Cursing at the Cops: ‘Fighting Words’ Cases?

By Taylor Farnsworth and Tyler Falcone

The relationship between law enforcement and the citizens they are sworn to protect is one that is complicated, confusing, and fragile. The spectrum of outcomes from interactions between police and the public can range from a simple warning or a slap on the wrist, to something as severe as the loss of life. The latter has been the topic of heated discussion in the wake of the killings of Mike Brown, Eric Garner, and Tamir Rice by police officials just this year, and along with a number of other concerns raised, the issue of what is appropriate behavior when interacting with police is one that is receiving significant attention. While freedom of speech grants US citizens the privilege to speak freely without fear of punishment, there are still types of speech that go unprotected under the First Amendment. Fighting words, or “words seen as so vile or obnoxious that they are sure to incite a violent reaction,” (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)) are one type of unprotected speech. Court cases dealing with fighting words are few and far between, and rulings on what constitutes fighting words seem to vary case to case. What is troubling about the seemingly circumstantial and subjective nature of these court rulings is that it becomes difficult to determine what is appropriate or, more importantly, legal when interacting with law enforcement officials.

The 2011 case of the State of Ohio v. Frazier, 2011-Ohio-3189 deals with Dorthea Frazier and her confrontation with police after the arrest of her son. Cody Frazier, the son of Dorthea, was stopped by the police after a brief vehicle pursuit and arrested less than 100 feet away from the home of Dorthea’s sister and Cody’s aunt, Shawn Weems. Dorthea and her sister were at Weems’s residence at the time of Cody’s arrest, and approached the scene to find out what was happening. As Dorthea approached, she began shouting expletives such as, ““What the f*** are you doing?” directed at her son and, “What the f*** are you arresting my son for?” directed at one of the arresting officers. While Dorthea was losing her temper, her sister made an attempt to calmly engage in conversation with an officer on the scene, Lieutenant Brian Simcox, to find out what had led to Cody’s arrest. Dorthea then interrupted the conversation by yelling, “You f***ing crooked a** cop,” and “You’re a b****,” at Lt. Simcox. Simcox then gave Frazier six to eight verbal commands to be quiet and calm down as she continued to shout expletives. The crowd around the scene grew to between 50 to 70 people who were “beginning to get agitated and it was – it was close to being a bad situation” (State of Ohio v. Frazier). Another officer who was on the scene, Brent Bauknecht, said, “The verbal abuse is one thing. Her yelling and screaming, cursing was enticing the crowd even more, which, for me, was making it more of an officer safety issue than so much her being loud and disorderly” (State of Ohio v. Frazier, pg 2).

Due to the concerns raised by the growing crowd and Dorthea’s lack of cooperation with police, the officers decided to place her under arrest. Frazier made an attempt to avoid and resist arrest and in the process, broke her arm. She was then charged with one count of resisting arrest and one count of disorderly conduct.  The matter was taken to trial in January 2009, and Frazier was found guilty of disorderly conduct and was sentenced to 30 days in jail and a $100 fine.

In April of 2010, Frazier filed a notice of appeal, claiming that her speech did not reach the level of fighting words and should not have been punishable by law. To make her point, Frazier relied on a previous Ohio Supreme Court decision in the 1993 caseState v. Lessin. In State v. Lessin 1993, 67 Ohio St. 3d 487, the appellant, Cheryl Lessin, was charged in the burning of an American flag, and was found not guilty under the protection of the First Amendment. The court deciding in Frazier’s appeal found that Lessin’s circumstances were different from Frazier’s, in that Lessin’s flag burning was a protected form of political protest. The court ruled that Frazier’s repeated cursing and yelling at officers did in fact rise to the level of fighting words with no communicative value, negating her First Amendment protection.

Frazier’s encounter with the police can be compared to the landmark fighting words case, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky was arrested on charges of disturbing the peace after screaming phrases like, “You are a God damned racketeer” and “a damned Fascist,” to local sheriffs attempting to quell Chaplisnky’s rant on the corruption of organized religion.  While the circumstances of the interactions were starkly different – Chaplinsky was arguing for his right to preach on his beliefs as a Jehovah’s Witness and Frazier was coming to the defense of her son –both involved altercations with police that led to arrests due to the language directed at officers on the scene, and both convictions were upheld.

An article from The Foundation of Individual Rights in Education, or The FIRE, titled “Misconceptions About the Fighting Words Exception,” explains other cases dealing with fighting words that had been brought to trial. Author Sean Clark writes on a case Gooding v. Wilson, 405 US 518 (1972), in which Vietnam protestor Johnny Wilson screamed phrases like, “You white son of a b***, I’ll kill you,” and “I’ll choke you to death,” in the faces of police officers trying to break up anti-Vietnam protests. After being convicted of breaching the peace under a Georgia state law, he appealed and the case was taken to the US Supreme Court. The Supreme Court overturned the conviction on the grounds that Georgia’s statute was overbroad and too vague, prohibiting free expression. Despite the seemingly severe nature of Wilson’s threats, his speech was not direct enough to fit into the narrow confines of the fighting words doctrine.

Arguments have been made that charges of fighting words are simply outdated, and losing any legitimacy they once held in courts. Jeffrey Rosen writes in article on that, “during the past few decades, it has been criticized for being out of sync in a multicultural age: The doctrine’s definition of fighting words is said not to take into account the unique perspective of women, racial minorities, and gays and lesbians, some of whom may be less likely to respond to insults with physical violence. But a brief excursion into the historical roots of the fighting-words doctrine provides even stronger reasons for abandoning it. Legal bans on fighting words grew out of 19th-century efforts to discourage the practice of dueling, and they evolved from a Southern culture of honor and hierarchy that’s very different from modern American democracy” (Rosen). These facts alone show some of the shortcomings and subjectivity of the fighting words doctrine, and makes it easier to understand why such a doctrine could becoming less relevant in today’s culture.

Sean Clark writes in his article, “Gooding was the nail in the coffin—if the fighting words exception has any real vitality left at all (and many commentators, including Nadine Strossen, think it is essentially dead) the Supreme Court has effectively limited the exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction.” His critique is understandable when it is discovered that Gooding shouted phrases like, “You son of a b****, I’ll choke you to death,” and, “if you ever put your hands on me again, I’ll cut you all to pieces” (Gooding v Wilson 405 US 518) while assaulting police. If these words do not constitute fighting words it becomes hard to imagine what it would take to fit the criteria.

A common characteristic of these cases is that they all involve altercations between police and the public. As government officials, free speech and criticism on the workings and dealings of police officers is a constitutionally protected right granted to every American, which could be why it seems so difficult to get a conviction to hold up. In light of recent events involving police and the killing of unarmed civilians, the importance of appropriately interacting with law enforcement is more relevant than ever, and while the fighting words doctrine continues to change, it is important to understand what is acceptable, and what could result in jail time, or worse. While fighting words have not been directly attributed to the incidents involving Mike Brown, Eric Garner, or Tamir Rice, the overall theme of interacting properly with authorities is prevalent. Other questions also arise, such as when is it appropriate for who to say what? In other words, are these rulings objective, or do the setting, time period, and people involved more directly influence whether or not a conviction will stick? Frazier was supposedly convicted due to the potential her words had at inciting the crowd around her to violence; Chaplinsky was convicted for disturbing the peace when he was merely speaking out on organized religion; both involved cursing at police officers. Wilson was legally protesting the war, but then assaulted and directly issued death threats to officers attempting to break up the protest. Were Wilson’s direct threats on authorities’ lives less of threat than Dorthea Frazier cursing and criticizing police and the work they were doing? An interesting afterthought is that Frazier and Chaplinsky were both minorities, and both had some of the only upheld convictions in fighting words cases. Sean Clark writes in his article that the fighting words doctrine has gone down a “twisted legal path”, and that the Supreme Court has had to continuously “narrow the fighting words doctrine and extend First Amendment protections to offensive or vulgar speech” (Clark). It is clear that courts are continuously redefining the fighting words doctrine, and it will be interesting to see how they continue to do so in the future.

Is Cussing ‘Fighting Words?’

The topic I will be discussing is the use of fighting words on school campus, through the Arizona Supreme Court case titled SUPREME COURT OF ARIZONA V. NICKOLAS S., 224 Ariz. 52, 226 P.3d 1038 (2010). The court had to rule whether or not was constitutional to put minor Nickolas S. on probation as a delinquent under Arizona Revised Statutes for “fighting words”, thus also testing the constitutionality of the statute. The limited issue before the court was to determine whether the case actually involved fighting words. This relates to the First Amendment, because fighting words are one of the only forms of speech not protected under the amendment. However, Nickolas argues that his cursing is not fighting words, and therefore his speech is protected.

The case began in 2010 when Nickolas was judged a delinquent after violating A.R.S 15-507. The statute makes it a crime for a person to “knowingly abuse” teachers or other school employees. He had two counts total. The first count was for calling his teacher a “bitch”. The second count was after another incident with the same teacher when he proceeded to curse several times directly at the teacher, and rile the rest of the classroom. Nickolas was immediately suspended. Although he did not challenge his suspension at his adjudication hearing, he did say that his speech was protected by the First Amendment, which would invalidate his delinquency charges. The juvenile court rejected this argument and placed him on summary probation. The case then went to Court of Appeals Division One, where Nickolas argued that the statute was too vague and overbroad. The court agreed, but said it could pass a First Amendment challenge if it was only applied to fighting words used in pure speech. However, they continued to look into the issue by using the definition of fighting words that was adopted from the CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568 (1942). In addition, they used the standard that if it was “not likely to provoke an ordinary citizen to a violent reaction..” (16), then it was not fighting words. The court of appeals found that, “a reasonable person in these circumstances might well react violently when confronted with such repeated, angry, and personal epithets as were uttered by Nickolas,” (16). The court of appeals upheld the ruling of delinquency for the second act.

The case finally ended in the Arizona Supreme Court where Justice Scott Bales presented the majority opinion and Justice A. John Pelander presented the concurring opinion. Justice Bales continued to look at whether or not Nickolas spoke fighting words. However, they did not rule on the constitutionality of the statute because they felt it was not relevant. It was decided that in this case, the issue was not whether a reasonable person may react violently, but rather, someone in the position of the listener would react. In this case, the addressee was a teacher that was on-campus. However, The Supreme Court decided that the average teacher would not react violently to his words, despite the repeated and direct nature of them. They did not contest the apprehensible nature of the words but stated they were not fighting words and sufficiently punishable by school discipline. The Supreme Court overturned the decision of the court of appeals by vacating Nickolas’ delinquency counts for both incidents. The concurring opinion agreed by restating that Nickolas’, “words were not inherently likely to provoke a violent reaction by the teacher,” (19). They did not base their decision of whether or not Nickolas’ words were fighting words on the A.R.S, but rather the definition according to the Supreme Court of the United States. Despite their lack of decision on the constitutionality of the A.R.S, Justice Pelander did state that he rejected Nickolas’ argument that he had a constitutional right to say what he did to the teacher. Pelander referred to MORSE V. FREDRICK, 551 U.S. 393 (2007) and TINKER V. DES MOINES,393 U.S. 503 (1969), where it was decided that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” (20). Pelander also discussed how Nickolas’ outburst caused a material and substantial disorder, thus, it was not protected by the First Amendment. Justice Pelander also stated that he believed Nickolas’ outburst constituted abuse under the A.R.S sections 15-506 and despite his concurrence with court, this did not change his opinion on these points.

This case reinforces the idea of on-campus speech and how public school students are much more limited in First Amendment rights. This court utilized tests originally made in J.S. V BETHLEHEM, 807 A.2d 803 (Pa. 2002), and TINKER V DES MOINES in terms of student speech and the standards used to determine whether it is protected or not. J.S. V BETHLEHEM and the standard of true threat was particularly used to determine whether Nickolas used fighting words. The decision in this case also shows the application of past court decisions to decide present-day cases, by use of the common law system. This case also used the narrowly tailored rule for statutes, along with the standard for fighting words.