KOSRAE STATE COURT
 FEDERATED STATE OF MICRONESIA
 EASTERN CAROLINE ISLANDS 96944
Cite as Kosrae v. Ned, (Kosrae 1988)

[Kos.St. pg 01]
KOSRAE STATE,

 Plaintiff

 vs

ROLINSON NED,

 Defendant

CRIMINAL CASE N0. 136-88

JUDGMENT


     On December 28, 1988, this case came on for trial. Patrick Olter, FSM Public Defender, represented the defendant Rolinson Ned, and Aliksa B. Aliksa, State Prosecutor, represented the plaintiff.


BACKGROUND

     The defendant was charged with two counts of violating the Kosrae Code, to wit:

          Count I      Offensive Behavior in a Public Place  under KC 13.508, and


          Count II       Insulting a Police Officer under KC  13.609


     According to the complaint, the basis for count I was that the defendant, in a public place, used the words "lufinkiomtal" and "fuck you" and these words were "calculated to provoke an immediate violent reaction." The complaint bases count II on the allegation that the defendant "maliciously, and with intent to

[Kos.St. pg 02]

humiliate, directing to police officers while on duty and in uniform, the expression 'fuck you' and 'lufinkiomtal'.

     Prior to the introduction of any evidence, counsel for defendant moved to dismiss both charges on the grounds that they were violative of both Section 1 of Article IV of the Constitution of the FSM and Section 1(a) of the Constitution of the State of Kosrae.


     The essence of defendants argument was that upon their face, both provisions of the Kosrae Code, Sections 13.508 and 13.609, are unconstitutional infringements upon the freedom of expression guaranteed by both the FSM and Kosrae Constitutions.


     Section 1 of Article IV of the Constitution of the FSM provides:

"Section 1. Except when a tradition protected by statute provides to the contrary:

(a) No law may deny or impair freedom of expression, peaceable assembly, association, or petition."

          The Kosraean Constitutional provision likewise provides:

          Section 1(a) of Article II of the Constitution of the State of Kosrae provides:

"Section 1. Except when a tradition protected by statute provides to the contrary:

(a) No law may deny or impair freedom of expression, peaceable assembly, association, or petition."

     The two challenged provisions of the Kosrae Code are as follows:

          Section 13.508. Offensive Behavior in a Public Place. Offensive behavior in a public place is:


[Kos.St. pg 03]

     (1) Fighting or challenging another person to a fight in a public place; or
     (2) Using words in a public place which are calculated to provoke an immediate violent reaction.  Fighting in a public place is a category three misdemeanor."

     "Section 13.609. Insulting a Police officer.
               (1) Insulting a police officer is maliciously and with intent to ridicule or
humiliate, directing to a police officer while on duty and in uniform the expression "lufunkiom". The offense includes using the expression or a substantial equivalent:
                    (a) in any language, or
          (b) in an abbreviated form or altered form having substantially the same meaning as the expression. Insulting a police officer is a category three misdemeanor."


ANALYSIS

     Clearly, both Constitutional provisions are designed to protect against laws being adopted which would deny or impair an individual's freedom of expression, including speech.


     The issue that arises is whether there can be limitations imposed upon an individual's freedom of expression and, if so, whether the two challenged provisions of the Kosrae Code are appropriate limitations on this very-important freedom.


     Where the words of a constitutional provision are not conclusive as to its meaning, the next step in determining the intent of the framers is to review the Journal of the Micronesian Constitutional Convention to locate any discussion in the convention about the provision. FSM v. Tipen, 1 FSM Intrm. 79, 83 (Pon. 1982).


     Reviewing the history behind the two constitutional provisions will be helpful to the analysis of the present issues.

[Kos.St. pg 04]

     With respect to the Kosrae Constitution's language regarding freedom of expression, it is interesting to note that unlike the FSM provision, it contains the introductory,phrase "Except when a tradition protected by statute provides to the contrary:" [However, it should be noted that Section 2 of Article V of the FSM Constitution does appear to provide for the statutory protection of the "traditions of the people" apparently to the potential supremacy of the rights provided for in Article IV].


     The Kosraean clause appears to set limits on the clause which follows and protects against laws denying or impairing the freedom of expression. This conclusion is further supported in SCREP No. 1-83-23 Kos Con Con page 5 of 7 where, in part, it states:


"It is the intention of the proposal and this report to have it clear that the individual rights stated in the proposal are, as in the case in both the United States and in the FSM Constitution, not absolute in nature, even in the absence of a statute protecting tradition. For example, the freedom of the individual to express himself ...is conditioned upon other interests of society-at-large. The proposal intends that the precise nature of such conditions-and limitations upon individual rights be determined by the courts and by other lawful means as Kosraean society evolves and is tested." (emphasis added)


     The history behind the adoption of the FSM Constitution's provisions concerning the freedom of expression likewise speaks of a limited and restrained right. For example at SCREP No. 2, II J. of Micro Con Con 769 the following excerpts from the Committee on Civil Liberties are found:


[Kos.St. pg 05]

     "The freedom of speech and the press is basic to the principles of a free and knowledgeable society. Without such freedom a society cannot grow or change, and must forever stagnate.

     The Committee found that freedom of speech and the press, however, must not be unrestrained. Speech which is slanderous or which causes violent, illegal activities surely must be limited. The problem lies in establishing exactly what speech should be left unprotected by the future constitution.

     In working on these issues, the Committee continually sought the advice of the community and of recognized authorities. After carefully considering the content of these opinions, the Committee has concluded that the following definitions and limitations should be incorporated into the new constitution.

     Freedom of speech and press is one of the most basic of all rights. Without this freedom to communicate there could be no truly free society.
          . . . .

     Speech includes the right to form and hold opinions and to receive opinions expressed by others, by any means of communication. It indludes the freedom of the individual to speak, to write, to use the graphic arts, the theater, or any other art form that may present his ideas.

     This freedom to communicate is the rule and restraint is the exception. Examples of justifiable exception is speech that incites to violence or crime, or that slanders or libels, or that is coupled with unlawful conduct, or which is obscene.

     The critical question is whether speech is constitutionally protected against any form of punishment. As noted here, speech that incites to violence is not constitutionally protected. The society's interest in public order and safety of its citizens outweighs the value of this kind of speech. On the other hand, speech that simply stirs people to anger, or invites public dispute is not subject to governmental sanction. This is constitutionally protected speech." (emphasis added)

     Following the above review of the applicable constitutional provisions and some of the historical background

[Kos.St. pg 06]

to their adoption, it is time to look at the two statutory provisions being challenged.

     The key phrase within Section 13.508 of the Kosrae Code is:
          "...using words in a public.place which are calculated to provoke an immediate violent reaction."


     Since the history behind both constitutional provisions clearly indicate an intent that the freedom of expression could be limited in appropriate situations and since Kosrae's history suggests looking to the "interests of society-at-large" and the FSM history specifically cites inciting to violence and obscenity as areas where an individuals freedom of expression can be restrained, this Court concludes that Section 13.508, on its face, does not violate either Section 1(a) of Article II of the Kosrae Constitution or Section 1 of Article IV of the FSM Constitution.


     This Court believes that it is clear, based upon review of the constitutional history, that the legislature can place limitations upon otherwise protected freedoms of expression; therefore, it is not necessary to proceed to other sources for assistance on this issue. (See FSM v. Tipen, id. at p. 83). However, in that this issue is one of first impression with this Court, it is interesting to note that in the United States:


      "...there appears to be no question that the utterance of 'fighting words', or words which by their very utterance inflict injury or tend to incite an immediate breach of the peace, is

[Kos.St. pg 07]

beyond the protection of the First Amendment to the United States Constitution and that the government can constitutionally make such utterances a criminal offense ...." (39 L Ed 2d 925 Annotation "Fighting Words" - First Amendment, §2, at p. 927).

     The critical portion of .the language of Section 13.609 is:

     "...maliciously and with intent to ridicule or humiliate, directing to a police officer while on duty and in uniform the expression 'lufunkiom". The offense includes using the expression or a substantial equivalent:
     or...
(b) in an ...altered form having substantially the same meaning ...."


     The analysis of the issue concerning the constitutionality of this provision is more difficult for this Court for a number of reasons. To violate Section 13.609, an individual does not have to incite to violence or criminal activity nor to slander or libel as suggested by the drafters of the FSM Constitution. Also, as pointed out by those same drafters, "...speech that simply stirs people to anger, or invites public dispute is not subject to governmental sanction.


      In difficult cases where the individuals right to freedom of speech is weighed against the interests of society, the drafters also importantly noted that:

          "This freedom to communicate is the rule and restraint is the exception." (SCREP No. 2, II J. of Micro Con Con 769)


[Kos.St. pg 08]

     These historical notes cause this Court some concern. However, due to (a) other constitutional provi.sions, (b) the fact that this is an attack upon the face of the statute, and (c) other sources, this Court is not at this time prepared to invalidate, as an unconstitutional limitation on freedom of expression, Section 13.609 of the Kosrae Code.

     The determining provisions which cause this Court to arrive at this position are:

          (1) Section 2 of Article V of the FSM Constitution which provides:

     "The traditions of the people of the Federated States of Micronesia may be protected by statute. If challenged as violative of Article IV, protection of Micronesian tradition shall be considered a compelling social purpose warranting such governmental action", and

          (2) The introductory phrase to Section 1(a) of Article IV of the Kosrae Constitution which provides:

               "Except when a tradition protected by statute provides to the contrary ...."

          (3) The historical note from the drafters of the FSM Constitution which recognized that obscene speech can be excepted from the restraint on freedom of expression.

     These constitutional provisions and history provisions convince this Court that the drafters of the various consitutional provisions intended to restrict the freedom of expression in the instance of obscene speech.

[Kos.St. pg 09]

     Also, while the Kosrae Legislature did not specifically identify the forbidden phrase as being "obscene", they did strictly limit when its use would rise to the status of criminal behavior by requiring as elements of the crime that its use be malicious anal with the intent.to ridicule or humiliate. These limitations, coupled.with the limitations that require the phrase to be directed at an on duty, uniformed police officer before it becomes a criminal offense, demonstrate that the challenged statute was quite narrowly drafted. At this point the Court recognizes courts should avoid, where possible, selecting interpretations of a statute which may bring into doubt the constitutionality of that statute. In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982).


     Further, with regard to other sources, while this Court recognizes that there is a split among the authorities within the United States on the issue (and in this regard see 14 ALR 4th 1452) one authority suggests:

     "Provocative or otherwise offensive language may under appropriate circumstances be considered a breach of the peace if used toward a policeman ...." (12 Am ,7ur 2d Breach of Peace etc., 911).


     These provisions and reasons appear to this Court to create the possibility that, in cases where a balancing of interests might otherwise require a conclusion supporting the rule that 'freedom to communicate is the rule and restraint is

[Kos.St. pg 10]

the exception, the legislature may, in cases such as the one now before the Court, create lawful restraints upon the freedom of expression in order to (1) protect the traditions of the people of the Federated States of Micronesia, or (2) restrain obscene speech. I hereby find that Section 13.609 of the Kosrae Code is just such a restraint.


     The Court would also like to point out that there was no evidence offered to suggest that:
          (1) There is no tradition of respect for those charged with enforcement of the law, or
          (2) The expression restricted by Section 13.609 is not obscene.

     For these reasons, this Court finds that Section 13.609 of the Kosrae Code is constitutional on its face.


 CONCLUSION


     For the foregoing reasons this Court finds that Sections 13.508 and 13.609 of the Kosrae Code are both constitutional.


     Following the Courts consideration of the defendants motion to dismiss, the case proceeded to trial on December 28, 1988.

     Upon carefully considering the facts and evidence submitted to the Court, it is the judgment of the Court that the prosecution failed to introduce evidence sufficient beyond

[Kos.St. pg 11]

reasonable doubt, to warrant conviction of the defendant on either charge. Therefore, the defendant, Rol-inson Ned, should be acquitted on both counts.

     SO ORDERED this 28th day of December, 1988.


                                        _____/s/_________
                                        Harry H. Skilling
                                        Chief Justice

     Entered this 3rd day of February, 1989.

                                        ______/s/___________
                                        Clerk of Court, Kosrae


                                                                                                                                                                                                                                                                                                           
TITLE 17 HEALTH AND WELFARE CHAPTER 1 DEPARTMENT OF HEALTH SERVICES 2 public hospital corporation [pending] 3 HEALTH SERVICES ADVISORY COUNCIL 4 health care plan 5 telemedicine program 6 INFECTIOUS AND CONTAGIOUS DISEASES 7 MENTAL ILLNESSES 8 physical and mental disabilities 9 refuse collection and Sanitation 10 HEALTH and welfare finances  CHAPTER 1 DEPARTMENT OF HEALTH SERVICES Section 1-101 Duties of Director of the Department of Health Services 1-102 Promulgation of health regulatio