You can't legally punch a man for calling you the N-word. Not on a basketball court, not in the streets, not in a house, not with a mouse. ESPN has been mangling the fighting words doctrine all weekend. It's there to discourage dueling, not to give people a license to brawl.

Don't get me wrong, I've shoved people who called me the N-word. But let's be clear, what one can do and what one is allowed to do are often two different things...

For the purposes of this article, let's assume that Texas Tech super fan Jeff Orr said the worst possible thing to Marcus Smart. Orr has his version and Smart has his version and a lot of commentators seem to think that it's terribly important who said what. If you are interested in labeling Smart as a "bad guy" or a "frustrated kid," I suppose it does. But legally it really doesn't matter. Ouchy words are not legal justification for assault.

Incredibly, the "fighting words doctrine" that gets bandied about in situations like this stems from a 70-year-old Supreme Court case that couldn't be more irrelevant to the times we live in. In 1942, the Court decided in Chaplinsky v. New Hampshire that words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" were an exception to "freedom of speech."


So right there we see that fighting words are not words which allow you to start a fight. They are words so awful that a person can be arrested for saying them. Since arresting people for running their mouths off is something that doesn't feel entirely American, the fighting words doctrine isn't invoked very often in criminal cases.

Here's a great piece on how we got here in the first place. Fighting words statutes were adopted to prevent dueling. In a world where "men of honor" could not be expected to turn the other cheek, laws were adopted to prohibit the speaker from saying things such as "your mother was a hamster and your father smelt of elderberries." Insults so terrible that only gunfire could resolve the dispute.

Now that we have the internet, it would be unreasonable to shoot everybody who insulted you. If fighting words comes up at all in a legal proceeding, it's now used to prevent the Klan from getting a permit to rally in your town. Fighting words can also be used to mitigate a charge of murder. No, that doesn't mean you can kill people who insult you — it means that if you do, you might be able to get the charge bussed down to manslaughter. Still, you're going to jail.


It's this mitigation of offense aspect that people seem to be thinking about in the Marcus Smart situation. If he shoved the guy for no reason... "Ack!" But if Orr said something really terrible to him, we can understand.

I do understand, but it's important to note that there is no legal standard that suborns violence based on speech. That's the state of the law, even though I don't always agree with it. If somebody came rolling up to me with a filthy mouth, I very well might lay him out (or, you know, try to). But that "to duel or not" decision matrix wouldn't be about whether the words rose to legal provocation for violence. Those words do not exist. Instead, I'd be thinking about whether my own sense of honor was worth the legal consequences of my actions.

Instead of fighting words, we should call them "jailable words," as in "these words are enough for me to go to jail over." And those are probably different for everybody.

More Evidence That Black People Should Never Defend Themselves: This Time In New York City [Above the Law]