Are racial slurs free speech? Court disagrees with woman who targeted police

Daniel Walmer | Lebanon Daily News

A Pennsylvania Superior Court panel affirmed the conviction of a Lebanon woman who believed she had a First Amendment right to yell profanity and a racial slur toward a Lebanon police officer in 2017.

Dawn Brandt, 60, of Lebanon, has to pay a $100 fine as a result of her conviction, which stemmed from an incident that began when Brandt's neighbor accused her of littering.

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Hispanic slur directed at cop

Brandt's neighbor called police on May 30, 2017 to allege that Brandt was throwing trash from her property onto a public street, according to the opinion written by superior court judge Jack A. Panella. After viewing video footage from the neighbor's surveillance camera, Lebanon Police Officer Enoc Ayala approached Brandt.

Before Ayala could say anything, Brandt began cursing, the opinion states. During the subsequent conversation, she said the neighbor was "f---ing lying," among other profanities. She also called Ayala a "Spic."

A district court found her guilty of littering and disorderly conduct towards police.

That second charge was based on a Lebanon City ordinance that defines disorderly conduct towards a police officer as: "By violent, tumultuous, or obstreperous conduct or carriage, or by loud or unusual noises, or by abusive language which disturbs any police officer in the discharge of his/her duty."

At a summary trial on Nov. 15, 2017, Lebanon County Court of Common Pleas Judge John C. Tylwalk found Brant not guilty of littering but guilty of disorderly conduct towards police and imposed a $100 fine. Brandt appealed.

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Free speech challenge

The three-judge Superior Court panel sidestepped Brandt's direct First Amendment challenge. Although she claims that Tylwalk should have considered her First Amendment rights, "Brandt does not present any argument related to the First Amendment to the United States Constitution or her right to freedom of speech in the argument section of her brief," Panella wrote for the panel.

However, the court did address her claim about "fighting words," a phrase used by the U.S. Supreme Court to describe speech so provocative that it falls outside of First Amendment protection. Brandt claimed her statements did not meet the bar for "fighting words."

According to Panella's opinion, that is irrelevant because the Lebanon ordinance in question does not require "fighting words" for a disorderly conduct charge. Tylwalk had found that the racial slur directed at Ayala disturbed Ayala sufficiently to meet the ordinance's requirements. "The record supports this finding," Panella wrote.

As a result, the panel upheld Brandt's conviction.