Wednesday, April 6, 2011

Is Cussing 'Fighting Words?'

The topic I will be discussing is the use of fighting words on school campus, through the Arizona Supreme Court case titled SUPREME COURT OF ARIZONA V. NICKOLAS S., 224 Ariz. 52, 226 P.3d 1038 (2010). The court had to rule whether or not was constitutional to put minor Nickolas S. on probation as a delinquent under Arizona Revised Statutes for “fighting words”, thus also testing the constitutionality of the statute. The limited issue before the court was to determine whether the case actually involved fighting words. This relates to the First Amendment, because fighting words are one of the only forms of speech not protected under the amendment. However, Nickolas argues that his cursing is not fighting words, and therefore his speech is protected.

The case began in 2010 when Nickolas was judged a delinquent after violating A.R.S 15-507. The statute makes it a crime for a person to “knowingly abuse” teachers or other school employees. He had two counts total. The first count was for calling his teacher a “bitch”. The second count was after another incident with the same teacher when he proceeded to curse several times directly at the teacher, and rile the rest of the classroom. Nickolas was immediately suspended. Although he did not challenge his suspension at his adjudication hearing, he did say that his speech was protected by the First Amendment, which would invalidate his delinquency charges. The juvenile court rejected this argument and placed him on summary probation. The case then went to Court of Appeals Division One, where Nickolas argued that the statute was too vague and overbroad. The court agreed, but said it could pass a First Amendment challenge if it was only applied to fighting words used in pure speech. However, they continued to look into the issue by using the definition of fighting words that was adopted from the CHAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568 (1942). In addition, they used the standard that if it was “not likely to provoke an ordinary citizen to a violent reaction..” (16), then it was not fighting words. The court of appeals found that, “a reasonable person in these circumstances might well react violently when confronted with such repeated, angry, and personal epithets as were uttered by Nickolas,” (16). The court of appeals upheld the ruling of delinquency for the second act.

The case finally ended in the Arizona Supreme Court where Justice Scott Bales presented the majority opinion and Justice A. John Pelander presented the concurring opinion. Justice Bales continued to look at whether or not Nickolas spoke fighting words. However, they did not rule on the constitutionality of the statute because they felt it was not relevant. It was decided that in this case, the issue was not whether a reasonable person may react violently, but rather, someone in the position of the listener would react. In this case, the addressee was a teacher that was on-campus. However, The Supreme Court decided that the average teacher would not react violently to his words, despite the repeated and direct nature of them. They did not contest the apprehensible nature of the words but stated they were not fighting words and sufficiently punishable by school discipline. The Supreme Court overturned the decision of the court of appeals by vacating Nickolas’ delinquency counts for both incidents. The concurring opinion agreed by restating that Nickolas’, “words were not inherently likely to provoke a violent reaction by the teacher,” (19). They did not base their decision of whether or not Nickolas’ words were fighting words on the A.R.S, but rather the definition according to the Supreme Court of the United States. Despite their lack of decision on the constitutionality of the A.R.S, Justice Pelander did state that he rejected Nickolas’ argument that he had a constitutional right to say what he did to the teacher. Pelander referred to MORSE V. FREDRICK, 551 U.S. 393 (2007) and TINKER V. DES MOINES,393 U.S. 503 (1969), where it was decided that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” (20). Pelander also discussed how Nickolas’ outburst caused a material and substantial disorder, thus, it was not protected by the First Amendment. Justice Pelander also stated that he believed Nickolas’ outburst constituted abuse under the A.R.S sections 15-506 and despite his concurrence with court, this did not change his opinion on these points.

This case reinforces the idea of on-campus speech and how public school students are much more limited in First Amendment rights. This court utilized tests originally made in J.S. V BETHLEHEM, 807 A.2d 803 (Pa. 2002), and TINKER V DES MOINES in terms of student speech and the standards used to determine whether it is protected or not. J.S. V BETHLEHEM and the standard of true threat was particularly used to determine whether Nickolas used fighting words. The decision in this case also shows the application of past court decisions to decide present-day cases, by use of the common law system. This case also used the narrowly tailored rule for statutes, along with the standard for fighting words.


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