Snow Figures as “Fighting Words”

A fighting bookend for the personally abusive epitaphs case, and also an interesting issue in its own right — Svedberg v. Stamness (N.D. 1994) (emphasis added):

This case arises from what is apparently a long-running feud between Anthony Stamness and Christian Svedberg, both minors…. Testimony indicated that Stamness and others referred to Svedberg as “Dumbo,” a cartoon elephant with unusually large ears, and Stamness had, on one occasion, stated, “You had better watch it Dumbo or I will kill you.”

In addition Stamness, along with others, constructed three large snow figures that were prominently displayed throughout the community of Northwood. All of the snow figures were constructed with very large ears. After hearing the evidence the court concluded that these threats and taunts, harassment, and construction of snow figures were intended to adversely affect the safety, security, and privacy of Svedberg. As a result the court ordered that “Anthony Stamness shall have no contact with Christian Svedberg and shall cease or avoid the following specific conduct: Uninvited visits to the Petitioner, harassing phone calls to the Petitioner, calling the Petitioner abusive names (including “Dumbo”), or any other conduct which injures the Petitioner, either physically or emotionally, including the construction and public display of any effigy of Christian Svedberg.”

The court upholds the order, on the grounds that the defendant’s conduct, including the snow sculptures, were “fighting words” that justified the injunction. (Note that the injunction didn’t focus on threats, but also banned calling Svedberg “dumbo” and publicly displaying “any effigy” of Svedberg.)

Logic demands that when determining whether an expression constitutes fighting words, the age of the addressee must be taken into account. No one would argue that a different reaction is likely if a thirteen-year-old boy and a seventy-five-year-old man are confronted with identical fighting words….

The judge in the instant case did not err when he accepted evidence regarding Stamness’ taunts, threats including a threat to kill, and the public display of snow effigies which he concluded were constructed to harass Svedberg. In this context, when delivered to a fourteen-year-old, these actions when taken as a whole constitute fighting words, and are therefore unprotected by the First Amendment. Consequently, Stamness’ argument that he was engaged in protected activity fails.

Two concurring judges reasoned that the conduct, in context, was not fighting words but threatening: “‘Pure speech’ and expressive conduct that accompany or follow a physical threat can be, as a matter of fact, part of the threatening conduct.” The concurring opinion stressed that, among other things, Stamness’s conduct “has … resulted in threats to the physical safety of Christian and the incessant teasing and harassing conduct has left Christian afraid to go to school, a completely unacceptable situation. The testimony also indicates that Christian suffers from depression as a result and has made suicidal statements.”

One judge dissented, reasoning that much of the speech was neither fighting words nor threats:

This case tells a sad tale of parents who failed to parent and school administrators who failed to administer. As a result, a child who should have been disciplined at home and at school, instead, was restrained by a district court from saying “Dumbo” to another child, building snowmen with big ears, and threatening and harassing the other child. He faces up to one year in prison if he violates the restraining order….

I do not disagree that context is important in looking at whether words are fighting words and that ordinary teenage children may react differently than older, ordinary folks. But I cannot agree that given the context of this case, that erecting three snowmen with big ears and calling someone “Dumbo” can be constitutionally prohibited by a court. I am sure that the derisive name, “Dumbo,” and the snowmen with big ears caused Christian to suffer humiliation and pain and embarrassment. What they did not cause and what they were not likely to cause was the risk of an immediate breach of the peace.

I have no difficulty at all agreeing with the proposition that a threat of violence is not protected speech. I have greater difficulty taking seriously the utterance of an insensitive, teenage clod, a type my children would have described as a “meanie,” especially in the context of this case. Anthony did not engage in any pushing, shoving, hitting, punching, slapping, tripping, brandishing of arms, or any other physical bullying. With the exception of the one occasion, he did not make any verbal threats. Hyperbole and bluster do not constitute a “true” threat. Anthony simply did not engage in any discernible pattern of threatening behavior. Instead, he cruelly made fun of Christian by calling him “Dumbo” and by building three snowmen. Not the stuff that violence is made of. But, even so, I might not object if the restraining order only forbade threats of violence. It goes much farther than that….

This case cries for the exercise of parental responsibility and school responsibility. It goes without saying that parents and school authorities have considerable power to control children. Rather than encourage the exercise of that control, the court steps into the breach. I think that is a mistake and that “[p]arents should be discouraged from resorting to the courts to resolve ordinary problems of daily living.” …