Utah McDonald's drive-thru rapper claims free speech rights trampled

AMERICAN FORK — An Alpine teen cited for disorderly conduct for rapping his order in a McDonald's drive-through is claiming his actions were protected by the First Amendment.

American Fork police cited Spenser Dauwalder on Oct. 27 after restaurant employees said he and three friends, all seniors at Lone Peak High School, disrupted business and cursed at a manager.

Dauwalder, 18, rapped his order in imitation of a video he had seen on YouTube. He then repeated the rap at a slower pace, ignoring a request to order normally or leave.

The manager says that as he drove away, Dauwalder yelled at her, "I hate this (expletive) McDonald's anyway." He denies using profanity.

"The defendant's action of singing his order at a fast food restaurant, whether or not he used profanity as alleged, cannot be punished by the government, as his speech is protected by both the federal and Utah constitutions," wrote defense attorney Ann Boyle in a motion to dismiss the case.

Boyle argues that even if Dauwalder used profanity — which city prosecutors labeled "fighting words" meant to incite the manager — his speech does not add up to disorderly conduct.

"It is simply not believable that a McDonald's manager, used to working with youth, would react with physical violence to a teenager's use of the F word," her motion states. "This epithet is so common in both the written and spoken language of our contemporary society that its inflammatory nature has been negated."

But city prosecutors say Dauwalder's behavior did not consist only of speech.

"That is a serious mischaracterization of the events," they wrote in opposition to the motion. "In reality, the witnesses all stated that the defendant acted in an angry, threatening, tumultuous manner."

Prosecutors say Dauwalder not only disrupted the business but also sped recklessly out of the parking lot.

According to Wayne McCormack, a professor at the University of Utah's S.J. Quinney College of Law, prosecutors can demonstrate disorderly conduct by showing that someone interfered with the conduct of a business or caused someone else mental anguish or harm.

"The closer you get to (causing) some sort of physical or mental harm, the less protected your speech is," McCormack said.

A bench trial in 4th District Court in American Fork is set for April 6.

Meanwhile, Dauwalder was charged with disorderly conduct again — this time on Tuesday in connection with a fight Feb. 27 at American Fork Junior High School that police say he arranged with someone who had been verbally sparring with him on Facebook.

Dauwalder and his attorney did not return phone calls.

e-mail: pkoepp@desnews.com