North Dakota high court finds slur constitutes fighting words

Emphasizing the context of the speech and accompanying conduct, the North Dakota Supreme Court has ruled that a teen’s racial slur constituted unprotected fighting words and not protected speech.

The court upheld a trial court’s finding of the juvenile as a delinquent for committing disorderly conduct.

The juvenile defendant, known in court papers as A.R., circled with others around an African-American female the court called T.L. and yelled at the girl. A.R. allegedly yelled “stupid nigger” at T.L. outside a teen center in Valley City.

Police officers charged A.R. with violating the state’s disorderly conduct law,which provides in part:

An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual’s behavior, the individual:
Engages in fighting, or in violent, tumultuous, or threatening behavior; …
In a public place uses abusive or obscene language …
Engages in harassing conduct by means of intrusive or unwanted acts.

A trial court rejected A.R.’s First Amendment-based defense. A.R.’s attorney emphasized the part of the disorderly conduct law that says “This section shall not apply to constitutionally protected activity.” On appeal, A.R.’s attorney asserted that the racial slur was protected speech and not fighting words — a category of unprotected speech defined as words with no social value that are likely to provoke a violent reaction.

On appeal, the North Dakota high court affirmed the trial court in its May 11 decision in In Re A.R. The state high court noted that the police report indicated A.R. engaged in more than just speech but also harassing conduct, which consisted of circling around T.L. with others and yelling.

“We hold that the conduct accompanying the speech takes it outside of the First Amendment protections,” the court wrote, adding that “A.R.’s statement constitutes fighting words considering the context in which it was used.”

In another decision that arose out of the same incident at the teen center in Valley City, the North Dakota Supreme Court upheld a similar delinquency finding based on racial slurs in In Re H.K.

The decisions from the North Dakota high court show that a court may take pains to find that speech constitutes fighting words if the expression is offensive enough. Courts often will look to see if there is any accompanying conduct that can tip the balance toward a disorderly conduct conviction or adjudication.

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