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):
- Brazoria, Texas Proposal To Ban the Use of "Nigger" as a Fighting Word Withdrawn:
- Proposed Brazoria, Texas Ordinance Banning Use of "Nigger" as a Fighting Word: