Wisconsin Court of Appeals Dismisses Charges Against Man Who Hurled Various Profanities at Police Officers
Judge Rachel Graham rules that a man's use of several expletives against police officers - including the words "fuck," "dick," and "assholes" - is constitutionally protected speech.
As a private citizen you generally have a First Amendment right to hurl profanities at law enforcement officers in public—including the constitutional right to call them “assholes”—according to a recent decision by the Wisconsin Court of Appeals.
In an unpublished opinion issued by the Wisconsin Court of Appeals last month, Judge Rachel Graham ordered that disorderly conduct charges against a man who used profane words directed at multiple police officers be dismissed because the State of Wisconsin failed to demonstrate that his actions were not constitutionally protected.
Man Decides to Videotape Himself Swearing at Police Officers—and Is Later Charged with Multiple Counts of Disorderly Conduct
A few years ago, Aaron Oleston stood on a sidewalk outside the Janesville Police Department’s station house where he decided to record his interactions with various police officers he saw entering and exiting the building, using a video camera he had brought with him.
After one police officer greeted him before entering the station house, Oleston called him a “Nazi” and then characterized the Janesville Police Department as a “piece of shit organization.” When another officer likewise greeted him before entering the station house, Oleston insinuated that the officer was a “terrorist” and also called him “a fucking thug” who could “suck a dick.” And after learning that two people leaving the station house later on were police officers, he called them “assholes” and suggested they were “going home to beat their wives.”
As a result of these interactions with the police officers, the State of Wisconsin charged Oleston with three counts of disorderly conduct.1 After the Rock County Circuit Court denied his motion to dismiss the disorderly conduct charges, a jury found him guilty on all three counts.
Wisconsin Court of Appeals Judge Rachel Graham Orders that the Disorderly Conduct Charges Against the Man Be Dismissed Because the State of Wisconsin Failed to Demonstrate that His Actions Were Not Constitutionally Protected
In her decision ordering that the four counts of disorderly conduct against Oleston be dismissed, Judge Graham explained the State of Wisconsin bore the burden of establishing that his conduct was not constitutionally protected. Based on the court record before her, Judge Graham ultimately concluded that the State of Wisconsin failed to satisfy its burden.
First, she noted that Oleston’s use of profanities, standing alone, could not sustain the disorderly conduct charges against him. Second, Judge Graham concluded that his profanity towards the police officers were not “fighting words”—a category of speech that does not receive protection under the First Amendment. Third, Judge Graham rejected the State of Wisconsin’s argument that Oleston’s conduct was not entitled to constitutional protection because it interfered with the constitutional right of the police officers to be “let alone”; instead, she concluded that current United States Supreme Court precedent does not establish there is such a constitutional right. Finally, Judge Graham ruled that the State of Wisconsin failed to establish that the non-speech elements of Oleston’s conduct—i.e., the volume of his speech and the context in which his speech took place—could be prosecuted as disorderly conduct without contravening the First Amendment.
Portions of Judge Graham’s Decision Are Susceptible to Reversal If the State of Wisconsin Successfully Petitions the Wisconsin Supreme Court for Review of Her Decision
Much of Judge Graham’s legal analysis is correct. For instance, she correctly ruled that, by itself, a person’s use of profanities cannot sustain a disorderly conduct charge against that person.2 And she also correctly ruled that the United States Supreme Court has not recognized a constitutional right to be let alone.3 But other parts of her decision appear to stand on shakier legal ground.4
For example, Judge Graham ruled that none of Oleston’s profanities constituted “fighting words,” which the United States Supreme Court has described as “personally abusive epithets which . . . are . . . inherently likely to provoke violent reaction” and therefore do not receive protection under the First Amendment. However, Oleston called one of the officers he interacted with a “Nazi,” a term that has been considered a disparaging epithet in this country going back to the 1940s—and continues to be considered one today. And at least one federal district court has held that directing the Nazi epithet towards another (when done in person) is not entitled to protection under the First Amendment because it is a “fighting word.”
Additionally, Judge Graham ruled that the State of Wisconsin failed to establish that the non-speech elements of Oleston’s interactions with police officers could be prosecuted as disorderly conduct without violating the First Amendment. She contended that “there was scant evidence about the volume of Oleston’s speech” and the police officers only testified that he was “loud” without elaborating further.
According to the State of Wisconsin’s appellate brief, though, one of the officers who testified at trial not only stated that there was a retirement home across the street from the station house, but that the officer also could hear Oleston’s speech from 100 feet away. Furthermore, Judge Graham references Oleston’s video recordings in her decision—meaning she reviewed their content and, presumably, was able to hear how loud Oleston’s speech was during his interactions with the police officers. Thus, Judge Graham’s conclusion that the State of Wisconsin could not prosecute Oleston for the non-speech elements of his interactions with police officers—i.e., the purported excessive volume of his speech given the context in which his speech took place—without contravening the First Amendment appears to be founded on an inaccurate factual premise.
Although these parts of Judge Graham’s decision are susceptible to reversal by the Wisconsin Supreme Court, its apparent flaws do lie solely on her shoulders. The State of Wisconsin’s appellate brief was poorly drafted, and it was not her duty as a judge in an adversarial legal system to construct legal arguments for the State of Wisconsin.5 Nonetheless, Judge Graham could have (and probably should have) requested both parties to submit supplemental briefing on these specific legal issues.6
Assuming the State of Wisconsin were to successfully petition the Wisconsin Supreme Court for review of Judge Graham’s decision, some parts of her decision would likely be reversed. However, the State of Wisconsin first has to file a petition for review with the Wisconsin Supreme Court—and it is unclear whether it will decide to file a petition for review by the deadline to do so coming up in the next couple of weeks.
The State of Wisconsin also charged Aaron Oleston with a fourth count of disorderly conduct based on his interactions with Janesville Police Department officers later that day. Additionally, he was charged with one count of disorderly conduct and one count of obstructing an officer based his interactions involving Janesville Police Department officers on a subsequent date.
The Wisconsin Supreme Court made this point clear several years ago, noting that Wisconsin’s disorderly conduct statute has two separate elements that must be satisfied in order to sustain a conviction under the statute. See State v. Breitzman, 2017 WI 100, ¶ 57, 378 Wis. 2d 431, 904 N.W.2d 93 (citing Wis. Stat. § 947.01(1)).
See, e.g., Hill v. Colorado, 530 U.S. 703, 717 n.24 (2000) (citing Katz v. United States, 389 U.S. 347, 350-51 (1967)).
Judge Rachel Graham’s decision is also sloppily written in some parts. For example, her decision misquotes a previous Wisconsin Supreme Court decision—which itself quotes a United States Supreme Court decision. See State v. Oleston, No. 2020AP952-CR, unpublished slip op., ¶ 35 (WI App July 15, 2021) (misquoting State v. Becker, 51 Wis. 2d 659, 664, 188 N.W.2d 449 (1971) (quoting Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 513 (1969))). Additionally, her decision inexplicably contains several basic citation errors, such as missing relevant pinpoint citations. See id. ¶¶ 10-11.
See, e.g., State v. Petit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992).
Cf. Bartus v. DHSS, 176 Wis. 2d 1063, 1072-73, 501 N.W.2d 419 (1993).
The use of simple profanity directed at a person who is present, seems to me to be the essence of fighting words. A citizen who is not a public official, having such language repeatedly directed at them in this manner, would have a cause of action, why not a police officer? The use of the word Nazi is more of a fine line. Sure, used as an epithet, its a very nasty thing to call someone. But, it could be a valid political criticism too. There are organizations that espouse a Nazi ideology, and it would be viewpoint discrimination to enforce under color of law that "You can't call them Nazis."