The brief was filed in State v. Johnson, a Washington County case in which a driver, William Charles Johnson, apparently used some sort of amplified sound equipment to hurl both racist and anti-lesbian epithets at two women -- one of them an African American -- in a vehicle that had moved in front of his truck when the road narrowed from two lanes to one.
Johnson was convicted of violating Oregon’s so-called “fighting words” law, which makes it a crime to “harass or annoy … by publicly insulting” a person using “abusive words or gestures … intended and likely to provoke a violent response.” Oral arguments in the case are scheduled for Jan. 7 in Gold Beach.
The following statement on ACLU’s actions in the case was made by David Fidanque, Executive Director of the ACLU of Oregon:
The ACLU does not represent Mr. Johnson. We find his words racist, bigoted and despicable. We recognize that words can cause deep and longstanding pain, pain that endures, and many people in marginalized communities face such words every day.
But words are not physical violence, and if we allow words to be criminalized -- words with no threat of physical violence, as in Mr. Johnson’s case -- everyone’s right to think and speak freely will be diminished. The Oregon Constitution, in Article 1, section 8, does not allow that, and it is the ACLU’s mission to uphold the constitution.
We did not come to this decision lightly, and we recognize that many Oregonians may disagree with our decision. This is the first appellate case involving a law that we said was unconstitutional when it was passed more than 20 years ago. We’re making the same argument today that we made back then: Speech alone, without a threat of physical violence, cannot be criminalized in Oregon.
It’s important to understand that Mr. Johnson’s case involves Oregon’s Harassment (“fighting words”) statute, not the state’s Intimidation (hate crime) statute. The ACLU of Oregon was instrumental in rewriting the Oregon hate-crime law in 1983, ensuring its constitutionality. In 1989, we succeeded in expanding the law to include protections for people targeted based on their sexual orientation. In 1992, when that law was challenged, ACLU filed an amicus brief in support of the law, and the Oregon Supreme Court upheld it.
Regarding the “fighting words” statute, the Oregon Court of Appeals threw out an earlier version in 1984, and we urged the Legislature to repeal the law in 1985. Instead, the Legislature chose to rewrite it, despite ACLU warnings that the revisions were unconstitutional. State v. Johnson is the first appellate challenge in the 22 years since.
Mr. Johnson was convicted of a crime that consists of words alone without requiring a showing that he made any threat of physical violence himself. Had he threatened physical violence, his actions could -- and should -- have been prosecuted as a hate crime under Oregon’s Intimidation law. But the “fighting words” law is constitutionally flawed and should be overturned.
