Them's fightin' words, and them's not protected under the First Amendment, court rules

The Supreme Judicial Court today upheld a state law that lets somebody take out a "harassment order" against a person who utters "fighting words" or "true threats."

A law passed in 2010 extended some of the protections accorded victims of domestic abuse to people feeling abused by people not in their immediate family, if they could show three examples of harassment.

One of its first applications came not long after in Northampton, where a police officer got one of the new orders against a long-standing acquaintance who seemed to have a grudge against him; the man appealed, saying he had a First Amendment right to flip the officer off and to blare his horn outside the cop's house.

On the evening of May 15, 2010, Borowski [the cop] entered a bar with his girl friend, saw O'Brien inside, and decided immediately to leave. After Borowski left the bar, O'Brien followed him out of the bar, yelled Borowski's name, and when Borowski turned to look at him, raised both of his middle fingers in the air and said "fuck you."

On the afternoon of August 8, 2010, Borowski was at his home moving his truck from the driveway when he saw O'Brien in the front passenger seat of a truck traveling past his house. As the truck drove past the house, O'Brien put his hand outside the window and again "flipped [him] off" with his middle finger. After Borowski got out of his truck, the truck O'Brien was traveling in stopped in the middle of the street approximately seventy-five yards from Borowski's house, remained there for several seconds, and drove off.

Approximately ninety minutes later, Borowski was standing on his deck when he heard a horn sound in front of his house. He saw O'Brien lean forward in the passenger seat of the truck and again extend his middle finger in the air; the driver then drove away.

The officer got the harassment order but eventually let it lapse. The state's highest court decided to hear the case anyway because it figured the issue would come up again. In essence, the court ruled the law is valid because not all speech is created equal - "fighting words" and "true threats" intended to instill fear in the mind of the recipient or to lead to a fight are not protected under either the First Amendment or the equivalent section of the Massachusetts constitution:

The "fighting words" exception to the First Amendment is limited to words that are likely to provoke a fight: face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace.

The court quoted the Supreme Court on "true threats:"

'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.' "

The court said that were the order still active, it would have had to send the case back to a lower court for further fact finding, to determine just what the man meant with his flipping and blaring and if they constituted "fighting words" or "true threats:"

We recognize that the raising of the middle finger as a form of insult has a long, if not illustrious, history dating back to ancient Greece. See Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L.Rev. 1403, 1413 (2008). [FN9] Like its verbal counterpart, when it is used to express contempt, anger, or protest, it is a form of expression protected by the First Amendment. See, e.g., Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.1997) (passenger yelling "fuck you" and extending middle finger while passing group of protestors entitled to First Amendment protection); Duran v. Douglas, 904 F.2d 1372, 1374, 1378 (9th Cir.1990) ("obscene gesture" and profanities directed to police, while "[i]narticulate and crude," "represented an expression of disapproval toward a police officer" that "fell squarely within the protective umbrella of the First Amendment").

But, in certain limited circumstances, when accompanied by other less expressive and more threatening conduct, raising the middle finger may constitute fighting words or a true threat. Compare United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir.2001) (clenching fists and yelling "fuck you" to police officer not fighting words), and Cook v. County Comm'rs of Wyandotte County, 966 F.Supp. 1049, 1051, 1052 (D.Kan.1997) (raising middle finger at police officer parked in patrol car not fighting words), with Gower v. Vercler, 377 F.3d 661, 664, 670 (7th Cir.2004) (repeatedly yelling "fuck you" and insults, and attempting to humiliate, constitutes fighting words where parties had brandished weapons at each other previous night), and State v. Groves, 219 Neb. 382, 384, 386 (1985) (calling police officer "motherfucker" and challenging him to make arrest alone after learning that officer had called for assistance were fighting words).

• Complete ruling, Robert O'Brien vs. Alan Borowski