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Jury finds words were protected speech, not a criminal act

Attorney Bill Whitehall recently won a case for a client who was charged with provoking assault, a misdemeanor defined in state law as using any “word, sign or gesture” to “willfully provoke or attempt to provoke another person to commit an assault.” Ultimately, for the speech to be criminal, it would have to be speech that would likely provoke an immediate, violent reaction.

Jurors didn’t stay after the not-guilty verdict was read June 10 in Clark County District Court to speak to attorneys, so we can’t know for certain why they voted unanimously to acquit. They did deliberate for 3 1/2 hours, which was understandable given that the interaction between Whitehall’s client and the alleged victim was prompted by one of the most controversial topics of our time: abortion.


The alleged victim was a Vancouver man and witnesses were his wife and their teenage son. They demonstrate weekly at Mill Plain Boulevard and Chkalov Drive, one of Vancouver’s busiest intersections which is also home to a Planned Parenthood office. During pre-trial interviews, the alleged victim said he and his family hold signs depicting dead fetuses because they want to provoke a response from passing motorists and pedestrians. He said he knows graphic pictures will provoke a stronger response than words.

Whitehall’s client admitted that he exchanged words with the protestors, and on more than one occasion. He said he commented on the photographs and asked why they couldn’t move it away from the view of his 6-year old niece as they were at Starbucks, and told them that the pictures were disgusting and highly offensive. He asked them why they would use such graphic propaganda and basically “force” people to view images that they may not want to see or have their children see as they drove or walked by.  Strong words were exchanged by both sides.

But Whitehall's client denied trying to start a fight. He was initially charged with malicious mischief, as the alleged victim told police that he had damaged a GoPro camera his son had been wearing, but prior to trial Whitehall received additional indigent funds to have an expert review the videotape. The witness said based on the footage, there was no evidence Whitehall’s client actually touched the camera, let alone caused the $300 in damage claimed by the alleged victim. 

The alleged victim, his wife and son all testified that they use the images to provoke a strong response and to “educate” others as to their strongly held views. They went on to say that while the images are disturbing and shocking, and may very well upset some people who may not want to see them, it was more important that they share their views. 

During the trial, Whitehall argued that both the defendant and the alleged victim were merely exercising their First Amendment rights. 

As he told jurors during his closing argument, freedom of speech is a paramount right in this nation. It is not the popular or accepted speech that must be protected, but the unpopular and sometimes highly offensive speech that the First Amendment is designed to protect. While the alleged victim’s speech is and should be protected -- however offensive or controversial it may be -- one cannot turn around, as in this case, and call another’s strongly-worded protest to that speech as criminal. The tactics and imagery that the family employs in their protest against abortion is to invite, at times, a strong reaction as it did in this case. Yet, a strong and heartfelt (and even offensive) counterprotest is also speech, and must be protected as well.

As the jury found, this was protected speech, not a criminal act.

Tags: criminal law, not guilty, Clark County, freedom of speech, abortion

Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders