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    The Lawletter Blog

    CONSTITUTIONAL LAW: Fighting Words Are Not Protected Speech

    Posted by John M. Stone on Tue, May 12, 2015 @ 12:05 PM

    The Lawletter Vol 40 No 3

    John Stone, Senior Attorney, National Legal Research Group

         When there is a confrontational encounter between a citizen and a law enforcement officer, it is not uncommon for a charge of disorderly conduct against the citizen to result, sometimes even though there may be no other charge that emanates from the initial reason for the interaction. Some maintain that disorderly conduct charges are too readily leveled against citizens who may be doing no more than questioning, perhaps angrily, why a police officer is taking particular actions. According to that view, a disorderly conduct charge can become a catchall offense too often used to punish someone whose remarks or conduct simply annoy the police officer. On the other hand, there certainly are instances in which the way a citizen reacts to the police crosses the line from protected speech to criminal conduct constituting disorderly conduct. One such example is "fighting words" directed at a police officer.

         In a recent case, the Supreme Court of Rhode Island upheld a conviction for disorderly conduct, rejecting an argument that the charge could not stand because it rested only upon the defendant's protected speech. State v. Matthews, No. 2012-299-C.A., 2015 WL 1516107 (R.I. Apr. 2, 2015). The court found that the defendant's conduct, including the words directed at the police officers, came within that part of Rhode Island's disorderly conduct statute on "fighting words," which states as follows:

    (a) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

    . . . ;

    (3) Directs at another person in a public place offensive words which are likely to provoke a violent reaction on the part of the average person so addressed[.]

    R.I. Gen. Laws § 11-45-1(a)(3) (Westlaw, statutes and Constitution current through Ch. 555 of the Jan. 2014 sess.).

         In Matthews, the defendant's insulting and threatening speech toward police officers constituted such "fighting words" rather than constitutionally protected speech, and, therefore, the disorderly conduct conviction based on speech did not violate the defendant's constitutional freedom of speech. While in close proximity to two police officers who were talking with him, he called the officers "m--- f---," among other things, and threatened to kill the officers and "kick their a---." The entire context in which the citizen's words are spoken is very important in such cases and may spell the difference between protected, albeit offensive, speech and fighting words that will justify an arrest.

         For example, in State v. McKenna, 415 A.2d 729 (R.I. 1980), abusive language was used by the defendant, who, as a bystander, addressed her remarks to a group of five police officers as they took some juveniles into custody. She spoke to them as a group rather than individually or face to face, and she was standing some 15 feet away when she delivered her insults, which apparently did not concern the officers individually. Her remarks, which included calling the officers obscene names and even a threat to "blow their heads off," did not result in an arrest for disorderly conduct until she continued to be loud after the officers had told her to be quiet; on balance, the court ruled that her comments did not constitute "fighting words" so as to be unprotected by the First Amendment right to free speech.

         In upholding the conviction in Matthews, the court found that the defendant's words, considered in light of all the surrounding circumstances, were "fighting words," that is, they had a direct tendency to cause acts of violence by the person to whom, individually, the remarks were addressed. The defendant's role in the specific circumstances of the case was an especially important factor that militated powerfully in favor of the trial justice's conclusion that the defendant's utterances constituted unprotected fighting words. The defendant himself was directly and personally involved in the very incident that prompted the troopers to execute a U-turn, stop their cruiser, and make inquiries of the defendant and another individual who appeared to be involved in an altercation while standing in a public place. The defendant refused to provide his identification to the troopers, and he immediately escalated what could have been a routine inquiry into a threatening situation. The defendant was not a bystander, as was the case in McKenna, nor was he uninvolved in the troopers' immediate purpose in coming to the scene, which was also the case in McKenna. The law enforcement officers in Matthews were present at the location in question specifically in order to assess what was transpiring between the defendant and the female with whom he appeared to have been quarreling. The defendant's decision at that juncture to shout his threats, abusive language, and provocative utterances—in particular, his reaction to the troopers' request for identification by challenging the troopers to "come and get it from me"—is what distinguished Matthews from the "attendant circumstances" in McKenna.

    Topics: constitutional law, protected speech, disorderly conduct

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