dissenting.
I dissent.
It is not necessary that the speech in question fall within the category of constitutionally unprotected speech to constitute "unreasonable noise" under the disorderly conduct statute.1 The disorderly conduct statute imposes reasonable limitations on the time, place, or manner of expression of speech activity if its application is not based on the content of the speech. However, in this case, Robinson's conviction for disorderly conduct was based on the content of his speech, ie., "shouting obscenities at police". Record at 5. Thus, if Robinson's speech is protected by the Constitution, his conviction must be reversed for lack of sufficient evidence to support the conviction.
Robinson's language does not constitute "obscene" language. Unprotected "obscene" language must be erotic or deal with sex in a manner appealing to prurient interest. See Cavazos v. State (1983), Ind.App., 455 N.E.2d 618, 620.
Robinson's words also are not "fighting words." "Fighting words" are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. City of Houston v. Hill (1987), 482 U.S. 451, 461-62, 107 S.Ct. 2502, 2509-10, 96 L.Ed.2d 398; Cavazos, 455 N.E.2d at 619. I acknowledge the words "motherfucker" and "fuckers" have been held to constitute "fighting words." See Brittain v. State (1990), Ind.App., 565 N.E.2d 757; Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426, Stults v. State (1975), 166 Ind.App. 461, 336 N.E.2d 669; see also State v. Weber (1986), 6 Conn.App. 407, 505 A.2d 1266, certification denied, 199 Conn. 810, 508 A.2d 771; L.J.M. v. State (1989), Fla.Dist.Ct.App., 541 So.2d 1321, review denied, Fla., 549 So.2d 1014; City of Saint Paul v. Morris (1960), 258 Minn. 467, 104 N.W.2d 902, cert. denied, (1961), 365 U.S. 815, 81 S.Ct. 696, 5 L.Ed.2d 693; State v. Groves (1985), 219 Neb. 382, 363 N.W.2d 507. Indeed, at some earlier point in time, the terms undoubtedly had a meaning which would fall within the seope of "fight ing words." However, in present common usage, "a mean, despicable, or vicious person," and "anything considered to be despicable, frustrating," Random House Webster's College Dictionary 884 (1991), the words do not fall within that category. So defined, the terms are no more injurious than the term "asshole," defined as "a stupid mean, or contemptible person," id. at 82, and which was found not to constitute a "fighting word" in a similar factual setting. See Covazos, 455 N.E.2d 618 (calling police officer an "asshole" while arguing over the arrest of another does not constitute "fighting words"); see also Buffkins v. City of Omaha (1990), 8th Cir., 922 F.2d 465, cert. denied, (1991), - U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 225 (calling police officer "asshole" at end of narcotics investigation does not constitute "fighting words").
Also, Mills did not claim he viewed Robinson's language as part of an effort to provoke violence. In context, Robinson's language can be viewed only as an expression of his frustration with the detainment and investigation. Robinson wanted Mills to leave him alone.
Certainly I do not condone Robinson's language. It is offensive under any circumstance but especially so when spoken *537to a police officer performing his duty. However, speech directed to police officers cannot be held to a higher standard than speech directed to a member of the public at large:
[Thhe First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. "Speech is often provocative and challenging ... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."
Hill, 482 U.S. at 461, 107 S.Ct. at 2509 (citations omitted). Furthermore, the constitutional protection of free speech does not vanish merely because speech is offensive. Texas v. Johnson (1989), 491 U.S. 397, 414, 109 S.Ct. 2533, 2544-45, 105 L.Ed.2d 342.
Because Robinson's speech is protected by the Constitution, the evidence is insufficient to sustain his conviction.
. IC 35-45-1-3 provides in relevant part: A person who recklessly, knowingly, or intentionally:
(2) makes unreasonable noise and continues to do so after being asked to stop ... commits disorderly conduct....