From: rc@depsych.Gwinnett.COM (Richard Carlson)
Newsgroups: misc.legal
Subject: Re: Fightin' Words
Date: 29 Sep 92 13:53:23 GMT

mnemonic@eff.org (Mike Godwin) writes:

> What you're interested in is not the "fighting words" doctrine, but
> the doctrine of provocation as a defense. For that, see LaFave and Scott's
> two-volume treatise, SUBSTANTIVE CRIMINAL LAW.

Thanks. I've been confused for two years on that point!  I guess
it stems from the custom, current when I was a kid growing up in
Massachusetts in the 40s of responding to a probing insult with
the set phrase, "Smile when you say that, partner.  Them are
_fightin'_ words!" in imitation of the B western movies that were
popular at that time.

Two points:

1.) I will certainly look up the LaFave and Scott volume since it
really seems to be what I'm looking for. But, apropos of the
"giving law away" theme, is there a popular book intended for the
layperson on this topic?

2.) What constitutes provocation?  Is there a well-developed legal
doctrine?

Consider these scenarios.  In a public college in a Sophomore
political science class a rich, well-dressed student is giving his
views on welfare.  He is speaking in a reasoned tone, providing
evidence and logical analysis, but what he is saying in his
reasoned discourse is very cruel.  He is taking a consciously
Darwinian point of view in which he characterizes welfare
recipients as "unfit" and implies that social policies which
enhance their survival are unwise and socially undesirable.  A
poor student who is in college on a need-based scholarship and
whose family is on welfare takes it all personally and becomes
upset and gets up from his seat, approaches the rich student and
punches him in the face, yelling, "You can't _say_ things like
that about my family!" Suppose the poor student doesn't punch the
rich, Darwinian student in class but confronts him after class and
asks him point blank if he thinks poor people should be allowed to
die if they can't afford to buy food, and the rich student says
yes, he does think that.  He says it reluctantly and sadly,
claiming he gets no joy from it but feels he has to be consistent
with his philosophical position.  Then the poor student punches
him.  Or suppose the rich student is careless and says, speaking
informally since they are now out of the classroom, "Yeah, poor
people are just human garbage.  Only thing to do with them is let
them all die off since they couldn't survive without government
handouts."  And then the poor student hits him.

Can legal provocation stem just from _being_, not from an actual
overt act?  Does wearing an expensive pair of sneakers and
designer jeans constitute provocation?  Isn't that person
flaunting his prosperity and privilege and doing it right in the
faces of people who are too poor to buy these commodities?

I guess we get close to first amendment issue with a question of
whether wearing a button championing choice and abortion
constitutes provocation to someone who believes that abortion is
an abomination in the eyes of God.

--
Richard Carlson
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