Can You Use Fighting Words In A Provocation Defense?

Posted on: 23 May 2016


People get into legal trouble for a variety of reasons and, depending on the severity of the situation, you could be looking at misdemeanor or felony charges. Sometimes, though, you can get a charge reduced or obtain a lighter sentence if you can show you were provoked in some way. One question many people have about this particular defense is whether or not fighting words constitute provocation.

Fighting Words

Fighting words are written or spoken words that are expressed specifically to incite violent backlash from the person or people targeted. While most speech in the United States is protected by the First Amendment, fighting words are not because the courts have opined that statements in this category inflict injury just by their utterance and do nothing else but incite breaches of the peace.

To determine if a person's speech can be viewed as fighting words, the standard the court uses is any abusive epithets that–as a matter of common knowledge–are known to provoke a violent reaction when said to an ordinary citizen. For instance, some well-known racial slurs would be classified as fighting words because of the long negative history associated with their usage.

However, for fighting words to be used effectively as part of a provocation defense, you have to show the following:

  1. The person's behavior amounted to a criminal act. Fighting words alone are not considered assault, but may be folded into an assault charge if accompanied by threatening acts (e.g. raised fists) or language (e.g. the person threatens to kill you) that causes a reasonable fear of injury.
  2. The offensive language made you so angry or upset, you temporarily lose control of your actions.

The court uses the reasonable person standard when evaluating these types of claims. If a reasonable person with similar characteristics to you would be provoked into violence in a similar situation, then the court may allow you to use this defense to mitigate the charges against you or give you a lighter sentence than you normally would receive for the crime you committed.

Specific Challenge With Using the Fighting Words Doctrine

One challenge you may face when attempting to use the fighting words doctrine in a provocation defense is you may have to define why or how something the person said qualifies as fighting words. This is particularly true of words that may have been tagged as highly offensive in recent years. For instance, words used to insult a person's sexual preference may now be part of this category due to the cultural shift that has occurred over the last decade.

Using the fighting words doctrine in a provocation defense can be tricky but may help you in your case if used correctly. Talk to an attorney, like one at Alejandro Rivera PA - A Law Firm, for more information about this possible defense.