Op Ed or Commentary by Former Prosecutor Wes Hoyt 

Obscenity or Protected Speech? 

America was founded on principles of law. Without enforcement of the law, anarchy reigns and the risk is mob rule.  People are literally dying now because the “Entitlement Class” believes their opinions justify miscreant behavior. Ugly as it may be, America has always guaranteed the fundamental right of freedom of speech. Some things do not qualify as free speech, such as speech that endangers others. 

Crying ‘FIRE’, in a crowded theatre (when there’s no fire) puts people at risk of injury from a stampede. Similarly, Idaho declared that obscenities, although merely “WORDS,” if expressed in a public setting, especially in the presence of children, are criminal and prohibited. 

Idaho Code Sections: 18-1513. OBSCENE MATERIALS – DISSEMINATION TO MINORS – POLICY. It is hereby declared to be the policy of the legislature to restrain the distribution, promotion or dissemination of obscene material … to minors. It is found that such materials … are a contributing factor to crime, to juvenile crime, and also a basic factor in impairing the ethical and moral development our youth.  

18-4101(A) “Obscene material” means any matter: (2) Which describes ultimate sexual acts.  

18-4103 Everyone who knowingly exhibits obscene material is guilty of a misdemeanor.   

18-4105. Any person who knowingly exhibits [obscene material] … from any street, sidewalk, thoroughfare, or other public area [is guilty of a misdemeanor]. 

18-1501.  INJURY TO CHILDREN. (1) Any person who … causes or permits a child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one (1) year, or in the state prison for not less than one (1) year nor more than ten (10) years. 

What can be done when a fellow citizen blatantly violates the above laws? The Idaho Legislature has authorized its citizens to resist law breaking and may lawfully ask any person who exhibits obscene material in public especially when it is in the presence of children, to take it down (“see something, say something”). 

19-201. LAWFUL RESISTANCE. Lawful resistance to the commission of a public offense may be made 1. By the party about to be injured. 2. By other parties.   

The citizen who asks another to take down a huge flag displayed in public with an obscene word that describes an ultimate sexual act in front of the youth, is not depriving his fellow citizen of free speech, rather his is helping maintain decency in our community and rightfully attempting to resist the commission of a crime.