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Lincoln man loses appeal arguing that yelling racial epithets was his First Amendment right
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Lincoln man loses appeal arguing that yelling racial epithets was his First Amendment right

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A Lincoln man has lost an appeal over his conviction and 10-day jail sentence for yelling racial epithets and vulgarities from his apartment balcony at two painters and a neighbor in 2019.

Kenneth Grant Jr., 52, maintained the speech was protected under the First Amendment.

At a bench trial in 2019, Grant was accused of violating two provisions under the Lincoln Municipal Code: disturbing the peace and assault or menacing threats.

Jennifer Ponce, one of the victims, testified that on July 15, 2019, she was painting a house with a colleague when Grant started yelling vulgar things at them from across the street.

Progressively, his comments got worse. Ponce said he yelled lewd comments about her body and threatened to "put bullets in your boyfriends." 

Ponce said, feeling threatened, she called the police. 

Gregory Patterson, another of the victims, testified that this was nothing new.

"He’d always sit on the porch and holler racial slurs, all the time, towards me, towards the neighbors, even towards people walking down the street,” Patterson said.

That day, he said he heard Grant shouting "Kill them all" and "send them back to Africa."

Asked whether he viewed Grant's words as threatening, Patterson, the only Black person there, said he felt his comments were directed at him. 

Lincoln Officer Breanna Callese said Grant admitted he had called Patterson a racial epithet and yelled at the painters that "he was going to … 'light them up.'" But he maintained that saying it was protected under his First Amendment right.

Callese ticketed him and he was charged.

Lancaster County Court Judge Laurie Yardley found him guilty and sentenced him to serve 10 days in jail. He appealed to the district court, which affirmed it, then to the Nebraska Supreme Court.

Deputy Lancaster County Public Defender James Sieben contended the speech was constitutionally protected and that the government couldn't restrict it because he had been on his private property at the time.

And the Lincoln City Attorney's Office argued the conviction should be upheld because they were "threats and fighting words," which aren't protected.

In Friday's decision, Chief Nebraska Supreme Court Justice Michael Heavican said the broad protections afforded by the federal and state Constitutions are not absolute.

Here, he said, the prohibition against disturbing the peace makes no reference to the content of speech and or target particular speech on its face.

Heavican said Grant's speech not only occurred on his own property but also at least 50 yards across a public street and sidewalk, making it public. 

So the court didn't need to analyze whether Grant's speech included fighting words or true threats.

"Because even if Grant's speech was protected, we conclude the state may regulate it through reasonable restrictions on the time, place, and manner of speech," he said.

Heavican said if Grant had been communicating the same content without yelling loudly down the street, for a lengthy period of time, "we find no evidence in the record that he would have been cited under this ordinance."

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger

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