When in Burley, Watch Your Language

Robert Jesse wasn’t having any luck getting through to three teen-agers who were throwing things at his dog and yelling obscenities. But when they started verbally abusing his wife, the police intervened.

“They had no respect for anybody or anything,” Jesse said recently. “Obviously morals have loosened up. But if you give a little here, where do you stop?”

A 19th Century Idaho law says it stops with women and children. The teen-agers were arrested and charged with using “vulgar, profane or indecent language” in front of a woman.

An American Civil Liberties Union attorney said he considers it a violation of the constitutional right to free speech.

Burley is a rural community of 8,700 in southern Idaho, surrounded by fields of potatoes, sugar beets and barley. Residents depend on the Snake River to irrigate the fields, and on enforcement of the law to keep the peace.

“That’s our conservative atmosphere,” said John Evans, a former Idaho governor and now president of D. L. Evans Bank in Burley. “We’re very concerned about the health of our community.”

The teens, arrested Jan. 4, could get six months in jail and $300 fines. But Cassia County Magistrate Nathan Higer said he can’t remember anyone being jailed or fined more than $50 for the misdemeanor.

Sheriff Billy Crystal said his deputies make two or three arrests a month under the law.

“Normally an arrest is made or a citation is issued only when a person has been warned and then continues,” Crystal said. “It’s not something we go out and look for.”

Stephan Pevar, the ACLU’s Rocky Mountain regional counsel in Denver, said that practice should stop. Keeping the peace need not violate free speech rights, he said.

“If someone is unruly or threatening, they can be arrested for their conduct,” said Pevar, who added that he would welcome someone challenging the law. “The problem here is that they’re making speech the culprit.”

Idaho’s disturbing-the-peace code was taken from territorial law when statutes were drawn up for statehood in 1890. It was eliminated when the Legislature adopted a modern penal code in 1971.

But county prosecutors weren’t ready for the sweeping changes and much of the recodification was repealed a year later.

What took its place was a hodgepodge of old and new laws, including some from an age when paternal legislators felt the need to shelter women and children from the seamy side of frontier speech.

“In the early 1970s, this law probably was still considered legitimate,” said Mike Nugent, interim director of Idaho’s Legislative Council, the state Legislature’s staff.

“But times have changed. Mores have changed,” he said. “Something that was viewed as obscene 20 or 30 years ago might be viewed as ordinary, everyday conversation today.”

Maybe some places, but not in Burley.

Jim Weatherby, former executive director of the Assn. of Idaho Cities, said the law is one way officials maintain social order in small towns.

“It speaks well for a community if it’s able to enforce these kinds of laws,” he said. “It says something about the stability of the community and its values.”