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S.D. high court: Teen's obscene gestures weren't protected speech

By The Associated Press
06.15.02

PIERRE, S.D. — A teen-ager who flipped up his middle finger and mouthed the f-word several times at a school official was properly convicted of disorderly conduct, the state Supreme Court majority ruled June 13.

But two dissenting justices said the boy, identified only as S.J.N-K. to protect his identity as a juvenile, was within his free-speech rights.

S.J.N-K. 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 cut across a parking lot and swerved in front of the Kindles as they pulled onto the street, forcing the principal to slam on the brakes.

Kindle then began driving slowly, but the pickup S.J.N-K. was riding in also slowed. The teen 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.

S.J.N-K., then 14, was charged with disorderly conduct. Finding the boy guilty, Circuit Judge Glen Eng put him on probation for six months and ordered 20 hours of community service.

Marcia Brevik, who is S.J.N-K.'s lawyer, told the Supreme Court in March 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. Brevik said extending the middle finger and mouthing the f-word are constitutionally protected forms of free speech.

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.

The school principal told police he felt threatened because the boy mouthed the f-word as least four times and held up his extended middle finger during most of the episode.

Agreeing with Geaghan and upholding the lower court judge, the Supreme Court said the continuous nature of the boy's actions amounted to disorderly conduct and were not within the realm of free speech.

"This was not merely the use of one profane word or one obscene gesture, it was an ongoing aggression that falls outside free-speech protection," wrote Chief Justice David Gilbertson.

The encounter with Kindle and his family was prompted because the principal had refused to allow S.J.N-K. to skip eighth grade. The boy later managed to skip the grade and start high school by transferring to Vermillion.

"S.J.N.-K.'s act of retaliation against Kindle for not letting him skip the eighth grade and advance to high school is not political speech," Gilbertson added. "It was an unprovoked form of harassment, done but for no apparent purpose than to incite a violent reaction in Kindle. S.J.N.-K. is not relieved of guilt simply because his attempts to provoke Kindle were unsuccessful."

Former Acting Justice Max Gors, who dissented with Justice Robert A. Amundson in the 3-2 ruling, said S.J.N-K.'s conduct was rude and obnoxious but did not amount to disorderly conduct, especially in a confrontation involving a seasoned school principal.

The boy was protected by the Constitution's free-speech guarantee, Gors wrote, adding that S.J.N-K.'s behavior did not amount to provocative "fighting words" that are outside of the constitutional shroud.

"Substitute S.J.N-K.'s language and gesture with the idea being expressed — 'I hate you.' If S.J.N-K. had waved with all of his fingers and mouthed, 'I hate you,' we would not be here today," Gors said.

The teen-ager has already completed his probation but appealed the verdict in hopes of clearing his record, Brevik said, adding that S.J.N.-K. had had several run-ins in seventh grade with Kindle.

The defense attorney said S.J.N-K. 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 begin high school.


Previous
Teen asks S.D. high court to overturn disorderly conduct conviction
Attorney tells justices boy was protected by free speech when he flipped up his middle finger, mouthed profanity at school principal. 03.29.02

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