From Judge Neeti Pawar's opinion in People v. Hughes (Colo. Ct. App.), joined by Judges Anthony Navarro and Sueanna Johnson (decided last month, but just posted to Westlaw recently):
When Hughes returned from an overseas military deployment, his girlfriend, who lived in Virginia, A.B., met him in Colorado Springs. One night, they went to a bar where Hughes accused her of flirting with another patron, and they got into an argument. A.B. testified at trial that Hughes grabbed her and threw her to the ground outside the bar. When they returned to the hotel room they were staying in, Hughes destroyed the room, causing thousands of dollars in damage.
Over the next several months, they continued their relationship. A.B., her two-year-old daughter, and A.B.'s mother relocated to Colorado and moved in with Hughes. During this time, Hughes repeatedly accused A.B. of infidelity and repeatedly called her "whore," "slut," and "bitch."
The prosecution charged Hughes with several offenses, including as relevant here, criminal mischief for destroying the hotel room, third degree assault for his conduct outside the bar and in the hotel room, and multiple harassment counts.
The jury found Hughes not guilty of third degree assault and all but one of the harassment counts. The jury found him guilty of criminal mischief and the harassment count based on section 18-9-111(1)(h), C.R.S. 2023, for repeatedly insulting A.B. over the course of several months.
Hughes eventually sought to get the conviction vacated on the grounds that "both trial and appellate counsel were ineffective for failing to challenge the sufficiency of the evidence to support the harassment conviction because Hughes' speech was protected by the First Amendment," and the court agreed:
The harassment statute Hughes was convicted under provides that a person commits harassment if, with intent to harass, annoy, or alarm another, he "[r]epeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response."
Our supreme court has long since addressed the tension between this statute and the right to freedom of speech …. That court held that section 18-9-111(1)(h) does not violate the constitutional right to freedom of speech because it prohibits only fighting words, and there is no constitutional right to use fighting words. The court defined fighting words as "only those words which have a direct tendency to cause acts of violence by the persons to whom, individually, the words are addressed."
More recent opinions, including those from divisions of this court, have emphasized that the category of speech that can be considered fighting words is narrow and getting narrower. And these cases have reiterated that fighting words are not defined by their offensiveness or substantive reprehensibility — rather, they are defined by their tendency to provoke a violent response from the person to whom they are addressed….
In general, calling a reasonable person a "whore," "slut," and "bitch" would not elicit an immediate violent response. These epithets are abusive, profane, and insulting. But the words themselves fall far short of inciting a reasonable person to immediate physical violence.
The postconviction court concluded otherwise based on the circumstances under which Hughes uttered the words. The court held that a free speech challenge "was not meritorious" because Hughes engaged in this speech "while [he] was violently destroying the hotel room, in circumstances where others heard the offensive insults, while [Hughes] was angrily flailing his hands over the victim, and causing the victim to roll up in a ball like a fetal position."
Initially, we note that the first of these findings is unsupported by the record. A.B. was the only witness to the destruction of the hotel room, and she did not testify that Hughes insulted her in a manner that could have supported the harassment count during that incident…. [I]nstead she testified generally that he repeatedly called her names over the course of several months….
Next, we question whether the record supports the postconviction court's finding that Hughes engaged in the speech at issue while "angrily flailing his hands over [A.B.]." A.B.'s mother described an instance in which Hughes called A.B. a slut and a whore. A.B.'s mother testified that Hughes had discovered that A.B. had slept with a man in Hawaii. When asked to describe what happened after Hughes discovered this, A.B.'s mother testified,
I saw her sitting on the back steps and over the top of her hands flailing. I was in the house with the baby and walked out to observe it, because I didn't want [Hughes] to hurt [A.B.]. And he was yelling at her. He found out the truth and, you know, what a bitch she is, calling her names, and then walked into the house. I was with the baby. Walked into the house and let me know in front of my granddaughter she's a whore. Your daughter is a slut. She sleeps around. She's sick. She needs help. I was pretty devastated …. [A.B. was s]itting in the backyard rolled up in a ball.
This testimony supports that Hughes engaged in the speech at issue in front of people other than A.B. and that he caused A.B. to "roll up in a ball." The testimony is ambiguous, however, as to whose hands were flailing over the top of A.B. and whether those hands were flailing "angrily."
Even accepting the postconviction court's finding that Hughes' hands were flailing angrily over A.B., we nevertheless conclude that a … motion challenging the sufficiency of the evidence on First Amendment grounds was reasonably probable to succeed. The record reveals that the circumstances surrounding the speech at issue were that Hughes was a verbally abusive and distrustful partner, and his relationship with A.B. was unhealthy, perhaps even toxic. But there was no evidence that Hughes used the epithets at issue in conjunction with threats or acts of physical violence.
Considered in context, Hughes' speech was certainly abusive, derogatory, and hurtful. But fighting words are a narrow class of speech that are unprotected because they would provoke violence in an average person. Speech must go beyond being merely "abusive" or "harsh [and] insulting" to lie outside the protection of the First Amendment. We conclude that in the context of a verbally abusive, toxic, and distrustful relationship with allegations of infidelity, the use of the words "whore," "slut," and "bitch" would not induce an immediate and violent response from the average person. Accordingly, these words fall short of the threshold for fighting words, and Hughes' use of them was likely protected by the First Amendment. See, e.g., State v. Baccala (Conn. 2017) (customer calling store manager a "fat ugly bitch" and "cunt," and telling the manager, "fuck you, you're not a manager" was constitutionally protected speech). There was therefore a reasonable probability that a motion for JOA [Judgment of Acquittal] on the section 18-9-111(1)(h) count would have been successful.
Because there was no strategic reason for failing to file a JOA motion and there was a reasonable probability the motion would have succeeded, we conclude that Hughes proved both deficient performance and prejudice as to trial counsel. In light of this conclusion, we need not address the related ineffective assistance claim as to direct appeal counsel because both claims seek the same relief: reversal of the section 18-9-111(1)(h) conviction….
I'm not confident that all courts will agree with this, but it seemed noteworthy (especially since it's generally pretty rare that convictions get reversed on ineffective assistance grounds).
Adam Frank (Frank Law Office LLC) represents Hughes.
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