Discuss any defenses to the felony and contempt charges Smith may have

Question

The Delaware Breach of the Peace statute provides:
"Whoever placed on public or private property a symbol, object, appellation, including but not limited to, a burning cross, Nazi swastika, a stuffed doll in likeness of the President of the United States, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others, shall be guilty of a felony."
John Smith, a devout member of the Santeria church, made a stuffed doll in the likeness of President Bush and in one of the local University's free speech zones, hung the doll in a tree and lit it on fire. At Smith's trial, he appeared in court wearing chicken feathers and the judge told him to take them off. Smith refused and said he was wearing the feathers to honor his god Icarus. The judge held Smith in contempt.
What will be an ideal response?

Answer 1

ANSWER: Answers may vary: The statute is overbroad and is patterned after the statute held unconstitutional in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Many students wrongly focus on the private/public property distinction, but the true analysis is focused on the statute's illegal criminalization of protected speech (signs of religious or racial intolerance) and the inclusion of unprotected speech (fighting words are those that arouse anger, resentment and alarm in others) making the statute fatally overbroad. In wearing feathers to court, the proper response is for the court to inquire about the sincerity of the religious belief, rather than a wholesale denial of the validity of the religion.