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Recent court decisions in Arizona and North Dakota demonstrate that kids can face criminal charges and convictions when they utter “fighting words.” Appellate courts in both states affirmed juvenile court findings of delinquency for violating laws against abusing teachers and disorderly conduct.

Students in both cases asserted First Amendment defenses to no avail. The courts said the laws involved unprotected fighting words — a category of speech that the U.S. Supreme Court described more than 65 years ago in Chaplinsky v. New Hampshire (1942). The Court defined “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Most courts have focused on the second part of the definition.

The Arizona Court of Appeals determined March 2 that a juvenile named Nickolas S. uttered fighting words when he hurled repeated epithets at a school official, including “fucking bitch” and “you stupid bitch,” when many other students were present. The student faced criminal charges under an Arizona law that prohibits a person from “knowingly abus[ing] a teacher or other school employee on school grounds while the teacher or employee is engaged in the performance of his duties.”

A juvenile court had convicted Nickolas S. of two counts of violating the law — once for profanity muttered under his breath and later when he let fly as above. On appeal, the Arizona Court of Appeals reversed the conviction for profanity under the breath but affirmed conviction for the repeated epithets. The court in In Re Nickolas S. said that “we have no difficulty concluding that a reasonable person in these circumstances might well react violently when confronted with such repeated, angry, and personal epithets.”

In North Dakota, the state high court Feb. 17 upheld a finding of delinquency for a juvenile called H.K. who uttered racial slurs at an African-American youth at a dance at a teen center and later at a restaurant. The state’s delinquency petition charged H.K. with disorderly conduct for her racially harassing speech at the teen center, and a juvenile court agreed.

H.K.’s attorney argued on appeal that the state impermissibly sought to criminalize the use of the word “nigger.” The state high court wrote in In Re H.K. that while the First Amendment protects the mere use of this slur, “an objectively reasonable person would find the totality of H.K.’s statements constituted explicit and implicit threats that were likely to incite a breach of the peace or violent reaction and alarm the listener.”

In other words, the North Dakota Supreme Court determined that the repeated barrage of racial slurs constituted unprotected fighting words and disorderly conduct.

These rulings against juveniles for their profane or racial insults show that the “fighting words” doctrine is alive and well in the lower courts.

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