Name Sayantan DasGupta (-01816910)

American Constitutional Law Brief #2

In the Superior Court of California

Sayan DasGupta representative of Champ Kind,
Plaintiff,
v.
State of California,
Defendants.

INTRODUCTION:
Plaintiff was arrested on the basis of Californias Despicable Speech Act
Plaintiff got into a verbal altercation with Wes Mantooth in a park and made a harmless comment
about his mother. Not to mention that throughout the skirmish, he maintained a completely nonthreatening demeanor as captured by CCTV. However the San Diego Trial Court convicted
plaintiff and sentenced him to six months in prison under this State statute.
Plaintiff requests this court to assert that his right to free speech protected by the First
Amendment was violated by Californias Despicable Speech Act and to declare the Despicable
Speech Act too vague and overbroad to be constitutional.

STATEMENT OF FACTS:
Plaintiff Champ Kind came across his nemesis Wes Mantooth while strolling through the
park with his best friend Ron Burgundy one day. Inevitably, a skirmish ensued and the following
words were used during the non-physical altercation:
Champ Kind: I will smash your face into a car windshield, and then take your mother, Dorothy

Mantooth, out for a nice seafood dinner and never call her again.
Wes Mantooth: Dorothy Mantooth is a Saint!
Ron Burgundy: Hey, lets leave the mothers out of this.
The incident was captured by a security camera in the park which displayed that the
Plaintiff maintained a safe distance and a non-threatening posture throughout the argument while
a visibly angry Mr. Mantooth had to be restrained by Mr. Burgundy, the Plaintiffs best friend.
A nearby San Diego police officer in patrol heard and witnessed the altercation. He
arrested the Plaintiff and charged him under a California statute called the Despicable Speech Act.
The States reasoning for this arrest was Plaintiffs inciting comment about Mr. Mantooths
mother.
Under this statute a person commits the crime of Despicable Speech if that person, with
the purpose to terrify, intimidate, threaten, harass, annoy or offend, communicates and intention
to conduct a lewd, lascivious or otherwise insulting act to another persons immediate family
member.
Plaintiff asserted that Californias Despicable Speech Act is overbroad, unconstitutionally
vague and is in direct infringement of his right to free speech guaranteed by the First Amendment.
The San Diego trial court convicted the Plaintiff under the statute and sentenced him to six
months in prison for his comment.
The timely appeal followed.

STATEMENT OF ISSUES:
The issues before the Court is as follows:
Whether the Plaintiffs right to free speech was infringed by Californias Despicable Speech Act
and the constitutionality of the statute.
Important to the resolution of this central issue are, a) whether the state violated Plaintiffs First
Amendment rights during the confrontation b) whether Plaintiffs arrest under the Despicable

Speech Act was in line with the standard of Imminent Lawless Action and whether there was a
substantive compelling state interest for restricting his speech
c) whether the Despicable Speech Act is too vague and overbroad to be constitutional

Defendants argument: a) The First Amendment right to free speech is not absolute and Plaintiff
was arrested because of compelling public interest of maintaining peace.
b) Despicable Speech Act is not overbroad or vague. It applies to fighting words and
expression directed toward inciting or producing imminent lawless action.
c) Plaintiff committed a breach of peace by making statements that are likely to provoke violence
and disturbance of good order, even if that was not his intended effect.

Legal Standards:
1) Brandenburg v. Ohio ( 1969) set the standard for restricting free speech from clear and
present danger in use since Schenck v. United States (1919) to the clear and imminent danger test.
2) Texas v. Johnson (1989) States interest in preventing breaches of peace does not support
criminal conviction if the guilty partys conduct did not threaten to disturb the peace, even if it is
an act deemed offensive to most people, like flag desecration.
3) Cohen v. California (1971) set the precedent for prosecution under a compelling state
interest. Simple expletives/ offensive words cannot be a reason for criminal prosecution in the
absence of a more particularized and compelling state interest.
4) R.A.V. V. City of St. Paul Minnesota (1992) - If an act is reprehensible (in this case cross
burning) and the government has sufficient means at its disposal to prevent such behavior, then
there is no need to restrict First Amendment rights. Moreover a facially content-based, openended statute carrys with itself the dangers of overbroad censorship.

Discussion:

When the state arrested the Plaintiff they clearly violated his First Amendment right to free
speech as there was no imminent lawless action. CCTV footage shows that at no point was there
any chance of the confrontation escalating to a physical altercation. It was simply two adults
having an argument.
Furthermore, the state did not have any compelling interest to curb Plaintiffs right to free
speech and they could have easily solved the issue by dispersing the two arguing men.
It must be emphasized with great importance that Plaintiff was prosecuted under the
Despicable Speech act for making inciting comments about the victims immediate family
member. In reality, Plaintiff did not say anything derogatory about the victims mother. All he said
about Mr. Mantooths immediate family member (Dorothy Mantooth) was that he would take her
out for a nice seafood dinner and never call her again. This is certainly not inflammatory speech!
There is a historic precedent of vague and overbroad laws restricting freedom of speech
being struck down by the US Supreme Court. The California statute makes broad generalizations
about Plaintiffs intentions and makes sweeping categorizations on verbal offense. The variance
in the nature of such offensive conduct can easily be misused to protract right to free speech and
hence the statute is unconstitutional.

1. No Imminent Lawless Action:

In Brandenburg v. Ohio (1969) the US Supreme Court replaced the Clear and Present Danger test
with the Imminent Lawless Action test as justifiably restricting right to free speech. The Court
struck down Ohios criminal syndicalism statute because it broadly prohibited the mere advocacy
of violence. Plaintiffs speech toward Mr. Mantooth was inflammatory without a doubt as he said
he will smash Mr. Mantooths face in the car windshield, but he was arrested for his intention to
conduct a lewd and insulting act to victims immediate family member. Ironically and as pointed
above, Plaintiff didnt say anything lewd about Dorothy Mantoot! Hence Mr. Mantooth reacted
not because he was incited, but merely out of the prejudice that he holds towards the Plaintiff.

2. No Compelling State Interest

Cohen v. California (1971) sets the biggest precedent for this type of prosecution.
Justice Harlan in Cohen specified that simple inflammatory expletives/words cannot be made a
criminal offense in the absence of a more particularized and compelling reason for its actions. A
heat-of-the-moment conversation between two people who were cannot be the in a secluded park
with a third party mediator with the situation clearly not escalating any further (as shown in
CCTV footage) cannot be the basis of a compelling State interest for this violation of First
Amendment . Just as the students offensive conduct in Cohen, there was no meaningful threat
of violence between these two middle aged men.

3. Violation of Freedom of Speech

In Texas v. Johnson (1989), Justice Brenan reiterates that the states interest to curb freedom of
speech to prevent breaching of peace does not support a conviction when the persons conduct
merely did not disturb the peace, even if the act is deemed offensive, like flag burning.
Here, it is already established that even if Mr. Mantooth reacted violently, it would be due to his
inner prejudices rather than Plaintiff words, which were completely harmless under Despicable
Speech statute. Thus the state grossly violated Plaintiffs right to free speech when he did not do
anything wrong and when the state had the power to disrupt the confrontation without putting
First Amendment on the line (later discussed in R.A.V. case).

4. Constitutionality of the statute

In R.A.V. v. City of St. Paul, Minnesota (1992) the US Supreme Court decided on the
constitutionality of the citys Bias Motivated Crime Ordinance as it was too vague, over
encompassing and overbroad. The Despicable Speech act is overbroad and impossible to regulate
due to the variable nature of behavior that can arouse anger and retaliation. Different men have

different response mechanism. The danger of censorship and unrestricted regulation of free
speech can easily arise from this state statute. There are inherent dangers posed by the regulation
of any expression, and trying to judge a persons intention
R.A.V. also decided the fact that no matter how reprehensible the act is, the state was capable
There were means like simply dispersing these two harmless middle-aged suburban men. The cop
had sufficient means to do this and did not need to add the First Amendment to the fire.

Counter-Argument: Fighting words

In Chaplinsky v. New Hampshire (1942) the US Supreme Court upheld the states law prohibiting
use of offensive, derisive or annoying word to any other person who is lawfully in the street.
This solidified the fighting words doctrine.
Again, even for arguments sake if the Despicable Speech Act is considered constitutional, the
Plaintiff cannot be charged for immediate breech of peace as he did not saying anything obscene
about Dorothy Mantooth, the immediate family member. He merely put forth a dinner invitation.
The cop wrongly interpreted Mr. Mantooths pre-conceived anger and grossly violated the
Plaintiffs First Amendment rights even when absolutely nothing harmful was said. This only
asserts the vague and overbroad interpretative nature of the statute which can easily be misused to
curb right to free speech.

CONCLUSION:
The extensive amount of evidence and preceding case law clearly establish that Plaintiff
cannot be criminally prosecuted for the comments he made about Mr. Mantooths mother under
the Despicable Speech Act. Furthermore, the Act violates the right to free speech of citizens in the
absence of imminent lawless action or any other compelling state interest. Plaintiffs conviction
through this statute does not stand under the Miller Test for obscenity. Under these circumstances,
Plaintiff respectfully requests that this Court assert that Plaintiffs right to free speech protected

under the First Amendment was violated by Californias Despicable Speech Act, and the said
statute is too vague and overbroad to be deemed constitutional.

Bibliography:
Epstein, Lee and Walker, Thomas G. Constitutional Law For a Changing America: Rights,
Liberties, and Justice. Seventh Edition. CQ Press, Washington DC:2010
Cases used:
Brandenburg v. Ohio 395 U.S. 444 (1969) Page 219
Texas v. Johnson 491 U.S. 397 (1989) Page 230
Cohen v. California 403 U.S. 15 (1971) Page 237
R.A.V. v. City of St. Paul, Minnesota ( 1992) Page 251
Chaplinsky v. New Hampshire 315 U.S. 568 (1942) Page 235