Jailed for speaking her mind
By Vin Suprynowicz
January 5, 2003
It “was a little past 11 a.m. on an August day in 1998 when Janice Barton, 45, was leaving the Peppermill Restaurant in the Lake Michigan shoreline community of Manistee, with her mother and daughter,” reported Michael G. Walsh of the Muskegon Chronicle, back in August 2000. “As Barton and her family tried to make their way through the crowd, a man — in Spanish — asked his wife to make room for them.”
According to witnesses, Barton, who does not understand Spanish, told her mother: “I wish these damned Spics would learn to speak English.”
Carol Benitez, one of the Spanish speakers and an off-duty Manistee County sheriff’s deputy, followed Barton outside and copied down her license plate number.
Almost two weeks later, Barton was charged with disturbing the peace. But when she appeared in court Oct. 13, 1998, the charge against Barton was changed to “insulting conduct in a public place” under a city ordinance — similar to ordinances now widespread in the area — which simply declares, “No person shall engage in any indecent, insulting, immoral or obscene conduct in any public place.”
In court that December, Barton testified that she believes immigrants should speak English when in the United States. But the jury agreed with the judge that Barton’s words were “fighting words” — not the kind of speech protected by the First Amendment — and convicted her of the misdemeanor.
Judge Brent Danielson initially sent her to jail for 45 days, but eventually released her after only four. Judge Danielson said: “This isn’t just some generalized stupid speech where someone is just engaging in fascist xenophobic logorrhea. This is directed at someone. It’s — you don’t say words like this when someone is present, like this, unless you are either intending to hurt them, to injure them, or you are intending to engage in some kind of a physical altercation. This is a restriction on a free speech that’s especially to be guarded in Michigan.”
Stephen Safranek, professor of constitutional law at the Ave Maria School of Law in Ann Arbor, believes Manistee’s ordinance “chills” political speech.
“In this particular case, using ‘insulting’ (in the statute) is so overbroad I don’t know how you correct it to not make it unconstitutional,” Safranek says. “How do you fix the term ‘insulting’ so it doesn’t include protected speech, because much speech is insulting.”
As Mrs. Barton and her attorneys have since pointed out, the question of whether America should bend to the convenience of this one particular minority — after all, traffic signs and election ballots were never required to be printed in Italian, Polish or German to succor the needs of the major immigrant groups of 100 years ago — is a legitimate matter of ongoing public debate. And though her statement may have been hasty, tasteless and impolite, nowhere in the First or 14th Amendments do we find a provision that Congress and the states “shall make no law … abridging the freedom of speech, unless someone within earshot might find the speech unpleasant or offensive.”
“It is possible to empathize with Mrs. Barton without being a racist,” opined former assistant Treasury secretary, now syndicated columnist, Paul Craig Roberts on Nov. 14. “Many Americans feel their communities, which give them identity, are being overrun by peoples from different cultures speaking alien languages. Manistee is a long way from warm, sunny Mexico, and yet Mrs. Barton, out with her mother, found multicultural diversity thrust upon her.
“Mrs. Barton expressed an annoyance, hardly a criminal action. Yet … Mrs. Barton was arrested and convicted for committing a ‘hate crime.’ Something has badly gone wrong when native-born Americans cannot express private thoughts to their own family without being put in jail,” Roberts continued.
On Nov. 1, a Michigan appeals court reversed Mrs. Barton’s conviction. The reversal, however, was on the very narrow grounds that Mrs. Barton was convicted for “conduct she could not reasonably have known was criminal.”
“Note that the appeals court did not say that in America the Constitution guarantees free speech and that no American under any circumstances can ever be arrested, charged and convicted for expressing their thoughts and feelings privately to another person,” Roberts concludes. “This fundamental right has vanished in Michigan. …”
Would it be wise public policy to forbid legal immigrants to speak their own native language among themselves? I don’t happen to think so — my father’s parents never learned much English. But the question here is whether our Constitution guarantees Mrs. Barton’s right to say stupid and hateful things … and most particularly, whether we want government agents with monopoly access to guns and jail cells to decide when we’re being stupid and hateful.
Yes, Mrs. Barton’s comment was impolite, inconsiderate and in bad taste. But what the other side is doing in this cultural war is far worse. For it is not merely a far-fetched theoretical notion that they might use this new “politeness” puritanism to actually foreclose, shut down, stymie and disallow a vital public debate on issues of legitimate public concern by barring the very language by which their opponents may choose to express those ideas.
Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal.