The Volokh Conspiracy
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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.
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."
