Header graphic for print
Tilting the Scales Business Issues with a Legal Slant

Them’s Fighting Words!

Posted in Legal Risk Management

With Halloween less than a week away, Bill Hatfield and his neighbor Randy McCoy are at it again. This time, it’s over McCoy’s pumpkin orange 38-foot recreational vehicle parked in front of his house.  Hatfield demands McCoy remove the eyesore.  When McCoy refuses, Hatfield successfully recruits other neighbors who together spearhead passage of a local ordinance prohibiting such nuisances. 

After the ordinance is enacted, an irate McCoy exacts his revenge by constructing a miniature graveyard in his front yard. Each tombstone, bearing the name of a meddling, petition-signing neighbor, is inscribed with doggerel verse and a fictitious demise date.  For example, “Betty was not ready, but here she lies, ever since that night she died, 12 feet deep in this trench, still wasn’t deep enough for that wench’s stench! October 25, 2013.” 

Upset, the neighbors called the police who arrived to mediate. Instead, McCoy was ordered to take down his graveyard or face arrest.  Begrudgingly, McCoy complied and later sued to assert his First Amendment right to free speech. Did the police officer violate McCoy’s First Amendment rights?

Yes.  Similar facts really occurred in the haunting case of Purtell v. Mason.  At trial, the officer argued that the tombstone inscriptions were not constitutionally protected speech because they were “fighting words,” an exception to the First Amendment.  The fighting words doctrine has its origin in Chaplinsky v. State of New Hampshire (1942).  In that case, Chaplinsky, a Jehovah’s Witness, was convicted of disturbing the peace for yelling at a local sheriff, “You are a God-damned racketeer” and “a damned Fascist,” and argued that his was protected speech.  Upholding Chaplinsky’s conviction, that Supreme Court created the “fighting words” limitation finding that his speech was so abusive that its mere utterance was likely to inflict injury or tended to incite an immediate breach of the peace; and, therefore, his words fell outside the constitutional protection of the First Amendment.  Applying that reasoning, the Court in Purtell found that the embarrassment, anger, resentment and fear caused by the tombstones were simply not enough to reach the level of “fighting words.” The police officer’s order for McCoy to remove his mock graveyard was a violation of his constitutionally protected First Amendment right of free speech.

Tilting the Scales in Your Favor?

The fighting words doctrine remains a highly contentions area of litigation and courts have struggled to determine whether certain epithets warrant constitutional protection. So, choose your words carefully. Personally insulting words accompanied by some sort of threatening conduct will often not enjoy the benefits of constitutional protection.