dissenting.
I must respectfully dissent.
Given our appellate standard of review,1 the evidence in the trial court was clearly sufficient to support the factfinder's conclusion that Cavazos committed the offense of disorderly conduct by recklessly, knowingly, or intentionally making unreasonable noise and continuing to do so after being asked to stop. Ind.Code 35-45-1-3(2) (1982).
As the majority observes, however, this case is not that simple. I agree that Indiana's disorderly conduct statute must be carefully "construed to punish only unprotected speech and not be susceptible of an application to protected expression" under the first amendment. Gooding v. Wilson, (1972) 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, *62231 LEd.2d 408. My point of departure from the majority stems from a different interpretation of Cavazos's words: In my view, she uttered "fighting words" to Officer Grider both before and after being told to stop. Therefore, Cavazos's speech was unprotected, and she was properly convicted of disorderly conduct.
Beginning with an analysis of Cavazos's use of that indelicate term "asshole," I cannot believe our culture has changed so dramatically as to depart from the 1975 holding of this court that "personal epithets and verbal abuse ... do not enjoy constitutional protection." Stults v. State, (1975) 166 Ind.App. 461, 469, 336 N.E.2d 669, 674 (emphasis supplied). The term "ass" has long been employed as a colloquialism for a stupid or foolish person,2 but its use (or the use of any vulgar variation) does not make the word more acceptable or less "likely to provoke violent reaction." Cohen v. California, (1971) 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284. Remembering that the use of abusive epithets may be proscribed by the State "without a demonstration of additional justifying circumstances," id., I would afford Cavazos no protection for her behavior and would rely upon Chaplinsky v. New Hampshire, (1942) 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, as the landmark decision supporting that position:
"[T hhe right of free speech is not absolute at all times and under all cireumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.... [SJuch utterances are no essential part of any exposition of ideas .... 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.!"
Id. at 571-72, 62 S.Ct. at 768-69 (quoting Cantwell v. Connecticut, (1940) 310 U.S. 206, 309-10, 60 S.Ct. 900, 905-06, 84 L.Ed. 1213) (footnotes omitted; emphasis supplied).
Having concluded that Cavazos's use of this coarse word constituted "fighting words," I would observe that she was ordered to be quiet, after which she "continued to debate it." Record at 36. Such evidence permits the inference that her unreasonable noise was continuing, persistent conduct which, in my mind, satisfies the statutory and constitutional requirement for conviction.
If further analysis of Cavazos's exact language is necessary, however, the conviction should be affirmed for yet another reason: Prior to yelling the epithet at the officer, Cavazos was told to be quiet "(alt least twice," id., and the circumstances and language used which prompted the attempt to silence Cavazos demonstrate that she spoke "fighting words" even before she resorted to the use of abusive language.
"Fighting words" are those "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, supra at 572, 62 S.Ct. at 769. Cavazos's words satisfy that definition, given the context in which they were spoken. Officer Grider was attempting to arrest a struggling man in a tavern at one o'clock in the morning. Scuffling with the man in a narrow hallway containing six or eight people, the officer found himself in a precarious position. Prompted to radio for help, Officer Grider was shoved from behind several times, and his nightstick was wrested from him. Adding to the fracas was Cavazos's harangue-she yelled at the officer, questioning his actions and asserting that her brother's arrest was based upon a "grudge" held by Grider. Such conduct was likely to prompt violent action, either on the part of Officer Grider or other members of the hostile crowd. Her words could have done nothing but worsen a situa*623tion already bordering on violence. In this context, her language certainly constituted "fighting words." 3
"The State has a legitimate interest in enforcing its ... laws and its officers [are] entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction." Colten v. Kentucky, (1972) 407 U.S. 104, 109, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584. Indiana's disorderly conduct statute was properly and constitutionally used to serve such a goal in this case.
I would affirm the conviction.
. We may not reweigh evidence or judge the credibility of witnesses. Considering only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom, we must affirm if there is substantial evidence of probative value supporting the conclusion of the trier of fact. Gatewood v. State, (1982) Ind., 430 N.E.2d 781; Moon v. State, (1981) Ind., 419 N.E.2d 740.
. - See A Dictionary or & UNCONVENTIONAL EncuisH 18, 19 (7th ed. 1970).
. Cf. Lewis v. New Orleans, (1974) 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214. In Lewis, with facts similar to the ones before us, the majority of the Court declared unconstitutional a breach of the peace statute without deciding whether the defendant's language could be punishable under a properly limited statute. However, as Justice Blackmun observed in his dissent, the speech, uttered to a police officer, " 'plainly' was profane, 'plainly' ... was insulting, and 'plainly' ... was fighting." Id. at 136, 141, 94 S.Ct. at 973, 976 (Blackmun, J., dissenting).