Svedberg v. Stamness , 525 N.W.2d 678 ( 1994 )

NEUMANN, Justice.

Anthony Stamness appeals from a two-year disorderly conduct restraining order, issued under NDCC section 12.1-31.2-01 (Supp.1993), which enjoins specific threatening, abusive, and assaultive behaviors directed at Christian Svedberg. We affirm the district court’s order.

This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors. The district court heard evidence and concluded that Stamness had made threats against Svedberg’s physical safety including a direct threat against his life, as well as pursuing a course of action including “incessant teasing” and “harassment,” all of which left Svedberg afraid to attend school. Testimony indicated that Stamness and others referred to Svedberg as “Dumbo,” a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, “You had better watch it Dumbo or I will kill you.” In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that “Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including “Dumbo”), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg.”

Stamness’ appeal is based on two different issues. Stamness first asserts that the district court committed error when it found that “reasonable grounds” existed to support the issuance of a disorderly conduct restraining order. Stamness also argues that the restraining order improperly restrains his First Amendment right to exercise free speech as protected by the United States Constitution.

I. North Dakota’s Disorderly Conduct Restraining Statute

The statute used to issue the disorderly conduct restraining order in this action is NDCC section 12.1-31.2-01.¹ This statute allows a court to restrain conduct when it finds “that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct.” NDCC § 12.1-31.2-01(5)(d). This statute was enacted as part of the same bill that amended North Dakota’s disorderly conduct statute, codified at NDCC section 12.1-81-01 (Supp.1993). 1993 N.D.Laws 125. Should a court find “reasonable grounds” to believe the respondent has engaged in disorderly conduct, the court is granted the power to restrain any further acts, which essentially would be criminal actions. See NDCC § 12.1-31-01 (providing both a definition and a penalty for disorderly conduct).

A restraining order in North Dakota is a judicial remedy that is classified under NDCC chapter 32-06, entitled Injunctions. NDCC § 32-06-07 (1976). We have previously found that restraining orders are a species of injunction, distinguished basically by their temporary nature. Gunsch v. Gunsch, 69 N.W.2d 739, 749 (N.D.1954). Generally injunctions have “no criminal jurisdiction, and acts or omissions will not be enjoined merely on the ground that they constitute a violation of law and are punishable as crimes.” 43A C.J.S. Injunctions § 158. This is because, ordinarily, criminal sanctions provide the remedy for such violations. In this situation, however, the legislature has empowered the court to restrain criminal conduct upon a showing that reasonable grounds exist that tend to show disorderly conduct was committed. NDCC § 12.1-31.2-01.

An “injunction against acts in violation of law is proper where there is express statutory authority therefor.” 43A C.J.S. Injunctions § 158. When such authority exists, “[ijnjunctive relief under such statutes is not conditioned upon common law requirements but solely upon the terms of the statute.” Id. The statutory authority to enjoin these criminal acts provides the sole basis for the trial court’s actions in this case.

To issue a disorderly conduct restraining order, the trial court must find “reasonable grounds to believe that ... disorderly conduct” has been committed.² NDCC § 12.1-31.2-01(4) (providing guidelines for the granting of a “temporary disorderly conduct restraining order”); § 12.1— 31.2-01(5)(d) (providing that subsequent to a hearing a disorderly conduct restraining order may be issued). Nowhere does the statute define what is meant by the phrase, “reasonable grounds.” North Dakota does, however, have a long line of cases which have construed the phrase “reasonable grounds” as it has been used in other contexts. See, e.g., State v. Beaton, 516 N.W.2d 645, 647 (N.D.1994); Salvaggio v. North Dakota Dept. of Transp., 477 N.W.2d 195, 197 (N.D.1991); Wolf v. ND Highway Comm’r, 458 N.W.2d 327, 329 (N.D.1990); Zietz v. Hjelle, 395 N.W.2d 572, 574 (N.D.1986); Moser v. North Dakota State Highway Comm’r, 369 N.W.2d 650, 652 (N.D.1985) (all discussing the meaning of the term “reasonable grounds” in relation to DUI arrests under NDCC § 39-08-01). In those decisions we have consistently held that ‘“reasonable grounds’ is synonymous with the term ‘probable cause.’ ” Moser, 369 N.W.2d at 652.

Probable cause exists when the “facts and circumstances within the officer’s knowledge ‘ “are sufficient to warrant a [person] of reasonable caution in believing that an offense has been or is being committed.” ’ ” Beaton, 516 N.W.2d at 647 (quoting Moser, 869 N.W.2d at 652-53 (quoting Witte v. Hjelle, 234 N.W.2d 16, 18 Syllabus ¶ 3 (N.D.1975))). In light of this long-standing line of cases we will construe “reasonable grounds” as used in NDCC section 12.1-31.2-01 with an eye to our precedent.

Reasonable grounds exist for purposes of this section when facts and circumstances presented to the judge are sufficient to warrant a person of reasonable caution to believe that acts constituting the offense of disorderly conduct have been committed. Stamness, in the instant case, complains that the facts and circumstances presented to the judge did not create “reasonable grounds” and, therefore, the restraining order was erroneously issued. We have reviewed the transcript and the affidavits submitted in the instant case and are convinced that reasonable grounds exist to support the issuance of the order.

Our review of the transcript reveals that there was conflicting testimony presented both orally and by affidavits as to the types and the significance of threats that were issued by Stamness. In the instant case it appears the judge believed Svedberg and his witnesses. “[T]he trial court is in a better position to judge the demeanor and credibility of witnesses and weigh the evidence than we who have only the cold record to review.” Ludwig v. Burchill, 481 N.W.2d 464, 469 (N.D.1992). This is a province firmly entrusted to the trial court, and we will generally defer to its expertise. Stamness has failed to show us how or where the trial court breached its duty in the instant case. Therefore, his argument that reasonable grounds did not exist to support the issuance of the restraining order must fail.

II. Was Stamness’ Conduct Constitutionally Protected Speech?

Stamness argues that the trial court improperly ruled that his actions did not constitute an exercise of First Amendment free speech.³ He argues that his actions were constitutionally protected, and that the trial court therefore was required to “exclude evidence of the activity.” NDCC § 12.1-31.2-01(5)(d). If evidence of this protected activity were excluded, Stamness argues, there would not be enough evidence to support the “reasonable grounds” necessary to issue the restraining order. Id. We are unconvinced, however, that Stamness was engaged in constitutionally protected activity.

Freedom of speech and freedom of the press are protected by the First Amendment from infringement by Congress. Chaplinsky v. New Hampshire, 315 U.S. 568, 570, 62 S.Ct. 766, 768, 86 L.Ed. 1031, 1034 (1942). They likewise are afforded protection from invasion by state action through the Fourteenth Amendment because they are “fundamental personal rights and liberties.” Id. at 570-71, 62 S.Ct. at 768, 86 L.Ed. at 1034. The First Amendment generally prohibits the government from proscribing speech based on disapproval of its content. R.AV. v. City of St. Paul, Minn., — U.S. -, -, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305, 317 (1992); Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, 294 (1971). However, not all speech is constitutionally protected speech. See RAV. — U.S. at-, 112 S.Ct. at 2543, 120 L.Ed.2d at 317 (recognizing the United States Supreme Court’s approach to categories of speech which are not imbued with constitutional protection). We have always “permitted restrictions upon the content of speech” within certain limited parameters because certain areas of speech 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. at -, 112 S.Ct. at 2543, 120 L.Ed.2d at 317 (quoting Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035). These categories of expression are said “not [to be] within the area of constitutionally protected speech,” Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506 (1957); see also Chap-linsky, 315 U.S. at 571-72, 62 S.Ct. at 769, 86 L.Ed. at 1035; or that the “protection of the First Amendment does not extend” to these categories of speech. R.A.V., — U.S. at -, 112 S.Ct. at 2543, 120 L.Ed.2d at 317 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 504, 104 S.Ct. 1949, 1961, 80 L.Ed.2d 502, 519 (1984)).

Before analyzing whether the state has impermissibly encroached upon a person’s fundamental right of free speech it must be determined whether that expression is the type to which the First Amendment extends protection. In the context of the instant ease the question is more appropriately whether Stamness’ expression may be classified as “fighting words.” The United States Supreme Court has held that fighting words do not constitute an “essential part of any exposition of ideas.” Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035. Therefore, despite their verbal character, fighting words constitute a “ ‘non-speech’ element of communication,” and for First Amendment purposes are basically unprotected. R.A.V., — U.S. at-, 112 S.Ct. at 2545, 120 L.Ed.2d at 319.

Determining that fighting words are an unprotected form of communication is relatively effortless; however, determining what constitutes fighting words is infinitely more difficult. The basic test for what constitutes fighting words is enunciated in Chaplinsky:

The test is what [a person] of common intelligence would understand would be words likely to cause an average addressee to fight.... The English language has a number of words and expressions which by general consent are ‘fighting words’ when said without a disarming smile_ Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace....

Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770, 86 L.Ed. at 1036 (citing State v. Brown, 68 N.H. 200, 38 A. 731 (1895); quoting State v. McConnell, 70 N.H. 294, 47 A. 267, 267 (1900)). It is not sufficient, however, if words merely offend, cause one to be indignant, or rouse anger in the person hearing the words; they must incite an addressee to breach the peace immediately. Lewis v. City of New Orleans, 415 U.S. 130, 133, 94 S.Ct. 970, 972, 39 L.Ed.2d 214, 219 (1974). This definition recognizes that to determine whether a particular expression constitutes fighting words is dependent upon the context in which it was used. See Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770, 86 L.Ed. at 1036 (recognizing that an expression delivered with a “disarming smile” may not comprise fighting words while the same expression delivered in another context may). Likewise, what may have constituted “classical fighting words” in 1942 might comprise nothing more than an innocuous expression in 2010. Because of the elusive nature of fighting words, and because the meaning and usage of words is continually evolving, the only workable definition must necessarily be contextual. As Justice Holmes wrote, “[a] word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372, 376 (1918). “[Whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context.” Neiv York v. Ferber, 458 U.S. 747, 778, 102 S.Ct. 3348, 3366, 73 L.Ed.2d 1113, 1137 (1982) (Stevens, J., concurring in judgment). While Justice Stevens’ statement was meant as a criticism of the “categorical approach” to the First Amendment, it completely captures the essence of what a court must address in order to determine whether an expression constitutes fighting words.

To determine if an expression constitutes fighting words, we must ask whether the expression, if delivered to a reasonable and prudent person of common intelligence, would cause the addressee immediately to breach the peace. Cf Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770, 86 L.Ed. at 1036 (restating the essence of the fighting words test). This test is applied to identify fighting words when they are delivered in a “face-to-face” confrontation, and are directed at an individual addressee.⁴ Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770, 86 L.Ed. at 1036. Additionally, this is an objective test. See id. (the test is not to be “defined in terms of what a particular addressee thinks,” but rather by what an objective addressee would think).

This test, in essence, requires one to look at the context in which an expression was made. We hold that it is proper to consider the age of the addressee when determining the contextual setting. North Dakota courts have long recognized that actions and reactions of individuals differ according to age. See, e.g., Besette v. Enderlin Sch. Dist. No. 22, 310 N.W.2d 759, 763 (N.D.1981) (recognizing that the standard of care owed a child is greater than that owed an adult and increases with the immaturity of the child); Moe v. Kettwig, 68 N.W.2d 853, 860 (N.D. 1955) (recognizing that the standard of care imposed on a minor must be measured with regard to his age, capacity, intelligence, and experience). Logic demands that when determining whether an expression constitutes fighting words, the age of the addressee must be taken into account. No one would argue that a different reaction is likely if a thirteen-year-old boy and a seventy-five-year-old man are confronted with identical fighting words. Accordingly, we hold that to determine what constitutes fighting words, a court must consider both the content and the context of the expression, including the age of the participants.

The judge in the instant case did not err when he accepted evidence regarding Stamness’ taunts, threats including a threat to kill, and the public display of snow effigies which he concluded were constructed to harass Svedberg. In this context, when delivered to a fourteen-year-old, these actions when taken as a whole constitute fighting words, and are therefore unprotected by the First Amendment. Consequently, Stamness’ argument that he was engaged in protected activity fails.

Affirmed.

SANDSTROM, J., concurs.

1 .12.1-31.2-01. Disorderly conduct restraining order — Penalty.

1. "Disorderly conduct" means intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity.

2. A person who is a victim of disorderly conduct or the parent or guardian of a minor who is a victim of disorderly conduct may seek a disorderly conduct restraining order from any court of competent jurisdiction in the manner provided in this section.

3. A petition for relief must allege facts sufficient to show the name of the alleged victim, the name of the individual engaging in the disorderly conduct, and that the individual engaged in disorderly conduct. An affidavit made under oath stating the specific facts and circumstances supporting the relief sought must accompany the petition.

4. If the petition for relief alleges reasonable grounds to believe that an individual has engaged in disorderly conduct, the court, pending a full hearing, may grant a temporary disorderly conduct restraining order ordering the individual to cease or avoid the disorderly conduct or to have no contact with the person requesting the order. A temporary restraining order may be entered only against the individual named in the petition. The court may issue the temporary restraining order without giving notice to the respondent. The temporary restraining order is in effect until a hearing is held on the issuance of a restraining order under subsection 5.

5. The court may grant a disorderly conduct restraining order ordering the respondent to cease or avoid the disorderly conduct or to have no contact with the applicant if:

a. A person files a petition under subsection 3;

b. The sheriff serves the respondent with a copy of the temporary restraining order issued under subsection 4 and with notice of the time and place of the hearing;

c. The court sets a hearing for not later than fourteen days after issuance of the temporary restraining order unless the time period is extended upon written consent of the parties, or upon a showing that the respondent has not been served with a copy of the temporary restraining order despite the exercise of due diligence; and

d. The court finds after the hearing that there are reasonable grounds to believe that the respondent has engaged in disorderly conduct. If a person claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

6. A restraining order may be issued only against the individual named in the petition. Relief granted by the restraining order may not exceed a period of two years. The restraining order may be served on the respondent by publication pursuant to rule 4 of the North Dakota Rules of Civil Procedure.

7. A disorderly conduct restraining order must contain a conspicuous notice to the respondent providing:

a. The specific conduct that constitutes a violation of the order;

b. Notice that violation of the restraining order is punishable by imprisonment of up to one year or a fine of up to one thousand dollars or both; and

c. Notice that a peace officer may arrest the respondent without a warrant and take the respondent into custody if the peace officer has probable cause to believe the respondent has violated an order issued under this section.

8. If the respondent knows of an order issued under subsection 4 or 5, violation of the order is a class A misdemeanor. If the existence of an order issued under subsection 3 or 4 can be verified by a peace officer, the officer, without a warrant, may arrest and take into custody an individual whom the peace officer has probable cause to believe has violated the order.

9. The clerk of court shall transmit a copy of a restraining order by the close of the business day on which the order was granted to the local law enforcement agency with jurisdiction over the residence of the alleged victim of disorderly conduct. Each appropriate law enforcement agency may make available to its officers current information as to the existence and status of any restraining order involving disorderly conduct.

10.Notwithstanding subsection 5 of section 11-16-05, a state’s attorney may advise and assist any person in the preparation of documents necessary to secure a restraining order under this section.

NDCC, § 12.1-31.2-01 (Supp.1993).

2 . Even though the statute only requires that “reasonable grounds” be shown to support the issuance of a restraining order, the trial court in the instant case required petitioner to show by a preponderance of the evidence that the order should be issued. This is a more stringent standard than contemplated by the statute.

3 . Stamness neither argues nor do we consider the constitutionality of the statute itself. Rather, his constitutional challenge runs along evidentia-ry lines and is based on the statute.

4 . The question before us only requires that we define fighting words with respect to face-to-face confrontation between two individuals. We therefore need not define a test to be used when words are directed at a group.