Is Vulgar Derisive and Provocative Language Constitutionally Proctected Speech ?
In People v. Dietze, 75 NY2d 47 , the Court held that vulgar, derisive and provocative language is constitutionally protected speech.
Speech is often "abusive"--even vulgar, derisive and provocative--and yet, is still constitutionally protected under the State and Federal constitutional guarantees of free expression, unless it is much more than that. Unless speech presents clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.
Any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace. (People v. Cerbone, 113 Misc 2d 740 [Harrison Town Ct, Westchester County 1982])
Rude and angry words are not enough to constitute aggravated harassment.
Not every scurrilous or unsavory communication concerning an individual, no matter how repulsive or in what degree of poor taste, necessarily constitutes criminally harassing conduct. (People v. Dupont, 107 AD2d 247 [1st Dept 1985])
Words must be legally obscene or "fighting words" in order to be exempt from the category of protected speech. ( People v. Morgenstern, 140 Misc 2d 861 [Rochester City Ct 1988].)
While not every resort to epithet or personal abuse will be viewed as communication safeguarded by the Constitution, the "fighting words" exception will apply where the expression of ideas was accomplished in a manner likely to cause a breach of the peace. ( People v. Cerbone, supra.)
Defendant's comment was neither a violent nor a potentially violent act.
Even if the words are imprudent, thoughtless, tasteless, or just plain angry, as in this case, so long as they were not legally obscene, or fighting words, and did not intrude without a legitimate purpose into the privacy of one's home, they are constitutionally protected.
Taken in context, "nigger" is not equivalent to "fighting words."
It is only where words are uttered as a deliberate challenge to a breach of the peace, with communication of thought a mere incidental concomitant, that a prosecution may lie. (People v. Cerbone, supra.)
To pass constitutional muster, the offending words must be calculated to provoke a reasonable person into an immediate and violent breach of the peace and have no other purpose. (People v. Cerbone, supra.)
The language or conduct must, by its nature, be of a sort that is a substantial interference with the reasonable person.
Annoying behavior is not enough to support a charge of harassment.
While neither poor judgment nor bad taste is condoned by the court, the court will not criminalize such behavior where to do so would exceed the fair import of the statutory language defining the offense of harassment. (People v. Malausky, 127 Misc 2d 84 [Rochester City Ct 1985].)