Friday, July 31, 2009

Them's fightin' words

Most of the public discussion of the Skip Gates arrest has focused on race. Less (like Sherry's post on Monday and the very astute comments thereon) has focused on the abuse of police power. Here I want to raise a related concern that has gotten still less attention (with a few notable exceptions, such as here): When, if ever, can mere words spoken to a police officer be the basis for an arrest and prosecution, consistent with the First Amendment (as made applicable to state and local offials via the Fourteenth Amendment)?

Let's begin with the leading Supreme Court case, Chaplinsky v. New Hampshire. In that 1942 decision, the Supreme Court announced the so-called "fighting words" doctrine. Fighting words, according to the Chaplinsky Court, "by their very utterance inflict injury or tend to incite an immediate breach of the peace." These are two very different grounds for forbidding speech: 1) inflicting injury; 2) tending to incite a breach of the peace. Let's consider them in turn.

All sorts of words can, by their very utterance, inflict injury. If I'm at an art show, and I tell the artist that her painting "looks like something my 5-year-old could have done," that is rude and no doubt hurts the feelings of the artist, but it certainly doesn't count as fighting words. As Justice White said in his concurrence in the judgment in R.A.V. v. St. Paul"The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected." I do not read the majority opinion in R.A.V., or any other case, to repudiate that statement.

Accordingly, I believe that the first prong of the fighting words doctrine is best read not as a separate permissible basis for proscription, but as one way in which speech may lead to the second basis for a fighting words conclusion. Suppose that the driver of car A runs a red light and hits car B. The drivers emerge from their vehicles and after inspecting the damage, the driver of car B says to the driver of car A: "Not only are you blind. You are one stupid motherfucker." Being called blind and stupid could well hurt the feelings of the driver of car A, but the reason that B's speech is proscribable (if it is) is that in this charged situation, it may lead the driver of A to physically attack the driver of B.

The fighting words doctrine gets at words that lead to violence. Words can do so directly, as in "Care to step outside?" or indirectly, as in an insult calculated to provoke. But Justice White is almost certainly right that the doctrine does not aim at protecting against hurt feelings, as such.

Even thus properly limited, there are a number of problems with the fighting words doctrine. Some feminist scholars and others have noted that it tends to create a kind of "bully's veto." Someone who calls Stephen Hawking or a devout Quaker a "stupid motherfucker" will not provoke violence because Hawking is confined to his wheelchair and the Quaker is a pacifist, but the same words spoken to a known hothead could be unprotected because the hothead will react with fisticuffs. The law should place the onus for avoiding violence on the person who escalates from words to violence, rather than on the speaker, the critics say.

Let's put that criticism aside. Even if we have a fighting words doctrine, shouldn't it be different for people confronting the police? Justice Powell suggested just that in his concurrence in Lewis v. New Orleans. He wrote that "a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words." (Internal quotation marks omitted). And that point was cited favorably by Justice Brennan's majority opinion in Houston v. Hill.

To be sure, Chaplinsky itself was a case in which the fighting words were spoken to a police officer. Chaplinsky told his arresting officer "You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." (Internal quotation marks omitted).

But the case must be read as limited by the subsequent statements of the Court and perhaps also by the fact that Chaplinsky was a gross miscarriage of justice. As Vince Blasi and Seana Shiffrin explain in chapter 12 of my book, Constitutional Law Stories, Chaplinsky said what he said only after a mob beat him and tried to impale him on a flagpole for preaching as a Jehovah's Witness, following which the police left the mob alone but led Chaplinsky away!

Moreover, even if the First Amendment permits states to criminalize, as fighting words, some statements to police officers, states can afford greater free speech protection either as a matter of state constitutional law or by not actually applying their criminal statutes to some utterances that the Constitution would not protect.

At the same time, however, quite apart from the fighting words doctrine, there may be grounds for basing an arrest on words spoken to a police officer. For example, if a person actually threatens violence to the police (E.g., "I'm going to cut you, copper") then that would count as a proscribable assault.

Finally, it should go without saying that prudent responsible people will often refrain from exercising their First Amendment rights. But prudent responsible people tend not to end up in the reported cases.

Posted by Mike Dorf