IN THE DISORDERLY CONDUCT CONTEXT, WHAT ARE FIGHTING WORDS?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Heiskell, 666 P.2d 207 (Kan. Ct. App. 1983).

This case addresses the following issue:

What are fighting words?

This case answered the question, “What are fighting words”? In answering this question, the court held that fighting words were those which by their very utterance inflicted injury or tended to incite the listener to an immediate breach of peace. Id. at 210-11.

In this case, the defendant and three friends stopped at a Quik-Trip at approximately 1:00 a.m. to buy gasoline and cigarettes. Id. at 209. As they left, someone threw a bottle or rock at their car. Id. In response, the driver sped around the corner, attracting the attention of a police officer who stopped the car. Id. Immediately, the driver got out of his car to explain what had happened. Id. According to the police officer’s testimony, the defendant got out of the car as the police officer was talking to the driver and bombarded the police officer with verbal abuse and threats. Id. A police officer who arrived on the scene shortly after stated that the defendant called the police officer “a clubhappy motherf****ng son-of-a-b**ch” and told him he was going to kick his a**. Id. Apparently, the defendant’s comments were the result of a prior incident involving the defendant’s brother and the police officer. Id. As a result of the language toward the police officer, the defendant was arrested for disorderly conduct. Id. At trial, the defendant was convicted of disorderly conduct and was sentenced to 60 days in prison. Id. at 210. Eventually, the defendant appealed the decision to the Court of Appeals of Kansas. Id.

In considering the defendant’s appeal, the Court of Appeals of Kansas noted that the disorderly conduct charged against the defendant was based solely on the defendant’s use of abusive and threatening language toward the police officer. Id. Additionally, the jury instruction defining disorderly conduct given by the trial court stated, “To establish the charge of disorderly conduct each of the following claims must be proved: (1) That the defendant used offensive, obscene, or abusive language; (2) that the defendant acted with knowledge or reasonable cause to believe that his acts would alarm, anger, or disturb others or provoke an assault or other breach of peace; and (3) that the act occurred on May 23, 1981.” Id. In his appeal, the defendant argued that the jury instruction was overly broad and permitted the jury to convict him for the use of constitutionally protected language. Id.

In responding to the defendant’s argument, the court stated that it was the duty of the trial court to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of its own. Id. at 211. With disorderly conduct based purely upon a defendant’s speech (as in this case), the court mentioned that an essential element was that the defendant’s words had to be “fighting words.” Id. With this in mind, the court defined fighting words as words that were of such character that their very utterance caused injury or that they tended to incite the listener to an immediate breach of the peace. Id. In this case, the court concluded that the trial court jury instruction did not adequately convey to the jury that the words had to be fighting words. Id. Therefore, the trial court’s decision resulting in the defendant’s conviction of disorderly conduct was reversed. Id.