Free Speech:argument section from a Motion to Dismiss for a public defender client

Motion to Dismiss for Facial Insufficiency.

1.       An information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

N.Y. Crim. Proc. Law § 100.40 (McKinney)

2.      For example, in Jackson, the Court dismissed an information for facial insufficiency that read as follows:

Deponent furhter [sic] observed the defendant shouting obscene language to wit: WHAT THE FUCK ARE YOU GUYS DOING. YOU CAN'T DO NOTHING TO ME. I'M JUST HANGING OUT in a public area. Defendant's conduct created a public disturbance/inconvenience in that it caused people to express alarm.

People v. Jackson, 26 Misc. 3d 1230(A), (Crim. Ct. 2010).

The Court in Jackson reasoned: “notwithstanding the accusatory instrument's allegation that the defendant's utterances “caused people to express alarm,” no specifics are included to support what is obviously a conclusion on the part of P.O. Merino.” Jackson, at 1230(A).

3.       The factual allegations in Mr. Defendant’s Violation Information are just as deficient as those in Jackson:

[John D Defendant], with the intent to cause public inconvenience, annoyance or alarm, yelled “Fuck you” and “Fuck” multiple times despite being told repeatedly by the complainant and other police officers to cease yelling obscenities. The defendants actions caused a public inconvenience, annoyance, and alarm as it was causing citizens to watch the incident.

Violation Information, at 1.

4.      There is no factual support beyond the officer’s conclusory statements that the public was inconvenienced, annoyed, or alarmed. Because the Violation Information is facially insufficient under CPL 100.40, it should be dismissed.

Motion for Dismissal under the New York State Constitution.

5.       The New York State Constitution provides:

“Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.”

N.Y. Const., Art. I, § 8

6.      The right of the people to speak freely is consistently upheld by the courts. In People v. Wharton, the defendant was charged with disorderly conduct because he walked into a Dunkin Donuts store shouting “Fuck that, this is my hood—we don't have to talk to you Niggers.” 11 Misc. 3d 1085(A), (2006). As repulsive as those words are, the Court held: “even if the police officers found the defendant's responses to be offensive, the statements made by the defendant could not be characterized as ‘fighting words’ and in any event, police officers are expected to ‘exercise a higher degree of restraint’ than ordinary citizens when dealing with belligerent responses.” Wharton, at 1085(A).

7.      Although in the context of CPL 240.20, subdivision (1), People v. Stephen is also on point with regard to the facial sufficiency and constitutional free speech concerns. The information in Stephen read as follows:

On October 30, 1991, at about 0400 hours at [the corner of] 150th Street and Broadway ... [Police Officer William McGill] states that he observed defendant in a store clutching his genital area with his hands and yelling at deponent, “Fuck you,” “If you were in jail, I'd fuck you, you'd be my bitch,” and deponent further states defendant followed deponent out into the street repeating the above statements and actions, as well as yelling “If you didn't have that gun and badge, I'd kick your ass, I'd kill you,” and that a crowd of approximately 15–20 people gathered who joined the defendant yelling, “Yeah, fuck the police.”

People v. Stephen, 153 Misc. 2d 382, 383 (Crim. Ct. 1992)

The Court held that the information was both facially insufficient, and that the statute as applied to the defendant was unconstitutional. Id., at 383.

8.     Although in the context of harassment, People v. Dietze is on point as it relates to free speech. The facts in Dietze are as follows:

“Complainant and her son, both mentally retarded, were walking down a public street in the Town of Norfolk. Defendant came to her doorway with a friend and, while facing the street, referred to complainant as a “bitch” and to her son as a “dog”, and said that she would “beat the crap out of [the complainant] some day or night on the street”. With that, complainant fled in tears and reported the incident to authorities. Defendant had been aware of the complainant's mental limitations and had, on a prior occasion, been warned by a police officer about arguing with her again.”

People v. Dietze, 75 N.Y.2d 47, 50 (1989).

As reprehensible as the defendant’s conduct was, the Court of Appeals held the statute was unconstitutionally overbroad. Id., at 51. Twenty-five years later, the Court of Appeals continues to value this kind of speech when it struck down as unconstitutional a similar statute in People v. Golb. 23 NY3d 455 (2014).

9.       Mr. [Defendant] is charged with disorderly conduct simply for using the word “Fuck.” Unlike Wharton, the word “Fuck” was not combined with racial epithets. Unlike, Stephen, the statement “Fuck you” was not combined with a threat to sexually violate the officer in prison. Further, there is no indication in the information of bystanders joining Mr. [Defendant] shouting “yeah, fuck the police.” Unlike Dietz, Mr. [Defendant] did not call someone with an intellectual disability a “bitch” or a “dog.” But even if Mr. [Defendant] did engage in those kind verbal indiscretions, the holdings in Wharton, Stephen, Dietz, and Golb are clear: Mr. [Defendant]’s use of the word “fuck” is protected speech under the New York Constitution.

10.  Because Mr. [Defendant] is being prosecuted for speech and expressive activity which is protected under the New York Constitution, the disorderly conduct charge under section 240.20 of the New York Penal Law should be dismissed.

Motion to Dismiss under the United States Constitution

11.    The First Amendment to the United States Constitution provides: “Congress shall make no law… abridging the freedom of speech…” U.S. Const., Amend. 1.

12.   Strict scrutiny analysis applies when a statute proscribes speech’s content. McCullen v. Coakley, 134 S.Ct. 2518 (2014). In R.A.V. v City of Saint Paul the petitioner was charged with burning a cross in front of an African-American family’s home. 505 U.S. 377, 379 (1992). Even before the Court reached the speech content and strict scrutiny issues, it held the statute was unconstitutionally overbroad even when it considered the Chaplinsky “fighting words” exception. Id., at 381, note 3; see also: Chaplinski v. New Hampshire,  315 U.S. 568, 572 (1942). Yet, at the same time, the Court noted “[c]ontent-based regulations are presumptively invalid.” City of Saint Paul, at 382. The Court went on to note: “[i]n our view, the First Amendment imposes not an ‘underinclusiveness’ limitation, but a ‘content discrimination’ limitation upon a State’s prohibition of proscribable speech.” Id., at 387. The Court also noted the “secondary effects” exception didn’t apply because “[t]he emotive impact of speech on its audience is not a ‘secondary effect.’” Id., at 394.

13.  Additionally, the “fighting words” exception is very limited when the police are the alleged victims. City of Houston v. Hill, 482 U.S. 451 (1987). As the Court explained: “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462–463.

14.   The Court applies the Miller-test for obscenity: the work must depict or describe sexual conduct which is specifically defined by the applicable state law either as written or authoritatively construed; it must appeal only to the prurient interest in sex; it must portray sexual conduct in a patently offensive way; and, it must as a whole lack any serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973).

15.    Mr. [Defendant] was charged with disorderly conduct because of the content of his speech. The petitioner in City of Saint Paul would not have been prosecuted if he placed a sign on the African-American family’s yard that read “I believe in racial equality.” Similarly, Mr. [Defendant] wouldn’t have been prosecuted if he told the officer “you should love Jesus and the Virgin Mary as much as I do” or if he told the offer “you should  do more for breast cancer awareness.” As in City of Saint Paul, because New York’s disorderly conduct statute puts serious limits on Mr. [Defendant]’s ability to verbally oppose or challenge police action without risking arrest, it is both overbroad and impermissibly infringes on the content of Mr. [Defendant]’s speech. To hold otherwise would legitimize the type of police-state that the First Amendment was designed to shield us from. City of Houston v. Hill, supra.

16.   None of the First Amendment exceptions apply. The statutes proscribes “abusive or obscene language” as well as “obscene gestures.” The reference to “abusive” language seems most analogous to the “fighting words” exception under First Amendment jurisprudence. “Obscene” language is a direct match to the statutory language. And, there is no indication in the information that Mr. [Defendant] made an obscene gesture.

17.    With respect to “fighting words” the Court upheld even more egregious statements as constitutionally protected speech such as: “[w]hite son of a bitch, I'll kill you[;]” “[y]ou son of a bitch, I'll choke you to death[;]” and “[y]ou son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces.” Gooding v. Wilson, 405 U.S. 518, 520, fn1 (1972). Similarly, the Court refused to uphold a criminal conviction based on the following statement to a police officer: “you god damn m.f. police—I am going to (the Superintendent of Police) about this.” Lewis v. City of New Orleans, 415 U.S. 130, 142, fn1  (1974).

18.   Mr. [Defendant]’s words are not obscene because they do not meet the Miller-test. Miller v. California, supra. Even if we assume for the sake of the argument the phrase “fuck you” refers to sexual content, it still fails to meet the Miller-test for obscenity because it isn’t limited to only the prurient interest in sex; and, no specific sexual act was portrayed.  The phrase also seems to fall into the category of “political” speech because it was directed at the police officer – which by definition wouldn’t survive the Miller-test’s last element.

19.   Because Mr. [Defendant]’s statements of “Fuck you” and “fuck” are protected content-based speech under the First Amendment, the disorderly conduct charge under section 240.20 of the New York Penal Law should be dismissed.