication where 

no contemporaneous, in-person confrontation could have occurred. 

See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496 

F. Supp. 2d 587, 602 (W.D. Pa. 2007) (“A ‘MySpace’ internet page is 

not outside of the protections of the First Amendment under the 

fighting words doctrine because there is simply no in-person 

 

5 Based on this principle, which the majority recognizes, its 

statement that the image “did not, in fact, arouse an immediate 

violent response from L.P.,” while factually correct, is legally 

inconsequential. 
28 

confrontation in cyberspace such that physical violence is likely to 

be instigated.”), aff’d in part, 650 F.3d 205 (3d Cir. 2011).6

¶ 50 Second, a contextual approach requires that the age of the 

listener be considered. See Svedberg v. Stamness, 525 N.W.2d 678, 

684 (N.D. 1994) (“No one would argue that a different reaction is 

likely if a thirteen-year-old boy and a seventy-five-year-old man are 

confronted with identical fighting words.”); see also Nuxoll ex rel. 

Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir. 

2008) (adults “can handle such remarks better than kids can”). 

¶ 51 Yet, the majority concludes that the image does not constitute 

fighting words because an “average person — even an average 

fourteen-year-old — would not be expected to fly into a violent rage 

upon being shown a photo of himself with a penis drawn over it.” 

The majority relies on State v. Tracy, 130 A.3d 196, 209 (Vt. 2015), 

 

6 See also State v. Drahota, 788 N.W.2d 796, 804 (Neb. 2010) 

(“[E]ven if a fact finder could conclude that in a face-to-face 

confrontation, [defendant’s] speech would have provoked an 

immediate retaliation, [the recipient] could not have immediately 

retaliated. [He] did not know who sent the e-mails, let alone where 

to find the author.”); but see Davidson v. Seneca Crossing Section II 

Homeowner’s Ass’n, 979 A.2d 260, 283 (Md. Ct. Spec. App. 2009) 

(Series of e-mails “consisted of the use of ‘fighting words’” where 

they “regularly employed ‘personally abusive epithets 

which . . . [were] . . . inherently likely to provoke violent reaction.’”) 

(alterations in original) (citation omitted). 
29 

where the court explained that children are taught to use words 

“rather than respond to anger and frustration by physically lashing 

out.” 

¶ 52 The reasoning in Tracy falls short because it is at odds with 

capital and life without parole sentencing cases that recognize 

children’s “lack of maturity and . . . underdeveloped sense of 

responsibility,” coupled with their vulnerability to outside 

influences. Roper v. Simmons, 543 U.S. 551, 569 (2005) (quoting 

Johnson v. Texas, 509 U.S. 350, 367 (1993)). These cases also 

acknowledge that children’s characters “are ‘not as well formed.’” 

Graham v. Florida, 560 U.S. 48, 68 (2010) (quoting Roper, 543 U.S. 

at 569-70). 

¶ 53 Consistent with the Supreme Court’s observations on the 

infirmities of youth — as applied to fighting words — at least one 

court has held that “adolescent schoolchildren, are highly sensitive” 

and “easily upset by comments,” such as those “about their race, 

sex, etc.” Nuxoll, 523 F.3d at 671. This court explained that such 
30 

comments relate to “major components of [a person’s] personal 

identity” and “can strike a person at the core of his being.” Id.7

¶ 54 Based on these authorities, I believe that L.P.’s age makes a 

violent response more — not less — likely than if a similar penis 

image of an adult had been displayed to the adult. But the 

contextual inquiry does not end with age. 

¶ 55 Third, the calculus of violence ratchets up even higher 

because some of L.P.’s peers were present and saw the image when 

R.C. displayed it to him. Cf. City of Landrum v. Sarratt, 572 S.E.2d 

476, 478 (S.C. Ct. App. 2002) (One factor “to consider in 

determining if profanity constitutes fighting words [is] the presence 

of bystanders.”).8

 

7 In other contexts, the Supreme Court has found exceptions to 

First Amendment protections when the speech at issue involves 

minors. See United States v. Stevens, 559 U.S. 460, 471 (2010) 

(“[C]ategories of speech . . . fully outside the protection of the First 

Amendment” include child pornography because the state has “a 

compelling interest in protecting children from abuse.”). 

8 Kathleen Hart, Sticks and Stones and Shotguns at School: The 

Ineffectiveness of Constitutional Antibullying Legislation as a 

Response to School Violence, 39 Ga. L. Rev. 1109, 1119 (2005) (“One 

researcher has found that peers witness approximately 85% of 

bullying episodes that occur at school. Bystanders may be active 

participants by encouraging other kids to fight, or passive 

participants by merely laughing and doing nothing, perhaps 
31 

¶ 56 The majority also rejects the trial court’s reasoning that the 

penis image conveyed fighting words because, according to the 

majority, the court incorrectly perceived the image as implying that 

L.P. was gay and more recent cases generally do not support 

treating references to sexual orientation as fighting words. That 

may be so, but the record is devoid of any evidence — such as 

accompanying statements by R.C. — from which a reasonable 

person standing in L.P.’s shoes would have taken the image as a 

reference to sexual orientation. And even assuming that the sexual 

orientation of such a person might be relevant, L.P.’s sexual 

orientation is unknown. Because of the barren record, gay bashing 

is only a straw man who suffers the predictable fate. 

¶ 57 In any event, whether the image constituted fighting words is a 

question of law subject to de novo review. See Connick v. Myers, 

461 U.S. 138, 150 n.10 (1983) (“‘[W]e are compelled to examine for 

ourselves the statements in issue and the circumstances under 

which they are made to see whether or not they . . . are of a 

character which the principles of the First Amendment . . . protect.’ 

 

because they fear that they will be the bully’s next victim.”) 

(footnotes omitted). 
32 

Because of this obligation, we cannot ‘avoid making an independent 

constitutional judgment on the facts of the case.’”) (citations 

omitted). Given that the trial court’s reasoning is not binding on 

appellate review, I decline to join the majority in dismembering it. 

¶ 58 Returning, then, to whether the image showing L.P. engaged in 

fellatio constituted fighting words, based on the contextual factors 

discussed above, I am persuaded by the cases the Attorney General 

cites holding that the colloquial term “cocksucker” does not enjoy 

First Amendment protection under the fighting words doctrine. See 

City of Little Falls v. Witucki, 295 N.W.2d 243 (Minn. 1980); State v. 

Broadstone, 447 N.W.2d 30 (Neb. 1989); City of Shaker Heights v. 

Marcus, No. 61801, 1993 WL 27676 (Ohio Ct. App. 1993).9 

Although the majority distinguishes these cases as also including 

threatening conduct, “threats are not, for First Amendment 

purposes, treated identically with either fighting words or 

expression tending to incite imminent lawless action.” In re M.S., 

 

9 These cases are not alone in treating some sexually derogatory 

statements as fighting words. See, e.g., State v. Groves, 363 N.W.2d 

507, 510 (Neb. 1985) (holding that “fuckhead” and “mother fucker” 

are fighting words, not constitutionally protected speech). 
33 

896 P.2d 1365, 1373 (Cal. 1995). As well, threatening conduct was 

not present here.10

¶ 59 With all of this in mind, I would hold that the image R.C. 

created and circulated showing an ejaculating penis adjacent to 

L.P.’s mouth constituted fighting words. Therefore, I would deny it 

First Amendment protection and affirm the judgment of conviction. 

 

10 The majority asserts that “more recent cases suggest that 

‘cocksucker’ has lost its former incendiary quality.” But the cases 

cited do not carry the weight that the majority places on them. For 

example, in People v. Pierre-Louis, 927 N.Y.S.2d 592, 595 (N.Y. Dist. 

Ct. 2011), the alleged fighting words were from voicemails, not faceto-face interaction. Similarly, in State v. Swoboda, 658 S.W.2d 24, 

26 (Mo. 1983), the alleged fighting words were overheard by a 

neighbor, but the “conduct took place entirely on [the defendant’s] 

own property and was not in any way directed towards the 

complainant.” And in State v. McKenna, 415 A.2d 729, 731 (R.I. 

1980), the defendant “addressed her remarks to a group of five 

men. She spoke to them as a group, not individually nor face-toface.” Finally, in ARMCO, Inc. v. United Steelworkers of America, No. 

2002CA0071, 2003 WL 22300027, at *7 (Ohio Ct. App. 2003), the 

court was “unable to determine” if “Afro cock sucker” constituted 

fighting words.