Free Speech

Calling Wife "Fucking Bitch" in "Mutual Argument … Unaccompanied by any Physical Actions or Threats" Isn't "Fighting Words"

Warning: These are trained litigants; don't try this at home.

|The Volokh Conspiracy |

From State v. Hamilton, decided today by the Kansas Court of Appeals:

On December 16, 2017, Hutchinson Police Officer Terry Martin was dispatched to the Sunflower Inn following a report of a disturbance there. On arrival, Martin spoke with Marina Benewiat, a hotel employee, who said that guests were complaining about an argument or commotion in the hallway near the stairs. Benewiat directed Martin and another officer to the room where [Jacob] Hamilton and his wife were living at the time. There, the officers made contact with Hamilton.

Hamilton admitted to the officers that he had called his wife a "fucking bitch." Based on this admission, Martin placed Hamilton under arrest for disorderly conduct involving domestic violence….

Officer Martin … personally did not witness the reported disturbance but claimed there was probable cause to arrest Hamilton after learning that Hamilton had called his wife a fucking bitch. According to Martin, Hamilton's use of the offensive term constituted fighting words that required his arrest under domestic violence laws.

Martin later spoke with Betty Widener, Hamilton's wife. Widener agreed that Hamilton had called her the offensive term during an argument, but she did not want Hamilton to be arrested. Widener also testified at the hearing. Widener said that she and Hamilton had been engaged in a mutual argument and were calling each other names when Hamilton called her a fucking bitch….

When Hamilton was arrested and searched incident to the arrest, Officer Martin found "a plastic bag containing unused syringes and a clear glass smoking pipe with burnt residue that later tested positive for methamphetamine," and Hamilton was prosecuted for that, not the comment to his wife. But in determining whether the drug evidence could be admitted, the court had to decide whether the initial arrest was valid, and the judges concluded it wasn't:

Disorderly conduct is defined in relevant part as "using fighting words or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others." The phrase "fighting words" means "words that by their very utterance inflict injury or tend to incite the listener to an immediate breach of the peace." Because the First Amendment to the United States Constitution protects freedom of speech and prohibits states from punishing the use of language or words except in limited circumstances, the disorderly conduct statute has been deemed constitutional only so far as the prohibited speech constitutes fighting words.

The State argues that Hamilton's arrest was required under K.S.A. 2018 Supp. 22-2307(b)(1) because he committed the crime of disorderly conduct by using vulgar language when arguing with his wife and by disturbing other hotel guests enough that a hotel employee reported him to the police. To the extent that the State claims Hamilton committed the crime of disorderly conduct by engaging in "noisy conduct tending reasonably to arouse alarm, anger or resentment in others," Officer Martin testified that he did not intend to make an arrest when he first approached Hamilton's room to discuss the disturbance call. Martin further testified that he only obtained probable cause to make the arrest upon learning that Hamilton had called his wife a fucking bitch. The question before us, then, is whether Hamilton used fighting words when he called his wife that name.

Whether language constitutes fighting words varies with each case and depends upon the totality of the circumstances. When determining whether disorderly conduct has occurred, the courts look to "the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances."

Here, the surrounding facts and circumstances establish that Hamilton and Widener were engaged in a mutual argument in a common area of the hotel. During the argument, the couple called each other names; Hamilton called Widener a fucking bitch. The argument was loud enough that it caused hotel guests to complain and a hotel employee to call the police.

There was no evidence of any physical altercation between Hamilton and Widener. Nor was there any evidence that Hamilton's words were accompanied by any threatening movement.

Widener admitted to participating equally in the argument and also confessed to calling Hamilton names. There is no indication that Widener believed her personal safety was at risk. To the contrary, Widener told Officer Martin that she did not want Hamilton to be arrested.

In sum, there is no evidence that Hamilton engaged in disorderly conduct by using fighting words towards Widener. Although the phrase "fucking bitch" is offensive and profane, when it is said in a mutual argument between a husband and wife, unaccompanied by any physical actions or threats, the phrase does not rise to the level of words which "by their very utterance inflict injury or tend to incite the listener to an immediate breach of the peace."

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  1. How timely! Prof. V’s latest post is a perfect illustration of the “Marriage 2.0” concept and how *all* marriage arguments are being done in shadow of the law (even name calling). Enforcement of everyone’s marriage is now outsourced to the state, a point I raised in his last post about noncustodial parents.

    A surprise to be sure, but not an unwelcome one.

    1. Rather than argue in the “shadows,” spouses who wish to have an argument should be required to apply for permission to an appropriate agency. Incidentally, government permission should also be required when posting a “parody” online, to make sure it’s not too deadpan and, hence, illegal. This points to the key purpose of many permit requirements: to reduce criminal speech in our great nation. See the documentation of America’s leading criminal “satire” case at:

      https://raphaelgolbtrial.wordpress.com/

  2. Well, isn’t that a f***ing b**ch. Husband gets arrested and, I’m sure ‘Immunity’ applies toward the Officer.

    1. If you’re a man, you’re increasingly considered at best a somewhat lower second class citizen and at worst an enemy in the eyes of most Western legal systems.

      Surprisingly the omnipresent drumbeat of how victimized women are and how its always the fault of men eventually takes a toll on how society views men in general. Regardless of how much the feminists claim it helps everybody.

      1. I’m from and live in a state with a similar culture to Kansas: our tendency to be harsher to men is nothing new. It has absolutely nothing to do with feminism but with conservative attitudes on how men and women can interact.

        1. If people and private organizations want to treat men and women different thats fine in general IMO. But its quite another thing for government to systematically demean and punish men and then gaslight them into thinking they are the advantaged. Either women are STRONG AND INDEPENDENT and do not need all these special programs and laws to protect them or they are constant victims of the depredations of men and do. Can’t have it both ways.

          1. You continue complaining about feminism. That’s not what’s going on here. This case would’ve gone exactly the same 70 years ago, except maybe the claim of disorderly conduct would’ve stuck.

            1. Nah, the government would have been more likely to mind its own business rather than get involved in minor domestic tiffs. And unlike today there probably aren’t like a dozen activist agencies that are ticking this off as another notch their statistics of evil men beating the pulp out of their wives so they can pump out the next garbage propaganda youtube vid or brochure .

              1. And of course, this man should permanently lose his 2nd Amendment rights, even after he serves whatever sentence he gets (or doesn’t get). But of course, felons deserve a second chance! For voting for Democraps and employment only, though.

      2. Quit whimpering.

      3. This does not on it’s face have anything to do with men vs. women. Kinda weird to bring it up, actually.

        1. She admitted to being just as loud, obnoxious, and insulting as he was. He was arrested, but she wasn’t, and that has nothing to do with men vs women?

          1. It sounds like she told the officer that after his arrest. They showed up after the argument, somebody told them what he said, they talked to him and he confirmed it, and then he was placed under arrest and searched. Only after he was taken into custody did they learn from the wife that it was mutually vitriolic.

            1. It matters not if it was before or after his arrest that she confessed that it was mutually vitriolic. They could have released him or arrested her, but they didn’t.

  3. So what woud have transmogrified Hamilton’s profanity into Fighting Words?
    If it had been accompanied by threatening physical movements?
    If it provoked the wife to retaliate physically (or threaten to do so)?

    Also, couldn’t an arrest have been made for disorderly conduct even absent the “fucking bitch” remark? If I am screaming at the top of my lungs on the sidewalk or worse, in a hotel lobby, I am pretty sure I could be arrested without triggering the 1A, even if I uttered zero Fighting Words.
    So as a matter of policy we might not want the officer to arrest married couples for loud indiscretions in public, but Im not sure if the 1A bars it

    1. The whole point of “Them’s fightin’ words!” is that it’s something so outrageous you are justified, at least partially, in taking a poke at someone. It’s logically a defense argument for the person who responded.

      As such I’m not sure government should try to get in the business of pre-crime, here.

      1. “The whole point of “Them’s fightin’ words!” is that it’s something so outrageous you are justified, at least partially, in taking a poke at someone.”

        The point of the “fighting words” doctrine is to justify punishing someone for calling a cop a fascist.

  4. All is fair in love and war when someone won’t share the F*%!-ing meth!

  5. In 1978, when I was a public defender, I had a 16-year-old client who walked up to a female classmate and said, “You can fuck my big bwana dick.” No threatening conduct. He was found guilty of disturbing the peace based solely on the words and sentenced to 10 days in juvenile hall. I appealed, and filed a lengthy and erudite brief discussing all the relevant cases. To my shock, the AG filed a short brief conceding that the juvenile court erred, and the Court of Appeal reversed in a 2-paragraph opinion. I was happy for my client but unhappy that I missed out on the chance to be part of a big First Amendment case. I think it was that word “bwana” — nobody could read that and take it seriously.

  6. Suppose the wife had called her husband a impotent fucking cuck? Fighting words now? Isn’t one of the problems with the fighting words doctrine that men are more likely to resort to violence than women in face to face confrontations? To be sure there are exceptions, but if we’re creating a rule based on predicted results, sex matters in predicting whether spoken words will provoke a violent response.

    1. No, men are not more likely to resort to violence. Men are more likely to physically harm women when they do resort to violence.

    2. Probably, and would have been more likely to be sustained. Claiming that a man is unable to have sex with his wife – or worse, votes Democrat – is far more damaging than making a comment regarding a woman’s behavior.

  7. Some time early in grade school, when I complained to my mother about abuse coming from another child, she told me these words:

    Sticks and stones,
    etc.

    Thank you, mom.

  8. “noisy conduct tending reasonably to arouse alarm, anger or resentment in others,”

    Without being there, it’s impossible to judge. However depending on many factors beyond just the words such as volume, expressions, and duration, such a argument in the public area could easily cause “alarm, anger, or resentment in others” even if the person who the words were directed towards didn’t feel even anger or resentment (let alone threatened) – perhaps because they were familiar with the speaker and had seen such behavior many times in the past and knew it was harmless. For example, a feminist or a social justice warrior nearby certainly could feel “anger” or “resentment” at a patriarchal figure calling a woman a “fucking bitch”.

    The quoted portion of the definition seems awfully vague and overly broad – hopefully there’s other language in the statute (which I’ve not bothered to look for) that clarifies and narrows the definition.

    It is easily possible that a bystander in a public place feels “anger or resentment” when hearing a Trump supporter loudly disagreeing with a Sanders supporter but that same bystander wouldn’t feel “anger or resentment” hearing a similar argument at the same volume about if the umpire’s game determining call last night in the bottom of the ninth in the seventh game of the World Series was correct or incorrect. Surely the standard can’t be which third party bystander happens to be around at a given moment.

  9. If I called my wife that then dealing with the police would be the least of my worries. They’d come and draw a chalk line around my dead body

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