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"Them's Fighting Words": An Exception to the First Amendment (Aug. 31, 2016)

In America, we have a constitutional right to free speech. It’s an important right, and the Constitution prioritizes it. The First Amendment provides, in relevant part, “Congress shall make no law . . . abridging the freedom of speech.”[1] The protection applies equally to the States, in addition to Congress.[2] But this does not mean we have the right to say anything to anyone at any time.

The Supreme Court has long recognized that the freedom of speech is “not absolute at all times and under all circumstances” and does not include “certain well-defined and narrowly limited classes of speech,” including obscenity, defamation, true threats, intimidation, and so-called “fighting words.”[3] Those speech categories fall outside First Amendment protection because they form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[4] The bottom line is that, in a narrow band of cases, speech is unprotected.

I recently prosecuted one such case. I charged the criminal defendant in that case with disturbing the peace based on his verbal speech, physical conduct, or both. The facts were rather egregious.

Following a hotly contested hearing in family court, a judge awarded custody and child support to the defendant’s ex-wife and instructed the defendant to wait in the lobby outside the courtroom for a written copy of the order. Within minutes, as the defendant’s ex-wife and her attorney were exiting the courtroom and walking past the defendant toward the elevators, the defendant stood up and followed them. He stood in front of them, crossed his arms, and blocked their path to the elevators. He then said to them face-to-face, “What’s up now? The only way you can win is to lie.” His ex-wife and her attorney attempted to deescalate the situation. They turned and walked to a reception window, where they asked for a bailiff. But the defendant persisted, following them and standing behind them in close physical proximity. He continued to call them “liars” and then upped the ante, heightening his confrontational physical conduct with highly charged, inherently inflammatory name-calling. He stood behind his ex-wife and called her “a fat, hairy cunt.” A bailiff intervened before the situation could escalate further.

The defendant moved to dismiss the criminal complaint on the ground his conviction for disturbing the peace would violate his First Amendment right to free speech. But what he failed to realize is that his conduct alone caused a disturbance of the peace and, what is more, his speech constituted fighting words—a categorical exception to the First Amendment freedom of speech.

The seminal case is Chaplinsky v. New Hampshire, in which the Supreme Court defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[5] Chaplinsky set forth an objective test for which words tend to incite an immediate breach of the peace: “The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.”[6] Under this test, the Court upheld the conviction of Chaplinsky for calling a police officer, while the officer was escorting him to a police station, “a God damned racketeer” and “a damned Fascist.” It held that Chaplinsky’s speech, directed at the officer in his presence, constituted fighting words—“face-to-face words plainly likely to cause a breach of the peace”—and said “‘damn racketeer’ and ‘damn Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of peace.”[7] If epithets like “a God damned racketeer” and “a damned Fascist” constituted fighting words in Chaplinsky, how much more so did epithets like “liars” and “a fat, hairy cunt” in my case?

Indeed, the defendant’s speech in my case plainly constituted fighting words because it was (1) direct, (2) inherently inflammatory, and (3) face-to-face or in close physical proximity.

1. The defendant’s speech consisted of direct personal insults.

For starters, the defendant’s speech was directed at his ex-wife and her attorney. The defendant stood in front of them, crossed his arms, blocked their path, and said, “What’s up now?” He then called them “liars” to their faces and as he followed behind them. And, when he stood behind his ex-wife, he called her “a fat, hairy cunt.” The Supreme Court has held that such direct personal insults are the very essence of fighting words.

In Cohen v. California, the Court clarified that, to constitute fighting words, speech must be directed at a specific person and likely to provoke a violent response from the hearer.[8] Cohen was convicted of disturbing the peace for wearing in a courthouse a jacket bearing the words “Fuck the Draft.” Cohen held that the words on the jacket were not fighting words because “[n]o individual actually or likely to be present could reasonably have regarded the words . . . as a direct personal insult.”[9] By the same logic, the Court in Texas v. Johnson reversed the conviction of a protester who had burned an American flag, holding that his conduct did not amount to fighting words, as “[n]o reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.”[10] Not so in my case.

The defendant’s motion in my case rested on the flawed assumption that fighting words must be an actual “invitation to exchange fisticuffs.” But, as suggested in Cohen and stated in Johnson, fighting words may include either “a direct personal insult” or “an invitation to exchange fisticuffs.” And, as noted in Chaplinsky, they may even include words that by their very utterance “inflict injury.” In any event, the touchstone appears to be whether there is a reasonable likelihood of a violent response.

Given the accompanying physical conduct, context, and circumstances in my case, the defendant’s speech constituted fighting words on any or all of the above grounds. A reasonable person could have regarded it as “an invitation to exchange fisticuffs” because the defendant stood in front of his ex-wife and her attorney, crossed his arms, blocked their path, and said, “What’s up now?” The defendant then followed them to a reception window, where he stood behind them, called them “liars,” and then called his ex-wife “a fat, hairy cunt.” As set forth below, such a foul word in this context and under the circumstances “inflicts injury,” like a slap in the face.

At a minimum, it was “a direct personal insult.”[11] That is, the defendant’s name-calling was directed at his ex-wife to her face or in close physical proximity and was thus reasonably likely to incite a violent response—even if no violence resulted.[12]

2. The defendant’s speech was inherently inflammatory.

The defendant’s speech, especially calling his ex-wife “a fat, hairy cunt,” was inherently inflammatory in its proper context and under the surrounding circumstances. This buttresses the conclusion that those words were fighting words.

Starting with Chaplinsky v. New Hampshire, the Supreme Court emphasized that fighting words tend to incite an immediate breach of peace, that is, reasonably cause the average person to respond with violence.[13] Admittedly, the categorical exception to the First Amendment for fighting words is limited and narrow. In Street v. New York, the Court suggested that words must be “inherently inflammatory” to fall within the small class of fighting words that are likely to provoke a violent response.[14] Some state courts have cited Street for the proposition that words, in proper context, must be “sufficiently and inherently inflammatory” to rise to the level of fighting words.[15]

In any event, the defendant’s speech in my case—most especially, calling his ex-wife “a fat, hairy cunt”—was sufficiently and inherently inflammatory. The Montana Supreme Court’s decision in State v. Dugan is a case in point.[16] Though the defendant cited Dugan for the proposition that the word “cunt” is not inherently likely to provoke a violent response, a closer reading reveals that Dugan actually stands for the opposite proposition—that the word is sufficiently and inherently inflammatory, as “among the most distasteful in our vocabulary,” and would easily qualify as a fighting word if directed at a person “face-to-face” or in “close physical proximity.”[17]

In Dugan, the Montana Supreme Court held the words “fucking cunt” that Dugan had said to a female victim-services employee over the telephone were not fighting words on the ground “[w]ords spoken over the telephone are not proscribable under the ‘fighting words’ doctrine because the person listening on the other end of the line is unable to react with imminent violence against the caller.”[18] The Dugan court also noted the employee “was in her office at the time of the phone call,” that “[h]er office is located behind locked doors,” and that “the State was unable to point to a single ‘fighting words’ case in which a conviction passed constitutional muster when the . . . communication did not occur in the physical presence of the listener.”[19] The court further noted the employee “had the power at any moment to end the communication by simply hanging up the phone.”[20] This made Dugan a very different case.

In my case, by contrast, the defendant’s choice of the same or similar words—“a fat, hairy cunt”—was directed at the defendant’s ex-wife, as he stood behind her in a courthouse lobby with virtually no distance or barriers between them. All she had to do to respond with violence was turn around. She could have done so easily. As could her attorney. And, unlike the victim in Dugan, she and her attorney did not have the power at any moment to end the defendant’s inflammatory speech and confrontational conduct. In fact, they tried to no avail; the defendant followed them to the reception window, where they asked for a bailiff and had to wait for him to come and intervene.

The defendant’s words also satisfied Chaplinsky’s first definition of fighting words, as “those [words] which by their very utterance inflict injury.”[21] Indeed, the word “cunt” is not only “among the most distasteful in our vocabulary,” as noted in Dugan, but also a gendered, highly charged slur. To that end, although the touchstone still appears to be whether violence was likely, the word “cunt” is analogous to racial slurs that courts have widely recognized as inflicting injury by their very utterance.[22]

In my case, the defendant argued that calling his ex-wife “a fat, hairy cunt” was insulting, boorish, and derogatory but did not rise to the level of fighting words. The Montana Supreme Court rejected a very similar argument in Billings v. Nelson, in which “Nelson argue[d] the words ‘spic bastard,’ though ‘harsh, coarse, hurtful, vulgar, unpleasant, distasteful, or rude,’ are not fighting words.”[23] The Nelson court recognized that, depending on the context and circumstances, “[t]he use of a racial slur is the type of speech that would, by its very utterance, inflict injury and tend to incite a breach of the peace.”[24] The same logic applies to the defendant’s name-calling in my case, especially in light of the sensitive context and circumstances in a courthouse lobby right after a hotly contested family-court hearing between the parties. And the remaining cases the defendant cited in his motion were readily distinguishable.[25]

Thus, the defendant could not credibly claim that the words “a fat, hairy cunt” were anything other than inherently inflammatory.

3. The defendant’s speech was face-to-face or in close physical proximity.

Unlike the name-calling in Dugan, the defendant’s name-calling in my case was directed at his ex-wife face-to-face or in close physical proximity. This meaningfully distinguished my case from Dugan and, significantly, satisfied the requirement that fighting words be directed at a person either “face-to-face” or “in close physical proximity,” as contemplated by Chaplinsky and its progeny.[26]

Many scholars have read Chaplinsky and its progeny to require a level of physical proximity between the speaker and the hearer before speech can constitute fighting words.[27] This requirement makes sense as a policy matter, because limiting fighting words to those spoken in close physical proximity comports with the underlying purpose of this categorical exception, which is “to preserve the public peace” by forbidding only those words that have a “direct tendency to cause acts of violence.”[28]

In my case, the defendant’s fighting words occurred in person with virtually no distance or barriers between the defendant and his ex-wife as he stood behind her in a courthouse lobby and called her “a fat, hairy cunt.” Nor did much distance or any barriers exist as the defendant stood in front of his ex-wife and her attorney, crossed his arms, made the challenging remark “What’s up now?,” and called them “liars” to their faces. This meaningfully distinguished my case from others where courts have held there were no fighting words because of the distance and barriers between the speaker and addressee.[29]

Accordingly, the defendant’s speech in my case constituted fighting words because it was directed at his ex-wife, her attorney, or both, and because it was inherently inflammatory and face-to-face or in close physical proximity.

In the end, the court agreed with my analysis that convicting the defendant of disturbing the peace would not run afoul of the First Amendment. The court agreed a conviction was more than justified by the facts, and it rejected attempts to isolate the defendant’s provocative speech from the accompanying physical conduct, as well as the sensitive context and circumstances. The defendant called his ex-wife “a fat, hairy cunt.” He did so face-to-face or in close physical proximity. His physical conduct was confrontational and included acts of aggression: running up to his ex-wife and her attorney; following tem to the elevators; standing in front of them; crossing his arms while blocking their path; following them to a reception window; and standing right behind them. When the defendant stood in front of them, he crossed his arms and made a challenging remark, “What’s up now?”

The defendant did all this in a sensitive location, the courthouse lobby, with sensitive surrounding circumstances, given the confrontation occurred just minutes after a contentious and emotional family-court hearing between the defendant, his ex-wife, and her attorney. This made his words all the more provocative and all the more likely to incite an immediate breach of the peace.

On the above facts, the court in my case was correct to rule that the defendant’s speech was unprotected under the First Amendment. It plainly constituted fighting words.

________________________

[1] U.S. Const. amend. I.

[2] The First Amendment has been incorporated against the States via the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942).

[4] Id. at 572.

[5] Id. (emphasis added).

[6] Id. at 573.

[7] Id. at 574.

[8] 403 U.S. 15 (1971).

[9] Id. at 20 (emphasis added); see also State v. Dugan, 303 P.3d 755, 764 (Mont. 2013) (citing Cohen for the same proposition).

[10] 491 U.S. 397, 409 (1989) (emphasis added).

[11] Cantwell v. Connecticut, 310 U.S. 296, 309 (1940) (holding that, “in practically all [cases], the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer” (emphasis added)).

[12] State v. Hoshijo, 76 P.3d 550, 565 (Haw. 2003) (“[T]he proper standard is whether the words were likely to provoke a violent response, not whether violence occurred. Plainly, there is no requirement that violence must occur, merely that there be a likelihood of violence.”).

[13] 315 U.S. 568, 572 (1942).

[14] 394 U.S. 576, 592 (1969) (reversing the malicious mischief conviction of a man who had burned a flag on a public street and declared “[w]e don’t need no damn flag”).

[15] E.g., State v. Dugan, 303 P.3d 755, 765 (Mont. 2013).

[16] Id.

[17] Id. at 766–68.

[18] Id. at 767 (emphasis added); Billings v. Nelson, 322 P.3d 1039, 1045 (Mont. 2014) (citing Dugan for the proposition “[t]elephone communications are not included within the fighting words doctrine, because there is no possibility the listener will react with immediate violence against the speaker”).

[19] 303 P.3d at 766–67.

[20] Id. at 768.

[21] 315 U.S. 568, 572 (1942).

[22] E.g., Billings v. Nelson, 322 P.3d 1039, 1045 (Mont. 2014) (“The use of a racial slur is the type of speech that would, by its very utterance, inflict injury and tend to incite a breach of the peace.”); State v. Hoshijo, 76 P.3d 550, 565 (Haw. 2003) (finding “a likelihood of violence” where a man called another man a “nigger”); Taylor v. Metzger, 706 A.2d 685, 691 (N.J. 1998) (“The experience of being called ‘nigger,’ ‘spic,’ ‘Jap,’ or ‘kike’ is like receiving a slap in the face. The injury is instantaneous.”).

[23] 322 P.3d 1039, 1045 (Mont. 2014).

[24] Id.

[25] See, e.g., State v. Tracy, 130 A.3d 196 (Vt. 2015) (holding that the defendant’s calling a youth basketball coach “a bitch” and using the f-word were not fighting words, as the coach was “sitting in[side] [her] car” and the defendant, who was outside, “moved away from the car window,” meaning he “uttered some of the offending statements as he walked away—rendering them especially unlikely to incite an immediate violent response” (emphasis added)); Lundgren v. State, 518 S.E.2d 908, 909 (Ga. 1999) (holding that there were no fighting words “in the circumstances and context” where a drunken suspect told an EMT “You have nice tits,” and where “no yelling, no spectacle, no confrontation occur[ed]” (emphasis added)); C.P. v. State, 644 So. 2d 600, 601–02 (Fla. Dist. Ct. App. 1994) (stating, as dictum, the statement to a police officer “Fuck you, pussy cracker” did not amount to fighting words, in part because “[t]he state conceded that appellant’s language did not constitute fighting words” in light of the context and circumstances (emphasis added)); Rozier v. State, 231 S.E.2d 131, 131 (Ga. 1976) (holding, with little factual background and thin reasoning, “the defendant made this remark [‘How about some pussy?’] to the victim while the latter was at home,” and, “when considered under the circumstances and in the context in which it was made, did not constitute ‘fighting words’” (emphasis added)).

[26] See Chaplinsky, 315 U.S. at 573 (“The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee.” (emphasis added)); see also State v. Dugan, 303 P.3d 755, 765 (Mont. 2013) (noting Chaplinsky “clearly contemplated some level of physical proximity between the speaker and his audience” (emphasis added)); cf. Nelson, 322 P.3d at 1045 (“[T]hat [defendants] were in a car does not mean their speech could not have incited an immediate violent response from a listener on the street. [The victim] was close enough to recognize the women’s faces and to hear their words clearly, even though they did not ‘holler’ them. Nelson’s use of the term ‘spic bastard’ constituted fighting words and was not constitutionally protected.” (emphasis added)).

[27] E.g., Jennifer Elrod, Expressive Activity, True Threats, and the First Amendment, 36 Conn. L. Rev. 541, 576 (2004) (noting that the “fighting words” doctrine assumes close physical proximity, face-to-face confrontations, and imminent physical responses or reactions to the speaker’s statements); Michael J. Mannheimer, The Fighting Words Doctrine, 93 Colum. L. Rev. 1527, 1554 (1993) (“Insulting language must be spoken in close physical proximity to the addressee to be considered fighting words. Otherwise, the burden is on the addressee to ‘cool off.’”).

[28] Chaplinsky, 315 U.S. at 573.

[29] Cf. State v. Dugan, 303 P.3d 755, 766 (2013) (holding the words “fucking cunt” that Dugan said to a woman over the phone were not fighting words, as “the distance and barriers between the parties precluded an immediate, violent response” (emphases added)); Hershfield v. Commonwealth, 417 S.E.2d 876 (Va. 1992) (finding no fighting words where neighbor told another from “his yard two houses down” to “go fuck yourself” but “the parties were separated by a distance of 55 to 60 feet and by a fence” (emphases added)); In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978) (finding no fighting words where girl said to police “fuck you[,] pigs” but her words were “spoken in retreat from more than 15 feet away” (emphases added)); Anniskette v. State, 489 P.2d 1012, 1013 (Alaska 1971) (finding no fighting words a man told a state trooper he was “a no good God-damn cop” over the telephone because “[t]he time necessary for the officer to travel from his residence to that of the defendant should have allowed enough cooling off so that any desire on the part of the officer to inflict violence on the defendant should have been dissipated”).

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