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


  1. Prof. Dorf,

    As always with the First Amendment, context matters. Applying the fighting words doctrine to this fiasco would ignore how Prof. Gates was at his home when he shouted at the police. It's true that the test for "fighting words" never explicitly takes such things into account, but if you can't yell at a trespasser in your own home, then the right of privacy (and common sense) could be turned upside-down by this type of abuse of the (now very narrowly applied) fighting words doctrine.

    Say a burglar came into your house at night and you discovered him. Under the New Hampshire law, could you not insult him while simultaneously attempting to scare him away with provoking speech (obviously acting under the correct assumption that most burglars do not want to physically confront their intruders, see, e.g., Tennessee v. Garner)? Surely such speech would be protected.

    Context is the appropriate lens to either narrow or broaden the scope of First Amendment protection. Indeed, this is precisely the reason why Justices Powell and Brennan suggested that police as recipients of fighting words should be a factor that courts take into account.

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  3. Great post -- I've been talking with a colleague about this aspect of the incident.

    I want to flag another way in which insults/threats to the police are sometimes punished. Some courts will apply (and some circuits will uphold) a sentencing enhancement for obstruction of justice when a person threatens a cop, on the theory that the person is "threatening a witness" as described in the commentary to the sentencing guidelines. (Guidelines 3C1.1) See United States v. Chavarria, 377 F.3d 475, 477 (5th Cir.2004). Where the person making the threat cannot realistically be seen to have invited actual violence, like Chavarria who was handcuffed and restrained, one must wonder whether the sentencing enhancement rubs up against the First Amendment.

    -Matthew Dunne

  4. In response to Joshua: I wholeheartedly agree that context matters and didn't mean to suggest otherwise. Nor do I think that Skip Gates used fighting words. I would note (and I don't think Joshua disagrees) that there are circumstances in which speech to a police officer in the speaker's own home would be proscribable: Once the intruder has identified himself as a police officer, if the civilian credibly threatens violence ("I don't care that you're a cop. Get out of my house or I'll bludgeon you with this toaster") that could count as an assault. I agree with Matt, though, that we would need to know more about the circumstances to know whether the threat was genuine.

  5. I think comments on the Gates arrest have focused excessively on race without considering the class implications of the situation. Would a white professor asking a black policeman for his badge number and telling him "you'll be sorry you messed with me" really be taken any more happily? Whether or not this is relevant to the legal analysis--and it might be if the class context created a legitimate fear that the professor would break the law--it is clearly relevant to understanding.

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  10. Say a intruder came into your home in the evening and you found him. Under the New Hampshire law, could you not offend him while at the same time trying to frighten him away with invoking conversation (obviously performing under the appropriate supposition that most thieves do not want to actually encounter their criminals, see, e.g., Tn v. Garner)? Absolutely such conversation would be secured.

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