Can a Fighting Words Charge Lead to a Higher Sentence Because of the Defendant's Racial Motivation?

Yes, the Ohio Court of Appeals held Thursday.

"Fighting words"—face-to-face personal insults that are likely to start a fight—are generally constitutionally unprotected, and can be criminally punished (usually under disorderly conduct statutes). But in R.A.V. v. City of St. Paul (1992), the Supreme Court struck down a statute that imposed heightened punishment on those "fighting words" that "arouse[] anger, alarm or resentment in others on the basis of race": Even when some speech (e.g., fighting words, libel, obscenity, etc.) is constitutionally unprotected, the law can't selectively impose extra punishment on unprotected speech that, say, expresses racist views.

Yet in Wisconsin v. Mitchell (1993), the Supreme Court unanimously upheld a "hate crime" statute that imposed extra punishment on defendants who chose their targets based on race, religion, or the like. The law, the Court held, punished conduct (there, aggravated battery) coupled with discriminatory victim selection: "whereas the ordinance struck down in R.A.V. was explicitly directed at expression …, the statute in this case [Mitchell] is aimed at conduct unprotected by the First Amendment."

And "[t]he defendant's motive for committing the offense is one important factor" in sentencing. "[I]n many States the commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute"; likewise, the Court held, the deliberate selection of a victim based on race can be an aggravating circumstance, too, including in noncapital cases.

Now I actually think both R.A.V. and Mitchell are correct, and are consistent with each other. But of course this raises the question: What happens if a hate crime enhancement is imposed on a crime that (unlike aggravated battery) involves speech, e.g., disorderly conduct via fighting words?

In Thursday's decision in City of Columbus v. Fabich, the Ohio Court of Appeals held that this is fine under Mitchell (in an opinion by Judge Jennifer L. Brunner, joined by Judges Julia L. Dorrian and Laurel Beatty Blunt). First, an excerpt of the facts, which are important because they shed light on the defendant's motivation:

[Willis] Brown testified that he lived on North Monroe Avenue and was a Near East Area Commissioner for his neighborhood.  Fabich, he said, was a long-time neighbor who lived on the same street approximately one block away.  Brown recounted that he and another neighbor, Dana Moessner, were admiring landscaping that Moessner had done for Fabich's next door neighbor when Fabich pulled up in his car.  According to Brown, Fabich got out of the car and expressed the opinion that Brown and Moessner (who was also an area commissioner) were not good commissioners….

During Brown's direct testimony, video of a portion of the altercation was played…. Fabich can be heard to repeatedly say, "Bye Nigger Brown," "go away, Nigger Brown," and other similar remarks to someone off screen. The person off screen (whom the parties apparently do not dispute was Willis Brown) can be heard shouting back at intervals urging Fabich to "be respectful" and not to "call people names." At one point, Fabich tells the person off screen, "Go back to your plantation." At another point, he appears to say, "If you're calling me Tarzan, you're Nigger Brown." Later he says, "If you're going to make fun of my whiteness, we're going to have it out." Shortly before the end of the recording, Fabich says, "You called me Tarzan. Let's have some race fun." …

Fabich testified that he was engaged in unloading … plants from his car in front of his house when Brown told him, "Tarzan, get your white ass back in the house." Fabich testified that "Tarzan" is a derogatory term for a white person living in a predominantly black community and that he knew this because Brown had spelled it out for him on prior occasions and because Fabich had looked it up. Fabich said that there had been bad feelings between him and Brown for some time prior to the events underlying the case. Fabich said the "Tarzan" remark set him off and that he was not fully cognizant of what he was saying during the interaction with Brown as he continued to place his shrubberies….

As best I can tell, the Area Commission is an advisory body, though one with some potential influence, for instance in "[r]eviewing all applications for and related to proposed development and demolition within the Near East Area." Brown was also apparently a local Democratic Party Central Committee member, at least as of August 2017. But while his Commissioner role seems to be part of the backstory behind the tension between Fabich and Brown, it doesn't seem to be directly involved in this incident.

Fabich was sentenced "to 60 days in jail (with 17 days of jail-time credit), 30 days on house arrest," with "a further 90 days of jail time [suspended] on condition of 2 years of probation." (According to QFM96, "Sean Fabich, 48, has a record of assault and other crimes dating back three years," having "been charged with assault, resisting arrest, violation of a protection order, improper use of 911, obstructing official business, and several counts of animal cruelty.") Without the hate crime enhancement, the offense would have been a fourth-degree misdemeanor, punishable by at most 30 days in jail.

The court analyzed the R.A.V. First Amendment challenge thus:

In this case, the City has convicted Fabich of ethnic intimidation based on his having uttered racially charged fighting words to a black person. Hypothetically, had Fabich confronted Brown with different fighting words that disclosed no racial bias, he might have instead been found guilty only of disorderly conduct, not ethnic intimidation. That juxtaposition seems, at first, to place this situation squarely within the reach of R.A.V.'s prohibition on regulating the content of fighting words.

However, another hypothetical leads us in a different direction: What if Fabich had confronted Brown with fighting words that were not racially charged but then, after the fact, confessed that his motive for verbally attacking Brown had been racial? In that case, despite having uttered no biased fighting words, could he still have been found guilty of ethnic intimidation based on the unbiased fighting words in conjunction with his confessedly biased motive for having uttered them? This hypothetical line of reasoning highlights the fact that the triggering culpability element in the ethnic intimidation ordinance is not the content of the fighting words, but rather, it is the "motives, reasons or purposes for" which the fighting words were uttered.

In other words, assuming arguendo that the City successfully proved a bigoted motive for Fabich' directing fighting words toward Brown, then the ordinance is constitutional as applied to him. The ordinance does not seek to punish his use of the n-word more severely compared to other fighting words. It punishes a bigoted motive for employing fighting words against Brown, without regard to what those words were. Mitchell … inform[s] that it is permissible for a government to add to the punishment of crimes where the criminal acts were committed due to a repugnant or socially destabilizing (for example, racist) motive. Thus, even as applied to Fabich (assuming a bigoted motive), we find that the City's ethnic intimidation ordinance is constitutional….

And the court concluded there was adequate evidence that (1) Fabich's speech was indeed "fighting words" (for space reasons, I omit the discussion of that) and (2) "one of the motives, reasons or purposes for the commission of the offense [was] the victim's race":

[I]t is not enough that someone who becomes involved in an altercation utters racial slurs in the course of the altercation; {[i]n fact, if the mere use of a racial slur during an argument would justify a conviction for ethnic intimidation, then our basis for finding the ordinance to be constitutional would be undermined.} [R]ather, the victim must be targeted "by reason" of their race or in this case their race must serve as one of the "motives, reasons or purposes for the commission of the offense." To put it more plainly, becoming infuriated with someone for a nonracial reason and, in the course of that angry altercation, hurling a slur does not suffice to transform disorderly conduct into ethnic intimidation….

[For instance, in an earlier case], an African-American couple became involved in an argument with a white man over parking arrangements…. The Eighth District Court of Appeals found that, while the evidence supported a conviction for aggravated menacing, the evidence did not support a conviction for ethnic intimidation, reasoning as follows: … "We recognize that while [the defendant]'s use of the ''N word' [is] offensive, 'repugnant or obnoxious language does not, in itself, demonstrate tha[t] an action was undertaken 'by reason of the victim's race.''" … "[T]he evidence demonstrates that the threats between [the victim] and [the defendant] were prompted by their random, happenstance dispute over where the car was parked. As a result, there is insufficient evidence to demonstrate that [the defendant] threatened [the victim] with a gun because of his race." [Discussion of two other similar precedents omitted. -EV]

In this case, however, the cause of the rift between Fabich and Brown is considerably less clear-cut than in [the prior precedents]. It is undisputed that Brown and Fabich had, by Brown's own testimony, been neighbors for a long time and had many past interactions…. But why things came to a head on the day that they did or why the two men wound up trading racial insults (with Fabich dealing the vast majority of racial invective), is a matter of inference….

[Given the guilty verdict], we must credit the assertion that Fabich initiated the interaction and began using racial slurs against Brown without specific provocation. Moreover, the evidence in the record amply supports that the argument between Brown and Fabich included racially abusive language, and the jury could have inferred racial animus from Fabich's statement, "Let's have some race fun." Under the circumstances, viewing the evidence in the light most favorable to the prosecution [the norm when reviewing a guilty verdict for sufficiency of the evidence -EV], the record is sufficient to conclude beyond a reasonable doubt that at least one of Fabich's motives in perpetrating disorderly conduct toward Brown was racist.

When using a manifest weight analysis and weighing the testimony as if we were the proverbial "thirteenth juror," the picture is more complicated, but the racial motive behind the altercation still finds support. Brown stated that he never called Fabich "Tarzan," that he had never used the term before, and testified that he did not hear Fabich reference having been mocked for his whiteness during the video of the incident. Moessner testified in support of this one-sided narrative when he claimed that neither he nor Brown said anything at all in response to Fabich.

But, during the video, a person off screen can be heard shouting back at Fabich, much of it inaudible. And at several points during the video, Fabich references an insult apparently offered by Brown: "If you're calling me Tarzan, you're Nigger Brown." "If you're going to make fun of my whiteness, we're going to have it out." "You called me Tarzan. Let's have some race fun." Though the video is somewhat hard to hear, the neighbor (Waderker) who recorded the video, was not at all reticent about confirming that Fabich made the remarks concerning the "Tarzan" insult. This apparently led Fabich to respond with the torrent of vile racist language, which we have already recounted in detail.

In short, the manifest weight of the evidence is to the effect that these long-time neighbors, Fabich and Brown, became involved in an altercation 'that was motivated, at least in part, by racial animus. Whether that racial animus between the two men was mutual (as it may have been) is of no moment—Brown and his alleged "Tarzan" remark are not on trial.

What matters is whether Fabich was motivated by Brown's race when he hurled racist invective at him. Because, unlike in [prior precedents], the record at trial does not offer another clear explanation for Fabich's motive, we conclude that the jury did not lose its way in concluding from Fabich's statements that Fabich's motive was, at least in part, racial….

The evidence in this case showed that Fabich used racially charged fighting words in combination with other racially derogatory statements. Though the content of these words is not (and cannot constitutionally be) the target of the ethnic intimidation ordinance, the lack of other explanation for the conflict between Fabich and Brown permits those words to serve as evidence of Fabich's motivation for the conflict and the use of fighting words. We therefore affirm Fabich's convictions for disorderly conduct and ethnic intimidation….