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Free Speech

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

Is that constitutional? Not clear.

|The Volokh Conspiracy |

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.