In the Interest of S.J.N-K.

GORS, Acting Justice

(dissenting).

[¶ 27.] I respectfully dissent.

[¶ 28.] Many forms of conduct and language, although distasteful to certain individuals or even a majority of people, are nevertheless afforded constitutional protection. The First Amendment of the United States Constitution protects most forms of expression — even profane, course, vulgar and obnoxious speech is afforded some level of protection. This was made clear in Cohen, when the Supreme Court reversed the conviction of a defendant who was arrested and convicted for wearing a coat emblazoned with the words, “fuck the draft”:

Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

403 U.S. at 25, 91 S.Ct. at 1788, 29 L.Ed.2d at 294. Just because the government finds protected speech offensive does not mean it has the right to suppress it. F.C.C., 438 U.S. at 745, 98 S.Ct. at 3038, 57 L.Ed.2d at 1091.

[¶ 29.] As the majority correctly recognizes, however, freedom of expression has its limits. In Chaplinsky the United States Supreme Court held that “fighting words” are outside the protection of the First Amendment. 315 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035. The Supreme Court defined “fighting words” as words “which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Id. at 571, 62 S.Ct. at 769, 86 L.Ed. at 1035.

[¶ 30.] Under South Dakota law, á person is'guilty of disorderly conduct if that person “intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by: (l)[e]ngaging in fighting or in violent or threatening behavior.” SDCL 22-13-1(1) (emphasis added). This statute has been drawn to include, as a violation, those epithets amounting to “fighting words.” Therefore, in order to constitute disorderly conduct, language or gestures that are merely distasteful cannot be punished.

[¶ 31.] In deciding whether S.J.N-K.’s actions constitute disorderly conduct, the *715surrounding circumstances must be taken into consideration. . We must look to the particular situation and the person who was insulted. See Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214, 220 (1974) (stating, “words may or may not be ‘fighting words,’ depending upon the circumstances of their utterance”). The nature of Mr. Kindle’s experience, training and responsibilities must be considered in determining whether S.J.N-K.’s conduct constituted a violation of SDCL 22-13-1(1).

[¶32.] S.J.N-K.'s conduct was obnoxious and rude. However, S.J.N-K.’s conduct was not likely to provoke an ordinary citizen to a violent reaction, and was even less likely to provoke a violent response from the school principal, Mr. Kindle, the alleged victim in this case. Indeed, the conduct did not. Mr. Kindle testified:

Q: Did these things elicit in you a desire to fight with [S.J.N-K.]?
A: No.
Q: Did these things elicit from you a desire to act violently in any way?
A: No.
Q: Did [S.J.N-K.] entice you to fight by getting out of the vehicle or invite you out of your vehicle?
A: No.

Eurther, Mr. Kindle chose to continue to follow the vehicle for nearly a mile, even though he had ample opportunities to turn around. Mr. Kindle was asked,

Q: If one of your students in school ... is feeling threatened by another person and reports that to you as the administrator, would it be your advice to that student to follow that other person?
A: No.

S.J.N-K. is not here because he tried to start a fight. S.J.N-K. is here simply because he mouthed . “fuck you” and flipped-off the principal. Substitute S.J.N-K.’s language and gesture with the idea being expressed — “I hate you.” If S.J.N-K. had waved with all of his fingers and mouthed, “I hate you,” we would not be here today.

[¶ 33.] In People of City of Oak Park v. Smith, 79 Mich.App. 757, 262 N.W.2d 900 (1977), the defendant, while involved in a minor traffic altercation, gave a plainclothes police officer the finger,4 and the defendants lips “were observed to move in what [the officer] believed to be an obscene utterance.” Id. at 901. The court found that these ■ were not “fighting words.” Id. at 903. Although “immature” and hurtful to the officer’s pride, they did not lead to a breach of the peace. Id. The gesture was not intended to provoke a fight or a breach of the peace. The motorist was merely registering displeasure. In fact, the’ court noted that such expressions were common in congested traffic. Id.

[¶ 34.] ’ While S.J.N-K.’s speech and conduct were also, immature and likely hurt Mr. Kindle’s pride, they did not inflict injury or tend to incite an immediate breach of the peace, and they therefore do not constitute “fighting words.”

[¶ 35.] As the court in City of Oak Park stated, “[g]iven the right circumstances, the law may -retaliate, not with its finger but with its long arm.” Id. The right circumstances do not exist in this case.

[¶ 36.] I dissent.

[¶ 37.] AMUNDSON, Justice, joins this dissent. '

. "The extended middle finger [as an] insult is of ancient origin. Diogenes is reported to have insulted Demosthenes with it.” City of Oak Park, 262 N.W.2d at 902 n1 (citing Betty J. Bauml and Franz H. Bauml, A Dictionary of Gestures, 71 (1975)).