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Racial Epithets:

Drudge reports:

A woman accused of using racial epithets while waiting for food at a Connecticut Taco Bell drive-through window was arrested Wednesday.

Jennifer Farrelly, 19, of East Windsor, has been charged with ridicule on account of race, creed or color and second-degree breach of peace. . . .

Face-to-face personal insults (racist or not) are generally unprotected by the First Amendment. They fit into the "fighting words" exception to free speech, on the theory that they lack constitutional value and tend to cause fights. Speech that isn't directed to a particular hearer is generally protected, even if it's an insult; but speech that is so directed, and is said face-to-face, where an imminet fight (or worse) is possible, is unprotected.

The relevant provision of the Connecticut breach of the peace statute, ยง 53a-181(a), has been narrowed by the Connecticut courts to cover only fighting words. (See State v. Szymkiewicz, 237 Conn. 613 (1996).) Farrelly thus might well be prosecuted under this statute.

On the other hand, the "ridicule on account of race" statute is unconstitutional, at least if it is this satute (the only one I could find that uses those words):

Any person who, by his advertisement, ridicules or holds up to contempt any person or class of persons, on account of the creed, religion, color, denomination, nationality or race of such person or class of persons, shall be fined not more than fifty dollars or imprisoned not more than thirty days or both.

Even if the statute applies here (despite its seeming limitation to "advertisement[s]," and even if it's interpreted to be limited to unprotected speech, such as fighting words, defamation, or the like, it still singles out particular viewpoints -- racist hostility as opposed to other hostility -- for punisment. R.A.V. v. City of St. Paul (1992) held that such viewpoint discrimination is generally unconstitutional even when the discrimination happens within a category of unprotected speech. R.A.V. struck down a ban on race-based fighting words; the logic of that case would equally apply here.

TC (mail):
Does anyone else realize that one of the key facts is missing from this story?
2.3.2006 3:18pm
BossPup (mail):
I thought that Court decisions after Chaplinsky had basically rendered the fighting words exception a nullity. Is there more life to the doctrine that meets the eye?
2.3.2006 3:50pm
Eugene Volokh (www):
BossPup: The doctrine is still alive and well; post-Chaplinsky decisions narrowed it to pretty much the scope that I described. Lower courts still face fighting words cases, and take the view that the exception does exist.
2.3.2006 3:58pm
JRDickens (mail):
OK,

I got another stupid non-lawyer question.

I would never use the n-word, but I hear black people say it to each other from time to time. I will also call white people honkeys. The black people who get called the n-word by other blacks don't seem to be especially offended by it, not do the white people I call honkey.

Given that scanario, and given that all men are created equal and the law is supposedly colorblind, are the epithets used in that situation also illigal, or does someone have to be offended?
2.3.2006 4:01pm
Doug in Colorado (mail):
Unrelated to the legal issues, why would you insult a person who's preparing food to give you?...if sufficiently offended, they could put anything biological chemical or radiological they wanted to in your food...just dumb, on a Darwinian scale.
2.3.2006 4:20pm
Houston Lawyer:
In light of the discussion below regarding the outrage caused by the cartoons disrespectful of Islam, I believe the fighting words exception has to go. It would otherwise encourage the more knot-headed elements of society to claim that some type of insult constitutes fighting words. I also concur with JR that if the offense of the word depends on the race of the person who utters it, then it logically can't be prohibited.
2.3.2006 4:25pm
Kovarsky (mail):
Houston Lawyer,

I'm not sure I agree with your analysis. If prosecution for racial epithets just comes under a fighting words exception, I'm not sure that "who says it" shouldn't make a different - in some scenarios the racial breakdown of the speaker and audience determines whether the words were fighting or not.

I'm also not sure why the fighting words exception has to go if the courts - as they have in the past - cabin it to involve first-person encounters that are a far cry from the sort involved in the cartoons.

sincerely,
another houston lawyer
2.3.2006 4:38pm
minnie:
This is a perfect example of how these unconstitutional limits to free speech can lead to the type of thinking of the Muslims who advocate violence against Western nations because of an offensive cartoon.

What's the difference if the state acts out that violence (jailing people for offensive language) or the mob does?

Also, I hardly think David Bernstein's original post was "venting". He raises interesting points, and his update clarifies one of his main points: failure to distinguish between the action of an individual and the action of the state. Although I think boycotting specific targets is a valid means by which to register disapproval, those who would have the state monitor the free expression of the individual (which is what the Muslims who are protesting the publication of the cartoon are for) are merely advocating totalitarinism.

That said, I think truly offensive cartoons are neither amusing nor informative, which is what I thought cartoons were supposed to be, but then, I'm still trying to figure out why Howard Stern is being paid half a billion dollars.
2.3.2006 5:19pm
minnie:
Does anyone else realize that one of the key facts is missing from this story?

What fact do you mean? The exact words she said?
2.3.2006 5:20pm
Kovarsky (mail):
minnie,

what unconstitutional limits to free speech? the woman was mad because the government wouldn't censure the cartoonists or newspapers who publish them.

it's precisely the absence of a limit to free speech that had the woman mad.

it's entirely possible i misunderstood your point, so please clarify if i did.
2.3.2006 5:22pm
Tuch (mail):
I suppose "fighting words" are denied first amendment protection for the same reason incitement to riot is denied protection. But was the scene in which the "N-Word" was used one in which it is clear that the expression would lead to violence? Or does that matter?
2.3.2006 5:52pm
Article III Clerk (mail):
Eugene,

Could you discuss Chaplisky a little more. Isn't it true that since Chaplinsky back in 1941, not a single Supreme Court case has upheld any statute proscribing "fighting words"? Don't most First Amendment scholars agree with BossPup that Chaplinsky is seriously on the ropes?

Also, what is the precedential value of Beauharnais v. Illinois (1952), the group defamation case, in the above incident? I believe that case rejected the "Words that by their very nature inflict injury" language of Chaplinsky?
2.3.2006 5:54pm
Dan Jacobs (mail):
Professor Volokh

Couldn't a colorable argument be made that statutes proscribing racial epithets, so long as directed at a particular individual, would fit into the RAV exception: that a state can proscribe proscribable speech for the reason that its proscribable? If I remember correctly, Justice Scalia in RAV stated that if a State legislature banned particular acts constituting the most lascivious aspects of obscenity, the legislature committed permissible viewpoint discrimination because the core nature of those acts are the very basis for why obscenity is unprotected speech under the First Amendment to begin with. ginia v. Black Racial epithets directed specifically at an individual seem to go to the very core of why fighting words are unprotected under the First Amendment. When a party calls an individual directly to their face that as an African-American, they are a "stupid nigger," or as a Jew, they are a "good-for-nothing kike," or as a Puerto Rican, they are a "greasy spic," the speaker has insulted the party in an extremly degrading and demeaning manner specifically concerning their race/ethnicity to provoke a response, which leads to a high likelihood of the listener responding with fisticuffs. Therefore, Connecticut's statute as interpreted by their courts would seem to fall right into the RAV exception. Critique away!
2.3.2006 6:15pm
minnie:
Kovarsky, I meant that I find the "fighting words" restriction on free speech to be unconstitutional. That's a dispute between citizens, and the government should not be sending people to jail for offensive language.

My point was that type of governmental interference is wrong in both cases, here because our constitution protects free speech.

Do you disagree?
2.3.2006 6:47pm
Neal Lang (mail):
Unrelated to the legal issues, why would you insult a person who's preparing food to give you?...if sufficiently offended, they could put anything biological chemical or radiological they wanted to in your food...just dumb, on a Darwinian scale.

If a tort lawyer can get $10 million for a "hot" cup of coffee, could you imagine what they could do with intentional poisoning?
2.3.2006 7:26pm
Cornellian (mail):
The coffee drinker got a whole lot less than $10 million, and how many people would be willing to eat something served by someone they've just addressed with a racial insult in return for the possibility of an unknown amount of money an indefinite period of time in the future?

Unrelated to the legal issues, why would you insult a person who's preparing food to give you?...if sufficiently offended, they could put anything biological chemical or radiological they wanted to in your food...just dumb, on a Darwinian scale.

If a tort lawyer can get $10 million for a "hot" cup of coffee, could you imagine what they could do with intentional poisoning?
2.3.2006 7:30pm
John Jenkins (mail):
Dan Jacobs, I think Prof. Volokh's point is that "ridicules or holds up to contempt" is more broad than the fighting words exception permits. Unless one argues that any words that "ridicue[] or hold[] up to contempt" someone are fighting words, the statute is overbroad. If it were interpreted by the state court as only going to those instances that were those to which fighting words applied, then I'd think the statute is constitutionally permissible as construed. Without that construction, however, I think the law is constitutionally infirm.
2.3.2006 8:05pm
Wintermute (www):
I really didn't want to start my weekend off reading an opinion like RAV, a/k/a MEGO, reminded me of a friend, though, whose name is repeated in the citations. I think a beer is called for, brb....(slurp)

I never like the fighting words doctrine; it's a slippery slope. RAV tried to provide something to hold onto.

"'Fire' in a crowded theater" is malicious mischief, reckless endangerment, or negligent homicide, and is by premise not uttered as an expression of fact, belief, or opinion. If anything is not "speech" at all, it's exemplified by that meme Holmes later regretted, IIRC, or at least the wartime dissent precedents it aided.

Incitement to riot is far enough away from the right to peacefully assemble to be at least attempted insurrection or solicitation or conspiracy to destroy property or life or limb, again not protected speech. Failed revolution and you get hung. Immanent civil disorder here, not counseling to resist the draft.

I'd rather be called anything than jail anyone for being merely offensive (within reasonable bounds of time, place, and manner). And you? I must go lie down now; this drained me. Thanks, prof.
2.3.2006 8:27pm
Neal Lang (mail):
Kovarsky, I meant that I find the "fighting words" restriction on free speech to be unconstitutional. That's a dispute between citizens, and the government should not be sending people to jail for offensive language.

My point was that type of governmental interference is wrong in both cases, here because our constitution protects free speech.

One of the reason governments our instituted amongst men is maintaining the "public Safety". Inciting violence disturbs the "public Safety", and government has the authority to do what is reason to quell inciting violence. Look at the context of the 1st Amendment:
Article the third [Amendment I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Based on the complete context of the 1st Amendment, the protected "speech and press" cannot abridged by Congress (government). Based on that, the argument could be made that the type of "speech and press" is "religious and political". This would complement the "establishment and free exercise" of religion as worship and private establishment (proselytizing) may take either spoken (speech) or written (press) form. Also the "assembly and petition" rights of the people to seek redress of government grievances also are complemented by "spreech and press". Speech fits well with both assembly and petitioning, and a petition might be either verbal (speech) or written (press).
2.3.2006 8:43pm
TC (mail):
What fact do you mean? The exact words she said?

Of course. Maybe she just said "Water buffalo."
2.3.2006 8:54pm
Neal Lang (mail):
The coffee drinker got a whole lot less than $10 million, and how many people would be willing to eat something served by someone they've just addressed with a racial insult in return for the possibility of an unknown amount of money an indefinite period of time in the future?

Why would someone stick a severed finger in a barbeque sandwich?

Mrs. Liebeck attorneys had at a few of the jury sold, as they argued for $9.6 million in punitive damages against McDonals on top of the compensatory damages. The jury settled on $2.7 million. Later the judge reduced the punitive damages award to $480,000, even though he called McDonald's conduct reckless, callous and willful.
2.3.2006 8:59pm
anonymous22:
There is a very silly tendency in conceptualizing free speech to think that every type of speech is "covered" by the First Amendment besides narrow exceptions: obscenity, libel, fighting words. In reality, most speech is unprotected by the first amendment except for those lines of cases where the federal courts have decided to intervene: some (though not all that much-- McConnell v. FEC) protection for political speech; some protection for commercial speech, some for offensive speech (though genuinely offensive speech is adequately punished by informal taboos); some protection for obscenity (though again not as much as you would think-- there has been little resistance to the recent crackdown on internet porn). Generally, the federal courts have been much tougher on state statutes than federal statutes. But contract law is totally excepted from the first amendment, as is blackmail, slander, "time, place, and manner" regulations (much harsher usually than their innocent-sounding name) and most court decrees. There are certainly more than I have listed.
2.3.2006 9:51pm
Eugene Volokh (www):
Some may call it "very silly," but I think it's right, and I've so argued at some length in this article.
2.3.2006 10:52pm
Jack John (mail):
Group libel is still unprotected after RAV.
2.4.2006 1:52am
minnie:
Neal Lang,

Wintermute makes the distinction above between "fighting words" offensive speech and other types of speech which fall into categories which violate other laws, e g. malicious mischief. I agree with his post entirely.
2.4.2006 2:31am
minnie:
Eugene, apparently that is a new type of Acrobat format and I cannot open it. Is there any other way than pdf that I can read your article?

Do I correctly understand your post correctly to mean that you believe in wide lattitude in permissible speech, and do not think merely using a racial epithet should be legally penalized?
2.4.2006 2:47am
Kent Scheidegger (mail) (www):
Virginia v. Black, mentioned earlier in this thread, is actually about threats rather than fighting words, but it does nicely illustrate the targeted vs. general distinction that Eugene described.

There were actually two cases, consolidated at the Virginia Supreme Court level. Black was convicted of burning a cross at a Klan rally. (Interesting name for a Klansman.) Elliott and O'Mara were a couple of punks who burned a cross on a black neighbor's lawn. The Virginia Supreme Court reversed both convictions. The U.S. Supreme Court affirmed the reversal in Black's case but sent the other one back, and the convictions were reinstated on remand.

The individually targeted threat was a crime, but the general expression of hate, however contemptible, was not.
2.4.2006 12:32pm
anonymous22:
I was probably too brusque with "very silly"-- I don't believe much in concepts to begin with, and I don't find that the "definitional balancing" heuristic is all that useful in actually evaluating free speech claims, because I think it leads courts to be overly aggressive in evaluating speech restrictions, and may lead them to strike down utile laws on doctrinal grounds. Government suppression of offensive or unpopular speech is very bad, though, but I think the courts should not assume that all laws or practices that infringe on speech represent odious government suppression.
2.4.2006 3:18pm
Tocqueville (mail):
I'm just wondering what Article III Clerk and Dan Jacobs have done to deserve such obvious snubbing by the host? I for one was greatly looking forward to Eugene's reponse to their queries. . . .
2.4.2006 4:04pm
Neal Lang (mail):
Wintermute makes the distinction above between "fighting words" offensive speech and other types of speech which fall into categories which violate other laws, e g. malicious mischief. I agree with his post entirely.

There is no evidence that the "speech and press" proteced from Congrssional regulation by the 1st Amendment was other than "religious and political" in nature. In fact, the nearly universal imposition of "Blue Laws", from "Banned in Boston" to the "Antebellum South" contemporary with the ratification of the Bill of Rights until well into the 20th Century would indicate that any sort of "offensive speech" was not intended to be "protected".

Additionally, seeing how many in the Congress that passed the Alien and Sedition Acts in 1798, also were involved in the passage and ratification of the Bill of Rights, apparently even "political speech and press" could limited by law.
Under the Sedition Act, anyone "opposing or resisting any law of the United States, or any act of the President of the United States" could be imprisoned for up to two years. It was also illegal to "write, print, utter, or publish" anything critical of the president or Congress. (It was notable that the Act did not prohibit criticism of the Vice-President. Jefferson held the office of Vice-President at the time the Act was passed so the law left him open to attack.)

Of course, the Framers believed that it was the people, through their local government who would establish the extent of "vebal or written" trash the community would stomach. They knew that the limited Federal government they established with the Constitution of the United States of America, had neither the "power" nor the "authority" to either "restrict" or "permit" - "speech or press" outside the limits agreed to by "the People" through their local goverments for their local communities.

Somewhere between 1789 and today, the Supremes came to the understanding that "liberty" was really "license", and that Founders were really "French libertines" and not "Classical Liberals", so the 1st Amendment was stretched to cover nearly every abomination that the human mind could say, sing, write, or pictorially present.
2.4.2006 4:13pm
just me (mail):
I think that the "fighting words" doctrine should perhaps not apply here because of the physical barriers at issue. The offending speaker was in a drive-thru in a car, such that the "maybe-incited" listener was INSIDE the restaurant. Thus, the listener/worker couldn't easily punch the speaker. I always thought that the "fighting words" doctrine did include the concern that violence was imminent; i.e., don't get in someone's face and risk triggering your listener's temper.

Can you ever have fighting words over the phone? If not, then how can you over the intercom? Maybe when you pull up to the window you're close, but there's still a barrier.

Could that/should that be dispositive? I'm not sure, but I tentatively think so.
2.7.2006 10:38am