“I know it when I see it,” U.S. Supreme Court Justice Potter Stewart once wrote in a case that addressed what was or was not obscenity.

Fifty-six years later, the Colorado Supreme Court declined to weigh in on the question of whether the state and U.S. Constitutions protect obscenity as free speech.

The justices rejected on Tuesday an appeal from James Vinci, who challenged a trial court’s decision not to dismiss the harassment charge against him. One of the grounds for the offense is the use of obscene language or gestures at another person.

Vinci met with Sedgwick County Title Company owner Paula Fraker and a real estate agent on Nov. 30, 2017 to close on a house. During the conversation, Vinci “directed foul, disgusting, and repulsive language” at the other two and, according to testimony, “the ‘F’ word was every other word.”

Fraker asked Vinci to leave the building. He refused, but relented once law enforcement arrived. In January 2019, a jury in Sedgwick County Court convicted Vinci of harassment.

On appeal to District Court Judge Carl S. McGuire III, the only issue was whether the F-word was constitutionally protected speech, and therefore not obscenity.

“A defendant commits harassment if, with intent to harass, annoy, or alarm the victim, the defendant directs obscene language at the victim in a public place,” wrote McGuire, noting that the legal definition of “obscene” involves a “patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts.” Such descriptions are not obscene if the “context otherwise requires” them.

The government can regulate profanity in certain instances, including over broadcast media, in public schools and “fighting words” that could incite violence or disturbance. 

However, in the 1971 case of Cohen v. California, Justice John Marshall Harlan II wrote about a young man charged with disturbing the peace for wearing a “Fuck the Draft” jacket: “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” The court struck down California’s law.

McGuire observed that Vinci’s use of the word clearly intended to harass, annoy or alarm Fraker, conduct she interpreted as threatening. It was “nothing more than anger for anger’s sake, pure and simple.”

Unlike the Cohen case, Vinci was not espousing political views or social commentary during his interaction. McGuire hypothesized that if Vinci had yelled the offending word on the sidewalk to no one in particular or had worn a shirt with the word and “Trump” next to each other, the speech would be protected.

As it was, the Colorado Supreme Court had established that the First Amendment does not permit freedom of speech to be a “battering ram to destroy the tranquility, repose, or orderly transaction of business in another person’s place of business.” That, McGuire concluded, was what Vinci had done.

Although a majority of current Supreme Court justices declined to accept the appeal, Justices Brian D. Boatright and Richard L. Gabriel indicated they would have heard the case. In particular, they would have considered the broad issue of whether crass or taboo language is constitutionally-protected speech, as well as whether a court could apply the obscenity law in instances where there was no sexual act described.