In the case of In the Matter of U.M. the Indiana Court of Appeals considered the case of “U.M.” who had been convicted of being a juvenile delinquent by reason of committing the offense of disorderly conduct.” Basically U.M. was in a car that had been stopped in the course of an officer’s investigation of a graffiti incident. He was sitting next to another individual who wasn’t keeping his hands up during the stop. The officer yelled at that individual to keep his hands up, U.M. said “F*** you, he can’t keep his arms up, his arms hurt.” U.M.’s discourse continued with such observations as, “You guys are all racists, f*** the police.” (Apparently citing N.W.A. as relevant authority.)
The Court of Appeals weighed the disorderly conduct statute (IC 35-45-1-3) against the free speech provision of Indiana’s Constitution (Art. 1, Sec. 9).
First, the reviewing court must determine whether state action has restricted a claimantâ€™s expressive activity. Second, if state action has restricted the claimantâ€™s expressive activity, the court then must decide whether the restricted activity constituted an â€œabuseâ€ of the right to speak. When making this determination, the reviewing court is typically only required to find that the conclusion is rational.
With regard to the second prong of the analysis, a claimant may show that the expressive activity was not an abuse of his right to free speech by showing that his expression was political. Id. If the claimant is able to meet this burden, the State must demonstrate that it did not materially burden the claimantâ€™s opportunity to engage in political expression. Id. The State can do this by producing evidence that the expression inflicted particularized harm analogous to tortious injury on readily identifiable private interests. In order to demonstrate this particularized harm, the State must show that the expression caused actual discomfort to persons of ordinary sensibilities or that it interfered with an individualâ€™s comfortable enjoyment of his privacy. Evidence of mere annoyance or inconvenience is not sufficient.
The Court of Appeals went on to conclude that U.M.’s speech constituted “political” speech under the Indiana Constitution and that the State failed to meet its burden of showing U.M.’s expression inflicted any particularized harm.