ILNews

Judge sees shift in 'constitutional jurisprudence' in protected speech cases

Michael W. Hoskins
January 1, 2007
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A separate concurring opinion by a Court of Appeals judge describes what he calls "a fundamental shift in Indiana's constitutional jurisprudence."

Judge James S. Kirsch made his statements in the unanimous, 3-0 opinion today in Latoya A. Blackman v. State of Indiana, No. 49A02-0610-CR-893, which involves a woman convicted of disorderly conduct in 2005 for yelling, swearing, and non-compliant behavior toward police officers during a vehicle narcotics search of the car in which she was riding.

The court ruled that Blackman's arrest for disorderly conduct did not violate the law and that her speech was not considered political speech protected by the constitution.

While concurring, Judge Kirsch noted, "I write separately only to note what I believe is a fundamental shift in Indiana's constitutional jurisprudence."

He voiced disagreement with recent cases following a landmark ruling by the Indiana Supreme Court in Price v. State, 622 N.E. 2d 957 (1993), which held that protections were afforded to similar type speech. Since then, the state's justices in January decided J.D. v. State, 859 N.E.2d 341 (Ind. 2007), which held that speech - albeit political - was not entitled to constitutional protection where it consisted of "persistent loud yelling over and obscuring of [the arresting officer's] attempts to speak and function as a law officer." This was an abuse of free speech, the court wrote.

"Without regard to whether J.D. is the death knell of Price and Indiana's independent constitutional jurisprudence, Blackman's speech here falls within that determined to be abusive by the Court in J.D.," he wrote. "Accordingly, I concur in the majority's decision."
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  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

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  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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