Disorderly Conduct - Fighting Words

The common-law crime of disturbing the peace (n.k.a. disorderly conduct) used to be broadly defined to include any behavior which disturbed the peacefulness of citizens. States took it upon themselves to codify this rule under disorderly conduct statutes. Many of these statutes have been declared unconstitutionally broad when they regulate offensive speech without limiting the application to “fighting words.” This applies to disorderly conduct in Minnesota, where only “fighting words” can be considered criminal as it relates to simply speech.

Where this comes into play is the third part of the disorderly conduct statute, which states that “whoever … engages in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others … is guilty of disorderly conduct.” You might notice – there is no reference to fighting words. Instead, the statutory language includes much broader language and conduct.

This is by design, frankly. Disorderly conduct is defined broadly so as to encompass perceived misconduct that doesn’t fit nicely within more traditional crimes – such as assault, for instance. And, truth be told, defense attorneys can take advantage of this statutory language when successfully negotiating a plea away from an assault record to that of simply “boisterous language,” wherein the defendant does not admit to any actual acts of violence. Such a plea can have significant benefits for collateral consequences – like jobs or gun rights.

But, every once in a while, we see this charge being brought against clients simply for their alleged “boisterous language.” This is where the mandate by the Minnesota Supreme Court comes into play. It held that the prohibition of “offensive, obscene, or abusive language” in the disorderly conduct statute violates the First Amendment. And it determined that statute can only criminalize the use of fighting words. So, what does ‘fighting words’ mean?

Fighting words have been defined by courts as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” and not merely “arouse alarm, anger or resentment in others.” So in order for you to be charged under this statute for words you said, your words must rise this higher level. As you can probably guess, this is where a savvy disorderly conduct attorney can bring pressure on the State and fight whether this charge is even constitutional.

The case law around balancing freedom of speech and disorderly conduct is more complex than you’d expect. Even though the violation only counts as a misdemeanor, having a misdemeanor on your record may cause issues down the line when applying for a job, professional license, and/or housing. That is why it is important to hire a disorderly conduct attorney who can look at the facts of your case and see if your actions were constitutionally protected.