(concurring in result).
[¶ 23.] In this case, the juvenile was charged with a violation of SDCL 22-13-1(1) in that he “did cause serious public inconvenience, or alarm to another person, or created a risk thereof, by engaging in fighting or violent or threatening behavior.” The trial court held that repeatedly mouthing the words “f — k you” and gesturing with his middle finger constituted disorderly conduct. If it had been just once, the court reasoned, perhaps it would have been protected under the First Amendment.
[¶ 24.] When expression is not threatening, does not constitute “fighting words,” and is not likely by its very utterance to inflict injury or provoke the average person to immediate retaliatory violence, disorderly conduct has not been shown. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942). It is most doubtful that an “average person,” much less a school principal, would have responded violently to this eighth grader’s behavior, though it was vulgar and disrespectful. We need not decide today, however, whether the ongoing use of these words and gestures is excluded from the protection of the First Amendment. Here we have words and gestures mixed with conduct.
[¶ 25.] The record undisputedly shows that the truck driven by the juvenile’s brother cut across the parking lot and drove in front the principal’s, car, forcing him to “hit his brakes” to avoid a collision. When this happened, the principal’s front seat passenger. lurched forward and grabbed . the dashboard with her . hand. *714The obvious purpose of the brother’s maneuver was to allow the juvenile to persist in his harassment of the principal and his family. Why else would the truck slow down each time the principal slowed down while the juvenile continued his vulgar words and gestures? The question this appeal presents is whether the evidence in the record, with the most favorable inferences to be drawn therefrom, is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Gonzalez, 2001 SD 47, ¶ 7, 624 N.W.2d 836, 838.
[¶ 26.] This is a case of mixed conduct and speech, which under the circumstances constituted “threatening behavior.” SDCL 22-13-1(1). Such behavior is not protected by the First Amendment. “The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited.” Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491 (1965). Accordingly, I would affirm the adjudication of delinquency, but for reasons different from those given by the majority.