Lewd Statements to Woman in Front of Her Boyfriend Can Be Unprotected "Fighting Words"

The "fighting words" First Amendment exception generally allows the punishment of personal face-to-face insults that are likely to provoke a fight; usually, they involve a risk that the target would throw a punch (or worse), but the risk could also stem from third parties connected to the target, and from statements that are seen as personally offensive even if they aren't literal insults. State v. Riley, decided in 2017 by the Wisconsin Court of Appeals (by Presiding Judge Paul Lundsten and Judges Brian Blanchard and Michael Fitzpatrick) but for some reason just posted on Westlaw, illustrates this well:

Riley was charged with disorderly conduct, substantial battery, and two counts of felony bail jumping, all as a repeater, after a fight that originated in a tavern. According to the complaint, Riley made "inappropriate" comments about the victim's girlfriend, which led to an altercation in the tavern. After the fight broke up, Riley and an associate subsequently attacked the victim outside the tavern. At trial, witnesses testified to the comments made by Riley while still inside the tavern that were directed at the victim's girlfriend, who was a bartender at the tavern.

The victim's girlfriend testified that Riley is related to her former boyfriend and that Riley's friend had asked her if she was dating the victim. She testified that Riley later approached her at the bar and made a vulgar comment about her vagina. Riley then stated loudly, while looking directly at her, that he was planning to "take that bartender home and fuck her that night." The victim testified that he heard Riley announce that he was "going to fuck the shit out of the bartender tonight," which he interpreted as referring to his girlfriend because Riley was standing face to face with her at the time. Two other witnesses testified that they heard Riley making similar comments, with lewd terms that we need not repeat, in which he loudly announced what he intended to do to the victim's girlfriend….

Riley was convicted, and the court held that his comments qualified as "fighting words" for First Amendment purposes:

The parties agree that this case involves the application of the fighting words doctrine, which allows a defendant to be prosecuted for "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." … Riley made crass and lewd comments directly to the object of his commentary, who he also knew was the victim's girlfriend. Moreover, he made these comments loudly, with knowledge that the victim was nearby….

Riley makes four arguments for why his comments are protected speech that cannot be a basis for his criminal convictions. First, he made these comments in a tavern, which he argues is "an environment restricted to adults and centered on drunkenness," where "[d]istasteful speech is common." Riley seems to be arguing that tavern patrons should have greater speech protections than the ordinary public, which would arguably give them more leeway to use provocative language in a tavern setting.

We reject this argument for two reasons. First, Riley provides no legal support for the proposition that provocative language enjoys more protection in places like taverns. Indeed, it could be argued that provocative language is more dangerous in a tavern setting because people are more likely to be intoxicated. Second, even assuming without deciding that more provocative language is permissible in a tavern setting, the language used by Riley here was beyond any reasonable bound.

Second, Riley argues that his comments were a frank and crass discussion of his sexual interest and, as such, they are socially useful and deserving of protection under the First Amendment. He further suggests that comments relating to sex should be entitled to greater protection because, in his view, efforts to police sexual innuendo often stem from religious concerns. We disagree that the comments that Riley directed at the victim's girlfriend were socially useful, or that his prosecution was motivated by religious concerns. Instead, we think it is common knowledge that sexually explicit comments, like those here, directed at a woman or a man in front of that person's boyfriend or girlfriend are inherently likely to provoke a violent reaction, which places Riley's comments squarely within the fighting words doctrine.

Third, Riley contends that the circuit court erred because it determined that Riley's comments would be protected speech if made "discreetly." Riley argues that the fact that his offensive comments were overheard cannot be a basis for penalizing him for his speech. He draws on the example of the defendant in Cohen v. California (1971), who, inside a courthouse, wore a jacket that read, "Fuck the Draft." The United States Supreme Court explained that no reasonable person would see Cohen's jacket as a "direct personal insult." Because the slogan on the jacket was not directed at any particular person, the Court held that this sort of provocative speech is protected even when it is "thrust upon unwilling or unsuspecting viewers."

In contrast, the present case involves comments that were directed at the victim's girlfriend, and delivered in a manner that ensured that her nearby boyfriend would overhear them. This is not a situation in which Riley's comments were merely overheard by tavern patrons generally.

Fourth, Riley argues that the circuit court's use of the word "lewd" to describe Riley's comments suggests that his speech is being policed because it was obscene…. [But] Riley's comments do not deserve protection because they consisted of abusive comments directed at the victim's girlfriend, under circumstances that were likely to provoke a violent reaction. If these comments were also lewd or obscene does not weigh in favor of giving them protection….

The Wisconsin Supreme Court denied review, though Justice Shirley Abrahamson dissented from the denial.