Id. at 528, 92 S.Ct. 1103; see also Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (Powell, J., concurring) ("[W]ords may or may not be `fighting words,' depending upon the circumstances of their utterance."); Cohen, 403 U.S. at 20, 91 S.Ct. 1780 (recognizing that words were not used "in this instance" in a personally provocative fashion); cf. Johnson, 491 U.S. at 409, 109 S.Ct. 2533 (noting that speech cannot be punished as incitement without "careful consideration of the actual circumstances"). ΒΆ 24 Based on the Supreme Court's decisions, we agree with the Washington Supreme Court that analyzing whether particular speech constitutes fighting words involves a three-step inquiry. City of Seattle v. Camby, 104 Wash.2d 49, 701 P.2d 499, 501 (1985). "First, the words must be directed at a particular person or group of persons.
There are three steps to analyzing fighting words: (1) the words must be directed at a particular person or group of persons and there must be an addressee; (2) the words themselves must be personally abusive to the ordinary citizen and commonly known to be inherently likely to provoke violent reaction; and (3) consideration must be given to the context or situation in which the words were expressed. City of Seattle v. Camby, 104 Wn.2d 49, 53, 701 P.2d 499 (1985). In Yoakum, the defendant entered a Sheriffs office and was upset because his girlfriend had recently been arrested.
The situation under which the words are uttered also impacts the likelihood of a violent response. See, e.g., Klen v. Loveland , 661 F.3d 498, 510 (10th Cir. 2011) (considering that words were spoken in context of plaintiffs' attempts to obtain building permit and that city employee addressees "did not consider the ... behavior particularly shocking or memorable, given the rough-and-tumble world of the construction trade"); People v. Prisinzano , 170 Misc.2d 525, 531β32, 648 N.Y.S.2d 267 (1996) (considering that words were spoken by union worker to several replacement workers during course of labor dispute); Seattle v. Camby , 104 Wn.2d 49, 54, 701 P.2d 499 (1985) (en banc) ("Looking at the actual situation presented in this case, we find an intoxicated defendant being escorted out of a restaurant by a mild mannered, unaroused doorman-host with a police officer present. Given the specific context in which the words were spoken, it was not plainly likely that a breach of the peace would occur.").
" It is generally acknowledged that the emphasis in Chaplinsky, Cohen, and later Supreme Court decisions was thus on the nature of the words spoken, considered in light of the surrounding circumstances, and "not on the subjective response of the actual addressee." State v. John W., 418 A.2d 1097, 1104 (Me. 1980); see also Gilles v. State, 531 N.E.2d 220, 222 (Ind.Ct.App. 1988) (test of fighting words exception is "whether, under an objective standard, the words were stated as a personal insult to the hearer in language inherently likely to provoke a violent reaction"); Johnson v. Palange, 406 A.2d 360, 365 (R.I. 1979) (fighting words are those which, under "objective test . . . would cause an average person to fight"); City of Seattle v. Camby, 701 P.2d 499, 502 (Wash. 1985) (under objective test of fighting words, "addressee need not, in fact, be incited to breach the peace"); see also Read, 165 Vt. at 158, 680 A.2d at 954 (Morse, J., dissenting) ("The [fighting words] doctrine is limited to words likely to immediately provoke the individual listener to whom they are directed to start a fight. An objective standard is required to determine that issue. . . .").
No one seriously disputes that "fighting words" exist, that there are "'words . . . which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'" City of Seattle v. Camby, 104 Wn.2d 49, 52, 701 P.2d 499 (1985) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L. Ed. 1031 (1942)). Recognizing the existence of "fighting words," however, is not the same thing as saying one is privileged to respond to "fighting words" with violence, despite the majority's misapprehension.
In subsection (1)(b), proof of harassment or assault, with victim selection, constitutes malicious harassment. Guffey v. State, 103 Wn.2d 144, 690 P.2d 1163 (1984) (assault is committed by putting another in apprehension of harm); Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989) (crime of telephone harassment is defined as threatening physical injury or property damage); Seattle v. Camby, 104 Wn.2d 49, 701 P.2d 499 (1985) (City must prove substantial risk of assault as an element of the crime of harassment); State v. Smith, 48 Wn. App. 33, 737 P.2d 723 (1987) (harassment proscribes only threats of bodily injury and physical confinement or restraint), rev'd on other grounds, 111 Wn.2d 1, 759 P.2d 372 (1988); see RCW 9A.46.020 (harassment). Conviction under subsection (1)(c) requires proof of victim selection along with malicious mischief.
These threats are protected under the First Amendment unless they would be likely to cause an immediate breach of the peace by an average listener under the circumstances. See Seattle v. Camby, 104 Wn.2d 49, 701 P.2d 499 (1985). The distance the telephone necessarily puts between the caller and the listener inherently tends to prevent immediate breaches of the peace which could more readily result from a face-to-face encounter.
And, in any event, no Washington case says that theft constitutes a "breach of the peace." See, e.g., City of Seattle v. Camby, 104 Wn.2d 49, 53, 701 P.2d 499 (1985) (words of degrading character addressed to another may breach the peace); Stone Mach. Co. v. Kessler, 1 Wn. App. 750, 754-57, 463 P.2d 651 (1970) (force, constructive force, or intimidation used to repossess property when the defaulting party offers physical resistance constitutes breach of the peace). ΒΆ20 Mr. Garcia therefore was not resisting a lawful arrest when he assaulted Mr. Moran.
To be considered "fighting words," speech must be: (1) directed at a particular person or group; (2) inherently likely to provoke a violent reaction; and (3) considered fighting words in the context in which the speech was made. Camby, 104 Wn.2d 49, 53, 701 P.2d 499 (1985). Using this analysis, Smith reasons that his threat is protected speech because it was not directed to incite Strickland (the addressee) to violence.