Does the name of an individual's business (that by its very name is offensive) on the rear window of his personal car rise to the level of disorderly conduct?

I think you are going to have a hard time proving that the name on the back of the vehicle, by itself, incites others to breach the peace or to riot. Surely a defendant can drag in an unlimited number of "fine upstanding" witnesses to give testimony that they have seen the name on the back of the car and have not themselves, nor anyone they know, been incited to such unlawfull activity. The disorderly conduct does not protect people from being merely offended, and the reasonable person standard will most certainly be applied.

I have a hard time in general buying any argument that given the type of language that most people hear, say, on any HBO show, that there is still such a sensitive person on the Earth who would be incited to breach the peace merely because they heard a dirty word. It's just words. (Remember that, FCC.) If you don't like it, look away, change the channel, walk away from the offensive conversation, etc. The word that got Lenny Bruce charged with obscenity can be heard on network TV, and nobody would even blink. Sticks and stones, baby.

Jane, just because American society in general, and television and movies in particular, have descended into the cesspit of vulgarity, crudeness, and filth, doesn't mean we should just "accept it." Mark is probably right, but that doesn't make it "right."

I agree that there's a difference in what's right, and the reality of the "cesspit" we exist in as a society (although I always thought it was "cesspool"). I also think, though, that as prosecutors, we have to have certain priorities about how we allocate our resources, and I'd much rather spend my efforts prosecuting someone who actually hurt another human being, rather than someone who just offended someone's sensibilities. My point, too, was how would you ever convince a jury these days that someone was incited to breach the peace or riot just because they saw or heard profanity? Who out there has lead such a sheltered existence that they'd be that shocked? If so, tell them to come hang around my office for a while.

The Third Court of Appeals recently had a case dealing with the issue of whether one driver shooting the bird at another driver was sufficient to make a disorderly conduct arrest. Here is the story, as it appeared in the Austin American Statesman:

It is not a crime for one driver to make an obscene hand gesture at another if the gesture isn't likely to trigger violence, the state's 3rd Court of Appeals ruled Thursday.

In a 2-1 decision, the court threw out the disorderly conduct conviction of Robert Lee Coggin of Austin, who was cited after flipping the bird at another motorist on a Lockhart street in October 2001. A Caldwell County jury found Coggin guilty of a Class C misdemeanor, and he was fined $250.

Because the gesture didn't lead to "actual or threatened violence," the appeals court ruled, Coggin committed no crime. The appeals judges called the gesture "repugnant, distasteful and crass," but found there was no crime, because "we cannot conclude that (Coggin's) conduct tends to incite an immediate breach of the peace."

The court did not rule out that an extended middle finger in some cases might be illegal.

But between two motorists passing briefly, the court said, there are no grounds for criminal charges.

"I don't think you can be arrested now for shooting the bird at someone when you're driving," said Austin lawyer Donald Cheatham, who defended Coggin.

John Pastrano, the target of Coggin's gesture, said the ruling surprised him. He declined to discuss it further, because he has since become a Hays County sheriff's deputy. Coggin could not be reached for comment.

I'm glad that's the current state of the law, given that I have, on occasion, displayed the middle finger to concrete truck drivers who pull out from Texas Crushed Stone and almost hit my car daily on the way to work, these truck drivers who are responsible for the rock chips in my paint, and the chips in my windshield. I think one lone finger is fairly inoffensive, given the danger these truck drivers put people in every day. And isn't that what a sunroof is for -- a portal through we express our displeasure with other drivers?

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Who out there has lead such a sheltered existence that they'd be that shocked? If so, tell them to come hang around my office for a while.

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Jane, since my new office will be right by yours, I guess I had better start listening to Redd Foxx, Lenny Bruce, et al, to get my ears geared up for the experience...

I agree with Jane that "it's just words." However, the difference between filthy language on a TV show where I can simply not watch or change the channel, and on a bumper sticker on a vehicle where my minor grandkids (presuming I had any) would be exposed is somewhat different. Let's face it--our society is rapidly losing the veneer of civility that has always reduced friction among strangers.

Janette Ansolabehere

Perhaps divergent, but you could always prosecute him for reducing his view through the rear window (Trans. 547.613), just be aware of the exception in (b)(3).

Unnecessary Roughness?

BY JORDAN SMITH [Austin Chronicle]

Alyson Matuke lies face down on the pavement, surrounded by police officers who, according to attorney and witness Skip Davis, used excessive force to subdue the woman after she reportedly saluted them with her middle finger.

Austin criminal defense attorney Skip Davis was headed out of municipal court around 4pm on Oct. 18 when he happened upon a scene that stopped him dead in his tracks: a gaggle of Austin police officers (including at least three Davis identified by name), he says, "beating down" two homeless people near East Seventh and Sabine, right outside APD headquarters.

Sources tell us the incident began when two men got into a scuffle nearby; as one man, Devron Hub bard, walked away, police yelled at him to stop. Hubbard either didn't hear the command or didn't stop quickly enough, and in response police moved in on him, tackling him. As police struggled with the man, his girlfriend, Alyson Matuke, approached, imploring the officers to leave him alone. That didn't work: "They tell me, 'You need to leave the scene,'" Matuke told KXAN. "So I'm like, 'All right, fine, I'm gonna leave,' and I go to step across the street."

She took a step or two off the curb, then changed her mind, stepped back onto the curb, and "flipped 'em the bird," she said. Apparently that didn't go over well with the officers, who Davis said pounced on Matuke, tackling her, face down, onto the pavement. Davis, who photographed part of the incident with his mobile phone, said he was appalled by the excessive use of force against Matuke and Hubbard. "It was atrocious," he told reporters. "I am absolutely exasperated with what I saw there and beside myself with incredulity."

Davis said he instantly called 911, seeking to make a report and provide a witness statement. Amazingly, he said, the officers dispatched to the call were "the same guys that beat the two." When Davis told the officers he wanted to make a statement, he said he was told that wouldn't happen: "They said, 'no one's taking your statement,'" he said. When Davis asked for a reason, he said the APD lieutenant present as the scene unfolded told him, "because I'm in charge, and that's not going to happen."

APD spokeswoman Anna Sabana said Oct. 19 that the department was investigating the incident. According to a police report, Matuke, Hubbard, and another man, Jerry Still, were arrested in connection with the incident on charges that include pedestrian in a roadway, resisting arrest, evading arrest on foot, and possession of drug paraphernalia. Davis said he plans to file a formal complaint with the Office of the Police Monitor and with APD Internal Affairs.

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he told reporters. "I am absolutely exasperated with what I saw there and beside myself with incredulity."

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Something tells me that's not the first time.

For me, maybe I've been exasperated before; possibly beside myself w/ incredulity (though I'm sure I would have never put it quite like that). Never both at the same time.

He's a defense attorney, he has to have been exasperated and beside himself with incredulity before. I mean, at least one of his clients had to be innocent of the mean spirited, spiteful charges brought.

You would think at least one of his clients had been actually, and not just legally/factually, innocent.

Beside himself? ... more likely that this event reinforced his existing opinions and/or expectations with regard to APD.

If you can't say 'f---', you can't say 'f--- the government.'

-- LENNY BRUCE


In 1971, the U.S. Supreme Court decided that the mere public display of f--- is protected under the First and Fourteenth Amendments and cannot be made a criminal offense. In 1968, Paul Robert Cohen had been convicted of "disturbing the peace" for wearing a jacket with "F--- THE DRAFT" on it (in reference to conscription in the Vietnam War). The conviction was upheld by the Court of Appeals and overturned by the Supreme Court. Cohen v. California, 403 U.S. 15 (1971).

In 1983, pornographer Larry Flynt, representing himself before the U.S. Supreme Court in a libel case, shouted, "F--- this court!" during the proceedings, and then called the justices "nothing but eight a--holes and a token c---" (referring to Justice Sandra Day O'Connor). Chief Justice Warren E. Burger had him arrested for contempt of court, but the charge was later dismissed on a technicality.

So I guess if someone can wear a shirt with that word on it, a car is no different.

[This message was edited by Shannon Edmonds on 10-31-07 at .]

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Originally posted by jane starnes:
I'm glad that's the current state of the law, given that I have, on occasion, displayed the middle finger to concrete truck drivers who pull out from Texas Crushed Stone and almost hit my car daily on the way to work, these truck drivers who are responsible for the rock chips in my paint, and the chips in my windshield. I think one lone finger is fairly inoffensive, given the danger these truck drivers put people in every day. And isn't that what a sunroof is for -- a portal through we express our displeasure with other drivers?

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Concrete??? You are being assaulted by the finest crushed limestone in the nation. The creme de la creme of highway building material. The Sneed family would take great offense at you reference to concrete. Shame!

That's spelled Snead.

This same attorney told a jury this week that the detectives who interviewed his client had "melodious intent." I lost a bet to my co-counsel that I could somehow work that phrase into my closing argument.

He was just saying that the detective wanted to make his client sing. That could have been your final argument.