Vulgar Insults of Teacher Were Not ‘Fighting Words,’ Court Says

By Mark Walsh — January 14, 2011 2 min read
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A student’s vulgar insults of a teacher did not amount to “fighting words” and thus he could not be adjudicated under an Arizona law making it a crime to abuse school personnel, the state’s highest court has ruled.

The unanimous ruling by the Arizona Supreme Court came in the case of a student identified only as Nickolas S. His age and school were not identified in court papers.

The student called the teacher supervising an on-campus suspension program a “stupid bitch” and a “f------ bitch.” He used such language first while standing about 10 feet from the teacher, and again as he left the classroom.

Nickolas was suspended for 10 days and later charged as a juvenile under the state law making it a misdemeanor to “abuse” teachers and other school workers. The statute had once barred “insults” and “abuse” of teachers, but it was amended in 1989 to cover only abuse of school personnel.

Because the student faced juvenile charges based purely on his speech, two lower courts and the Arizona Supreme Court agreed that speech directed toward a teacher could amount to abuse only if it fell under the “fighting words” doctrine recognized by U.S. Supreme Court decisions.

Fighting words are those that can be suppressed under the First Amendment because they would provoke an immediate violent reaction from the target of the speech. A state appeals court said a reasonable person might react violently to the epithets used by Nickolas, and it upheld an adjudication of delinquency against him.

But in its Jan. 10 decision in In Re Nickolas S., the state supreme court reversed that adjudication.

“Considering the circumstances in which Nickolas uttered his words, we do not believe that his insults would likely have provoked an ordinary teacher to exchange fisticuffs with the student or to otherwise react violently,” the opinion by Justice W. Scott Bales said.

“We do not believe that the natural reaction of the average teacher to a student’s profane and insulting outburst, unaccompanied by any threats, would be to beat the student,” Bales continued. “Arizona teachers exemplify a higher level of professionalism, as the conduct of the teacher involved here reflected. Nickolas’s
conduct, although reprehensible, is properly punished through school discipline or possibly prosecution under other statutes rather than by characterizing it as fighting words likely to provoke a violent reaction by his teacher.”

In a concurrence, Justice A. John Pelander stressed that he did not believe the court’s ruling meant that the student’s epithets were protected by the First Amendment.

A version of this news article first appeared in The School Law Blog.