Federal judge's ruling that man uttered 'fighting words' is dangerous

Decision threatens to erode First Amendment protections

By Adriana Lafaille and Patricia A. DeJuneas
The Daily Record Newswire

BOSTON - In a troubling ruling, a federal District Court judge in Massachusetts held that Richard Hartfield uttered "fighting words" when he "demean[ed]" a transit officer's "status and authority" in a July 2012 encounter at Boston's Dudley Station.

The parties' recent settlement will prevent the 1st U.S. Circuit Court of Appeals from reviewing the decision. But the ruling is not only wrong; it is dangerous. By inviting police to silence the voices of those who protest police action, the decision threatens to erode the First Amendment's protections, and to do so in a way that disparately affects the communities of color that are most directly impacted by police misconduct.

Hartfield spoke his alleged "fighting words" around 8 a.m. at Boston's Dudley Square bus terminal. Approached by an MBTA transit officer about whether he planned to board a bus, Hartfield asked, "Why are you harassing me?" He reportedly told the officer, "You're not even a real cop"; "My uncle is a Boston cop. You don't know who you're messing with"; and "You're going to lose your job."

After being arrested for trespassing, Hartfield brought a civil suit against the officer and the MBTA. Hartfield v. MBTA, et al., No. 14-cv-14225.

But in a terse opinion, Judge Richard G. Stearns concluded that Hartfield's challenge to the officer constituted "fighting words" not protected by the First Amendment. He thus granted summary judgment to the officer and the MBTA on Hartfield's First Amend­ment retaliation claim.

Hartfield's words were no doubt disrespectful. But it is hard to see how they amounted to fighting words - i.e., words that are so personally abusive that they are inherently likely to provoke violence. With good reason, the MBTA had not even made that argument to the District Court. And the agency wisely opted to settle rather than defend the ruling at the 1st Circuit.

After all, provocative and offensive speech - including speech critical of police officers - is protected by the First Amendment. As the U.S. Supreme Court affirmed in City of Houston v. Hill, 482 U.S. 451, 462-63 (1987), "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."

It is true that the fighting words exception was first articulated in a case involving a challenge to police. In Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942), the court held that a man who had called the city marshal a "damn racketeer" and a "damn Fascist" had used "epithets likely to provoke the average person to retaliation."

But that was 1942, four months after the United States entered World War II. An angry crowd had gathered, and the marshal had been warned that a riot was underway. No similar threat of violence was alleged in Hartfield's case.

Although Stearns' First Amendment analysis stopped in 1942, the fighting words doctrine has since been substantially narrowed. To the extent Chaplinsky suggested insolence toward an officer constitutes fighting words, later decisions have said, in effect, Chaplinsky be damned!

The Supreme Court explained in Houston that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." It has struck down laws criminalizing all "opprobrious" speech toward police officers or all intentional verbal interruptions of police activity.

Following suit, federal courts of appeals have repeatedly recognized the extremely narrow scope of the fighting words doctrine. In Hartfield's case, Stearns broke with those precedents in applying the fighting words doctrine to mere disrespect.

What is more, although the Supreme Court has not expressly applied the fighting words doctrine differently when the speech involves police officers, its decisions make clear that the doctrine must apply especially narrowly (if at all) when speech is directed at officers instead of civilians. That is so for two reasons.

First, our First Amendment cases require police officers to have a thick skin. Even ordinary Americans are expected to tolerate a significant amount of offensive speech - just ask the father of Marine Lance Corporal Matthew Snyder or the Holocaust survivors in Skokie. Still more restraint is expected of police officers, who the state trains and arms with guns. As the 1st Circuit explained while upholding the right to record the police in Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011), officers must "endure significant burdens caused by citizens' exercise of their First Amendment rights."

Second, the First Amendment holds special regard for speech criticizing police officers and other public officials in the performance of their duties. For example, officers must satisfy the stringent actual malice standard of New York Times v. Sullivan before bringing civil defamation suits. That is because, as recent tragic events have shown, the conduct of police officers is inherently a matter of public concern.

In fact, the same officer that Hartfield sued was also recorded - in a separate incident at the Dudley Square station - pulling out his firearm and beating an ACLU client who was suspected of shoplifting a bar of soap. Meanwhile, in another ACLU case, the MBTA is defending a lawsuit in which video captured two Dudley Square station officers assaulting a passenger who had called 911 to express concern for the safety of a woman who one of the officers had just shoved.

That is why the Hartfield ruling is not only wrong, but deeply troubling. Allowing police to silence those who criticize them will not erode all Americans' First Amendment rights equally. It will disproportionately threaten the rights of the black and brown people who are most frequently the targets of police abuses and are in the forefront of protesting against those abuses.

As shown by the many protests in response to shootings of black men in Baton Rouge and Min­ne­sota, the cry for police reform in communities of color is urgent. It is a matter of life and death. And it should not be silenced.

As prominently explained by Justice Sonia Sotomayor in her recent dissent in Utah v. Strieff, U.S. courts have already given the police extraordinary power over the lives and bodies of black and brown people. The courts, too, have created broad immunities that frequently shield officers from accountability for violating people's rights. These court-bestowed powers have contributed to injustice and tragedy.

Giving the police additional authority to silence the protests of those most directly impacted is wrong. And our courts should play no more part in that.

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Adriana Lafaille is a staff attorney at the American Civil Liberties Union of Massachusetts. Patricia A. DeJuneas is a partner at Sibbison & DeJuneas in Boston where she specializes in criminal and civil appeals.

Published: Mon, Aug 08, 2016

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