Offensive Speech and the Pennsylvania Disorderly Conduct Statute 12 Temple Political & Civil Rights Law Review 2002-2003

12 Temp. Pol. & Civ. Rts. L. Rev. 47 (2002-2003)
Offensive Speech and the Pennsylvania Disorderly Conduct Statute

handle is hein.journals/tempcr12 and id is 53 raw text is: OFFENSIVE SPEECH AND THE PENNSYLVANIA
DISORDERLY CONDUCT STATUTE
by THOMAS M. PLACE*
INTRODUCTION
The issue of public civility, the state's interest in preventing acts of
violence, and the right of free speech have been the subject of a number of
recent Pennsylvania Supreme' and Superior Court2 decisions. The decisions
concern prosecutions under the disorderly conduct statute3 for directing
offensive words to police officers and others in public places. The issue of
whether the punishment of such speech as disorderly conduct violates the
First Amendment first came before the Pennsylvania courts in the 1980s. In
affirming convictions for the public use of offensive speech under the
unreasonable noise'4 and obscene' language sections of the statute, the
appellate courts rejected constitutional challenges to the disorderly conduct
statute on vagueness and overbreadth grounds in holding that the statute
applied only to speech unprotected by the First Amendment. The courts
further held that even if the offensive words the speaker used were not
technically obscene, the words were nonetheless punishable under the
statute because they inflict injury by their very utterance.6
In recent Supreme and Superior Court decisions concerning the use of
* Professor of Law, The Dickinson School of Law of The Pennsylvania State University. I
would like to thank Grace D'Alo for comments on earlier drafts. Additional thanks are due to
Aaron Riesmeyer for research assistance.
1. Commonwealth v. Hock, 720 A.2d 943 (Pa. 1999).
2. Commonwealth v. Kelly, 758 A.2d 1284 (Pa. Super. 2000); Commonwealth v. Bryner, 652
A.2d 909 (Pa. Super. 1995); Commonwealth v. Fenton, 750 A.2d 863 (Pa. Super. 2000).
3. 18 Pa. Consol. Stat. § 5503 (West 2000). The relevant portion of the statute provides:
§ 5503. Disorderly conduct (a) Offense defined.- A person is guilty of disorderly
conduct if, with intent to cause public inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in
violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene
language, or makes an obscene gesture; or (4) creates a hazardous or physically
offensive condition by any act which serves no legitimate purpose of the actor.
Each year, there are more arrests in Pennsylvania for disorderly conduct than
any other offense. Pennsylvania State Police Bureau of Research and
Development, Uniform Crime Report of Pennsylvania, 80-82, A-13 (1998).
4. Commonwealth v. Mastrangelo, 414 A.2d 54 (1980), appeal dismissed, Mastrangelo v.
Pennsylvania, 449 U.S. 894 (1980).
5. Commonwealth v. Pringle, 450 A.2d 103, 107 (Pa. Super. 1982). The author was counsel
for the defendant in Pringle.
6. Id. at 107.

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