COLORADO COURT OF APPEALS                                        2016COA166


Court of Appeals No. 14CA2210
Boulder County District Court No. 14JD140
Honorable Ingrid S. Bakke, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of R.C.,

Juvenile-Appellant.


                             JUDGMENT REVERSED

                                    Division II
                            Opinion by JUDGE HARRIS
                                Ashby, J., concurs
                                Webb, J., dissents

                           Announced November 17, 2016


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill,
Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1    R.C., a fourteen-year-old middle school student, took a photo

 of his friend, L.P., and then drew a penis over the photo. He

 showed the doctored photo to L.P. and some other friends. L.P.

 reported R.C. to the principal, who called the police. The police

 charged R.C. with disorderly conduct and, after a bench trial, the

 court adjudicated R.C. a delinquent.

¶2    On appeal, R.C. challenges the sufficiency of the evidence,

 arguing, primarily, that the prosecution failed to prove that his

 display of the photograph tended to incite an immediate breach of

 the peace. We agree and therefore reverse.

                           I.   Background

¶3    During class one afternoon, R.C. used his cell phone to take a

 photo of L.P. Then, using the mobile application Snapchat, he drew

 a picture of an ejaculating penis next to L.P.’s mouth.1 R.C. showed




 1 Snapchat is a popular mobile application that allows cell phone
 users to send photos and videos to their friends or contacts. Once
 the photo or video is sent to another person and viewed, it
 automatically deletes within a few seconds. However, the user can
 save a photo for up to twenty-four hours using the “Snapchat story”
 feature.

                                   1
 the altered photo to L.P. and three other friends. R.C. was

 “giggling” when he showed the other boys the photo. One of the

 other boys laughed too, but L.P. felt “bad.” About five minutes

 later, class ended and the boys went to lunch.

¶4    In the cafeteria, a few other students looked at the photo and

 laughed, which made L.P. feel even worse. Two of L.P.’s friends told

 R.C. to apologize and R.C. agreed to, but when he approached L.P.,

 L.P. pushed R.C. away. L.P. and his friends reported the incident to

 the principal later that day.




    The app has another feature that allows the cell phone user to
 use a finger to draw or write over the photo with what looks like a
 marker or a crayon. Figure 1 shows the Snapchat drawing app on
 a cell phone; Figure 2 is an example of a finished product.
 Figure 1 Figure 2




 See Appamatix, 3 Best Snapchat Secrets of 2014, October 12, 2014,
 available at http://appamatix.com/3-best-snapchat-secrets-2014/;
 Daily Mail, Now You Can Make Your Own Snapchat Lenses, July 21,
 2016, available at http://www.dailymail.co.uk/sciencetech/article-
 3701038/Now-make-Snapchat-lenses-Fun-Face-Paint-feature-lets-
 draw-selfies.html.

                                  2
¶5    R.C. was charged with disorderly conduct, and the case

 proceeded to trial. The court ruled that R.C. knew that his drawing

 would make L.P. feel humiliated and ashamed and would have

 tended to incite an immediate breach of the peace, in large part

 because the drawing implied that L.P. was “homosexual or behaves

 in that kind of behavior or has some sort of demeanor about that.”

 The court sentenced R.C. to three months of probation, therapy,

 and eight hours of work crew.

                            II.   Discussion

¶6    A person commits disorderly conduct if he or she

 “intentionally, knowingly, or recklessly: . . . [m]akes a coarse and

 obviously offensive utterance, gesture, or display in a public place

 and the utterance, gesture, or display tends to incite an immediate

 breach of the peace.” § 18-9-106(1)(a), C.R.S. 2016.

¶7    R.C. contends that the prosecution failed to prove beyond a

 reasonable doubt every element of the offense of disorderly conduct.

 According to R.C., his drawing was protected speech because,

 consistent with the First Amendment, only “fighting words” are

 prohibited under the statute, and the altered photo did not qualify

 as fighting words. Even if it did, R.C. says, the prosecution failed to


                                    3
 prove that he knew, or recklessly disregarded a substantial risk,

 that displaying the photo was likely to provoke an immediate,

 violent response.2

                       A.    Standard of Review

¶8    On a challenge to the sufficiency of the evidence, we review the

 record de novo to determine whether the evidence, viewed as a

 whole and in the light most favorable to the prosecution, is both

 “substantial and sufficient” to support the defendant’s guilt beyond

 a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.

 2005). In applying this test, “we must give the prosecution the

 benefit of every reasonable inference that might fairly be drawn

 from the evidence.” People v. Atencio, 140 P.3d 73, 75 (Colo. App.

 2005). And we will not disturb the fact finder’s determinations of




 2 R.C. also contends, for the first time on appeal, that the disorderly
 conduct statute requires proof of an actual breach of the peace,
 rather than proof that the display tended to incite a breach of the
 peace, and that the prosecution failed to prove that element as well.
 We need not decide the standard of review to apply in the event of
 an error because we perceive no error. The statute requires that
 the obviously offensive display “tend[] to incite an immediate breach
 of the peace.” People in Interest of K.W., 2012 COA 151, ¶ 29
 (quoting § 18-9-106(1)(a), C.R.S. 2016). Whether a breach of the
 peace actually occurs “is not determinative of a violation.” Id. at
 ¶ 32.

                                    4
  witness credibility and the weight to be given to the evidence.

  People v. McIntier, 134 P.3d 467, 471 (Colo. App. 2005).

                               B.    Analysis

¶9     The United States and Colorado Constitutions prohibit the

  enactment of laws abridging or impairing freedom of speech. U.S.

  Const. amend. I; Colo. Const. art. II, § 10; see also NAACP v. Button,

  371 U.S. 415, 444-45 (1963) (The “Constitution protects

  expression . . . without regard . . . to the truth, popularity, or social

  utility of the ideas and beliefs which are offered.”). Still, the

  constitutional prohibition is not absolute: courts have upheld the

  constitutionality of statutes that prohibit obscenity, see Miller v.

  California, 413 U.S. 15 (1973); libel, see N.Y. Times Co. v. Sullivan,

  376 U.S. 254 (1964); incitement, see Brandenburg v. Ohio, 395 U.S.

  444 (1969); invasion of substantial privacy interests of the home,

  see Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970); and, as

  relevant here, “fighting words.” Chaplinsky v. New Hampshire, 315

  U.S. 568 (1942).

¶ 10   Fighting words are those “which by their very utterance tend

  to incite others to unlawful conduct or provoke retaliatory actions

  amounting to a breach of the peace.” Hansen v. People, 190 Colo.


                                      5
  457, 461, 548 P.2d 1278, 1281 (1976), superseded by statute, Ch.

  227, sec. 1, § 18-9-106(1)(a), 1981 Colo. Sess. Laws 1010, as

  recognized in People v. Smith, 862 P.2d 939, 942 n.6 (Colo. 1993).

  To qualify as speech likely to incite a breach of the peace, it is not

  enough that words, gestures, or displays “stir[] the public to anger,”

  “invite dispute,” or “create a disturbance”; they must “produce a

  clear and present danger of a serious substantive evil that rises far

  above public inconvenience, annoyance, or unrest.” Terminiello v.

  City of Chicago, 337 U.S. 1, 4 (1949); see also Gooding v. Wilson,

  405 U.S. 518, 525 (1972) (stating that “opprobrious” and “abusive”

  words that convey disgrace and include harsh insulting language

  are not necessarily fighting words).

¶ 11   Colorado’s disorderly conduct statute is narrowly drawn to

  ban only “fighting words,” as that term has been interpreted by our

  supreme court and the United States Supreme Court. See Hansen,

  190 Colo. at 461, 548 P.2d at 1281 (to pass constitutional muster,

  the disorderly conduct statute may prohibit only “fighting words”).

¶ 12   Citing Chaplinsky, the dissent defines fighting words to

  include words that by their very utterance “inflict injury,” and it

  then appears to endorse R.C.’s conviction on the theory that the


                                     6
photo amounted to bullying that was likely to inflict injury on L.P.

But soon after Chaplinsky, the Supreme Court either dropped the

“inflict injury” category of fighting words altogether or recited the

full definition of fighting words without further reference to any

distinction between merely hurtful speech and speech that tends to

provoke an immediate breach of the peace. See Purtell v. Mason,

527 F.3d 615, 623 (7th Cir. 2008) (discussing the evolution of the

fighting words doctrine). The Supreme Court has “never held that

the government may, consistent with the First Amendment, regulate

or punish speech that causes emotional injury but does not have a

tendency to provoke an immediate breach of the peace.” Id. at 624;

see Note, The Demise of the Chaplinsky Fighting Words Doctrine: An

Argument for its Interment, 106 Harv. L. Rev. 1129, 1129 (1993)

(“The jurisprudential history of the Chaplinsky doctrine has led

some commentators to conclude that the Court has sub rosa

overruled the entire fighting words doctrine, or at least the ‘inflict

injury’ prong.”). In any case, the Colorado statute does not prohibit

utterances, gestures, or displays that “inflict injury,” but only those

that “tend[] to incite an immediate breach of the peace.”

§ 18-9-106(1)(a).


                                    7
¶ 13   The question, then, is not, as the dissent suggests, whether

  L.P. might have suffered reputational injury, or, as a “highly

  sensitive” middle schooler (as most middle schoolers are), might

  have become “upset” by the photo, Nuxoll ex rel. Nuxoll v. Indian

  Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir. 2008), but

  rather whether R.C.’s display of the doctored photo tended to incite

  an immediate breach of the peace; that is, whether the display was,

  “as a matter of common knowledge, inherently likely to provoke a

  violent reaction” from a reasonable person. Coggin v. State, 123

  S.W.3d 82, 90 (Tex. App. 2003) (quoting Cohen v. California, 403

  U.S. 15, 20 (1971)).

¶ 14   As a preliminary matter, we must disagree with the dissent’s

  characterization of the Snapchat photo as a “sexually explicit image

  of a minor” engaging in “fellatio.” Under federal law, a “sexually

  explicit” image of fellatio is one that depicts “graphic . . . oral-

  genital” contact “between persons of the same or opposite sex.” 18

  U.S.C. § 2256 (2)(B)(i) (2012). The Snapchat photo was not

  introduced at trial and is not part of the record on appeal (because

  it was automatically deleted after some number of hours), but there

  was no testimony (or argument) that the photo depicted graphic


                                       8
  oral-genital contact between two people. Instead, the evidence

  established that R.C. used the Snapchat app to hand draw a penis

  over an existing photo. Saying that a hand-drawn, cartoon-like

  picture of a penis superimposed on a photo is a “sexually explicit

  image” of a minor engaging in fellatio is like saying that the picture

  contained in footnote 1 (Figure 2) is a graphic depiction of

  rhinoplasty.

¶ 15   So we turn to the issue of whether the cartoon drawing of a

  penis on a photo is likely to incite a reasonable person — or even a

  reasonable middle schooler3 — to immediate physical violence.



  3 Protected speech is not transformed into “fighting words” by the
  peculiar sensibilities of the listener. Zamecnik v. Indian Prairie Sch.
  Dist. No. 204, 636 F.3d 874, 879 (7th Cir. 2011) (“Statements that
  while not fighting words are met by violence or threats or other
  unprivileged retaliatory conduct by persons offended by them
  cannot lawfully be suppressed because of that conduct.”); see also
  Street v. New York, 394 U.S. 576, 592 (1969) (speech cannot be
  restricted simply because some listeners, “shocked” by the
  defendant’s disrespectful conduct of burning a flag, might be
  “moved to retaliate” against him). If First Amendment rights are
  subject to a middle schooler’s “heckler’s veto,” the level of discourse
  might be limited “to that which would be suitable for a sandbox.”
  Reno v. Am. Civil Liberties Union, 521 U.S. 844, 875, 880 (1997)
  (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75
  (1983)). But even taking L.P.’s age into consideration, we do not
  believe violence would have been a reasonable response to R.C.’s
  display of the photo.

                                     9
¶ 16   In this day and age, the notion that any set of words — much

  less a crayon-type drawing of a penis on a photograph — is “so

  provocative that [it] can reasonably be expected to lead an average

  [person] to immediately respond with physical violence is highly

  problematic.” State v. Tracy, 130 A.3d 196, 209 (Vt. 2015). The

  cases cited at the outset of the dissenting opinion make this very

  point: words alone, no matter how offensive or cruel, cannot justify

  violence. And, as the Vermont Supreme Court has pointed out, that

  is a principle people ordinarily learn as children:

             In a society in which children are admonished
             to ‘use your words’ rather than respond to
             anger and frustration by physically lashing out
             — and are taught the refrain, ‘Sticks and
             stones will break my bones, but words will
             never hurt me,’ as an appropriate response to
             taunts — the class of insults for which violence
             is a reasonably expected response, if it exists
             at all, is necessarily exceedingly narrow.

  Id. at 209-10.

¶ 17   That the category of “fighting words” has been shrinking is

  obvious — the Supreme Court has overturned every single fighting

  words conviction it has reviewed since Chaplinsky was decided in

  1942. Id. at 205; see also Burton Caine, The Trouble With “Fighting

  Words”: Chaplinsky v. New Hampshire is a Threat to First


                                    10
  Amendment Values and Should be Overruled, 88 Marq. L. Rev. 441,

  536 (2004).

¶ 18   The district court concluded that the drawing constituted

  fighting words because its display would tend to make the subject

  of the photo feel humiliated and ashamed. But speech that

  embarrasses or disgraces another is insufficient to qualify as

  fighting words. Even vulgar and insulting speech that is likely to

  arouse animosity or inflame anger, or even to provoke a forceful

  response from the other person, is not prohibited. “The fact that

  speech arouses some people to anger is simply not enough to

  amount to fighting words in the constitutional sense.” Cannon v.

  City & Cty. of Denver, 998 F.2d 867, 873 (10th Cir. 1993). Rather,

  fighting words are limited to “speech that, in the context in which it

  is uttered, is so inflammatory that it is akin to dropping a match

  into a pool of gasoline.” Tracy, 180 A.3d at 210.

¶ 19   Our position would not change even if we believed, as the

  district court apparently did, that the photo might have implied that

  L.P. was gay. Indeed, this assumption was the basis of the court’s

  ruling: if R.C. had drawn a mustache or a big nose on the photo,

  the court explained, it would not have amounted to disorderly


                                    11
  conduct, even, presumably, if the big-nose photo had hurt L.P.’s

  feelings. But R.C. drew a picture that was “sexual [in] nature” and

  went “directly to [L.P.’s] gender being male,” which made the

  photograph much more offensive, according to the court; so much

  so that, upon seeing the photo, L.P. would reasonably have been

  incited to violence.

¶ 20   We discern two problems with the court’s reasoning. First,

  there was, in fact, no evidence that R.C. intended to imply that L.P.

  was gay or that L.P. perceived the photograph as any sort of

  commentary on his sexual orientation.

¶ 21   Second, even if we assume such commentary, we cannot

  conclude that, as a matter of law, the mere insinuation that a

  person is gay amounts to “fighting words.” We disagree with the

  district court, and the dissent, that the suggestion of homosexuality

  or homosexual conduct is so shameful and humiliating that it

  should be expected to provoke a violent reaction from an ordinary

  person.

¶ 22   In any event, the words — or the display of the Snapchat

  photo in this case — cannot be evaluated in a vacuum; context is

  critical. “[A] defendant’s words are considered as a ‘package’ in


                                   12
  combination with conduct and physical movements, viewed in light

  of the surrounding circumstances.” In re Welfare of M.A.H., 572

  N.W.2d 752, 757 (Minn. Ct. App. 1997); see also People in Interest

  of K.W., 2012 COA 151, ¶ 30 (“The context or circumstances in

  which the language is used must also be considered.”). Thus,

  whether speech or a display constitutes fighting words must be

  determined on a case-by-case basis, considering all of the particular

  facts and circumstances. Conkle v. State, 677 So. 2d 1211, 1215

  (Ala. Crim. App. 1995); see also Texas v. Johnson, 491 U.S. 397,

  409 (1989) (“[W]e have not permitted the government to assume

  that every expression of a provocative idea will incite a riot, but

  have instead required careful consideration of the actual

  circumstances surrounding such expression . . . .”).

¶ 23   With this standard in mind, we have been unable to uncover

  any authority to support the proposition that a mere statement that

  someone is a homosexual or engages in homosexual conduct

  (assuming the meaning ascribed to the photo by the district court

  and the dissent) constitutes fighting words. See also K.W., ¶ 34

  (affirming juvenile’s conviction for disorderly conduct where

  evidence showed more than juvenile’s single utterance of offensive


                                     13
words; rather, juvenile was threatening to harm other students,

“she was hostile” — requiring security guard to intervene, and she

“repeatedly yelled the base obscenities at the security officer in an

aggressive manner”); cf. Gilles v. State, 531 N.E.2d 220, 221-23

(Ind. Ct. App. 1988) (holding that the defendant’s loud and

boisterous shouting at large group of people that they were

“fuckers,” “sinners,” “whores,” “queers,” “AIDS people,” and “scum

of the earth” who were going to hell, which occurred at a festival

where alcohol was served and continued despite police officers’

repeated requests for the defendant to stop, constituted disorderly

conduct). We note, however, that the display of swastikas during a

march through a community inhabited by Holocaust survivors — a

display that many might consider more likely to incite a violent

response than a hand-drawn picture of a penis — has been held not

to amount to “fighting words.” Village of Skokie v. Nat’l Socialist

Party of Am., 373 N.E.2d 21, 25-26 (Ill. 1978). Nor could the City of

St. Paul use its disorderly conduct statute to ban a defendant’s

conduct of burning a cross on a black family’s lawn. See R.A.V. v.

City of St. Paul, 505 U.S. 377, 391-92 (1992).




                                  14
¶ 24   Here, the circumstances surrounding R.C.’s display of the

  photograph do not support the finding that the display was likely to

  lead to immediate violence. To begin, R.C. and L.P. were friends.

  R.C.’s display was not accompanied by any hostile, aggressive, or

  threatening language or conduct. When R.C. showed L.P. and the

  other boys the altered photo, they were in a classroom where,

  presumably, a teacher was nearby and available to intervene or

  mediate if tempers flared or feelings were hurt. There was no

  evidence that R.C.’s display of the photo caused any sort of

  commotion or that it was even noticed by other children or the

  teacher. And, the display did not, in fact, arouse an immediate

  violent response from L.P.; instead, L.P.’s immediate reaction was to

  shrug off the incident, by pretending to laugh along with his

  friends. See M.A.H., 572 N.W.2d at 757-58 (fact that the target of

  alleged fighting words does not retaliate is relevant to question of

  whether speech constitutes fighting words, but is not

  determinative); see also Purtell, 527 F.3d at 625 (noting that display

  was present for weeks without causing any disruption and

  emphasizing that, to qualify as fighting words, the speech must




                                    15
  “have a tendency to provoke an average person to commit an

  immediate breach of the peace”).

¶ 25   The dissent misunderstands our position, insisting that we

  have concluded that case law does “not support treating references

  to sexual orientation as fighting words.” Our position, though, is

  simply that, under the circumstances presented in this case, R.C.’s

  display of the photo did not amount to fighting words because it

  was not likely to incite an immediate breach of the peace. We

  certainly have not foreclosed the possibility that, under other

  circumstances, references to a person’s sexual orientation might

  indeed rise to the level of fighting words.

¶ 26   Adopting the district court’s reasoning, and undaunted by the

  absence of any aggravating circumstances, the People argue for the

  first time on appeal that the photo was akin to R.C. calling L.P. a

  “cocksucker,” a term that by its mere utterance qualifies as fighting

  words. We are not persuaded.

¶ 27   The requirement that we consider the language in context

  means that we must also evaluate its harshness in the current

  climate: “what may have constituted ‘classical fighting words’ in

  1942 might comprise nothing more than an innocuous expression”


                                     16
  today. Svedberg v. Stamness, 525 N.W.2d 678, 683 (N.D. 1994).

  Indeed, in Chaplinsky, the Court deemed it incontrovertible that the

  language at issue — “damn racketeer” and “damn Fascist” — would

  tend to incite a breach of the peace. 315 U.S. at 574. We have no

  difficulty concluding that those terms would qualify for First

  Amendment protection in 2016.

¶ 28   The word “cocksucker” is not an innocuous expression; it is

  vulgar and profane. But uttering the word is not a crime unless its

  mere utterance would tend to provoke a reasonable person to

  immediately retaliate with violence. The People point us to three

  cases, the most recent of which is nearly twenty-five years old, in

  which courts upheld disorderly conduct convictions where one of

  the words spoken was “cocksucker.” See City of Little Falls v.

  Witucki, 295 N.W.2d 243 (Minn. 1980); State v. Broadstone, 447

  N.W.2d 30 (Neb. 1989); City of Shaker Heights v. Marcus, No.

  61801, 1993 WL 27676 (Ohio Ct. App. 1993). But in each of those

  cases, the words (which included more than “cocksucker”) were

  accompanied by violent or threatening gestures. In Marcus, for

  example, the defendant was described as “extremely agitated, loud,

  [and] combative.” 1993 WL 27676, at *1. Witnesses thought he


                                    17
  might “use force against” the bank manager. Id. In Broadstone, the

  defendant not only cursed at the witness, but also assaulted him

  with a stick. 447 N.W.2d at 32-33. And in Witucki, the court

  characterized the defendant’s speech as threatening because it

  scared the victim who was working alone in a bar. 295 N.W.2d at

  244.

¶ 29     Later cases from these jurisdictions make clear that the

  decisions turned on the totality of the circumstances, particularly

  the threatening nature of the defendant’s speech and conduct. See

  City of Chillicothe v. Lowery, No. 97 CA 2331, 1998 WL 396316, at

  *5, *7 (Ohio Ct. App. 1998) (discussing disorderly conduct cases in

  Ohio, including Marcus, and concluding that “[i]n all of the cases

  upholding convictions for disorderly conduct involving profane

  language, the courts found that the profanity was used in a

  situation that likely could have become violent”); see also M.A.H.,

  572 N.W.2d at 757 (citing Witucki and noting that “[e]very speech-

  related disorderly conduct conviction upheld by Minnesota

  appellate courts since [1978] has involved either an explicit verbal

  or physical threat of violence or a situation where the victims were

  placed in fear of imminent physical harm”).


                                    18
¶ 30      Thus, even if we otherwise found these cases persuasive, their

  facts are distinguishable from the circumstances presented in this

  case.

¶ 31      In any event, more recent cases suggest that “cocksucker” has

  lost its former incendiary quality.4 See People v. Pierre-Louis, 927

  N.Y.S.2d 592, 593 (N.Y. Dist. Ct. 2011) (holding that defendant’s

  tirade against district attorney, in which he stated that district

  attorney was a “piece of shit faggot fucking cock sucking cock,” did

  not constitute fighting words); ARMCO, Inc. v. United Steelworkers of

  Am., No. 2002CA0071, 2003 WL 22300027, at *7 (Ohio Ct. App.

  2003) (holding that the insult “Afro cock sucker” was “mere words”

  and would not tend to incite immediate violence); see also State v.

  Swoboda, 658 S.W.2d 24, 25, 27 (Mo. 1983) (though unpleasant,

  the words used by defendant — “motherfucker” and “cocksucker” —


  4 The word also appears to have entered our coarsened political
  discourse. In August 2016, the Governor of Maine, Paul LePage,
  left a profanity-laden voicemail for a state legislator in which he
  called the legislator a “little son of a bitch, socialist cocksucker” and
  lamented that he could not challenge the legislator to a duel. Eric
  Russell & Scott Thistle, LePage Effectively Endorses Racial Profiling
  in Maine’s Battle Against Drug Addiction, Portland Press Herald,
  Aug. 26, 2016, https://perma.cc/5A6F-JMUF. We are reluctant to
  hold a middle school student to a higher standard than the
  Governor of Maine.

                                     19
  are “by no means uncommon” and constitute “everyday street

  language”) (citation omitted); State v. McKenna, 415 A.2d 729, 732

  (R.I. 1980) (“[A] group of people with normal sensibilities would not

  likely retaliate against a woman who called them [cocksuckers] and

  made wild, idle threats.”).

¶ 32   In light of the surrounding circumstances, we conclude that

  the crude, sophomoric Snapchat photo does not rise to the level of

  “fighting words.” A middle school student of average sensibilities

  and maturity might have told R.C. that the photo was not funny, as

  L.P.’s friends did, or reported the hurtful conduct to a school

  administrator, as L.P. and his friends did later that day. But the

  average person — even an average fourteen-year-old — would not

  be expected to fly into a violent rage upon being shown a photo of

  himself with a penis drawn over it. R.C.’s display simply does not

  fall within the “exceedingly narrow” class of insults for which

  violence is a reasonably expected response.

¶ 33   Our decision does not leave the school without a remedy for

  inappropriate student behavior. A school administrator may,

  consistent with the First Amendment, discipline a student for

  broadcasting vulgar and offensive speech. See Bethel Sch. Dist. No.


                                    20
  403 v. Fraser, 478 U.S. 675, 685 (1986) (students’ First Amendment

  rights are circumscribed in light of special characteristics of the

  school environment). And Colorado, like most states, has an anti-

  bullying statute that gives schools the specific authority to

  prescribe consequences for conduct that satisfies the definition of

  bullying. See § 22-32-109.1, C.R.S. 2016.

¶ 34   In sum, we agree with R.C. that his display of the altered

  photo did not amount to fighting words. Accordingly, the

  government failed to prove an element of the offense.

¶ 35   In light of our resolution of the first question, we need not

  reach the second question — whether the evidence was sufficient to

  prove that R.C. knew, or recklessly disregarded a substantial risk,

  that his display would result in an immediate breach of the peace.

                             III.   Conclusion

¶ 36   The judgment of conviction is reversed.

       JUDGE ASHBY concurs.

       JUDGE WEBB dissents.




                                     21
       JUDGE WEBB, dissenting.

¶ 37   Because the image that R.C. created depicting L.P. is not in

  the record and the trial court did not make detailed findings,

  exactly what it looked like is indeterminable. But for two reasons,

  my sufficiency review assumes that the image showed L.P.’s face

  with an adjacent ejaculating penis pointing at his open mouth.1

¶ 38   First, L.P. testified that R.C. had taken a picture of him with

  his mouth open. A student who saw a later version of this image

  testified that it showed L.P. with a penis drawn “on his face” which

  was “[p]ointing more towards his mouth.” That student also

  testified that the penis was ejaculating because “there was stuff

  coming out of it.” Another student testified that the image had a

  penis “[t]owards [L.P.’s] face” and “the penis was

  [ejaculating] . . . because there were . . . white lines everywhere.”

¶ 39   Second, even if the record leaves any reasoned doubt about

  exactly what the image depicted — which to my reading it does not

  1 The majority’s characterization of the image as “cartoon-like” has
  no support in the record. And in any event, the law also gives legal
  effect to cartoons. See, e.g., Yorty v. Chandler, 91 Cal. Rptr. 709,
  711 (Cal. Ct. App. 1970) (“A cartoon, of course, remains subject to
  the law of libel and, like any other form of depiction or
  representation, it may be found libelous if it maliciously presents as
  fact defamatory material which is false.”) (citation omitted).

                                     22
  — the content of the image must be treated in the light most

  favorable to the prosecution. People v. Taylor, 131 P.3d 1158, 1164

  (Colo. App. 2005).

¶ 40       No one who appears before us suggests that such a sexually

  explicit image of a minor is innocuous.2 Even so, the novel question

  of whether a photograph, (or here, a digital image), as opposed to

  spoken words, even constitutes fighting words must be answered.3

  If so, the remaining question is whether this particular image was

  reasonably likely to provoke a violent response by L.P. Because I

  would answer both questions “yes,” I respectfully dissent.

      I.    For First Amendment Purposes, Does A Digital Image Trigger
                           the Fighting Words Doctrine?

¶ 41       True enough, the picture of L.P. with an ejaculating penis

  superimposed near to or touching his face does not fit the

  traditional model of fighting words because no words were included.




  2 “‘Sexually exploitative material’ means any photograph . . . that
  depicts a child engaged in, participating in, observing, or being used
  for explicit sexual conduct.” § 18-6-403(2)(j), C.R.S. 2016.
  3 Other cases to have addressed non-spoken fighting words include

  Texas v. Johnson, 491 U.S. 397 (1989) (flag burning), R.A.V. v. City
  of St. Paul, 505 U.S. 377 (1992) (cross burning), and World Wide
  Street Preachers’ Fellowship v. City of Owensboro, 342 F. Supp. 2d
  634 (W.D. Ky. 2004) (picture of aborted fetus).

                                       23
  Still, “one picture is worth a thousand words.” People v. Sepeda,

  196 Colo. 13, 22, 581 P.2d 723, 730 (1978).

¶ 42   Not surprisingly, then, pictures have legal significance. For

  example, the law of libel, which also balances First Amendment

  interests, has long recognized that a photograph can be as

  defamatory as a printed word. See Knapp v. Post Printing & Publ’g

  Co., 111 Colo. 492, 496, 144 P.2d 981, 983-84 (1943) (“A definition

  of libel which has received general acceptance and approbation is to

  be found in 33 American Jurisprudence, page 38, section 3. It

  reads: ‘A libel is a malicious publication, expressed either in

  printing or writing or by signs and pictures . . . .’”) (emphasis

  added). As well, tort law gives effect to pictures. See, e.g., Ford

  Motor Co. v. Lemieux Lumber Co., 418 S.W.2d 909 (Tex. Civ. App.

  1967) (holding that sales brochure with pictures of truck capable of

  crossing streams and ditches and climbing mountains could be

  construed as an express warranty).

¶ 43   I do not perceive any doctrinal ground on which to avoid

  balancing the fighting word exception against First Amendment

  rights merely because a picture is at issue.




                                     24
¶ 44   Acknowledging that forms of communication other than

  spoken words may convey fighting words also reflects the evolving

  nature of how we communicate. Today, communication —

  especially among the young — has become increasingly digital and

  visual. See Doninger v. Niehoff, 594 F. Supp. 2d 211, 223 (D. Conn.

  2009) (“[S]tudents are connected to each other through email,

  instant messaging, blogs, social networking sites, and text

  messages.”), aff’d in part and rev’d in part, 642 F.3d 334 (2d Cir.

  2011).4

¶ 45   For these reasons, I would apply the fighting words doctrine to

  test whether the penis image of L.P. enjoys First Amendment

  protection.


  4 See Mary-Rose Papandrea, Student Speech Rights in the Digital
  Age, 60 Fla. L. Rev. 1027, 1037 (2008) (“Rather than harass their
  classmates in the locker room, hallways, and bathrooms, students
  engage in ‘electronic aggression,’ often in the form of malicious
  rumors or humiliating or threatening speech spread on social
  networking sites, e-mails, instant messages, chat rooms, text
  messages, and blogs.”); see also People in Interest of T.B., 2016 COA
  151, ¶ 93 n.3 (Fox, J., dissenting) (“The cell phone is the most
  direct and most widely used mode of communication between young
  people. Seventy-one percent of teens own a cell phone and seventy-
  six percent of teens have sent text messages — in fact, of teens with
  cell phones, twenty-five percent of teens aged twelve to fourteen text
  daily and fifty-one percent of teens aged fifteen to seventeen text
  daily.”).

                                    25
         II.   Did the Image of L.P. Constitute Fighting Words?

¶ 46   Everyone would agree that “[t]he unprotected category of

  speech called ‘fighting words’ is an extremely narrow one.” Johnson

  v. Campbell, 332 F.3d 199, 212 (3d Cir. 2003). Such words are

  “those which by their very utterance inflict injury or tend to incite

  an immediate breach of the peace.” Chaplinsky v. New Hampshire,

  315 U.S. 568, 572 (1942). And “[t]he potential to elicit an

  immediate violent response exists only where the communication

  occurs face-to-face or in close physical proximity.” City of Billings v.

  Nelson, 322 P.3d 1039, 1045 (Mont. 2014).

¶ 47   But how great must be the risk of a violent response? To

  determine whether a communication includes fighting words, “the

  inquiry is not whether a reasonable person ‘might’ react violently,

  but instead whether someone in the circumstances of the addressee

  would likely react violently in the context in which the words were

  spoken.” In re Nickolas S., 245 P.3d 446, 452 (Ariz. 2011). At the

  same time, whether violence actually occurred is irrelevant, as a

  matter of law. See State v. Parnoff, 125 A.3d 573, 579 (Conn. App.

  Ct. 2015) (“To be considered ‘fighting words,’ the speech at issue

  need not actually cause those who hear the speech to engage in


                                    26
  ‘violent, tumultuous or threatening behavior,’ but must have ‘the

  tendency to provoke imminent retaliation’ from them.” (quoting

  State v. Szymkiewicz, 678 A.2d 473, 477-78 (Conn. 1996))) (cert.

  granted in part Nov. 30, 2015).5

¶ 48   So, what aspects of this case make such a violent response

  likely? As the majority recognizes, the context must be considered.

  Three contextual factors leap out.

¶ 49   First, the record shows that R.C. was in close physical

  proximity to L.P., who could have immediately retaliated with a

  violent act. Because of this proximity, displaying the image to L.P.

  differs from cases dealing with an electronic communication where

  no contemporaneous, in-person confrontation could have occurred.

  See Layshock ex rel. Layshock v. Hermitage Sch. Dist., 496

  F. Supp. 2d 587, 602 (W.D. Pa. 2007) (“A ‘MySpace’ internet page is

  not outside of the protections of the First Amendment under the

  fighting words doctrine because there is simply no in-person




  5 Based on this principle, which the majority recognizes, its
  statement that the image “did not, in fact, arouse an immediate
  violent response from L.P.,” while factually correct, is legally
  inconsequential.

                                     27
  confrontation in cyberspace such that physical violence is likely to

  be instigated.”), aff’d in part, 650 F.3d 205 (3d Cir. 2011).6

¶ 50   Second, a contextual approach requires that the age of the

  listener be considered. See Svedberg v. Stamness, 525 N.W.2d 678,

  684 (N.D. 1994) (“No one would argue that a different reaction is

  likely if a thirteen-year-old boy and a seventy-five-year-old man are

  confronted with identical fighting words.”); see also Nuxoll ex rel.

  Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 674 (7th Cir.

  2008) (adults “can handle such remarks better than kids can”).

¶ 51   Yet, the majority concludes that the image does not constitute

  fighting words because an “average person — even an average

  fourteen-year-old — would not be expected to fly into a violent rage

  upon being shown a photo of himself with a penis drawn over it.”

  The majority relies on State v. Tracy, 130 A.3d 196, 209 (Vt. 2015),

  6 See also State v. Drahota, 788 N.W.2d 796, 804 (Neb. 2010)
  (“[E]ven if a fact finder could conclude that in a face-to-face
  confrontation, [defendant’s] speech would have provoked an
  immediate retaliation, [the recipient] could not have immediately
  retaliated. [He] did not know who sent the e-mails, let alone where
  to find the author.”); but see Davidson v. Seneca Crossing Section II
  Homeowner’s Ass’n, 979 A.2d 260, 283 (Md. Ct. Spec. App. 2009)
  (Series of e-mails “consisted of the use of ‘fighting words’” where
  they “regularly employed ‘personally abusive epithets
  which . . . [were] . . . inherently likely to provoke violent reaction.’”)
  (alterations in original) (citation omitted).

                                      28
  where the court explained that children are taught to use words

  “rather than respond to anger and frustration by physically lashing

  out.”

¶ 52      The reasoning in Tracy falls short because it is at odds with

  capital and life without parole sentencing cases that recognize

  children’s “lack of maturity and . . . underdeveloped sense of

  responsibility,” coupled with their vulnerability to outside

  influences. Roper v. Simmons, 543 U.S. 551, 569 (2005) (quoting

  Johnson v. Texas, 509 U.S. 350, 367 (1993)). These cases also

  acknowledge that children’s characters “are ‘not as well formed.’”

  Graham v. Florida, 560 U.S. 48, 68 (2010) (quoting Roper, 543 U.S.

  at 569-70).

¶ 53      Consistent with the Supreme Court’s observations on the

  infirmities of youth — as applied to fighting words — at least one

  court has held that “adolescent schoolchildren, are highly sensitive”

  and “easily upset by comments,” such as those “about their race,

  sex, etc.” Nuxoll, 523 F.3d at 671. This court explained that such




                                      29
  comments relate to “major components of [a person’s] personal

  identity” and “can strike a person at the core of his being.” Id.7

¶ 54   Based on these authorities, I believe that L.P.’s age makes a

  violent response more — not less — likely than if a similar penis

  image of an adult had been displayed to the adult. But the

  contextual inquiry does not end with age.

¶ 55   Third, the calculus of violence ratchets up even higher

  because some of L.P.’s peers were present and saw the image when

  R.C. displayed it to him. Cf. City of Landrum v. Sarratt, 572 S.E.2d

  476, 478 (S.C. Ct. App. 2002) (One factor “to consider in

  determining if profanity constitutes fighting words [is] the presence

  of bystanders.”).8



  7 In other contexts, the Supreme Court has found exceptions to
  First Amendment protections when the speech at issue involves
  minors. See United States v. Stevens, 559 U.S. 460, 471 (2010)
  (“[C]ategories of speech . . . fully outside the protection of the First
  Amendment” include child pornography because the state has “a
  compelling interest in protecting children from abuse.”).
  8 Kathleen Hart, Sticks and Stones and Shotguns at School: The

  Ineffectiveness of Constitutional Antibullying Legislation as a
  Response to School Violence, 39 Ga. L. Rev. 1109, 1119 (2005) (“One
  researcher has found that peers witness approximately 85% of
  bullying episodes that occur at school. Bystanders may be active
  participants by encouraging other kids to fight, or passive
  participants by merely laughing and doing nothing, perhaps

                                    30
¶ 56   The majority also rejects the trial court’s reasoning that the

  penis image conveyed fighting words because, according to the

  majority, the court incorrectly perceived the image as implying that

  L.P. was gay and more recent cases generally do not support

  treating references to sexual orientation as fighting words. That

  may be so, but the record is devoid of any evidence — such as

  accompanying statements by R.C. — from which a reasonable

  person standing in L.P.’s shoes would have taken the image as a

  reference to sexual orientation. And even assuming that the sexual

  orientation of such a person might be relevant, L.P.’s sexual

  orientation is unknown. Because of the barren record, gay bashing

  is only a straw man who suffers the predictable fate.

¶ 57   In any event, whether the image constituted fighting words is a

  question of law subject to de novo review. See Connick v. Myers,

  461 U.S. 138, 150 n.10 (1983) (“‘[W]e are compelled to examine for

  ourselves the statements in issue and the circumstances under

  which they are made to see whether or not they . . . are of a

  character which the principles of the First Amendment . . . protect.’



  because they fear that they will be the bully’s next victim.”)
  (footnotes omitted).

                                    31
  Because of this obligation, we cannot ‘avoid making an independent

  constitutional judgment on the facts of the case.’”) (citations

  omitted). Given that the trial court’s reasoning is not binding on

  appellate review, I decline to join the majority in dismembering it.

¶ 58   Returning, then, to whether the image showing L.P. engaged in

  fellatio constituted fighting words, based on the contextual factors

  discussed above, I am persuaded by the cases the Attorney General

  cites holding that the colloquial term “cocksucker” does not enjoy

  First Amendment protection under the fighting words doctrine. See

  City of Little Falls v. Witucki, 295 N.W.2d 243 (Minn. 1980); State v.

  Broadstone, 447 N.W.2d 30 (Neb. 1989); City of Shaker Heights v.

  Marcus, No. 61801, 1993 WL 27676 (Ohio Ct. App. 1993).9

  Although the majority distinguishes these cases as also including

  threatening conduct, “threats are not, for First Amendment

  purposes, treated identically with either fighting words or

  expression tending to incite imminent lawless action.” In re M.S.,




  9 These cases are not alone in treating some sexually derogatory
  statements as fighting words. See, e.g., State v. Groves, 363 N.W.2d
  507, 510 (Neb. 1985) (holding that “fuckhead” and “mother fucker”
  are fighting words, not constitutionally protected speech).

                                    32
  896 P.2d 1365, 1373 (Cal. 1995). As well, threatening conduct was

  not present here.10

¶ 59   With all of this in mind, I would hold that the image R.C.

  created and circulated showing an ejaculating penis adjacent to

  L.P.’s mouth constituted fighting words. Therefore, I would deny it

  First Amendment protection and affirm the judgment of conviction.




  10 The majority asserts that “more recent cases suggest that
  ‘cocksucker’ has lost its former incendiary quality.” But the cases
  cited do not carry the weight that the majority places on them. For
  example, in People v. Pierre-Louis, 927 N.Y.S.2d 592, 595 (N.Y. Dist.
  Ct. 2011), the alleged fighting words were from voicemails, not face-
  to-face interaction. Similarly, in State v. Swoboda, 658 S.W.2d 24,
  26 (Mo. 1983), the alleged fighting words were overheard by a
  neighbor, but the “conduct took place entirely on [the defendant’s]
  own property and was not in any way directed towards the
  complainant.” And in State v. McKenna, 415 A.2d 729, 731 (R.I.
  1980), the defendant “addressed her remarks to a group of five
  men. She spoke to them as a group, not individually nor face-to-
  face.” Finally, in ARMCO, Inc. v. United Steelworkers of America, No.
  2002CA0071, 2003 WL 22300027, at *7 (Ohio Ct. App. 2003), the
  court was “unable to determine” if “Afro cock sucker” constituted
  fighting words.

                                   33
