I have received a Motion to Dismiss a Disturbing the Peace based upon a First Amendment Argument that any speech made in public, including profanity is protected and can’t be prosecuted, thus proffering that our disturbing the peace ordinance is unconstitutional as it relates to any speech.

Except of Motion:

1. The Defendant was charged with violation of  Ordinance No. 10-401,disturbing the peace by profane language and conduct
2. The language and conduct complained of consists of allegations that the Defendant "flipped off the complaining witness, and yelled "fuck you, fuck the church and fuck the lying pastor.

The defendant admitted in a sworn statement that he had been drinking and was standing on his property screaming at a church group on the adjacent property, which consisted of several small children participating in a hay ride. The Defendant admitted to all of the allegations to include flipping them off and yelling the profanity.

Note:  The church and the Defendant are involved in a boundary dispute for some time but the group was not on or near the contested boundary.

Counsel argues Cohen v. California, which held that a jacket reading fuck the draft was protected speech, or at least not violative of the Ordinance for Disturbing the Peace. This case would not seem to fit the facts of our matter due to the presence of children of tender years and no intent of the defendant to protest or utter the profanities for any other reason than to incite a fight, maybe even constitute fighting words.

Counsel finally cites B.L v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3rd Cir. 2020), this case involves a cheerleader being disciplined by the school for off campus, non-school related, online posts, using profanity towards the school and the administration. Once again this case has some apparent dicta as to profanity not being a violation in and of itself, but actually rested its decision on the fact that the speech was not done at school or utilizing school facilities to submit the posts as not within the schools authority concerning school related activities.

I would like to not have to re-invent the wheel here, and maybe a bit lazy, but I’m sure someone on here has drafted a brief in response to a Motion to Dismiss based upon First Amendment grounds which would basically make the ordinance unusable, unconstitutional.

Any help would be appreciated.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office: (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

The Ordinance reads as follows:

A. It is unlawful to disturb or alarm the peace of another or others by doing any of the acts set out in Subsection B of this section.

B. Disturbing the peace is. the doing of any of the following in such a manner as would foreseeably alarm or disturb the of another or others:

1. Using obscene, offensive, abusive, profane, vulgar, threatening, violent or insulting language or conduct;

2. Appearing in an intoxicated condition;

3. Engaging in a fistic encounter;

4. Lewdly exposing one's person, or private parts thereof., in any public place or in any place where there are present other persons to be offended or annoyed thereby;

5. Pointing any pistol or any other deadly weapon whether loaded or not at any other person or persons either in anger or otherwise;

6. Holding an unlawful assembly of two (2) or more persons, including being assembled together and acting in concert, to do any unlawful act against the peace or to the terror of others or preparing for or moving toward such acts, or otherwise assembling unlawfully or riotously;

7. Interrupting any lawful assembly of people by making noise, by rude, indecent or improper behavior, by profane, improper or loud language, or in any other manner, either within the place of assembly or within hearing distance thereof;

8. Obstructing the free passage of pedestrians or vehicles on a street, right-of-way or sidewalk, or other public place;

9. Obstructing, molesting or interfering with any person lawfully in a public place;

10. Making unnecessarily loud, offensive noises;

11. Disturbing any congregation or assembly of persons meeting for religious worship by making noise, by rude, indecent or improper behavior, by profane, improper or loud language, or in any other manner, either within the place of worship or within hearing distance thereof; or

12. Committing any other act in such a manner calculated as to unreasonably disturb, interfere or alarm the public or the comfort and repose of any person.

C. Whenever any police officer shall, in the exercise of reasonable judgment, decide that the presence of any person in any public place is causing any of the conditions enumerated in Subsection A herein, he may, if be it necessary for the preservation of the public peace and safety, order that person to leave that place; and any who shall refuse to leave after being ordered to do so by a police officer shall ·be guilty of a violation of this section.

D. This section shall not apply to peaceful picketing, public speaking or other lawful expressions of opinion not in contravention of other laws.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office:  (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

On Jan 5, 2022, at 10:22, kendominic--- via Oama oama@lists.imla.org wrote:


I have received a Motion to Dismiss a Disturbing the Peace based upon a First Amendment Argument that any speech made in public, including profanity is protected and can’t be prosecuted, thus proffering that our disturbing the peace ordinance is unconstitutional as it relates to any speech.

Except of Motion:
The Defendant was charged with violation of  Ordinance No. 10-401,disturbing the peace by profane language and conduct
The language and conduct complained of consists of allegations that the Defendant "flipped off the complaining witness, and yelled "fuck you, fuck the church and fuck the lying pastor.
The defendant admitted in a sworn statement that he had been drinking and was standing on his property screaming at a church group on the adjacent property, which consisted of several small children participating in a hay ride. The Defendant admitted to all of the allegations to include flipping them off and yelling the profanity.

Note:  The church and the Defendant are involved in a boundary dispute for some time but the group was not on or near the contested boundary.

Counsel argues Cohen v. California, which held that a jacket reading fuck the draft was protected speech, or at least not violative of the Ordinance for Disturbing the Peace. This case would not seem to fit the facts of our matter due to the presence of children of tender years and no intent of the defendant to protest or utter the profanities for any other reason than to incite a fight, maybe even constitute fighting words.

Counsel finally cites B.L v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3rd Cir. 2020), this case involves a cheerleader being disciplined by the school for off campus, non-school related, online posts, using profanity towards the school and the administration. Once again this case has some apparent dicta as to profanity not being a violation in and of itself, but actually rested its decision on the fact that the speech was not done at school or utilizing school facilities to submit the posts as not within the schools authority concerning school related activities.

I would like to not have to re-invent the wheel here, and maybe a bit lazy, but I’m sure someone on here has drafted a brief in response to a Motion to Dismiss based upon First Amendment grounds which would basically make the ordinance unusable, unconstitutional.

Any help would be appreciated.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office: (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

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Our disturbing the peace ordinance is based on noise, so I have traditionally relied on Harrington v. City of Tulsa, 1988 OK CR 231, 763 P.2d 700. The Court of Criminal Appeals sets out a good framework for addressing constitutional arguments. I don't have a brief on hand, but I did argue it recently. Our ordinance is fundamentally the same as it was in Harrington and does a good job, in my opinion, of avoiding constitutional challenges by focusing on the volume of the message, but not the content.

However, it does look like your ordinance is ripe for a challenge for being unconstitutionally overbroad. It might survive a challenge, but I would be concerned that it would get declared unconstitutional as it would likely preclude quite a bit of constitutionally-protected speech. It would seem that the ordinance might prohibit any speech that might be offensive to another person.

Hayes T. Martin | Assistant City Attorney
City of Tulsa Prosecutor's Office

600 Civic Center, Room 109. Tulsa, OK 74103

T: 918-596-7740
F: 918-596-9096
E: hmartin@cityoftulsa.orgmailto:hmartin@cityoftulsa.org
www.cityoftulsa.orghttp://www.cityoftulsa.org/

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From: Kenneth Dominic via Oama oama@lists.imla.org
Sent: Wednesday, January 5, 2022 10:39 AM
To: kendominic@me.com kendominic@me.com
Cc: oama@lists.imla.org oama@lists.imla.org
Subject: [Oama] Re: Response Brief to Challenge of Disturbing the Peace City Ordinance

The Ordinance reads as follows:

A. It is unlawful to disturb or alarm the peace of another or others by doing any of the acts set out in Subsection B of this section.

B. Disturbing the peace is. the doing of any of the following in such a manner as would foreseeably alarm or disturb the of another or others:

1. Using obscene, offensive, abusive, profane, vulgar, threatening, violent or insulting language or conduct;

2. Appearing in an intoxicated condition;

3. Engaging in a fistic encounter;

4. Lewdly exposing one's person, or private parts thereof., in any public place or in any place where there are present other persons to be offended or annoyed thereby;

5. Pointing any pistol or any other deadly weapon whether loaded or not at any other person or persons either in anger or otherwise;

6. Holding an unlawful assembly of two (2) or more persons, including being assembled together and acting in concert, to do any unlawful act against the peace or to the terror of others or preparing for or moving toward such acts, or otherwise assembling unlawfully or riotously;

7. Interrupting any lawful assembly of people by making noise, by rude, indecent or improper behavior, by profane, improper or loud language, or in any other manner, either within the place of assembly or within hearing distance thereof;

8. Obstructing the free passage of pedestrians or vehicles on a street, right-of-way or sidewalk, or other public place;

9. Obstructing, molesting or interfering with any person lawfully in a public place;

10. Making unnecessarily loud, offensive noises;

11. Disturbing any congregation or assembly of persons meeting for religious worship by making noise, by rude, indecent or improper behavior, by profane, improper or loud language, or in any other manner, either within the place of worship or within hearing distance thereof; or

12. Committing any other act in such a manner calculated as to unreasonably disturb, interfere or alarm the public or the comfort and repose of any person.

C. Whenever any police officer shall, in the exercise of reasonable judgment, decide that the presence of any person in any public place is causing any of the conditions enumerated in Subsection A herein, he may, if be it necessary for the preservation of the public peace and safety, order that person to leave that place; and any who shall refuse to leave after being ordered to do so by a police officer shall ·be guilty of a violation of this section.

D. This section shall not apply to peaceful picketing, public speaking or other lawful expressions of opinion not in contravention of other laws.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office:  (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

On Jan 5, 2022, at 10:22, kendominic--- via Oama oama@lists.imla.org wrote:


I have received a Motion to Dismiss a Disturbing the Peace based upon a First Amendment Argument that any speech made in public, including profanity is protected and can’t be prosecuted, thus proffering that our disturbing the peace ordinance is unconstitutional as it relates to any speech.

Except of Motion:

1. The Defendant was charged with violation of  Ordinance No. 10-401,disturbing the peace by profane language and conduct
2. The language and conduct complained of consists of allegations that the Defendant "flipped off the complaining witness, and yelled "fuck you, fuck the church and fuck the lying pastor.

The defendant admitted in a sworn statement that he had been drinking and was standing on his property screaming at a church group on the adjacent property, which consisted of several small children participating in a hay ride. The Defendant admitted to all of the allegations to include flipping them off and yelling the profanity.

Note:  The church and the Defendant are involved in a boundary dispute for some time but the group was not on or near the contested boundary.

Counsel argues Cohen v. California, which held that a jacket reading fuck the draft was protected speech, or at least not violative of the Ordinance for Disturbing the Peace. This case would not seem to fit the facts of our matter due to the presence of children of tender years and no intent of the defendant to protest or utter the profanities for any other reason than to incite a fight, maybe even constitute fighting words.

Counsel finally cites B.L v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3rd Cir. 2020), this case involves a cheerleader being disciplined by the school for off campus, non-school related, online posts, using profanity towards the school and the administration. Once again this case has some apparent dicta as to profanity not being a violation in and of itself, but actually rested its decision on the fact that the speech was not done at school or utilizing school facilities to submit the posts as not within the schools authority concerning school related activities.

I would like to not have to re-invent the wheel here, and maybe a bit lazy, but I’m sure someone on here has drafted a brief in response to a Motion to Dismiss based upon First Amendment grounds which would basically make the ordinance unusable, unconstitutional.

Any help would be appreciated.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office: (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

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I believe it was President Reagan who once said, “It’s not that our friends are ignorant; it’s just that they know so much that isn’t so.”

In the present case, counsel knows so much which isn’t so. While Cohen does provide profanity can be protected by the First Amendment, it does not establish that all profanity is always protected. Indeed, the Supreme Court held in FCC v. Pacifica Foundation (438 US 726 (1978)) that the government may censor profanity in particular circumstances. Instead, Cohen holds that profanity in the form of political speech is protected. Cohen’s “fuck the draft” shirt was clearly political, representing a dissenting view from government policy. What mattered therein was the context of the speech, less the speech itself. Indeed, the Court even stated they might have ruled a different way if they had been presented “a more particularized and compelling reason” for punishing the words. Rather than Cohen, the case of Chaplinksy v. New Hampshire (315 US 568 (1942)) appears to be directly on point. In that case, a citizen was arrested for causing a public disturbance after using profane speech to verbally assault a police officer. A unanimous Supreme Court sided with the government, holding the profanity uttered only served to “incite an immediate breach of the peace” rather than as an “exposition of ideas.” 315 US at 572.

Given the fact pattern you’ve articulated, it is clear the citizen was not taking objection to some governmental action and trying to engage his fellow citizens in some type of public debate on the merits of the same. Instead, he appears to have merely expressed his frustration with a private actor, likely with the intent to ruin the church’s parishioners day.

JTH

John Tyler Hammons
HAMMONS HAMBY & PRICE
330 N. 4th Street
Muskogee, OK 74401
O: (918) 683-0309
F:  (918) 686-7510
E:  JTH@HammonsPrice.commailto:JTH@HammonsPrice.com

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From: Kenneth Dominic via Oama oama@lists.imla.org
Sent: Wednesday, January 5, 2022 10:39 AM
To: kendominic@me.com
Cc: oama@lists.imla.org
Subject: [Oama] Re: Response Brief to Challenge of Disturbing the Peace City Ordinance

The Ordinance reads as follows:

A. It is unlawful to disturb or alarm the peace of another or others by doing any of the acts set out in Subsection B of this section.

B. Disturbing the peace is. the doing of any of the following in such a manner as would foreseeably alarm or disturb the of another or others:

1. Using obscene, offensive, abusive, profane, vulgar, threatening, violent or insulting language or conduct;

2. Appearing in an intoxicated condition;

3. Engaging in a fistic encounter;

4. Lewdly exposing one's person, or private parts thereof., in any public place or in any place where there are present other persons to be offended or annoyed thereby;

5. Pointing any pistol or any other deadly weapon whether loaded or not at any other person or persons either in anger or otherwise;

6. Holding an unlawful assembly of two (2) or more persons, including being assembled together and acting in concert, to do any unlawful act against the peace or to the terror of others or preparing for or moving toward such acts, or otherwise assembling unlawfully or riotously;

7. Interrupting any lawful assembly of people by making noise, by rude, indecent or improper behavior, by profane, improper or loud language, or in any other manner, either within the place of assembly or within hearing distance thereof;

8. Obstructing the free passage of pedestrians or vehicles on a street, right-of-way or sidewalk, or other public place;

9. Obstructing, molesting or interfering with any person lawfully in a public place;

10. Making unnecessarily loud, offensive noises;

11. Disturbing any congregation or assembly of persons meeting for religious worship by making noise, by rude, indecent or improper behavior, by profane, improper or loud language, or in any other manner, either within the place of worship or within hearing distance thereof; or

12. Committing any other act in such a manner calculated as to unreasonably disturb, interfere or alarm the public or the comfort and repose of any person.

C. Whenever any police officer shall, in the exercise of reasonable judgment, decide that the presence of any person in any public place is causing any of the conditions enumerated in Subsection A herein, he may, if be it necessary for the preservation of the public peace and safety, order that person to leave that place; and any who shall refuse to leave after being ordered to do so by a police officer shall ·be guilty of a violation of this section.

D. This section shall not apply to peaceful picketing, public speaking or other lawful expressions of opinion not in contravention of other laws.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office:  (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

On Jan 5, 2022, at 10:22, kendominic--- via Oama <oama@lists.imla.orgmailto:oama@lists.imla.org> wrote:

I have received a Motion to Dismiss a Disturbing the Peace based upon a First Amendment Argument that any speech made in public, including profanity is protected and can’t be prosecuted, thus proffering that our disturbing the peace ordinance is unconstitutional as it relates to any speech.

Except of Motion:

1. The Defendant was charged with violation of  Ordinance No. 10-401,disturbing the peace by profane language and conduct
2. The language and conduct complained of consists of allegations that the Defendant "flipped off the complaining witness, and yelled "fuck you, fuck the church and fuck the lying pastor.
   The defendant admitted in a sworn statement that he had been drinking and was standing on his property screaming at a church group on the adjacent property, which consisted of several small children participating in a hay ride. The Defendant admitted to all of the allegations to include flipping them off and yelling the profanity.

Note:  The church and the Defendant are involved in a boundary dispute for some time but the group was not on or near the contested boundary.

Counsel argues Cohen v. California, which held that a jacket reading fuck the draft was protected speech, or at least not violative of the Ordinance for Disturbing the Peace. This case would not seem to fit the facts of our matter due to the presence of children of tender years and no intent of the defendant to protest or utter the profanities for any other reason than to incite a fight, maybe even constitute fighting words.

Counsel finally cites B.L v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3rd Cir. 2020), this case involves a cheerleader being disciplined by the school for off campus, non-school related, online posts, using profanity towards the school and the administration. Once again this case has some apparent dicta as to profanity not being a violation in and of itself, but actually rested its decision on the fact that the speech was not done at school or utilizing school facilities to submit the posts as not within the schools authority concerning school related activities.

I would like to not have to re-invent the wheel here, and maybe a bit lazy, but I’m sure someone on here has drafted a brief in response to a Motion to Dismiss based upon First Amendment grounds which would basically make the ordinance unusable, unconstitutional.

Any help would be appreciated.

Kenneth L. Dominic
Attorney at Law
12301 Kingsgate Drive
Oklahoma City, Oklahoma 73170
Office: (405) 620-6013

The information contained in this message may be privileged and confidential and protected from disclosure by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2512. If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone or by replying to the message and deleting it and all of its attachments from your computer. This information does not form an attorney-client relationship and receipt of this communication by a non intended party does not waive any attorney-client privilege.

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