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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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