People v. Swensen No. 15-2814 (February 28, 2019)
In Swensen, an Illinois defendant was found guilty of disorderly conduct that was deemed unprotected by the First Amendment.
In a phone call to the director of advancement at a private elementary school, the defendant inquired about the school’s security protocols. In the conversation, the defendant made several comments involving the shooting of children. The director of advancement took notes on the conversation that were later presented in court. The defendant testified that he had not threatened anybody at the school. He also did not own any weapons, nor did he have a firearm owner’s identification card.
The appellate court found the defendant guilty of disorderly conduct on the grounds that he had knowingly committed an unreasonable act. They decided that a reasonable person would find the statements made alarming and disturbing. According to People v. Pence (2018), “A breach of peace can occur without overt threats or profane and abusive language.” The appellate court found that “his comments as a whole were broader, morbid, and clearly inappropriate to his purported objective.” The appellate court also cited landmark Supreme Court case Schenck v. United States (1919), in which Justice Oliver Wendell Holmes opined that falsely yelling “fire” in a crowded theater is unprotected by the First Amendment.
First Amendment rights, like all constitutional rights, are typically not viewed in absolute terms by the courts. Obscenity, fighting words, and defamation are just a few forms of speech that have been deemed undeserving of First Amendment protection.
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