dissenting.
I dissent.
Mindful of my obligation not to reweigh evidence, I have listened to and have been impressed by a microcassette entered into evidence and played at trial by Gilíes which he contends recorded the entire incident leading to his arrest at the June 20, 1987 Freedom Festival/Bierstube. Gilíes carried a tape recorder in plain view in his breast pocket and made a recording of the Bierstube incident. Although background music and noise makes listening difficult, I believe the following constitutes a fair transcription of the recording:
“Gilíes: June 20, 1987
“Crowd voice: How’s everything going?
“Gilíes: I’m doing just fine, how about yourself?
“Crowd voice: Great.
“Gilíes: Are you drunk?
“Crowd voice: Well, I’m gettin there.
[Music and crowd noise]
“Musician: Thank you very much.
[Inaudible words from musician]
[Music and crowd noise]
“Musician: Thank you.
“Gilíes: Repent you drunkards, weep and howl all you drinkers of wine for the new wine is cut off from your mouths.1 You people here are a bunch of miserable wretched wretches. People is the scum of the earth. Drunkards, lusty perverts ... [crowd voice: Fuck you] ... and all manner of wicked wicked devil, repent and turn to Lord Jesus and he’ll set you free from your drunkenness and give you life in peace and joy in the holy ghost. You bunch of drunkards. You will burn in a lake of fire unless you repent from your wicked ways. But you know what? You sinners love your sins. You love to drink booze. You love to smoke dope. You love to listen to rock and roll music. You love country music and you’re wicked wicked wicked wicked. Repent. Repent. Repent.
“Crowd voice: Keep goin, dude.
[Music and crowd noise]
“Gilíes: Music [over music and crowd noises]
“Gilíes: Repent you lusty perverts. Most of you here are looking for nothing but an easy lay. Most of you only want a hot time tonight but don’t you know that this place is filled with people with herpes simplex two, super gonorrhea three, genital warts, chlamydia you know what even “A” “I” “D” “S", AIDS. There are people here who even have AIDS tonight and you *224better watch out cause you may just get infected yourself, and if you ...
“Police Officer: How are you doing?
“Gilíes: I’m doin just fine.
“Police Officer: Did you buy yourself a uh new one?
“Gilíes: I’ve had it about three years.
“Police Officer: What’s the problem tonight?
“Gilíes: I have no problem whatsoever.
“Police Officer: What’s the problem is that you’re creating a disturbance over here?
“Gilíes: Say that again, sir.
“Police Officer: What’s the problem is that you’re creating a disturbance here tonight?
“Gilíes: I didn’t know I was creating disturbance.
“Police Officer: You are creating a disturbance.
“Gilíes: Uh, says who?
“Police Officer: Says me.
“Gilíes: And who are you?
“Police Officer: The same person I was the last time that I arrested you.
“Gilíes: Oh, I forgot your name.
“Police Officer: Well, when I write it down in a arrest sheet you’ll have it, okay? Then you can turn that in as evidence. Now, we go through this every year so if you’ll just go ahead and walk off everything will be fine. And if you want to continue to be disorderly in a public place and disrupt the activities here, then we’ll place you under arrest for disorderly conduct.
“Gilíes: I was out here last year preach-in, nobody gave me any hassels. You were not out here last year when I was here obviously and the officer then did not deem it to be disorderly or disruptive.
“Police Officer: Well, apparently that ficer didn’t deem it as I deem it.
“Gilíes: Correct.
“Police Officer: So, uh, like I said, if you continue to be disorderly you’ll be arrested for it, so you can do whatever you want to do. It makes me no difference.
“Gilíes: Okay.
“Police Officer: I’m sure you’re gonna continue it so uh and you’ve been down there before.
“Gilíes: And you know I’m not afraid of it.
“Police Officer: Well, you know I’m not afraid to arrest you for it.
“Gilíes: Well, that’ll probably change in the future.
“Police Officer: Well, you get your little article in the paper and another year goes by so that don’t bother me any.
“Gilíes: Well, you know what? I’ve been arrested five times in Evansville and six times might be something different.
“Police Officer: It might be, I doubt it though. It won’t be any different for me.
“Gilíes: You might find
“Police Officer: Okay, good luck to you.
[Music and crowd noises]
“Crowd voice: [inaudible]
“Gilíes: It’s not. By who? By
“Crowd voice: [inaudible]
“Gilíes: This is the perfect place for it. You know why? Cause you’re here.
“Crowd voice: It’ll get you in
“Gilíes: I’ll preach in
“Crowd voice: [inaudible]
“Gilíes: You can’t even express yourself intelligently, you know that?
“Crowd voice:
“Gilíes: Yeah and you’re drunk, you’re drunk, you’re drunk.
“Crowd voice: Yeah, I’m
[Tape was rewound and rerecorded at this point—the next two lines were probably recorded after arrest]2
“Gilíes: I’ll get you for tampering evidence.
*225“Police Officer: You won’t get me for anything.
“Gilíes: (to man in crowd) Isn’t your father? Doesn’t he live on Lincoln Avenue? Aren’t you a Gripe? (phonetic)
“Crowd voice: [inaudible ... eat pussy ...]
“Police Officer: Step over there please.
“Gilíes: Step over where?
“Police Officer: Step over there.
“Gilíes: Uh, who’s telling me to do that? I haven’t got your name yet.
“Police Officer: You don’t need my name.
“Gilíes: Well how do I know who you are? You haven’t identified yourself one bit.
“Police Officer: Who do you think I am?
“Gilíes: You’re a man about 6 foot tall.
“Police Officer: Okay, whatever you think.
“Gilíes: Am I obstructing traffic on the sidewalk?
“Police Officer: Nope, but you’re ready to impede your mental flow real dangerously-
“Gilíes: My what flow?
“Police Officer: Your mental flow is get-tin’ real low.
“Gilíes: Mental flow, huh? That must be a new psychological term, I don’t understand it.
[Inaudible crowd noises]
“Gilíes: (to man in crowd) You’re a Gripe (phonetic) aren’t you?
“Man in crowd: A what?
“Gilíes: Gripe, your last name is Gripe?
“Man in crowd: No I’m not.
“Gilíes: You’re not? Okay.
“Different man in crowd: [inaudible] ... mister, what are you?
“Gilíes: Repent or perish. Turn or burn. The bible tells us it is a fearful thing to fall into the hands of the living God for God is a consuming fire and he is a jealous God and he takes vengeance on his adversaries and those who mock him will not prosper.
“Police Officer: Mr. Gilíes my name is Sgt. Paddock. I’m an officer of the Evansville Police Department and you are under arrest for disorderly conduct. Do you understand that? Step over here please.”
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I note the language Gilíes used is characteristic of an aggressive preacher. From listening to his voice, I also note he was at all times quite rational and never out of control. During confrontations with the policemen, his tone of voice mirrored that of the police officer he was speaking to at the time.
However, because the recording does not contain the incriminating explicatives the police officers3 testified under oath Gilíes used, I must assume the trial court believed that bedid not record the entire event. Or perhaps it is equally reasonable to assume the police officer rewound and rerecorded over part of the tape and inadvertently erased inadexplicatives in question.
Let quesbe no misunderstanding as to my purpose in transcribing the recording. I wish to demonstrate the context of Gilíes’s speech which is of utmost importance in our decision today. I do accept the police officers’ testimony—that most favorable to the trial court’s decision—and do not reweigh the evidence.
An element necessary to sustain a conviction for disorderly conduct/fighting words is that the words in question must be “ ‘directed to the person of the hearer’ in the sense that they are a face to face personal insult.” Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426, 428 (citing Cantwell v. Connecticut (1940), 310 U.S. 296, 309, 60 S.Ct. 900, 906, 84 L.Ed. 1213).
The majority states that Gilíes employed fighting words with “reference to the crowd.” It goes on to say that nonspecific words were directed in particular to four *226young men. The police officer’s testimony with respect to these nonspecific words directed to the young men (referenced to by transcript page number by the majority) is as follows:
“Q. What words did he use when he addressed them?
A. Just the same general attitude, condemnation, you’re going to hell, what you’re doing is wrong, quoted versus [sic] from the old testament.”
constituof our Mesarosh, to enforce constitutional rights, Mesarosh, supra. I must insufthat the evidence is plainly insufficient to establish the “personal insult” element of the crime as charged. Simply because, as the majority noted, “[s]ome people characterizations,"4 umbrage at Gilles’s message and characterizations,”4 Gilles's message may not be prohibited by law and punished by criminal sanctions.
Even if the evidence were sufficient to show Gilíes inflicted fighting words neverthesomeone in particular, Mesarosh, would, nevertheless, dissent. In Mesarosh, supra, we quoted the following as a partial definition of fighting words:
“[s]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. 459 N.E.2d at 428 (citing Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031).
Gilles’s speech was entirely in the context of an exposition of ideas; he was preaching. The context of Gilles’s speech— preaching—distinguishes the case at bar from Chaplinsky and Mesarosh where personal insults were leveled at police officers making arrests.
Although Gilles’s alleged profanity may not have been an “essential” part of his message, vulgar linguistic expression serves purpose inexpressible emotions. Cohen v. California (1971), 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, rehearing (1971), 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124. These words are often chosen as much for their emotive as their cognitive force. As stated by Justice Harlan:
“[W]hile the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, [Cohen’s jacket bore the inscription ‘Fuck the Draft’] it is nevertheless often true that one man’s vulgarity is another’s lyric.”
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“We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech has little or no regard for that emotive function which practically speaking, may often be the more important element of the overall message sought to be communicated.” Id.
Under the present circumstances, the social value of Gilles’s preaching as a step to the truth is not outweighed by the social interest in order and morality. The incidental use of offensive explicatives does not detract from the protection offered speech. I would reverse Gilles’s conviction and instruct the trial court to enter a judgment of acquittal.
. Gilíes testified this is a verse from the Bible, Joel 1:5, that he has read in years past to the Bierstube crowd at the Freedom Festival.
. I assume this based on Gilles’s testimony trial to this effect. A policeman testified attempted to turn the tape he had never handled a tape recorder before.
. One policeman testified he did not recall the nature of the profanities used. Another stated Gilíes used the words "fuckers, whores, fuck, hell, and damn.” The policewoman testified Gilíes used the words "fuckers, sinners, whores, and queers.”
. I note the word "some” is a relative term. may mean the four young men, the three police officers, or any number of the crowd. umbrage" is likewise not very descriptive. ther the State nor the majority assert the was justified in arresting Gilíes as an exercise of its police power to prevent a speaker from intentionally provoking a group to violence, (as in Feiner v. New York (1951), 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295.)