by Wilton H. Strickland

In the eyes of the law, absolutely not. There appears to be widespread confusion regarding offensive speech and the measures that are legally justifiable to counteract it. Even attorneys sometimes have difficulty grasping the concept that a remark, no matter how offensive, does not justify physical violence. For example, on one occasion I was working with a plaintiff who asserted claims of assault and battery against the defendant. I prepared a motion for partial summary judgment of liability on the grounds that the defendant freely admitted having attacked the plaintiff merely because of an offensive remark, not in self-defense against any sort of actual or threatened physical violence. The opposing attorney offered no contrary evidence, yet still opposed the motion by arguing that “fighting words” are not protected speech. Yet the term “fighting words” deals with a constitutional doctrine concerning whether government may regulate provocative speech, not whether individuals may use it as a defense to liability for assault and battery. My motion was granted because the law is unequivocal on this issue, and the opposing counsel’s argument was borderline frivolous.

In these divisive times everyone should be aware that taking offense does not justify violence. I will use Montana law to illustrate this point, and I am not aware of a contrary view from another United States jurisdiction.

“Words alone, no matter how objectionable or insulting, will not justify a battery against the person who speaks them.” Instruction 9.03, Montana Pattern Instructions (Civil) 2d, 2003.

Although this pattern instruction cites no authority, Montana jurisprudence has long since established that offensive remarks alone do not justify physical violence. The Montana Supreme Court once held as follows:

“No provocative acts, conduct, former insults, threats, or words, if unaccompanied by any overt act of hostility will justify an assault no matter how offensive or exasperating, nor how much they may be calculated to excite or irritate.” Mulcahy v. Duggan, 67 Mont. 9, 13, 214 P. 1106, 1107 (1923) (citation omitted).

In another decision the Montana Supreme Court rejected an instruction that allowed the jury to find that the defendant might have been justified on the basis that the plaintiff insulted defendant in his home:

“We hold the instruction erroneous and the objection thereto of plaintiff, well taken. There is, in the evidence, nothing to show legal justification of the assault which the defendant admitted making. There is no claim it was in self-defense. If plaintiff’s conduct was tumultuous or obnoxious, there is no evidence that defendant requested or ordered him to leave the premises and that, upon his failure to leave, defendant used reasonably necessary force to eject him. Section 10980, Revised Codes of 1921, enumerates occasions when force toward another may be used lawfully and the evidence does not bring the act of defendant within any of them. Provocative acts, conduct, words, if unaccompanied by any overt act of hostility, (no act of hostility here claimed) are not justification for assault.” Hageman v. Arnold, 79 Mont. 91, 94, 254 P. 1070, 1072 (1927).

Although the statute mentioned in Hageman listing the justifications for physical force no longer applies, the modern version also does not identify offensive remarks as a justification for physical force. Mont. Code Ann. §§ 27-1-722, 45-3-101 et seq.

The moral of the story is that if someone is speaking in an offensive manner, do not retaliate with physical violence. You can save yourself a lot of trouble by removing yourself from the situation and cooling off, rather than handing the speaker a (meritorious) lawsuit against you.