“Fighting Words,” What is and is not Protected Free Speech

Disorderly Conduct is the go-to citation for law enforcement officers when someone is being loud, disruptive, or rowdy, but hasn’t physically attacked anyone or damaged any property.  Disorderly Conduct, commonly shortened to “DOC” is a misdemeanor in Georgia and, as criminal offenses go, it is extraordinarily broad.  It can include anything from pointing and screaming in someone’s face (Mayhew v. State, 299 Ga. App. 313 (2009)) to “violently” shaking a set of keys at them (Crutcher v. State, 267 Ga. App. 410 (2004)).  Depending on the circumstances, one can even be charged with DOC for yelling or using foul language, that is, “Fighting Words.”

Yelling can be Fighting Words under Georgia law.

What are “Fighting Words?”

Subsection (a)(3) of O.C.G.A. § 16-11-39 states that a person commits Disorderly Conduct when they say to another person “opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will…naturally tend to provoke violent resentment…commonly called ‘Fighting Words.’”

So what does that mean?  Basically, Fighting Words are any words which are likely to start a fight, riot, public disturbance, or any other “breach of the peace.”  Usually, these are profanities and/or racial slurs, but they don’t have to be.  For example, Georgia courts have found that yelling “This man here is a dog!” can be enough under the right circumstances (Brooks v. State, 166 Ga. App. 704 (1983)).  But that’s the thing, it’s not just the words themselves that are important, but where, how, and to whom the Defendant says them. 

Here are some of the most common situations where we’ve seen people charged with using Fighting Words:

  • People yelling or cursing at police officers.
  • Family members having loud arguments.
  • Students (usually high schoolers) cursing at teachers or each other.
  • People using racial slurs or racist language in public.

Each of these situations can potentially constitute a crime under Georgia law, but not always.  Again, it all depends on the circumstances.

But what about Free Speech?

The First Amendment says that the government “shall make no law…abridging the freedom of speech.”  That may sound pretty clear, but the U.S. Supreme Court has actually ruled that “the right of free speech is not absolute at all times and under all circumstances” and does not protect “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words” (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)).  In other words, the government can outlaw some kinds of speech, but not others, and Fighting Words are one kind that the Constitution doesn’t protect.

That said, the government can’t just call any speech it doesn’t like “Fighting Words” and make it illegal.  In fact, Georgia’s current Disorderly Conduct law came about after the Supreme Court struck down the previous statute for being too vague and going too far (Gooding v. Wilson, 405 U.S. 518 (1972)).  The Court clarified that Fighting Words aren’t just any annoying or offensive words, they must be words that would provoke an average person to fight or breach the peace upon hearing them.  The new law, O.C.G.A. § 16-11-39, reflects that and has been found to be constitutional (Lamar v. Banks, 684 F.2d 714 (1982)).

Where’s the line?

So how does the law decide whether any given statement constitutes Fighting Words or not?  Ultimately, this is determined on a case-by-case basis by judges, juries, and appeals courts, but here are some general guidelines to keep in mind:

  • Profanity and Fighting Words are not the same.  While Fighting Words usually involve swearing or cursing, this is not a requirement.  Likewise, using profanity to emphasize a point, rather than to insult or provoke, is not Fighting Words (In re L.E.N., 299 Ga. App. 133 (2009)).
  • At least one person present must be a member of the “public,” rather than a police officer.  While Fighting Words may be directed toward the police, a non-officer must be able to hear them (Wood v. Haynes, 148 Ga. App. 640 (1979)).
  • There doesn’t have to be an identifiable “victim,” but there usually is.  Insults directed at a specific person are much more likely to be Fighting Words than expressions of anger or frustration directed at no one in particular.  The law does not, however, require the prosecution to name a victim or victims (Tucker v. State, 233 Ga. App. 314 (1998)).
  • A direct confrontation must be likely or, at least, possible.  By definition, Fighting Words must be likely to incite a breach of the peace.  If the situation is such that no one hearing the words would be able to react to them (an insult yelled out of a passing car, for example), then they aren’t Fighting Words (Turner v. State, 274 Ga. App. 731 (2005)).

Even though the courts have provided some guidance, the law regarding Fighting Words remains unclear in many cases.  Police officers frequently issue citations and criminal warrants for this charge but, in many cases, are mistaken about what it actually criminalizes.  If you or a loved one have been charged with Disorderly Conduct under Georgia’s Fighting Words law, it’s important to speak with an attorney immediately to discuss possible defenses.  Call our office today for a free consultation.