From State v. Gibson, decided last Thursday by the Ohio Court of Appeals (Judge Mark Miller, joined by Judges Juergen Waldick and William Zimmerman):
In this appeal we are asked to decide whether calling one's neighbor a "redheaded bitch" as part of a festering feud over driveway access constitutes "fighting words" sufficient to result in a conviction for disorderly conduct ….
"Punishment for disorderly conduct based on spoken words is prohibited unless those words amount to 'fighting words.'" "[N]o matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words * * *." "Fighting words" are those that "by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace." To distinguish "fighting words" from expression fully protected under the First Amendment, "'one must look at the circumstances surrounding such utterance.'" …
The "fighting-words" analysis is intensely fact specific and outcomes will vary from case to case, but decisional law offers several helpful guideposts. First, as a general matter, "'something more than mere profanity is required to constitute fighting words.'" "In determining whether profane utterances constitute fighting words, courts have considered whether the conduct accompanying these statements is hostile or threatening." Moreover, "to constitute 'fighting words,' the words chosen must be 'used to describe a person or be directed at a person.'"Finally, although "a person need not actually be provoked to a violent response" for words to be "fighting words," the failure of the targeted party to respond might evidence that the words were not "fighting words." …
Under circumstances like those present in this case, we do not find the simple act of calling someone a "redheaded bitch" would have provoked immediate retaliation. Thus, we conclude that no trier of fact could find that Gibson leveled "fighting words" against Foley as necessary to sustain a conviction for disorderly conduct.
