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Can anti-profanity laws and the fighting words doctrine be squared with the First Amendment?

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An even more recent case provided a new twist in the fighting words jurisprudence, holding that store managers are akin to police officers as recipients used to dealing with profanity. Nina Baccala was convicted of disorderly conduct for uttering profanity at a store manager at a Stop & Shop in Vernon, Connecticut, because the manager had informed her it was too late to obtain a Western Union money transfer.

In overturning her conviction last year, the Connecticut Supreme Court emphasized in State v. Baccala that store managers are accustomed to angry, irate patrons. “Store managers are routinely confronted by disappointed, frustrated customers who express themselves in angry terms, although not always as crude as those used by [Baccala],” the court wrote.

“The Supreme Court of Connecticut emphasized that context is key in determining when the fighting words exception to free speech applies,” says Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. “And that’s correct. There is no laundry list of fighting words. It all depends on how a word is used and to whom it is addressed. It’s a fact-intensive inquiry and, as the court in Baccala got it right, the fighting words determination must be made ‘on a case-by-case basis.’ ”

The state of Connecticut petitioned the U.S. Supreme Court for review, contending that the state high court went astray in creating a “store manager exception” to the fighting words doctrine. The state argued in its petition for certiorari that “only a police exception is consistent with the fighting words doctrine.”

“We don’t see this as a huge jump in the law, although we recognize that the state of Connecticut feels differently,” says Damian K. Gunningsmith, co-counsel for Baccala.

“The fighting words exception to the First Amendment is justified as a prophylactic means to prevent immediate violence. If violence was not actually likely in the real-word context, then the words cannot be punished,” Gunningsmith says.

Kinsley supports the idea of recognizing store managers as recipients who are accustomed to profanity, calling the decision a “move in the right direction.”

Calvert is less sure, pointing out that a “store manager seems far removed from a police officer, who is a government employee and who goes through rigorous training.”

A larger question concerns the future of the fighting words doctrine in First Amendment jurisprudence.

“The fighting words exception should remain in place,” says Calvert. “A Nazi calling a black person the N-word in a face-to-face, one-on-one confrontation is a classic instance where speech deserves no protection. But the Baccala case highlights the problems of drawing lines under the fighting words exception.”

The categorical approach created by the court in Chaplinsky more than 75 years ago could be on borrowed time.

“The fighting words doctrine is really arcane in terms of the realities of modern expression when so much communication occurs through digital and social media,” says Kinsley. “To measure the legality of speech by its reaction in the listener has always been problematic, but it has never been more flawed than now.”

This article was published in the April 2018 issue of the ABA Journal with the title "Fighting Words: Can anti-profanity laws be squared with the First Amendment?"

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