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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.
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"...he was planning to "take that bartender home and fuck her that night.""
Sounds like a threat of kidnapping and rape, assuming she didn't want to go.
I think it's ambiguous enough not to count as a criminal threat to commit a crime. And it's not such an imminent threat that use of force in defense of another would be legally justified. Maybe Riley was God's gift to women and accustomed to having them fall into his lap. As far as I know American law has never recognized seduction of another man's girlfriend as a crime or a tort (aside from the crime of fornication, where girlfriend status is irrelevant).
Seduction of a girlfriend, no. But adultery laws were a thing once. And even with those past, you can still (in some states) be sued for alienation of affection if you seduce someone's wife/husband.
"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."
It must suck to be a lawyer sometimes.
They have to defend this idiot and I can imagine them sitting at the conference table brainstorming how to make some sort of coherent legal argument.
apedad,
I've got a feeling that Riley isn't intelligent enough to come up with that defense. I'm pretty sure that his lawyer did. So it sound like a self inflicted injury on the lawyer.
I think that's apedad's point, self-inflicted injuries such as this are part of a lawyer's job (so it must suck) especially if they are public defenders.
This case reminds me why I don't like to hang out with drunk people.
You said it, ask Mary Joe Kopeckney, who died (Asphyxiated, NOT Drowned, there's a difference) 53 years ago today, and likely kept Ted Kennedy from reaching the Oval Orifice....
If you’re going to drag that poor woman out of her grave to support your oh-so clever and timely takedown of a dead man you can at least spell her fucking name correctly, shitbird. It’s “Kopechne.”
Hey, Mr. Bite the Messenger, it was Ted Kennedy who "drug" umm, "Drove" that poor woman to her (watery) grave, Not I, So save your mis-directed anger for that Fat Faced Fuck (FFF) who died 50 years too late.
As if you care one bot about a woman whose name you can’t even be bothered to learn. Go fuck yourself you useless shit.
It's more the annoying behavior of drunk people than the fear of transport-related accidents that lead me to avoid them.
So, "My constitutional rights can be circumscribed because of what OTHER people might do in reaction to them" is still a thing? Really?
No, because fighting words aren’t part of your constitutional rights.
Thankfully we still live in a country where running your mouth over the line can still get your ass justifiably kicked.
Are you sure this is a legal opinion and not an elaborate wild-west fanfiction? I only ask because nobody uses the word "tavern" in the modern era unless they also regularly use the phrase, "Roll for initiative."
Out in "Bitter/Klinger" Country (Where is the "Reverend" anyway?) "Tavern" is still in wide use, as is "Whup-Ass" (comes in a Can, like Prince Albert, and if someone offers open one for you, run!)
Frank
There are dozens of bars with "tavern" in their name in the area where I live.
There are stores with "Ye Olde" in the title but the expression is not part of everyday language.
But would you ever say (for instance) "Let's go to a tavern after the movie tonight"? I wouldn't, and I'd think it pretty strange if someone said it to me!
You might say "Let's go to Mike's Tavern after the movie tonight." Or maybe you and Drewski wouldn't, because the place seems too affected for your tastes. But some people do.
"I only ask because nobody uses the word "tavern" in the modern era"
Tell that to the Tavern League of Wisconsin. It's a completely common term up here.
"Founded in 1935, the Tavern League of Wisconsin is the largest trade association in the United States to exclusively represent the interests of licensed beverage retailers."
“- Steve: Being called a cocksucker isn't personal?
- Dalton: No. It's two nouns combined to elicit a prescribed response.
- Steve: What if somebody calls my mama a whore?
- Dalton: Is she?”
Frank "Pain don't Hurt, Ouch!!!"
Not sure why they bother to go after fighting words, which must be at most misdemeanor, when they've got him on "substantial battery, and two counts of felony bail jumping".
Bail jumping is intentional commission of a crime while out on bail. He was charged with disorderly conduct and one count of bail jumping for committing that crime while out on bail. If the vulgar language taken in context was not disorderly conduct then the related bail jumping charge falls too.
I see, thank you. I read "felony bail jumping" as jumping bail after a
felony arrest, rather than jumping bail, which is itself a felony.
Lawyers distort things out of all recognition.
"Fightin' words" give justification to punching the ass in the shnozz, who insulted your girl.
It does not follow that, therefore, the words themselves can be made illegal.
Stop it, lawyers. Stop distorting stuff.
There is this obscure theory that says that the main purpose of the law and law enforcement is to preserve the peace, i.e. to provide a substitute way of handling disputes to people simply duking it out.
After all, people can duke everything out if they want. Why have all these expensive police officers, lawyers, and judges when you could have a do-it-yourself system, or one where you hire muscle to do your enforcement?
If one accepts this theory that the purpose of law is to preserve the peace (which in turn depends on the even more out-of-favor, namby-pamby, milquetoast that the peace is something worth preserving), it follows that whenever it would be considered legitimate for a private citizen to resort to violence to resolve a dispute, it is at least as legitimate if not more so for the state to step in and resolve it through the civil or criminal process.
This is literally the exact opposite of correct.
The fighting words doctrine originates in Chaplinsky v. New Hampshire, and the entire point was that because of words' potential to cause violence, the government could punish someone for saying them: as the court put it, the government can legitimately enact "a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace." 315 U.S. 568, 573 (1942).
The court expressed no opinion as to whether and to what extent a person who was prosecuted for actually responding to the fighting words with violence would be able to assert the provocation as a defense (nor does it seem like something federal law would typically speak to). I'm not aware of any state that recognizes this sort of provocation to a non-homicide assault, and even in the states that recognize heat-of-passion as a defense to murder, I wouldn't want to be the defendant trying to argue it based on a purely verbal incitement.
At first thought this was going to be about Will Smith/Chris Rock dust up.
Comedian besmirches honor of woman; boyfriend nearby takes particular offense; comedian doesn't see the errors of his speech and apologize in time. Pow.
I didn’t interpret Krayt as disputing that this is what the law is. Rather, I interpreted it as disagreeing with the current state of the law and seeing the current state as wrong. One can always argue that when politicians and judges (aka “the law”) require you to work through the police or lawyers to get something done rather than simply engage in self-help, they are motivated not by any concept of justice but by a self-serving desire to keep the police and lawyers unnecessarily employed at your expense.
Saying that this is what “the law” (aka self-serving politicians and judges) says does nothing whatsoever to answer this argument. Krayt isn’t disputing that this is what they say, the complaint is about their being so patently and unjustly self-serving about it.
So I think a relevant counter-argument has to try to explain why somebody might think that self-help here might not be in society’s best interest and why these lawyers and judges might sometimes add some value rather than simply exploiting and preying on people. Given the state of our society, this concept (along with related concepts like “the rule of law” or “preserving the peace” being considered positive values) can’t simply be taken for granted.
What crime was he convicted of and what does the statute say?
He was convicted of disorderly conduct in violation of Wis. Stat. § 947.01, which criminalizes "engag[ing] in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance".
"take that bartender home and fuck her that night." sounds like a profane utterance. That specific prone utterance said in front of a womans husband, lover, boyfriend would tend to "provoke a disturbance".
I don't understand. Dude committed assault and battery, while jumping bail.
Why are we litigating what he SAID?
His lawyer thought he could get four convictions reduced to two.
The decision was unpublished so the court didn't think much of the argument.
At first thought this was going to be about Will Smith/Chris Rock dust up.
Comedian besmirches honor of woman; boyfriend nearby takes particular offense; comedian doesn't see the errors of his speech and apologize in time. Pow.
“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.”
Haha!! I can’t decide if that is Super Woke or Anti Woke.
If one were to drive to Uvalde, Texas and spend a week in the town square silently holding a large sign that said something like “Uvalde Cops are All Cowards, and Should Commit Hari-kari or Be Publicly Shamed Every Day of their Lives ” (obviously a LARGE sign, lol), could the cops arrest the silent sign holder under the fighting words doctrine? If so, would it be a defense to argue that it is not reasonable to assume the words would provoke a violent reaction, because Uvalde law enforcement are all pussies who run away from a fight even while they hear the cries of children being slaughtered over an hour?
Asking for a friend.
Where's the issue...Someone does that they deserve what's coming, whatever it is. There will be no challenge with the woman and boyfriend and the maligner can hardly support a right to be a fight-causing bastard. Law should stay out of that.