Jackson altercation opens free speech debate
July 2, 2020
JACKSON — When Kevin Hernandez denigrated the president in the direction of a man wearing a pro-Trump hat, he was met with a fist to his face and a criminal citation for picking a fight.
The scuffle happened June 14 near Town Square on the sidelines of a peaceful racial justice protest. The incident brings up questions about the applicability of criminal provocation, a rarely used town ordinance. And the fallout of the fight ranges from regret over a missed opportunity for civil dialogue to First Amendment questions about what constitutes political speech in an era of intense political division.
After marching to the Town Square as part of the protest, a group of friends were given some chalk and went to the northwest corner of the park to draw the phrase “Black Lives Matter.” There they encountered a man who was displaying opposite political views on his hat.
“I said, ‘f--k Donald Trump.’ He turned around and said, ‘what did you say?’ So I turned around and said, ‘I said f--k Donald Trump,’” Hernandez, 20, told the News&Guide after the fight. “It was pretty fast. He came up and punched me with his right fist.”
Hernandez wasn’t the only one to walk away with a criminal charge. Clay Erwin, 62, the man who punched Hernandez, was cited for battery.
“It was a colossal mistake on my part,” Erwin told the News&Guide on Tuesday, “an overreaction to something said, and I missed a great opportunity to have some dialogue with young people about what I believe and what they believe.”
Two other men, who Hernandez and a witness said came to his defense using their own fists, were also cited for assault and battery.
“[Defendant] said a slur directed at [suspect] to elicit response,” the Jackson Police Department officer wrote on Hernandez’s citation for criminal provocation, a town ordinance.
Hernandez isn’t due in court until next month.
The ACLU of Wyoming says political speech is protected under law.
“The ability to express your opinion about political issues is one of the most fundamental guarantees of the First Amendment,” said Andrew Malone, staff attorney for the ACLU of Wyoming. “And the Supreme Court has recognized that one of the key functions of free speech is to spark public debate by inviting dispute. They’ve also acknowledged that this dispute may make some people very angry, but that is not a good enough reason to prohibit it.”
Malone said even speech considered to be crass is fair game in the eyes of the law.
“While there are some situations where speech can lose its protection if it qualifies as fighting words, that exception only applies to direct personal insults that are inherently likely to provoke a violent reaction,” Malone said. “The exception does not allow the government to punish someone for expressing their political views even if they do so in a vulgar fashion. So, except in very narrow circumstances, the government is not allowed to punish people because their speech may cause other people to react violently. And just because someone says something vulgar or offensive — especially when they’re speaking on an issue like politics — should not mean that they lose their First Amendment protection.”
Criminal provocation has been an ordinance on the town of Jackson’s books since 1961, according to a records search.
It reads: “Whoever, by words, signs or gestures, provokes or attempts to provoke another, who has the present ability to do so, to commit an assault, or an assault and battery upon him is guilty of criminal provocation, and upon conviction shall be punished as provided in Section 1.12.010 of this code.”
Elected officials write town ordinances. They also have the ability to change them.
“We have a right to make sure our ordinances are constitutional,” Jackson Mayor Pete Muldoon told the News&Guide.
Muldoon didn’t say he thought the ordinance was unconstitutional.
Because Hernandez’s case is pending, he spoke generally about protected speech.
“I think political speech should be highly privileged,” he said. “And criticizing the president is the ultimate protected speech.”
He said the ordinance should only be applied if the person enforcing the law is completely certain the words were used against someone to provoke a violent attack.
“That ought to be the goal of it,” he said.
No one was seriously injured in the June 14 fist fight. But four people did walk away with criminal charges. The first of the four court hearings is today, July 8.
The Jackson Police Department said its officers applied the ordinances based on what they believe happened.
“These can be difficult cases to put together, with everyone wanting us to take their side in the argument, but we don’t take sides, and apply the law as best we can,” Lt. Roger Schultz wrote on Facebook. “The 20-year-old was cited for a crime called Criminal Provocation, (Call it picking a fight in simple terms).”
Erwin said no matter what happens to the charges in court, he has accepted his own responsibility for the fight.
“Why I snapped on this occasion, who knows, but it did happen,” he said. “And you have to pay the price if you’re going to react like that.”