Background: State v. Johnson is 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.

The Court of Appeals upheld Johnson’s conviction under our state’s so-called “fighting words” law, and now the Oregon Supreme Court has taken the case for review. The ACLU filed a “friend of the court” (amicus) brief in the case last month, and oral arguments are set for Jan. 7 in Gold Beach.

Words as Violence
The intent to create harm is not protected
By Alan Brown

Consider this: Can words be violence?

Ask any woman/man who is the victim of spousal abuse that question, and you will undoubtedly get a strong affirmative. Abusers don’t only use physical violence to attack their victims but also verbal violence and intimidation as well. It’s all about power and control. If the words are not accompanied by physical violence or threats of physical violence, are they still abuse? Once again, what would the real experts/victims on the subject say?

When racist epithets are used to provoke a violent response, isn’t this also a form of verbal violence? I’m sure that the communities of color have some very strong opinions about this form of harassment as they try to live their lives as members of our community.

When gays and lesbians are verbally harassed and intimidated in our community for simply existing, isn’t that too a form of verbal violence? As a gay man I know my personal opinion on that subject. I want to live my life in peace without the threat of assault, intimidation and harassment I face simply trying to be myself. I will probably never know that as a reality in my life time.

Should verbal violence be protected as “free speech?” This is not a drill, folks. Arguments on this subject will be presented before the Oregon Supreme Court on Jan. 7.

In August 2003, William Charles Johnson was convicted of a class B misdemeanor of harassment under ORS 166.065(1)(a)(B) for his verbal harassment of two women in the Portland area on August 11 during bumper-to-bumper stop and go traffic. The women had a rainbow sticker on their bumper from which he inferred their sexual orientation. He started by tailgating the women with his pickup truck, potentially putting their lives and the lives of others at risk. At the same time he made gestures directed at the women with his tongue. Using a bull horn to amplify himself, he called the African American woman driver of the car a “black bitch,” “pussy-licking nigger,” “lesbian dyke,” and other names. This went on for several minutes, attracting the attention of other drivers and passersby. Johnson was clearly trying to provoke the driver.

Under the Oregon Harassment Statute ORS 166.065(1)(a)(B), a person is guilty of harassment when he or she “harasses or annoys another person by … publicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response.” Johnson’s attorney argued in court that he was merely exercising his free speech. The court did not agree, and he was convicted.

Johnson’s attorney appealed the case to the Oregon Court of Appeals. In May of 2007 the Oregon Appellate Court upheld his conviction. In an opinion written by Judge David Schuman, the court agreed that the Legislature had the authority to prevent this form of harm based on its intent to provoke violence.

The U.S. Supreme Court has also ruled that there are limits to free speech under the First Amendment when there is a specific intent to create harm. You can’t yell “fire” in a crowded theater, nor can you create a hostile work environment using sexually suggestive remarks.

In less than a month arguments will be presented by Johnson’s attorney to the Oregon Supreme Court challenging the appellate ruling. Accompanying the ruling will be an amicus curiae brief provided by the American Civil Liberties Union agreeing that his free speech was violated and that the ORS is unconstitutional under Article 1 Section 8 of the Oregon Constitution.

Normally, I have a great deal of respect for the work of the ACLU. In this instance, however, I strongly disagree. This is not some intellectual game. This is about specific behavior that adds to the violence in our society. The ACLU argues that the defendant did not threaten the driver with any harm. I wonder how the ACLU Board would have felt being maliciously tailgated by the defendant’s truck, a potentially lethal weapon? The intent of Johnson’s speech and actions are clear.

ORS 166.065 is an important statute, and it needs to remain intact. If it doesn’t, all Oregonians will be at risk.

Alan Brown is a web designer and computer consultant, and local LGBT activist.