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“Fighting Words.”

Last night at the County Commission meeting there were lots of speakers and lots of people on both sides of the Lober issue making statements that made little sense to us.

There was a call for an “ethics committee” and “citizen review boards” to review the conduct of Commissioners.

All of the proposals have legal problems and we won’t address them here at this point in time.

One thing we will take on is comments by on “Robert Burns,” who is helped run Kenny Johnson’s campaign in Palm Bay and is looking to move up the political chain. He has appeared on this blog making what we considered false statements.

During public comments, Burns addressed the issue of the doctrine of “fighting words” as it applies to the First Amendment and Lober’s comments. (It would also apply to other comments, but who said what, when, is not the issue.)

After his comments, Burns received applause which would be great except for one thing: Burns was wrong on the facts of the doctrine of “fighting words.”

Burns said:

I apologize for not getting here on time for the agenda item so I guess I’ll just cover it in public comments.

I wanted to speak on Mel’s item and like Mel I also am retired from the military. In the military we have a lot of rules. A lot of those rules are the result of someone doing something stupid. Somebody does something that you couldn’t anticipate and all of a sudden we need to create a rule for it. One example would be pushing over a port-a-potty while another guy in in there and the guy gets crap all over him and all over the place. So we had to create a rule that you can’t push over a port-a-potty when someone is in the port-a-potty.

Something stupid has happened here and I think what Mel is asking for is that we create a rule and I think the rule is to prevent the same thing that happened with the port-a-potty so we aren’t spilling crap all over everybody.

Something that I learned about while I was stationed out in Texas, kind of an ‘in your face state,” was something called “fighting words.” Commissioner Lober has used the First Amendment as protection for a lot of things that he has said from up here and on Facebook.

I just want to read this so I get this right, but a lot of people don’t know that there a thing ruled on by the Supreme Court calls “fighting words.” And fighting words are “words intentionally directed toward another person which are so venomous and full of malice to cause the hearer to suffer emotional or incite him or her to retaliate physically. Fighting words are not an excuse or defense for a retaliatory assault and battery. However, if they are so threatening as to cause apprehension, they can form the basis for a lawsuit for assault, even though the words alone don’t constitute an assault. The utterance of fighting words is not protected by the free speech protections of the First Amendment of the U.S. Constitution.”

And that’s ruled by the US Supreme Court.

I think that the words in the context that Commissioner Lober has used would certainly incite violence in most circumstances. Sanjay Patel is one of the most compassionate people I know. I talk to them quite frequently. Where if it was my wife he was speaking about, it would certainly incite violence upon Commissioner Lober in the context he used them in.

I think that maybe it should be considered that what he has said on numerous accounts is not protected free speech. Although he feels like he needs that protection.

That’s all. I’m just asking that we need to go ahead and create a rule to stop someone from doing something stupid.

We believe that “something stupid” would include not lying to the Board of Commissioners. After all, if we are going to talk about stupid or bad conduct, shouldn’t lying be there as well?

Burns’ reading of what “fighting words” are is not from any Supreme Court case. So when he says “and that’s ruled by the Supreme Court,” that’s not the truth.

In fact, far from getting the doctrine of “fighting words” from any of multiple Supreme Court cases, Burns got his definition from the dictionary at uslegal.com.

Burns’ second lie is one of omission as the definition continues:

The words are often evaluated not only by the words themselves, but the context in which they are spoken. Courts generally impose a requirement that the speaker intended to cause a breach of the peace or incite the hearer to violence.

Clearly Lober’s comments, as despicable as one might believe them to be were not intended to cause a breach of the peace. (In fact, they did not cause a breach of the peace.) If they were, ensuing violence would be a criminal court action. “Emotional distress” would be a civil action. If the Patels or anyone wants to claim “emotional distress,” they are free to head to the court and file a complaint. It would then be up to a judge or jury to decide not whether the words were horrible, (and we think they are) but whether Lober intended them to cause “emotional distress.” As Lober was not even speaking to the Patels directly when he made his comment, it is hard to see that claim going anywhere.

That’s not the issue of this post, however and if people want to discuss it, we are open to that discussion.

This post is about what the doctrine of “fighting words” is and what it is not.


The “fighting words” doctrine was first put forth by the US Supreme Court in 1942 in a case called Chaplinsky v. New Hampshire.

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Immediately there were problems with the Court’s reasoning, the main being if we were to write “Joe Smith is a poopy-head,” would that be considered “fighting words?” The Court answered “no,” and in Terminiello v. Chicago (1949) reaffirmed that the so called “fighting words” must produce an immediate, physical response from the person. In short, it required the person to be standing there when the “fighting words” were uttered.

As Lober was not standing in front of Patel when he made his comments, the doctrine of “fighting words” as a criminal issue does not work.

Move forward forty years to the Supreme Court case of Texas v. Johnson (1989,) were the Court held fighting words were:

“… a direct personal insult or an invitation to exchange fisticuffs.”

The term “direct” means “immediate,” “in front of,” “directly to,” and “in person.”

Lober’s comments, as despicable as they are, were not made in front of Patel. They were made on Facebook and not even made as part of a conversation with Patel.

If Lober had made the comments to Stacey Patel while in the Satellite Beach Longdoggers, that would be one thing. A case could be made that Lober’s comments were “fighting words” and if there was a breach of the peace because of those words, a case against Patel for slugging Lober would most likely be dismissed or not even prosecuted. Lober could not claim “First Amendment protection” if the comments were made in person.

Yet again, the comments weren’t made in person. They weren’t even directed at Patel. She wasn’t a part of the conversation.

Don’t get us wrong, we are not defending Lober or his comments. We have said it before and will say it again – Lober’s comments are indicative to us that he does not have the temperament to be an elected official.

At the same time, we don’t want people to be running off being mislead by people like Burns.

Bet he believes that you can’t yell “fire!” in a crowded theater too.

You can, but that’s a post for another day.

His story of the military needing a rule on port-a-potties due to people turning over the port-a-potty and getting crap all over the person inside was interesting given the irony that it was he who stepped in it when he made his comments to the Commission.



9 Responses to ““Fighting Words.””

  1. Thomas L Gaume says:

    Lober claiming First Amendment protection hypocritical.

    Just as along the Second Amendment comes the responsibility of owning a gun, the same can be said of the First Amendment. irresponsible use can lead to tragic circumstances.

    While you are free to say anything you wish, just as you are free to fire a weapon into the air. The repercussions of both may be unforeseen until after the trigger is pulled, or the words spoken.

    • AAfterwit says:

      Thomas Gaume,

      Thanks for the comment.

      We don’t see how Lober is being hypocritical at all. He is not saying that people can’t say what they want and he can. He isn’t saying that elected official can’t say what they want while non-elected citizens can say what they want. If he did that, that would be hypocritical.

      We aren’t defending what Lober has said, and we aren’t defending the level to which some of his critics have stooped either.

      Do we think that people can be “nicer?” More “polite?” More “civil?”

      Absolutely.

      Yet “nicer,” “polite” and “civil” aren’t mentioned in the First Amendment. People do not have the right to not be offended.

      We think (and have made it abundantly clear) that Lober’s conduct is wrong on many levels, but it is not criminally illegal. We don’t think he has the temperament to be an elected official.

      We don’t see him being a hypocrite in this situation.

      Thanks again.

      A. Afterwit.

  2. Sarah says:

    Reading this seems like you guys just have it out for this guy. He didnt like he said he thinks this applies. He said it was ruled on by the supreme court and then you guys cited the supreme court rulings. So he’s not lying. Then you said if the comments were made in public then they probably would be fighting words. So sounds like he was right and you are agreeing with him just not where the comments took place. Of course words said online can incite violence. Just look at recent media events. It’s weird that out of all that, you decided to spend this much time on Mr. Burns.

    • AAfterwit says:

      Sarah,

      Thank you for your comment.

      The fact of the matter is that when Burns read his passage because he wanted to get it right, he then said “that was ruled upon by the Supreme Court.” Yet the passage that he was quoting was not from any decision or opinion from the Court.

      Yes, we cited Supreme Court cases which contradicted what Burns was saying. There is a doctrine of “fighting words,” but that doctrine does not apply in this situation. That’s the point.

      As for the comments made in public, we’ll try this again. If the comments were made in front of a person, the doctrine might apply. In this case, the comments were not made in front of the person. Therefore, the doctrine of “fighting words” doesn’t apply.

      If words written online can “incite violence,” can you cite a single case where any court said that the words were not protected under the “fighting words” exception to the First Amendment? We don’t think you will find it.

      We don’t know how else to say this. “Fighting words” has standards that have to be met. The Lober comments did not meet those standards if nothing else for the requirement that the response be immediate. (The Lober comments being online could not reach that threshold.)

      It only takes the failure of one lynch pin for the “doctrine of fighting words” to fall apart. In this case, Burns’ comments had so many failures that we aren’t sure there are any lynch pins left in his comments.

      People can go with the charges and accusations Burns made because they want to believe he is right, or they can go with the law as it stands now.

      It’s your choice.

      A. Afterwit.

  3. Jacob says:

    Yes, I watched the video and he did a great job. That analogy was great and the response from the audience and the commission was great. They applauded both is his points.

    • AAfterwit says:

      Jacob,

      Thank you for the comment.

      The problem is that what he said was not correct when it comes to the doctrine of fighting words.

      It doesn’t matter how many people thought the analogy was great, or the response.

      The fact of the matter is that this is not a case of the “fighting words doctrine” and the doctrine doesn’t apply here.

      A. Afterwit.

  4. James says:

    This dude is trash, I wonder if his criminal record will catch up to him

  5. Craig says:

    I enjoy reading everyone’s responses; it was no secret the Brevard Democrats packed the meeting with members and supporters of the organization so the audience response was predictable.

    I do not excuse the county commissioners behaviors but lets be honest. The Brevard Democrats are seeking to unseat the aforementioned commissioner and install one of their own.

    I’ll acknowledge the aforementioned commissioner brought unfavorable attention on himself by his commentary but I could use less vitriol from both sides.

    Civility, like respect is a two-way street it has to be given to be received.

    • AAfterwit says:

      Craig,

      Thanks for your comment.

      As we say in another post, part of what we are trying to do is to make sure that people understand the difference between legal speech and uncivil speech. It is a shame that some are unwilling to critically look at the difference.

      We agree with you on “less vitriol.”

      We understand your point on civility, but we aren’t sure we agree with it 100% We can be civil irregardless of whether the other person or group is being civil. “They do it too!” doesn’t make sense to us these days. We believe that people can stand up, “fight back,” and even forcibly make points without rolling in the mud of incivility with others. We think that one can lose respect for another because of the others actions, but only we can hold ourselves to be civil. (Whatever “civil” means these days.)

      Your point is an interesting one and we appreciate it.

      A. Afterwit.

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