‘Fighting Words’ Doctrine Active, says Minnesota Appeals Court

Don’t expect the First Amendment to protect you from disorderly conduct charges if you curse store employees in front of other customers.

A recent Minnesota appeals court decision said no protection exists in such a instance, in a case involving a man charged with repeatedly cursing at a liquor store clerk and then refusing to leave the store.

Jeffrey Nelson entered the liquor store in February 2013 and started cursing at the store clerk – a person  with whom he had a previous confrontations.  The clerk asked him to leave but Nelson refused and continued to utter profanity, police said.

Police cited Nelson for disorderly conduct and criminal trespass.  At his trial, Nelson argued that he had a First Amendment right to speak intemperately to the store clerk.  The trial judge found him guilty of disorderly conduct.

On appeal, Nelson contended that his speech was protected by the First Amendment and that his profanity did not cross the line into so-called fighting words – defined by the U.S. Supreme Court in Chaplinsky v. New Hampshire (1942). The ruling said “fighting words” were those which inflict injury or cause an immediate breach of the peace.   Nelson also argued that the fighting-words doctrine was “archaic” and not applicable in the modern day.

The Minnesota Court of Appeals disagreed in its Dec. 22nd decision State v. Nelson. The appeals court first explained that “fighting words” remains a category of unprotected speech in First Amendment jurisprudence, noting that the U.S. Supreme Court recently had identified “fighting words” as a “historic and traditional” category of unprotected speech. The Minnesota court concluded that “the ‘fighting words’ category of unprotected speech remains good law and is appropriate for application in this case.”

The appeals court noted that Nelson entered the store and started uttering repeated instances of profanity in a loud voice.  He continued to do so even after being asked to vacate the premises.   The appeals court distinguished cases involving individuals cursing at police officers, who are expected to exercise restraint.   “A police officer, unlike a store clerk, is trained to deal with unruly citizens,” the appeals court wrote.  “A store clerk at his place of work should not be expected to tolerate the same level of abuse as a trained police officer who often deals with intoxicated or mentally ill persons.”

The bottom line is that hurling profanities at other citizens in public places may well be considered unprotected “fighting words” and not protected speech.  The fighting words doctrine is an active, not archaic, part of First Amendment law.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute and the author of the award-winning book “Let The Students Speak! A History of the Fight for Free Expression in American Schools.”

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