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2022 PA Super 195
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN WILLIAM COLLINS :
:
Appellant : No. 1419 MDA 2021
Appeal from the Judgment of Sentence Entered September 9, 2021,
in the Court of Common Pleas of Huntingdon County,
Criminal Division at No(s): CP-31-CR-0000227-2020.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
DISSENTING OPINION BY KUNSELMAN, J.: FILED: NOVEMBER 18, 2022
I agree with the Majority that there was sufficient evidence to support
Mr. Collins’ conviction for harassment under 18 Pa.C.S.A. § 2709(a)(3) and
join that section of the Majority Opinion in full. However, because the First
Amendment to the Constitution of the United States bars Pennsylvania from
prosecuting Mr. Collins’ speech under the facts of this case, I must respectfully
dissent.
In his as-applied claim of unconstitutionality, Mr. Collins argues that
subject to well-defined exceptions, all speech in America comes under the
protections of the First Amendment, even when rude, vulgar, or offensive. He
observes that the Supreme Court of the United States recognized specific
categories of speech that a state may punish including obscenity, defamation,
and fighting words. See C.W. v. Swillinger, 676 A.2d 687, 689 (Pa. Super.
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* Retired Senior Judge assigned to the Superior Court.
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1996) (citing R.A.V. v. St. Paul,
505 U.S. 377 (1992)); see also United
States v. Alvarez,
576 U.S. 709, 717-18 (2012) (opinion of Kennedy, J.)
(listing “historic and traditional categories” of unprotected speech); United
States v. Stevens,
559 U.S. 460, 468-69 (2010). In his view, the poster
and letters regarding Mr. Hoffman are none of those types of speech. I agree.
My learned colleagues in the Majority do not identify any recognized
exception to the First Amendment that would apply to Mr. Collins’ speech.1
This deficiency should end our analysis, and Mr. Collins’ conviction should be
overturned. Nevertheless, the Majority denies his speech constitutional
protection by crafting a new exception to the First Amendment, the “shame
and provoke” exception. Id.
If this novel exception gains acceptance, it will swallow the whole
purpose of the rule – i.e., that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I.2 If the Majority’s novel,
amorphous “shame or provoke” exception is added to the corpus of
constitutional law, it will overshadow and impede an important purpose of this
rule – to facilitate the free flow of ideas in society. See Virginia St. Bd. of
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1The Majority’s reliance on Commonwealth v. Hendrickson, 724 A.2d 315,
318 (Pa. 1999) to support Mr. Collins’ harassment conviction is misplaced.
See Majority Opinion at 14. That case is distinguishable because it dealt with
punishing the harassing conduct and not the speech itself. Here, by contrast,
Mr. Collins was convicted not for his actions but for the content of his speech.
2 The Due Process Clause of the Fourteenth Amendment incorporated the
freedom of speech against the States. See Gitlow v. New York,
268 U.S.
652 (1925).
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Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765
(1976). The Framers did not draft the First Amendment to shield blessings or
compliments from censorship. Kind and complimentary speech does not need
constitutional protection. Speech that criticizes, however, does. The First
Amendment deliberately protects speech that some might find offensive.
Thus, speech that might shame or provoke people falls under this protection.
Unlike the Majority, I would enforce only the limited exceptions to free speech
that the Supreme Court of the United States has articulated over the
centuries, and not create a new one.
The Majority’s reliance on Snyder v. Phelps, 562 U.S. 443 (2011), to
support its conclusion is bewildering. My colleagues cite this case for the
general premise that “Not all speech is of equal First Amendment importance,
[] and where matters of purely private significance are at issue, First
Amendment protections are often less rigorous.”
Id. at 452. In Snyder, the
Supreme Court of the United States noted, “Speech is powerful. It can stir
people to action, move them to tears of both joy and sorrow, and—as it did
here—inflict great pain.”
Id. at 460-61. Even still, the court recognized that
it could not “react to that pain by punishing the speaker.”
Id. at 461. The
court explained, “As a Nation we have chosen a different course—to protect
even hurtful speech on public issues to ensure that we do not stifle public
debate.”
Id.
The speech at issue in Synder involved a church picketing the funeral
for a deceased military member. The picket signs reflected the church's view
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that “the United States is overly tolerant of sin and that God kills American
soldiers as punishment.” Id. at 447. The family of the deceased soldier sued
for intentional infliction of emotional distress and other torts. The High Court,
however, determined that under the First Amendment tort liability could not
be imposed on the church for what it said.
Here, the speech at issue was far less shameful and provocative than in
Snyder, and the penalty was more stringent, as it involved criminal rather
than civil consequences. While speech here is not of public concern or
regarding public figures and thus may arguably be of lesser importance under
the First Amendment, that does not mean that the speech forfeits all
protections. For the state to criminalize private speech, the speech must fall
neatly in one of the exceptions recognized by the Supreme Court of the United
States. See Stevens, 559 U.S. at 471-72.
In the landmark case of Chaplinsky v. New Hampshire, 315 U.S. 568
(1942), the High Court identified certain types of speech that the First
Amendment allows the States to prosecute. “There are certain well-defined
and narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem.”
Id. at
571-72. Sanctionable speech includes “the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words—those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.”
Id. at 572.
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Such “utterances are no essential part of any exposition of ideas and
are of such slight social value . . . that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.” Id.
“Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and
its punishment as a criminal act would raise no question under that
instrument.”
Id. (quoting Cantwell v. Connecticut,
310 U.S. 296 (1940)).
In its brief, the Commonwealth latches on to that quotation from
Cantwell. It uses the statement to suggest that Mr. Collins’ poster and letters
are proper subjects for prosecution. See Commonwealth’s Brief at 3 n.4.
However, the Commonwealth has taken the excerpt out of context. In
the sentence prior to that statement, the Cantwell Court offered a proviso:
“the provocative language which was held to amount to a breach of the peace
consisted of profane, indecent, or abusive remarks directed to the person
of the hearer.” Cantwell, 310 U.S. at 309 (emphasis added). In other
words, the epitaphs or personal abuses that the First Amendment allows
States to prosecute are those likely to incite the hearer to assault someone
else or to riot — i.e., to breach the peace. See
id. Otherwise, the State has
no compelling interest to justify curtailing the speaker’s freedom of speech.
In this case, both parties agree that Mr. Collins did not distribute the
poster or letters to the person they ridiculed (Mr. Hoffman) or anyone else
who would have likely reacted in a violent manner to the content (such as Mr.
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Hoffman’s family or close friends).3 As such, the posters and letters do not
constitute “abusive remarks directed to the person of the hearer.” Cantwell,
supra. Instead, they were directed to disinterested third parties, and the
record does not indicate that any of those people were likely to breach the
Commonwealth’s peace upon reading Mr. Collins’ poster or letters.
In fact, every person who read them reacted peaceably. The mail carrier
removed the poster from the mailboxes, Ms. Snyder took the poster down and
threw it in the trash, and Mrs. Heester turned her letter over to the postal
clerk. Thus, everyone’s reactions to them were calm, rational, and peaceful.
No one took Mr. Collins’ bizarre, immature rant in the poster or letters
seriously. His communications did not stir any of his readers to anger, much
less hostility. This incident created no possibility that the peace would be
breached by violence against Mr. Collins or anyone else.
“When clear and present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate threat to public safety,
peace, or order, appears, the power of the state to prevent or punish is
obvious.” Cantwell, 310 U.S. at 308. Here, no such threats to public safety
even potentially manifested themselves. Therefore, I conclude that neither
the poster nor the letters contained any “fighting words” over which the
Commonwealth could assert a compelling governmental interest in curtailing.
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3 In this way, the constitutional analysis differs from the sufficiency analysis
cogently articulated by the Majority. Majority Opinion at 7-10.
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Additionally, the words did not amount to a “true threat” against Mr.
Hoffman that would justify criminal prosecution. As the Supreme Court of
Pennsylvania observed, the Constitution of the United States allows states to
criminalize threatening speech that is specifically intended to terrorize or
intimidate. Commonwealth v. Knox, 190 A.3d 1146, 1158 (Pa. 2018)
(citing Virginia v. Black,
635 U.S. 343 (2003)). In evaluating whether the
speaker acted with an intent to terrorize or intimidate, evidentiary weight
should be given to contextual circumstances such as those referenced in
Watts v. United States,
394 U.S. 705 (1969) (per curiam) (explaining that
the government may criminalize “true threat[s]” but not mere political
hyperbole).4
Our Supreme Court in Knox applied this framework to assess whether
song lyrics threatening two police officers were “true threats” such that the
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4 Watts was convicted under a federal statute making it a crime to threaten
the President. See 18 U.S.C. § 871(a). The Supreme Court found the statute
facially valid considering the “overwhelming” interest in protecting the
President's safety and allowing him to perform his duties unhampered by
threats of violence. Watts,
394 U.S. at 707. Nevertheless, the Court
concluded that Watts' conviction could only be upheld if his words conveyed
an actual threat as opposed to political hyperbole. Considering the full context
of the statement – it was uttered during a political debate which often involves
inexact and abusive language, the alleged threat was conditioned on an event
Watts vowed would never occur (his induction into the military), and the
audience reacted by laughing – the Court determined that the statement could
only reasonably be interpreted as an expression of political dissent and not a
true threat. Thus, the Court overturned Watts' conviction. See Watts,
394
U.S. at 708.
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First Amendment did not prevent prosecuting Knox for his speech. The
analysis is instructive.
Our Supreme Court examined the lyrics and concluded that they
primarily portrayed violence toward the police, ostensibly due to the officers'
interference with Knox’s activities. The lyrics included unambiguous threats;
they referenced “soldiers” that will “f--k over” the police, a plan to make false
emergency calls and “bust[ ] heavy metal” toward the officers who respond
to the call, and a desire to “jam this rusty knife all in [the officer's] guts.”
Id. at 614.
The lyrics also appeared to express a consciousness that they step
beyond the realm of fantasy or fiction because Knox wanted the whole city to
“believe” him. Similarly, he vowed that the activities described would be “real”
once a certain named individual returned from military service.
These aspects of the song tended to detract from any claim that Knox’s
words were only meant to be understood as an artistic expression of
frustration. Most notably along these lines, Knox mentioned the officers by
name, stating that the lyrics are “for” them, and then proceeded to describe
in graphic terms how he intended to kill those officers. In this way, the lyrics
were both threatening and highly personalized to the victims.
The lyrics also referenced Knox’s purported knowledge of when the
officers’ shifts end and, in light of such knowledge, that Knox would “f--k up
where you sleep.”
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Additionally, the threats were directed at the officers based on the
complaint, tied to interactions which had recently taken place between them
and Knox, that the police had been “knockin' my riches” – as one officer did
by confiscating cash from Knox upon his arrest – and vowing that the police
“won't keep” doing so (reflecting the officer’s testimony that “knocking riches”
is a slang phrase which refers to a police officer confiscating cash during an
arrest where drugs are involved). Along these same lines, they refered to the
police having “tak[en] money away from” Beasley “and all my s--t away from
me.” Such harm to Appellant's personal wealth, and the officers' interference
with his drug-selling activities, together with the upcoming criminal
proceedings at which the latter were scheduled to testify against Appellant,
were stated in the lyrics to provide the primary motivation for Appellant's
desire to exact violent retribution.
Finally, the lyrics suggested a knowledge of the identity of the officers'
confidential informants and a plan to murder at least one such informant with
a Glock. The words themselves were not the only component of Knox’s
expressive conduct which tends to make the song threatening. The soundtrack
included bull horns, police sirens, and machine-gun fire ringing out over the
words, “bustin' heavy metal.” Examining the words in this context, our High
Court found the lyrics amounted to a true threat and upheld Knox’s criminal
convictions for terroristic threats and witness intimidation.
Here, by contrast, the language of Mr. Collins’ poster and letters did not
truly threaten Mr. Hoffman. Instead, they were mere hyperbole. Mr. Collins
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did not express a desire to harm Mr. Hoffman, nor did he communicate the
message on the documents directly to Mr. Hoffman. Therefore, Mr. Collins’
speech was not a “true threat” that the government could prosecute.
Having determined that Mr. Collins’ poster and letters did not amount
to fighting words or true threats, I also note that they could not be classifiable
as “the lewd and obscene, the profane, [or] the libelous.” Chaplinsky, 315
U.S. at 572. Nothing in the poster or letters was sexually suggestive, and
there was no profanity or obscenity. Additionally, no reasonable reader could
interpret them as making factual allegations concerning Mr. Hoffman’s
ancestry as being half goat and half pig. Thus, they are incapable of being
deemed libelous publications, because they have no defamatory meaning.
See, e.g., Burns v. Cooper,
244 A.3d 1231, 1236 (Pa. Super.
2020), reargument denied (Oct. 14, 2020), appeal denied,
252 A.3d 235 (Pa.
2021) (explaining that “statements which are merely annoying or
embarrassing, no more than rhetorical hyperbole, or a vigorous epithet are
not defamatory”).
Any reasonable reader would interpret them for what they are — childish
(even absurd) vitriol and the opinions of someone who personally dislikes Mr.
Hoffman. In fact, that is exactly how every reader dismissed them, until the
Commonwealth decided to prosecute.
The reliance of the Commonwealth and the trial court upon this Court’s
plurality decision in Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super.
1976) (en banc), does not persuade me otherwise. There, of the seven judges
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on the panel, three upheld the constitutionality of the harassment statute in
the face of a First Amendment challenge, while one judge concurred in result,
and three dissented.
The facts of Duncan are distinguishable from this case. There, a man
repeatedly asked a college student (whom he did not know) to allow him to
perform oral sex on her while she attempted to study in the lounge of her
residence hall. The woman continuously rejected his advances and eventually
reported him to the resident assistant. Campus police arrested him for
harassment. In affirming the conviction, this Court held that the man’s “lewd
. . . suggestions do not . . . have the protection of the First Amendment.” Id.
at 806. Thus, unlike the speech at issue in this appeal, the comments in
Duncan fell under the first category of unprotected speech, “lewd and
obscene” words. Chaplinsky, 315 U.S. at 275. The Commonwealth’s
attempt to support its conviction of Mr. Collins based upon Duncan fails.
That said, I recognize that the poster and letters Mr. Collins printed,
authored, and distributed were crass and likely offended Mr. Hoffman once he
learned of them. However, to any rational reader, Mr. Collins’ speech says
more about himself than Mr. Hoffman.
Additionally, I understand why public servants like Ms. Snyder would
not desire such rubbish on her post office’s bulletin board or in her customers’
mailboxes. Ms. Snyder’s remedy was to remove the poster, as she did. To
be clear, I do not support or condone Mr. Collins’ immature name-calling, but
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the First Amendment protects his right to engage in such speech without the
risk of criminal prosecution.
We must remember that the First Amendment does not exist to protect
kind and desirable speech. The Framers adopted it to shield words (such as
Mr. Collins’) that most citizens do not want to hear, with limited exceptions
for speech that is obscene, that falsely damages one’s reputation, or that will
likely cause an imminent breach of the peace. Here, none of these exceptions
applies. See Majority Opinion at 16. Therefore, although the trial court
correctly interpreted Pennsylvania’s harassment statute, the First Amendment
preempts that state law5 and bars Mr. Collins’ prosecution and conviction on
these facts.6
I would vacate the judgment of sentence, reverse the order denying
post-sentence judgment of acquittal, and discharge Mr. Collins.
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5 See U.S. Const. art. VI (dictating, “This Constitution . . . shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the . . . Laws of any State to the Contrary notwithstanding.”) Hence,
“the Constitution of the United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a law repugnant to
the constitution is void; and that courts, as well as other departments, are
bound by that instrument [i.e., the constitution].” Marbury v. Madison, 5
U.S. 137, 180, (1803) (emphasis in original).
6 I need not—and, therefore, do not—address Mr. Collins’ third appellate issue
regarding the discretionary aspects of his sentence. Given my disposition of
his constitutional issue, his third issue should be dismissed as moot.
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