Kalish: Free Speech Ruling

Sep 9, 2015

As many Vermonters enjoyed the last days of summer – taking one last swim in the river – the Vermont Supreme Court issued an opinion that could have important implications for free speech law in the state.

The incident happened more than a year ago, when an overzealous dad confronted a basketball coach. In words the court called “just plain rude,” the dad demanded to know why his 12-year old daughter hadn’t played during the first two games of the season.

The dad was convicted under a part of Vermont’s disorderly conduct law that focuses on the use of “abusive or obscene language.” However, the Vermont Supreme Court overturned the conviction, stating that – even though it was “vulgar” and “boorish” – the dad’s speech was protected by the First Amendment.

And this is significant, because, in its decision, the Court questioned the First Amendment doctrine of “fighting words” that allows this part of the disorderly conduct law to exist.

In general, the First Amendment protects the right to speech. However, a few types of speech are not protected – these include defamation, “true threats,” and fraud. You can see why these types of speech wouldn’t be protected.

But another category is something the United States Supreme Court, in 1942, called “fighting words” - or words that “by their very utterance … incite … an immediate breach of the peace.”

But it’s hard to imagine what kind of words would do this today. As the Vermont Supreme Court pointed out that when they are angry, they should use words, not physically lash out. Or, to quote the court, “in this day and age, the notion that any set of words are so provocative they can reasonably be expected to lead an average listener to … respond with physical violence is highly problematic.”

In short, the Court questioned whether we still need the “fighting words” exception to the First Amendment.

Now before middle school coaches all decide to quit, I hasten to add that the court was very clear that their decision did not apply to speech that is threatening or that is meant to instill fear in the listener.

I hope that, as a society, we can someday outgrow the idea that words alone are ever an excuse for violence. But, such a thought should never be used as an invitation to boorishness. And swearing at the coach might not land you in jail, but it’s never a good way to get your kid in the game.