Taking the Fight Out of Fighting Words on the Doctrine's Eightieth Anniversary: What "N" Word Litigation Today Reveals About Assumptions, Flaws and Goals of a First Amendment Principle in Disarray.

• Author: Calvert, Clay

TABLE OF CONTENTS ABSTRACT 493 TABLE OF CONTENTS 495 I. INTRODUCTION 496 II. THE FIGHTING WORDS DOCTRINE: A PRIMER 502 III. MUCH JUDICIAL OFFENSE TAKEN, NO PHYSICAL FIGHTS FOUGHT: EXAMINING THREE "N" WORD CASES FOR CLUES ABOUT THE FIGHTING WORDS DOCTRINE'S PRINCIPLES AND METHODOLOGY 514 A. A Point of Consensus and Accord on Meaning 514 B. United States v. Bartow 518 1. Putting Jules Bartow's Words into Context: What Else Was Said 521 2. What Jules Bartow Did Not Say: What Was Left Unsaid Matters 527 3. How Jules Bartow Spoke: Mode of Expression Makes a Difference 527 4. What Bartow Did Not Do: Action and Inaction Matters 529 5. The Actual Responses of Others: Reactions Matter 529 C. Connecticut v. Liebenguth 530 D. City of Columbus v. Fabich 542 E. A Constellation of Factors: Evidentiary Considerations for Treating Usage of the "N" Word as a Fighting Word 546 1. The Number of Times a Defendant Says the "N" Word 547 2. The Manner and Mode in Which a Defendant Expresses the "N" Word 548 3. What Else a Defendant Says Beyond the "N" Word 549 4. Defendant's Conduct When Using the "N" Word 550 5. How Bystanders Respond to the "N" Word 551 6. Prior History of Racial Tension Between the Speaker and Target 553 7. The Target's Occupation 553 IV. SHIFTING THE DOCTRINAL FOCUS FROM STEREOTYPES AND GUESSING GAMES ABOUT LIKELY VIOLENCE TO PREVENTING EMOTIONAL HARM AND ENRICHING DISCOURSE 555 V. CONCLUSION 561 I. INTRODUCTION

A quarter-century ago, the Supreme Court of North Carolina observed the following about the use and causal effect of the "N" word: (1)

No fact is more generally known than that a white man who calls a [B]lack man a "n--r" within his hearing will hurt and anger the [B]lack man and often provoke him to confront the white man and retaliate. The trial court was free to judicially note this fact. (2) The court advanced that assertion while concluding that the "N" word, when voiced "loudly and repeatedly" at a bar by a white man--a district attorney, no less--to a Black patron, "squarely falls within the category of unprotected speech" called fighting words created in 1942 by the United States Supreme Court in Chaplinsky v. New Hampshire. (3)

North Carolina's highest court, in fact, dubbed the district attorney's repeated utterance of the "N" word in In re Spivey a "classic case of the use of 'fighting words' tending to incite an immediate breach of the peace which are not protected by either the Constitution of the United States or the Constitution of North Carolina." (4) Indeed, the "N" word was characterized in 2020 by one scholar as "the ultimate fighting word," (5) and it is regarded by "many recent courts as the most offensive word in the English language." (6)

Is it always a fighting word today, however, if directed in unfriendly fashion by a white adult to a Black one? And does Spivey's thesis remain true that it is a fact of which courts may take judicial notice that Black men often will respond violently when the "N" word is directed at them by white men? In 2020 and 2021, appellate courts ruled in three cases--United States v. Bartow, (7) Connecticut v. Liebenguth, (8) and City of Columbus v. Fabich (9)--in which white men were criminally prosecuted after addressing the "N" word toward Black adults. (10) In all three decisions, the courts examined whether usage of the "N" word was protected by the First Amendment to the U.S. Constitution or whether it fell outside the ambit of that provision as fighting words. (11)

Given the North Carolina Supreme Court's declaration quoted earlier that no fact is more generally known than that a Black man often will be provoked to retaliate when a white person denigrates him with the "N" word, (12) one might take it as a forgone conclusion that at least one of the Black individuals (three men and one woman, as explored later) (13) to whom the "N" word was addressed in Bartow, Liebenguth and Fabich physically attacked the speaker. Yet, as this Article explains, none of the targets responded with any violence whatsoever. (14) Additionally, in one of the three cases--Bartow--the court concluded that the use of the "N" word, despite being directed at two Black adults in the speaker's immediate physical vicinity, was not an unprotected fighting word under the circumstances, and thus was protected by the First Amendment. (15) In sum, the "N" word in Bartow not only failed to provoke violence, but its usage was constitutionally protected. (16)

Yet, the courts in all three cases united around the stance that the "N" word is particularly vile, egregious, racist and offensive. (17) In brief, an exceedingly odious term that was judged to constitute an unprotected fighting word in two out of the three "N" word cases examined here--Liebenguth and Fabich--did not, in fact, produce a fight or other violent reaction in any of them. (18) The targets of the speech in all three cases exercised dignity and restraint rather than stooping to the level of their verbal tormenters, thereby defying the fisticuff expectations of the Supreme Court of North Carolina in Spivey. (19)

However, the power to remain physically calm while under verbal attack, as Professor Michele Goodwin points out, "does not mitigate the assaultive nature of the word, nor the images it evokes." (20) Indeed, the Supreme Court of North Carolina in Spivey, in the quotation at this Article's start, actually identifies two distinct effects wrought by the "N" word: first, an emotional impact--that it "will hurt and anger the [B]lack man" (21)--and second, a physical effect--that it will often provoke retaliation. (22) Additionally, the fact that no one responded violently in the three cases does not, by itself, stop the speech from being characterized as fighting words. (23) That is because the fighting words doctrine does not require an actual fight to erupt for the speech that triggered a case to be classified as unprotected; it is, instead, the likelihood of sparking such a response that is pivotal. (24)

What thus emerges from analyzing the trio of recent "N" word cases here--especially when considered along with a 2017 ruling by the Supreme Court of Connecticut that a woman's angry use of the "C" word, (25) when directed in a face-to-face confrontation toward another woman, was not a fighting word--(26) is a jumbled jurisprudence. Specifically, fighting words is a doctrine: (1) premised on stereotypes and assumptions about how a mythical average person of a particular race or gender and who holds a specific occupation is likely to respond to certain words; (2) dependent on a nebulous constellation of contextual factors--variables other than simply the use of a particular word--that requires a highly fact-specific, case-by-case inquiry into the precise circumstances surrounding a word's usage; and (3) that precludes First Amendment protection for the "N" word in some circumstances even though that word's utterance did not, in fact, trigger a fight or seemingly come close to doing so. Regarding the "N" word, the First Amendment issue spawned by these problems boils down to this: What other factors and circumstances besides its utterance must be present to transform it into a fighting word in the absence of any fight and any evidence that a target was about to fight?

Rectifying these problems and resolving that issue requires not only identifying a clear and consistent set of variables that should factor into a court's fighting words analysis, but also examining what the ultimate goal or goals of the doctrine should be in the first place. (27) Namely, should the doctrine's primary purpose be to:

(1) forestall possible violence by allowing law enforcement officials to preemptively step in and to arrest speakers who are verbally assaulting others; (28)

(2) preclude defendants from successfully mounting a First Amendment-based speech defense when their words do, in fact, spawn disorder, a breach of the peace or violent reactions from others;

(3) deter speakers from using personally abusive epithets that may cause others to suffer both physiological harm and emotional distress; (29)

(4) address the hegemonic forces through which some groups are partly subordinated via language used by members of privileged, (30) dominant groups, thereby thwarting the constitutional value of equality; (31) or

(5) uplift the realm of civil discourse and dialogue by precluding from First Amendment protection personally abusive epithets that pander to emotions and stereotypes and thereby subvert considerate, reasoned, and rational discussion? (32)

Examination of the "N" word cases presented here brings this quintet of possibilities into high relief.

Part II of this Article briefly reviews the history and current state of the fighting words doctrine. (33) Part III then examines the three cases at the heart of this Article--United States v. Bartow, Connecticut v. Liebenguth and City of Columbus v. Fabich--in which appellate courts recently wrestled with whether "N" word usage by white adults directed at Black adults constituted a fighting word. (34) Part III also distills key variables in the fighting words determination by comparing the analyses in this trio of cases. Next, Part IV uses the analyses and results in these three cases to turn the focus back to possible underlying rationales for maintaining the fighting words doctrine's existence. (35) In the process, Part IV pays special attention to Connecticut Supreme Court Justice Steven Ecker's concurrence in State v. Liebenguth and his attempt to repackage the doctrine into a carefully cabined hate speech exception to the First Amendment guarantee of free expression.

Finally, the Article concludes in Part V by calling on the U.S. Supreme Court to soon hear a fighting words case that hinges on the utterance of the "N" word by a white adult directed at a Black adult. (36) This Article asserts in Part V that in taking on such a dispute, the Court should clarify several aspects of...