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Proposed Brazoria, Texas Ordinance Banning Use of "Nigger" as a Fighting Word:

Several people e-mailed me to ask about it. The ordinance, as currently drafted, would provide an up to $500 fine for people who "intentionally or knowingly use[] the word 'nigger' in a[n] abusive, indecent, hurtful, degrading or insulting way in a public place, and the use of the word by its very utterance tends to incite an immediate breach of the peace." A few thoughts:

(1) Words that "by [their] very utterance tend[] to incite an immediate breach of the peace" and are "directed to the person of the hearer" -- which is to say personal insults said to a particular person, and not just insulting words about third parties said in a general speech, on a billboard, in a book, and so on -- are indeed unprotected by the First Amendment, under the so-called "fighting words" exception.

(2) This ordinance has no "directed to the person of the hearer" limitation: It would, for instance, ban even "hurtful" or "degrading" uses of "nigger" in public speeches that aren't directed at any particular person who is to be insulted. If read literally, it would therefore be unconstitutionally overbroad.

(3) A court might interpret the ordinance as implicitly limited to statements "directed to the person of the hearer," especially since a similarly worded state law (see below) has been so read. But the ordinance would still be unconstitutional even with this limitation: While a total ban on all fighting words would be permissible, a selective ban only on racist fighting words -- or only on this racist fighting word -- is unconstitutional. The Supreme Court so held as to a very similar ordinance in R.A.V. v. City of St. Paul (1992).

(4) The ordinance is also superfluous. Texas Penal Code 42.01(a)(1) already makes it an offense if a person "intentionally or knowingly" "uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace"; Texas courts have read this as limited to "fighting words," but of course covering all such insults, not just "nigger." The offense is "a class C misdemeanor," which may be punished by a fine of up to $500, the same fine the ordinance would impose.

Related Posts (on one page):

  1. Brazoria, Texas Proposal To Ban the Use of "Nigger" as a Fighting Word Withdrawn:
  2. Proposed Brazoria, Texas Ordinance Banning Use of "Nigger" as a Fighting Word:
Steve:
It would, for instance, ban even "hurtful" or "degrading" uses of "nigger" in public speeches that aren't directed at any particular person who is to be insulted.

But in such a circumstance, it seems the final element of the statute wouldn't be satisfied: the use of the word "by its very utterance" would not "tend to incite an immediate breach of the peace."

The statute seems to contemplate that I can be punished for using the word in a situation where I could reasonably expect to be popped in the nose for it, irrespective of whether any nose-popping actually occurs. That seems like an appropriate test.

As for point #3, I wonder if the existence of the broader Texas Penal Code provision would save the ordinance.
1.24.2007 5:49pm
jelewis (mail):
The question I have - in all sincerity - is to whom this law will apply. Very often, many urban African-Americans will use the term "nig---" as an endearing term or as a casual reference to a friend. I have spent enough time on the Manhattan and DC subways to know that - would the law or those interpreting the law take this fact into account?
1.24.2007 6:09pm
Falafalafocus (mail):
Professor,

I believe that you are correct in reason, but not in interpretation regarding point 4 of your post. Instead of being superfluous, the ordinance will establish that the word is not "abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace", at least as apparently contemplated by the legislature. I highly doubt that this would address the constitutional arguments that you address above that point, though.
1.24.2007 6:17pm
Elliot123 (mail):
I suspect we will soon encounter the amusing suggestion that the word is illegal only when used by a particular class of people.

Perhaps Al Fattah can help us out?
1.24.2007 6:18pm
Witness (mail):
jelewis,

Having some experience with southeast Texas, I can say that whites use the word down there even more frequently than I heard it used by blacks while living in DC (which was pretty frequently).
1.24.2007 6:21pm
Witness (mail):
Not that I think the law is a good idea. Or even that my comment was apropos to jelewis's question. I just like watching myself type.
1.24.2007 6:22pm
Respondent (mail):
How would the Virginia cross burning case affect this statute?
1.24.2007 6:32pm
Steve:
Very often, many urban African-Americans will use the term "nig---" as an endearing term or as a casual reference to a friend.

Do you think the use of the word in that context tends to incite an immediate breach of the peace?

If not, then the answer to your question is very obvious.

Keep in mind, this law is effectively already on the books in Texas, only without the specific word in question being spelled out. So if you think this law would lead to absurd results, you're likely wrong, because those absurd results aren't occurring under the law that's already in existence.
1.24.2007 6:37pm
PDXLawyer (mail):
I wondered the same thing as jelewis. I was listening last Friday to an argument in an appeal on a criminal libel conviction on this very point in Oregon (it came before my boring civil case).

My thought is that in context, a black person using n***** with respect to another black person is a use which would not ordinarily incite a breach of the peace, and is therefore not "fighting words." This seems pretty easy to me. The hard question is how you can have a law which defines what is criminal based on the defendant's race. That is, how can the state convict *me* of a crime for saying something that would be perfectly legal to say if I were of another race? Or, to put it another way, can the state properly enforce by criminal sanctions social conventions which give different people different privileges based on race?

The prosecutor's answer to all of this is that its a race neutral law on its face, and the fact finding (what is likely to incite imminent violence) should go to a jury, and the jury should be presumed, in the absence of solid contrary indications, to act out of proper, not improper motivations. Of course, this logic requires one to ignore what everybody knows, and could also be used to justify the convictions of blacks in the old South who were innocent of the crime actually charged, but "guilty" of resisting social subordination, if one believed, as many did at the time, that social peace and order were more important than racial justice.

One thing I am sure of, prosecuting black people for using the word n***** would be nuts. I wish I had an answer for the rest.
1.24.2007 6:46pm
Visitor Again:
The question I have - in all sincerity - is to whom this law will apply. Very often, many urban African-Americans will use the term "nig---" as an endearing term or as a casual reference to a friend. I have spent enough time on the Manhattan and DC subways to know that - would the law or those interpreting the law take this fact into account?

Your question does not appear to be sincere. When African-Americans use "nigger" in reference to each other, they usually are not employing it "in a[n] abusive, indecent, hurtful, degrading or insulting way," which is one of the essential elements of the ordinance. In fact, as you no doubt know, when African-Americans use the term among themselves, it is usually with a degree of affection.

Not that I support the ordinance or even the fighting words exception to the first amendment's free speech guarantee. In determining the scope of free speech, I do not see why the determinative standard is one positing that physical retaliation is an expected or normal response to name-calling.

People often fling verbal abuse at each other without engaging in violence and there is no sufficient reason that the law, including constitutional law, should not be premised on the notion that people are entirely capable of restraining themselves when verbally provoked and normally do restrain themselves. Why should speech be proscribed on the basis that someone is so short-tempered that they cannot restrain themselves from engaging in physical violence when called a nigger or a bastard or whatever or when told their mother is a whore? The fighting words exception is the product of a time when people thought physical violence was a justified response to verbal abuse.

There are those who would say such speech has little, if any, value. I disagree. Sometimes the verbal abuse is justified and is built on truth. People do act like bastards. Some mothers are whores. And sometimes verbal abuse is the best, the most succinct way of expressing one's true feelings or at least the depth or intensity of those feelings. Verbal abuse has a value as speech because one of the functions of speech is to serve as a vehicle of self-expression.
1.24.2007 7:10pm
Kovarsky (mail):
Respondent,

Do you mean Virginia v. Black? I think that case was about whether it was constitutional for there to be an evidentiary presumption that a burning cross was meant to intimidate. My recollection may have failed me, but I think that's right.

I take it the analagous rule here would be that use of the offending word could constitutionally create an evidentiary presumption that it was supposed to breach the peace. I doubt the evidence behind that presumption is as strong as the cross-burning case, though.
1.24.2007 8:08pm
Sk (mail):
A constitutional question concerning fighting words: is there the belief that the use of some fighting words are appropriate, and thus protected, at certain times?

For instance: suppose I am in an argument with someone. That individual calls me a 'cracker'. I respond by calling him a 'nigger.' (or any other 'fighting words' if you are worried that they are not equally vicious). Is the first use of the word (the initiation of the fighting words exchange) not protected, while the second use of the word (the response) protected speech? In other words, if a fighting word is not constitutionally protected it must be because it understandably inspires a violent response (that violent response may not be constitutionally protected, but merely by calling the initial insult a 'fighting word,' we are saying the violent response is at least appropriate). And if violence is tolerated as a response, presumably a lesser response (a fighting word) would also be tolerated. But is it constitutionally protected, and not merely tolerated?

So, back to the actual case. If one fighting word (nigger) is spelled out as being particularly egregious, then isn't it possible that in a verbal argument between two people, one individual could be charged for using 'nigger' but forced to endure verbal abuse ('cracker', 'bastard,' 'asshole,' in short, everything except 'nigger')? Or wouldn't the law fail to punish verbal abuse ('cracker' bastard' 'asshole') and simultaneously punish similar verbal abuse ('nigger')? In short, are 'fighting words' ever constitutionally protected speech on the basis that in some circumstances, fighting words are entirely appropriate?

Sk
1.24.2007 8:21pm
Constantin:
Right off the top of my head, I can think of one instance of a black person using the word "nigger" in an abusive and hurtful manner: Chris Rock, in his famous routine outlining what he perceives as behavioral differences among various black people. There's absolutely no endearment intended by his use of the term. He's not happy about what the people he calls "niggers" are doing, and intends to demean them by calling attention to it with the word.
1.24.2007 8:27pm
jelewis (mail):
I was sincere about the question as the term can be used both an endearing term and as a disparaging term by African-Americans, depending on to whom it is addressed and in what context. There are also African-Americans who would be offended by overhearing other African-Americans using the term.
1.24.2007 8:53pm
ReVonna LaSchatze:
Bet EV hopes Dr. Anisa Abd el Fattah is still reading his posts. Heh! She'll rue the day she messed with him. lol
1.24.2007 9:01pm
jim:
To return to the well of professional comedians, if I recall correctly the movie "The 40-Year-Old Virgin" contains a scene where the N-word is used by a black person not just in a demeaning way, but as a fighting word.
1.24.2007 9:16pm
arbitraryaardvark (mail) (www):
Has the Supreme Court upheld any fighting words cases since 1950? Hasn't the fighting words doctine been narrowed to the point where it really doesn't exist any more? What is the texas constitution's free speech case law like on this issue?
1.24.2007 10:03pm
Lively:
Next on the legislation list will be "fag." Where does it stop.
1.24.2007 10:29pm
Steve:
Right off the top of my head, I can think of one instance of a black person using the word "nigger" in an abusive and hurtful manner: Chris Rock, in his famous routine outlining what he perceives as behavioral differences among various black people.

But Chris Rock's comedy routine isn't likely to incite an imminent breach of the peace. This is not an ordinance which criminalizes name-calling. Did anyone actually read the post?
1.24.2007 10:57pm
Malvolio:
Next on the legislation list will be "fag." Where does it stop[?]
My money is on "poopyhead".
1.24.2007 11:04pm
Fub:
arbitraryaardvark wrote:
Has the Supreme Court upheld any fighting words cases since 1950? Hasn't the fighting words doctine been narrowed to the point where it really doesn't exist any more? What is the texas constitution's free speech case law like on this issue?
California's 2nd DCA invoked fighting words doctrine to affirm a decision by the Superior Court of Ventura County denying an African-American man, Mr. Russell Lawrence Lee, court authorization to change his name to "Misteri Nigger". According to appellant the "i" in "Misteri" was intended to be silent. The court also noted that appellant's common law right to use the surname was not abrogated. In other words he could call himself anything he wanted, but without court authorization. The case was Lee v. Superior Court of Ventura County (1982) 9 Cal.App.4th 510

According to that case, the California Supreme Court had previously censured a superior court judge for use of the racial epithet, citing In Re Stevens (1982) 31 Cal.3d 403.
1.24.2007 11:13pm
Fub:
Oops! Make that Lee v. Superior Court of Ventura County (1992) 9 Cal.App.4th 510.

Additional factoid: Mr. Lee apparently used the name "Misteri" to avoid the prohibition on court authorization of names that are also titles, as in "Mister", or "Doctor".
1.24.2007 11:19pm
Respondent (mail):
Kovarsky,
Thanks for getting the exact case.
The controlling prurality opinion in Black actually held the intimidation presumption as unconstitutional. In fact, it appears that all members of the court save Justices Scalia and Thomas agreed on that point. But what I was getting at was the fact that six justices of the court agreed on the law's constitutionality even though it singled out a particular form of expression to criminalize. I wonder if the form of reasoning used in that opinion could save the law at issue here.
1.25.2007 12:54am
Visitor Again:
Has the Supreme Court upheld any fighting words cases since 1950? Hasn't the fighting words doctine been narrowed to the point where it really doesn't exist any more?

The U.S. Supreme Court apparently has not sustained a conviction based on the fighting words doctrine since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the case which first announced the doctrine. There the Court defined fighting words as "those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace." While it has never disapproved of the exception, it has certainly narrowed it greatly.

In Street v. New York, 394 U.S. 576 (1969), the Court noted that speech falls within the fighting words exception not because of its offensive content, but because it presents an actual threat of immediate violence. Offensive speech does not fall within the fighting words exception if it does not present an actual threat of immediate violence.

In Cohen vs. California, 403 U.S. 15 (1971), where the state relied in part on the fighting words doctrine to support conviction for wearing a jacket bearing the words "Fuck the Draft" in a courthouse corridor, Justice Harlan's majority opinion said:


We cannot sanction the view that the constitution, while
solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.


Cohen restated the doctrine; fighting words were "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions." Because Cohen's words were not an insult directed at a particular individual, they were not fighting words.

In Gooding v. Wilson, 405 U.S. 518 (1972), a statute that prohibited the use of "opprobrious words or abusive language, tending to cause a breach of the peace" was held overbroad because it encompassed more than fighting words. See Lewis v. City of New Orleans, 408 U.S. 913 (1972) (statute prohibiting use of opprobrious language to police officer held overbroad).

And in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court declared:


It is not true that "fighting words" have at most a "di minimus" expressive content, or that their content is in all respects "worthless and undeserving of constitutional protection"; sometimes they are quite expressive indeed. We have not said that they constitute "no part of the expression of ideas," but only that they constitute "no essential part of any expression of ideas."


The Chaplinsky formulation of fighting words has been drastically narrowed in at least three ways. First, the definition has been narrowed to exclude words which by their very utterance inflict injury, leaving only words which incite an immediate breach of the peace. That the words are offensive is not sufficient to make them fighting words. Second, fighting words now must be inherently likely to provoke violent resentment from the ordinary citizen; the mere tendency to incite violence is not sufficient. And third, fighting words must be directed at the person of the hearer; words directed at a general audience and words not directed at particular individuals are not fighting words.

Beyond that, it is unclear what the full implications are of R.A.V.'s declarations that fighting words do have expressive content and that they are not worthless and undeserving of first amendment protection.
1.25.2007 1:26am
Constantin:
But Chris Rock's comedy routine isn't likely to incite an imminent breach of the peace. This is not an ordinance which criminalizes name-calling. Did anyone actually read the post?I did read the post. And how do you know Rock's routine wouldn't "tend" to cause a breach of the peace? If he did this routine in Brazoria in front of an audience comprised of some of the people quoted in this article, are you sure one audience member wouldn't be riled up enough to satisfy the ordinance? That they would even consider such a law indicates they're of a sensitive sort to begin with.

It's a particularly confrontational set piece that caused quite a bit of consternation among black people when it was unveiled ten years ago. He caught enough flack for it that he removed it from his act. What if just one of the people offended by it caught Rock's show in Brazoria, and--perhaps emboldened by his city's Brave New Law--took umbrage enough to heckle Rock on the stage? Seems to me Rock would owe $500, unless a police officer or judge adopted what is, at base, your argument, which is black people are by some mystical property immune from the spirit of this law.
1.25.2007 2:06am
Steve:
What if just one of the people offended by it caught Rock's show in Brazoria, and--perhaps emboldened by his city's Brave New Law--took umbrage enough to heckle Rock on the stage?

Heckling a comedian is a breach of the peace? Interesting.

If your point is that there is some ridiculous hypothetical which would never occur in the world, in which a black person could be prosecuted for violating this ordinance, you're most likely correct.

If he did this routine in Brazoria in front of an audience comprised of some of the people quoted in this article, are you sure one audience member wouldn't be riled up enough to satisfy the ordinance?

The fact that you think the ordinance is satisfied so long as a breach of the peace in fact occurs demonstrates that even if you read the post, you didn't understand it.
1.25.2007 3:56am
Spartacus (www):
Okay, regarding blacks using the word. Suppose one black person says something that the second thinks is stupid or offensive. The second responds, "Nigga, please!" Not being used as a term of endearment; what if a white person responded in the same manner? Or what if the second black person had responded, "Fuck you, nigger!" Or a white person? What if the original speaker was white? In any context, it seems there will be unequal application of the law based solely upon race.
1.25.2007 8:53am
thewagon:
"One thing I am sure of, prosecuting black people for using the word n***** would be nuts."

Prosecuting anyone for using the word "nigger" would be nuts.
1.25.2007 9:07am
Houston Lawyer:
Maybe we can just send them to re-education camp, like the actor from Grey's Anatomy. I think the whole "fighting words" idea should be put to rest. We now require self restraint and limit everyone's right to start throwing punches much more than in my grandfather's time. If you are constitutionally protected in burning the flag, you should be constitutionally protected in hurling insults.
1.25.2007 10:28am
Hans Bader (mail):
In Hardy v. Jefferson Community College (6th Cir. 2001), a federal appeals court said that using the N-word is constitutionally protected under certain circumstances, reinstating an instructor who used the word for a valid pedagogical purpose.

Nevertheless, the EEOC's Chairwoman erroneously thinks she has the power to bring racial harassment suits to entirely ban the word. She wrote a January 4 letter to Time Magazine saying that the EEOC would continue bringing lawsuits against employers whose employees use the word, even if the employees using the word are minorities themselves, and are not using it to attack another employee. Her letter criticized black commentator John Ridley for saying that the N-word has its uses.

Perhaps the EEOC should be sued for First Amendment violations the way the Department of Housing and Urban Development was in White v. Lee, 227 F.3d 1214 (9th Cir. 2000), when its civil-rights officials sought to ban supposedly bigoted comments in opposition to housing projects for the disabled as a violation of the Fair Housing Act. The court held that the civil-rights officials could be sued individually for emotional-distress and punitive damages.

A link to the EEOC Chairwoman's remarkably arrogant letter to the editor can be found in my Open Market blog post at http://www.openmarket.org/2007/01/16/forbidden-words .

Supreme Court Justice Oliver Wendell Holmes observed in Towne v. Eisner (1918) that "a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."

The EEOC has failed to heed Justice Holmes' wisdom, seeking to ban words even when they are not used as face-to-face insults.
1.25.2007 10:31am
A.C.:
Seems to me that the proper penalty for the use of "fighting words" isn't a fine, but rather a significantly reduced penalty for the person who is goaded by them enough to start a fight. People might pay good money for the "fun" of taunting someone, but would they risk a broken nose?

If you use the law to eliminate the inherent consequences of a given act, then try to use the law to build in a different set of consequences to deter that same act, aren't you wasting the taxpayers' money?
1.25.2007 10:55am
Houston Lawyer:
A.C.

Similar theories were proposed in connection with the flag burning issue, whereby the penalty for assaulting someone who burned a flag would be very nominal.
1.25.2007 12:01pm
Hans Bader (mail):
In the Dwares case, the Second Circuit held that it violates the First Amendment for the police to permit members of the public to assault someone who burns a flag, since they presumably wouldn't be so permissive if the speaker being assaulted had engaged in a different form of expression.

(I don't recall the facts of the case well enough to express an opinion on whether it was rightly decided).
1.25.2007 12:21pm
whit:
the essence of the first amendment is to protect controversial and offensive speech

this law is terrible. we are (as far as i know) the last country on earth that does not have "hate speech" laws etc. that criminalize speech based on content.

this law seems to be a step in that direction

and generally speaking, any law where the trier of fact needs to make a determination as to "hurtful" "indecent" etc. and other subjective rubbish turns law enforcement into mind readers etc. which is also problematic

the fighting words doctrine works fine. I've made 2 arrests in 20 years under that doctrine. but as noted, that is when words are directly targeted towards an individual who is present etc. and not general speech about people, things, etc.

and then there is the whole issue that one word in regards to one race is being singled out as having special status, which is a major problem as well.
1.25.2007 12:28pm
Justice Stevens (mail):

That is, how can the state convict *me* of a crime for saying something that would be perfectly legal to say if I were of another race?


Because it tended to make a black person so upset that he'd smash you on the head with a bottle? You're saying we can't use the law to protect white people?
1.26.2007 1:40am
Justice Stevens (mail):

Seems to me that the proper penalty for the use of "fighting words" isn't a fine, but rather a significantly reduced penalty for the person who is goaded by them enough to start a fight. People might pay good money for the "fun" of taunting someone, but would they risk a broken nose?



I wrote my comment before I read this. I totally agree, epsecially with the significantly part.
1.26.2007 1:42am
Texas Lawyer:
The Brazoria mayor has withdrawn this proposal.

http://www.chron.com/disp/story.mpl/front/4501208.html
1.26.2007 9:44am
wolfgang (mail):
What is this country coming to? Everyone is so politicaly correct. You should be able to say anything you want. Niggers call themselves niggers and when a white man says it it's racist, Thats just wrong. We are sick and tired of these porch monkeys dictating policy. All those blue gums like Al Sharpton anf Jessie Jackson shoould just keep thier pie holes shut! Do you ever see those clowns defending a white person wronged by blacks, NO! Wake up america!
1.26.2007 11:16am