Free Speech

Kentucky Bill Would Ban "Fighting Words" Aimed at Police Officers

Is that constitutional? Not clear.


From SB211, which just passed the Kentucky Senate:

(1) A person is guilty of disorderly conduct in the second degree when in a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof, he: …

(e) Accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.

Let's assume that courts read subsection (1)(e) as limited to speech that fits within the First Amendment exception for so-called "fighting words"—"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." A total ban on all fighting words, whether said to a law enforcement officer or anyone else, would be constitutional. (I set aside here whether this exception ought to exist; rightly or wrongly, the Court has recognized it.)

Is it constitutional for Kentucky to specially punish such fighting words when said to law enforcement officers? That, it turns out, is a surprisingly complicated question, because of two decisions the Supreme Court has rendered:

  1. In R.A.V. v. City of St. Paul (1992), the Supreme Court held that a state can't specially target fighting words that "arouse[] anger, alarm or resentment … on the basis of race, color, creed, religion or gender." Such targeting was a content-based, and indeed a viewpoint-based, distinction between bigoted fighting words and other fighting words.
  2. But 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."

Likewise, specially targeting fighting words that are insulting to police officers would be unconstitutional. But imposing extra punishment on defendants who commit crimes against police officers, or who target police officers for crimes, is constitutional. (Indeed, historically murder of police officers has often been seen as an especially serious crime in many states, and indeed one that is particularly eligible for the death penalty.)

This, of course, raises the question: What if a statute imposes special penalties not on violence against police officers, but on fighting words (or threats) directed at police officers—or on fighting words (or threats) directed at people because of their race, religion, and the like? Do we treat such statutes as impermissible content-/viewpoint-based regulations of speech, under R.A.V., or as permissible bans on targeting victims based on a particular attribute (police officer status or race/religion/etc.)?

Some passages in Mitchell suggest that it applies only to laws that target nonspeech crimes (such as battery):

[W]hereas the ordinance struck down in R.A.V. was explicitly directed at expression (i. e., 'speech' or 'messages'), the statute in this case is aimed at conduct unprotected by the First Amendment.

(In context, the Court seemed to be distinguishing speech crimes from nonspeech conduct crimes, and not crimes that involve constitutionally protected speech from constitutionally unprotected speech; the R.A.V. ordinance, after all, had also been interpreted as targeting only constitutionally unprotected fighting words.)

On the other hand, another passage suggest that victim selection is just different from content discrimination:

[T]he Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases.

Speech that tends to cause race-based fights is especially likely to cause such fights, and thus provoke retaliatory crimes and incite community unrest. (Even though with fighting words, targets are supposed to resist the provocation, in fact they sometimes are provoked to violence, human nature being what it is; fighting words doctrine recognizes that.) Likewise, speech that tends to cause a violent reaction by a police officer is also especially likely to cause such reactions, and thus provoke retaliatory crimes and incite community unrest. [UPDATE: Sentence added.] R.A.V. similarly distinguished the restriction in R.A.V., which targeted particular messages, from "a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause)."

And just a few months ago and right across the river from Kentucky, the Ohio Court of Appeals resolved this in favor of applying Mitchell and upholding a fighting words enhancement for speech targeted at a person based on race. The case is City of Columbus v. Fabich, which is worth excerpting here (see also People v. Nitz (Ill. Ct. App. 1996)):

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 held there was adequate evidence that (1) Fabich's speech was indeed "fighting words" and (2) "one of the motives, reasons or purposes for the commission of the offense [was] the victim's race," concluding:

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….

So that's what makes the case more difficult than it might appear. It might at first seem unconstitutional because it's a speech restriction. But then it might seem constitutional because it appears to be focused on the "fighting words" exception. But then it might seem unconstitutional because it violates the R.A.V. principle by specially targeting a certain content or viewpoint expressed by a particular subset of fighting words. But then it might seem constitutional because it's consistent with Mitchell. I leave this issue without a prediction, but just highlighting the possible legal arguments.

NEXT: Today in Supreme Court History: March 13, 1963

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  1. Aren’t police officers supposed to be highly trained professionals? At the very least, they should be able to set aside their emotions when hearing those “fighting words”…

    1. And we pay their early retirements due to cardo stuff because we know that no human could…

      1. I would like to know one example of an insult that will give a police officer a coronary in 30 years unless he beats the insulter to a pulp today. That is some serious sorcery…

        1. I would like to know one example of an insult that will give a police officer a coronary in 30 years unless he beats the insulter to a pulp today.

          A camera flash. Most insulting thing you can do to a police officer is take a picture.

  2. While this is an interesting and important distinction to take note of, I can’t help but notice it largely ignores the true threat to free speech here. The threat has less to do with “is discrimination on the basis of police-officer-as-victim really just a content-based distinction,” than, “this law leaves every relevant consideration to the discretion of police officers, who will no doubt invoke this law whenever they feel even slightly perturbed by the mien of protesters who confront them.”

    This is a clear assault on the free speech rights of protesters. Trying to crack the nut of whether we ought to have the right to shout proscribable speech specifically at police officers largely misses the point.

    1. The threat has less to do with “is discrimination on the basis of police-officer-as-victim really just a content-based distinction,” than, “this law leaves every relevant consideration to the discretion of police officers, who will no doubt invoke this law whenever they feel even slightly perturbed by the mien of protesters who confront them.”

      Exactly. The law would enable the police to arrest anyone who shouts something insulting at them. Let the prosecutor drop the charges later, or whatever. It’s a hugely intimidating statute, which basically lets the police arrest demonstrators on a pretext.

      Not close. Even if we ignore the context of the bill’s passage.

      Plus, how is anyone supposed to know what a court will decide might, “provoke a violent response from the perspective of a reasonable and prudent person.”

      1. I appreciate what Eugene is trying to do, here. As a free speech hawk, I imagine he agrees that this is a “chilling” statute, and he went about analyzing it under existing case law to see if there’s a good argument for its being unconstitutional. Unfortunately, he found that it’s tough to make that argument.

        I think the problem helps to demonstrate the problem with how judges and lawyers think of the law, the analytical framework we’re consistently trained to treat as inevitable and normative but that requires missing the forest for the trees, on issue after issue. A judge who upholds the law as constitutional because it’s proscribable under the First Amendment, is not properly speaking “content-based,” and is consistent with other holdings on cop-as-victim crimes and enhancements, is applying “the law” as we’re taught to think of it, but imposing a great injustice and infringement on free speech as it really exists in the world. Every challenge to the law becomes an as-applied challenge and so depends on the willingness of victims of police mistreatment to lawyer up and accept the risks of criminal trials or the costs of civil litigation. Judges and lawyers can see this, and they should be able to take it into account as they try to fashion an appropriate rule. We shouldn’t be empty-headed law-calculators about it.

        1. Maybe.

          But I think your point is more broadly applicable. We regularly see cases discussed here where an individual has some sort of encounter with the police, and doesn’t break it off, as he is entitled to do, with bad results.

          Too often, the courts rule that a “reasonable person” would have known he could walk away freely, or refuse to answer questions, or not allow a search. But most people – certainly most non-lawyers – don’t know that, and assume that there will be a problem if they don’t comply. (And too often there is.)

          The courts need to understand that. I’m all for protecting Orin Kerr’s constitutional rights, but everyone else’s should be protected also.

          1. Hrm… based on their many well-documented cases of arresting and attacking people that try to walk away from them, a reasonable person should know that a turned backside is very insulting to a cop.

            So trying to walk away from a cop would be a crime in Kentucky, as it is necessarily an insult to the cop. You have to stand there and wait for the cop to walk away first.

  3. We already know how a conservative blog (also “often libertarian,” it claims) addresses censorship in the context of a term that disparages those who provide succor to police officers.

    Perhaps the Conspirators would be more at home in conservative Kentucky . . . yet they (those with a choice, at least) continue to choose communities (Los Angeles, Chicago, D.C., etc.) outside the clingerverse for work and residence.

    1. Good lord! I was unaware you were fined or tossed in the slammer overnight for what you said. I apologize.

      1. This blog’s censorship policies and practices are shabby, but this is the proprietor’s playground and he is entitled to establish the rules (and enforce viewpoint-driven, highly selective censorship). Hypocrites have rights, too. I therefore must refrain from using words this blog has prohibited if I wish to comment.

        That a partisan censor is unable to fine or incarcerate those afflicted by his hypocritical censorship does nothing to improve the censor’s conduct, however, in my judgment. Others may find this particular censor’s conduct admirable, perhaps creating a glow around which they may huddle for warmth as their preferences turn to cold ash in the culture war.

        1. Arthur,

          I don’t doubt any of the events you recount. I may even have a vague contemporaneous recollection of the Artie Ray Jim Bob incident. But here’s my question:

          If Eugene is the partisan censor you say he is, how do you account for the fact that he continues to let you comment here? I don’t think it’s controversial to say you could hardly by more contemptuous of his views or antagonistic to him personally. Do you know of any other moderated comment threads that allow a commenter to express such frequent, repetitive, longstanding hostility to the main blogger?

          1. You omitted “content free” among your descriptors.

          2. I strive to avoid use of the words he has indicated he will not permit me to use. I also have not attempted to comment as Artie Ray Lee Wayne Jim-Bob Kirkland since the Artie Ray was banned.

            Beyond that, who knows? Maybe he regrets the censorship or has learned from it. Maybe it’s just a matter of time before the censorship recurs. Maybe he figures my speech is counterproductive and helps the conservative cause. Maybe he is concerned that if he bans or censors me anew the American Constitution Society will sponsor my presentations at UCLA and other law schools. Maybe I’m just lucky. Maybe he’s a masochist. Maybe he genuinely does not read my comments. Maybe he is worried I might commit suicide if banned again. Maybe Leonard Leo forbids him to ban me again. Maybe we share a mistress, and she puts in a good word for me.

            1. Or maybe he recognizes — he is smart — that Ted Kramer is a talentless hack and for that reason I sometimes get a pass here.

              1. Perhaps he wishes to refrain from the ultimate frustration of playing whac-a-mole with you?

                1. He could ban me with a single, one-line email (or, perhaps, without it).

                  He could expand this blog’s censorship of my comments by identifying banned words with no comment.

                  Banning is easy, particularly where the censored person complies with rules identified by the censor.

                  1. “He could ban me with a single, one-line email (or, perhaps, without it).”

                    If you would honor his request to not comment at all, why won’t you honor his request that comments be on topic and polite?

  4. In practice, won’t a law against fighting words be to a great extent enforced against people who insult cops?

  5. Officers will deploy fighting words protection as another weapon on the tool belt, along with the baton, the flashlight, the mace, the handcuffs, the taser, and the Glock. Seems like they are adequately equipped already; not in need of more weapons.

  6. There’s also a potential Watts v. United States argument- threats against the President are not treated as a content-based restriction, because threats against the President have special force. So you could argue fighting words directed at cops have special force.

    I highly dislike this law as a matter of policy. Not sure if it isn’t constitutional, though.

    1. You could also argue that:

      1. As EVdV points out, cops are supposed to be trained to handle tense situations, so they have less, not more, ability to respond to fighting words.

      2. Cops have tremendous power to make things unpleasant for those who offend them. We don’t need to expand that power.

  7. How do you write an article about this without — somehow — citing Chaplinski v. NH?

    Remember that he called the police chief a “damned fascist” — that’s all he did and as to if that is still considered “fighting words” is something that I’d love to see a law review article on.

    But that’s all he did, and I see this as an attempt to return to the 1930’s view of what fighting words are…

    1. Chaplinski

      Because, like HIPPA, that’s not a thing.

  8. There are no fighting words. The American male has been totally feminized by the lawyer profession. For example, a lot dipshit lawyers have flung fighting words at me. I had to take it, and not kick their ass.

  9. Eh the left has abandoned any pretext that they care about free speech, so I don’t see any reason to not support this as long as it results in hippies, BLM terrorists, anti-fa, leftists, and others going to jail.

    1. Supporting authoritarianism to own the libs.

      1. No opportunism to own the libs. There is a, subtle, difference. But thanks for aptly demonstrating all the double standards out there. We all now feel like this. Got to support our tribe as number 1.

        1. No, you speak for yourself.

          1. You were #1 out there pushing for censorship and oppression. Then when some people got fed up with that and wanted their voices heard you slandered them with labels such as rioter and insurrectionist. You are the problem. Time to own your responsibility for all this .

  10. Didn’t the Court basically answer this question already in RAV, at least in dicta?

    “[A] prohibition of fighting words that are directed at certain persons or groups … would be facially valid[.]”

  11. Like all hypersensitive elite minorities, just ignore them. They’ll let you know soon enough if they have PC to bother you.

  12. Seems like this would have a chilling effect on any criticism of police.

    Since you don’t know exactly what qualifies as fighting words, you’ll be scared that any negative thing you say might qualify, and you’ll avoid any criticism of police. (Presumably that’s the goal.)

  13. Is it unreasonable of me to believe that mere words and gestures should never provoke a violent response from a reasonable person?

  14. Fighting words, somewhat analogous to beauty, are in the ear of the beholder. What angers one person to violence might have little effect on another. The speaker’s intentions ought to be the test. Not specific words, but the likely effect the words spoken would have on the intended audience.

    Certain actions aside from words are widely seen as an invitation to a violent physical confrontation. A man who, even mildly, slaps another in public could hardly complain (or argue that he did not start the fight but was instead attacked without provocation) if he then received a beat down from the person he slapped. Nor could he claim self defense if he prevailed in the fight.

    There are limits to free speech. If society decides to place fighting words outside protected speech the we have to grapple with what constitutes fighting words. Instead of complicating the issue with race, gender, etc we ought to keep it simple and stupid -what was the intention of the speaker?

    Suppose a speaker taunts another man by insulting his wife but gets no reaction. Then insults his mother, and still no reaction. Then the speaker insults the other’s race , religion, and manhood, but still no reaction. But then he says X and a fight ensues. Does it matter what X was? The clear intention was to start a fight.

  15. If fighting words doctrine is to remain an accepted thing, is it constitutional to treat verbal abuse of policemen different from verbal abuse of others?

    Why should it be the case that if a person insults another to the point of instigating a fight, that person is barred from claiming self defense except when their target is a policeman?

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