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Teens Acquitted in Corry High School Sign Case
By Ed Palattella

March 29, 2014 12:01 AM

The First Amendment has prevailed in a criminal case over a sign held at a Corry High School football game in September.

Citing free speech, Erie County Judge Stephanie Domitrovich acquitted two Corry students of summary disorderly conduct in the case. "Justice is served," said Robert D. Kinnear, the lawyer for the teens, who were 17 and 16 years old when charged.

"The boys should have never been put through this," said the father of the older student. District Attorney Jack Daneri said he would have no comment.

Corry police charged the two teens after they walked past the stands of the visiting Northwestern High School Wildcats the night of Sept. 27. The older student carried a sign that read "#32 sucks," an apparent reference to a star player for Northwestern, Brandon Reiser. The younger student walked with the older student and a third student, who carried a sign that read "Corry Beavers," referring to Corry High School's mascot. The third student later pleaded guilty to disorderly conduct.

The District Attorney's Office argued that the other two students were guilty and that the"#32 sucks" sign — the focus of the case — constituted "fighting words" that fell outside the First Amendment. Kinnear argued the First Amendment applied.

In a one-page order docketed on Friday, Domitrovich agreed with Kinnear and disagreed with the two assistant district attorneys, Matthew Militello and Michael Garcia, who prosecuted the case at a March 10 summary nonjury trial.

Domitrovich wrote that she based her verdict on two U.S. Supreme Court cases and a state Supreme Court case. The federal cases establish First Amendment rights for students. The state case distinguishes between free speech and activities that rise to disorderly conduct, such as a demonstration that creates a commotion.

In the Corry case, the students "did not enter the stands, not confront the spectators in any way, except to walk by them," Kinnear wrote in a legal brief.

The District Attorney's Office unsuccessfully countered that the sign constituted "fighting words" that do not enjoy First Amendment protection. The prosecutors at trial offered testimony from the grandfather of the star Northwestern player, who said his grandchildren saw the "#32 sucks" sign at the game and "wanted to go after" the teens with it.

Corry police officer Chad Carrier, who also works as a school resource officer, charged the students. The Corry School District did not discipline them.

The Erie Times-News is not naming the students who fought the charges because they were minors when charged. The acquittal reverses the convictions that Corry District Judge Brenda Nichols issued against the two teens in November. They appealed to Erie County Court.

A guilty verdict would have carried a fine of $50, plus costs. The students' fathers said they appealed out of principle. They said they did not condone their sons' conduct, but said their behavior never amounted to a crime.

"At least the judge figured it out," the father of the younger student said Friday.