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Defining the line between free speech and 'fighting words'

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The right of free speech is guaranteed in the U.S. Constitution. But, it’s often said that freedom to say what you want doesn’t allow someone to yell "fire" in a crowded theater.

What’s allowed and not in a nation that values free speech is raising concerns among civil liberty groups. There is a sliding scale that is different from state to state, and apparently that includes Alabama.

Have you ever had someone say something that just set you off? So-called fighting words aren’t a laughing matter, especially when the issue means an arrest and a possible court date.

“Fighting words are those that by their very utterance inflict injury or tend to incite an immediate breach of peace," said former judge and Samford Law School dean John Carroll. "That continues to be the definition both states and federal courts are going to apply.”

Carroll said the legal system wrestles with where free speech ends and illegal speech, like fighting words, begins.

“Fighting words continues to plague all the courts with a lot of inconsistency, quite frankly," he said. "The fighting words doctrine developed in 1942 when we were a much different society.”

What words break laws varies from state to state in both their definitions of “Fighting words” and what words fall under their cursing statutes, and sometimes the two may overlap.

“I’ve had challenges involving whether or not the conduct which the individual was charged with was protected by the first amendment," said retired judge John England.

England said some cases can be similar but that some may be fighting words and some may not be considered to be fighting words. He cites examples in Arizona, Minnesota and Wisconsin to show how broad Fighting words can be. These arrests had their sentences upheld after appeal.

“So here are some that were decided to be fighting words: yelling racial slurs at two African American women, repeatedly yelling the words, whore, harlot, and jezebel to a nude woman," he said.

The list goes on from there. The list of what can be deemed “fighting words” seems to grow and grow as time goes on.

“Calling a police officer a white racist mf and wishing his mother would die, and calling a police officer a f’ing asshole in a loud voice and attempting to spit on the officer, those were determined to be fighting words," England said. "But I would submit that if you look closely at them they will typically involve direct confrontations.”

Tish Faulks is an attorney with the American Civil Liberties Union in Alabama. She said that "fighting words" are common in the South. But, they're not unique to the region. While Alabama has had arrests, she says there are other states within the south that have more cases based on "fighting words" and there doesn't seem to be a reason why.

"So, arrests based on how you speak to a police officer, that’s as common in black communities as grass growing in a yard," she said. "There are a lot of cases out of the district courts in Florida concerning hate speech, fighting words, the appropriateness of regulation etc. surprisingly there are far fewer cases out of the federal courts in Alabama and I don’t really know why that’s the case.”

One reason may be one pivotal court case called Chaplinsky v. New Hampshire that was argued back in 1942. That precedent has led to multiple arrests for people cursing at police officers ever since. Just because there were legal questions over what you can get away with saying, doesn’t mean people can’t make fun of it.

Fans of George Carlin may remember his classic comedy sketch called the seven words you can’t say on TV. The same clearly applies to public radio and the wide use of bleeps in the editing of this story. Times have changed as you may see we didn’t have to bleep all of them out.

However, Faulks says some of those words could still get you arrested if you say them to a police officer today.

“It is constitutionally inappropriate for a police officer to arrest someone for cursing in that person’s criticism or critique of that officer going about their duties," she said.

New Hampshire may have been the home state of the “fighting words” ruling, but it’s only been cited once within the past 10 years. That was a case involving the New Hampshire’s funeral protest laws. Here in Alabama the definition of fighting words remains vague.

Carroll said that the precedent has faded into obscurity and needs to be reexamined.

“The Doctrine really over time has just almost ceased to exist, and I think a lot of folks are surprised the court just hasn’t said, this was a good idea at the time but you know," he said.

Some people are still arrested for their words they use while interacting with police officers. Three men in Texas were arrested in June of 2020 for cursing at police officers while they arrested the group’s friend. One of the police officers who arrested the men was brought up on assault charges against one of these men and was let go from the department.

Another person was arrested in Shelby County in Alabama at a gas station after cursing at a police officer.

What does seem to be clear is that cursing statutes are still widely used to arrest non-compliant people.

Overall, fighting words are hard to prove in a court of law. So before you get to swinging, you might read your state’s “fighting words” statutes.

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