ROCHESTER, Minn. – A single-word racial slur plastered across a pedestrian overpass in northeast Rochester will not be prosecuted. County Attorney Mark Ostrem said he cannot find either a necessary burden of proof or evidence of damage to file charges. In a 988-word statement, Ostrem made these points:
> Historically the overpass has been a message board, “a canvas for messaging,” to promote activities at nearby Century High School.
> Although offensive, the racially derogatory message caused no damage to the bridge.
> The community quickly removed the racial slur and posted “a message of healing.”
> Although investigators learned almost immediately who the perpetrators were, the information was provided confidentiallu and was unlikely to stand up in court.
> Laws against hateful messages criminalize assaultive behavior due to a victim’s race, but the overpass message was not an assault as defined by statute.
Ostrem outlined these details of the April 14 incident:
> A driver saw the slur spelled out in plastic cups on the pedestrian bridge over East Circle Drive.
> A state trooper who drove by also saw the slur and immediately removed it.
> Rochester police identified three 16-year-olds and a 17-year-old believed to have rearranged an existing paper-cup message to spell out the racial slur.
“Fighting words” doctrine
Ostrem acknowledged that the First Amendment to the U. S. Constitution forbids the governent shutting dwn free expression but noted too an exception called the Fighting Words doctrine.” He effered this analysis: “The United States Supreme Court has decades of rulings shaping the fighting words doctrine. Free speech does not protect fighting words, those that by their very utterance would inflict injury or tend to incite an immediate breach of peace. In this evolution, various words, expressions and acts have been evaluated and found to be protected “free speech.” Context of the expression is a key element. If the expression is seen as a direct insult to someone or invitation to “fight,” it is not protected. Lacking an identifiable “recipient” of the expression changes the context of the April 14 expression and falls into a First Amendment protection. The racial slur in this case was particularly offensive. Few other offensive words are so closely associated with a history of violence. But even this very offensive word is not automatically a fighting word in every context. The message was left on the bridge without any other context, and the juveniles fled the scene before it could be discovered. Although the message would obviously offend anyone who saw it, a fact finder would not reasonably expect it to provoke a breach of the peace. The people who drove beneath the sign at dawn would not reasonably be expected to break the peace or commit offenses in response. The message on the footbridge was protected speech.”
Ostrem. In 17th year as Olmsted County county attorney. A1997 graduate of Mitchell Hamline law School. Undergrad degree in business from UW-Platteville. Re-elected to latest four-year term in 2022.
Century High. One of three public high schools in Rochester. At 525 Viola Road. Enrolment 1,700 in Grades 8-12.
Verbatim
Ostrem: “I am deeply disturbed that anyone in this community could be so oblivious to find humor or enjoyment in this type of conduct. We are better than that. But we evaluate incidents based on the law, not our internal responses to the event. We will continue to work with leaders in the community to help us grow through this event.”