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CATCALLS: PROTECTED SPEECH OR
FIGHTING WORDS?
INTRODUCTION
With the recent technological advances in mobile phone
applications, victims of catcalling and street harassment can instantly
document their unwanted encounters.1 In the past, catcalling and
similar behavior in public places went undocumented unless the
victim walked the streets with a camcorder in hand.2 Currently,
websites like Holla Back DC!3 and Stop Street Harassment4 inform
the public about incidents of unwanted catcalling and attention in
public places, and give victims a forum to discuss their experiences.5
In most of these catcalling incidents, the First Amendment
shields the catcaller‟s behavior; however, First Amendment
protections are not limitless. 6 The First Amendment does not protect
1. Karen Zraick, Phone Apps Aim to Fight Harassment, THE NEW YORK TIMES
(Nov. 7, 2010), http://www.nytimes.com/2010/11/08/nyregion/08hollaback.html
(explaining how using mobile applications to document these incidents may help
authorities identify “hot spots” and catch offenders).
2. WAR ZONE (Film Fatale Inc. & Hank Levine Film 1998). In this documentary,
Maggie Hadleigh-West walks the crowded New York City streets carrying a
camcorder filming street harassment directed towards her and asks the men why they
feel compelled to whistle or make comments to women who pass them on the street.
In the process of documenting her encounters, she experiences gawking, leers and
comments ranging from, “Hey, beautiful!” to “Be a fucking bitch, all I said was
hello.” Strangers‟ reactions include pinching Hadleigh-West‟s breasts and slapping
her buttocks. See also Deborah M. Thompson, “The Woman in the Street:”
Reclaiming the Public Space From Sexual Harassment, 6 YALE J.L. & FEMINISM 313,
317 (1994) (citing Karen Avenoso, Capturing Harassment on Camera, TIMESPICAYUNE, Sept. 8, 1993, at E1; Lewd Remarks on the Street Lead Film Maker Into a
War of Words, ARIZ. REPUBLIC, Dec. 21, 1993, at E1.).
3. HOLLA BACK DC! (Mar. 25, 2011), http://hollabackdc.wordpress.com. Holla
Back DC! allows victims of catcalling and street harassment a forum to share their
experiences. Users post their pictures and stories of unwanted public harassment
incidents while warning others which neighborhoods to avoid.
4. STOP STREET HARASSMENT (Mar. 25, 2011), http://www.stopstreet
harassment.com. Stop Street Harassment takes an international approach to
informing the public about street harassment. The site focuses on how men‟s
harassment of girls and women limits gender equality and encourages people around
the world to speak out and share their stories online.
5. Id.
6. U.S. CONST. amend. I.
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certain expressions, such as fighting words.7 The fighting words
doctrine removes protection from speech where the speaker uses
abusive language that inflicts injury and incites an immediate breach
of the peace.8 Catcalls, speech not included in the current fighting
words doctrine, are verbal expressions that degrade, objectify, and
subordinate women.9 Their negative effect on women merits their
inclusion in this unprotected category of speech.
Generally, the fighting words doctrine denies constitutional
protection to speech that “men of common intelligence” would
understand as likely to provoke an “average addressee” to fight.10
Traditionally, the Supreme Court has limited the definition of fighting
words to abusive insults directed face-to-face at a specific person.11
In the past half century, the Supreme Court has never upheld a
fighting words conviction; however, the cases before the Court either
did not involve classic fighting words or involved overly broad
statutes.12
Historically, fighting words statutes prevented “macho” men in
the late 19th century from “proving” their masculinity through violent
physical acts, such as duels.13 Unlike 19th-century male combatants,
most women do not respond violently to verbal abuse, leaving verbal
conduct, like catcalls, excluded by the doctrine.14 This Note proposes
an expansion of the fighting words doctrine to broaden the definition
of the “average addressee” and considers how addressees may react
differently to abusive insults and epithets in these modern times.15
7. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942).
8. Id.
9. Deborah Tuerkheimer, Street Harassment as Sexual Subordination: The
Phenomenology of Gender-Specific Harm, 12 WIS. WOMEN‟S L.J. 167, 176 (1997)
(explaining women suffer injuries rooted in sexual subordination men do not).
10. Chaplinsky, 315 U.S. at 573.
11. Texas v. Johnson, 491 U.S. 397, 409 (1989) (explaining public discourse or
political commentary is protected under the First Amendment).
12. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES
1002 (3d ed. 2006).
13. Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49
HARV. L. REV. 1033, 1054 (1936) (stating that statutes punishing insults were
originally intended as “anti-dueling” statutes).
14. Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of
Women, 106 HARV. L. REV. 517, 562 (1993); see Anita Little, Hollaback Goes
Global, MS. MAG., Summer 2010, at 14.
15. See Jefferson v. Superior Court, 124 Cal. Rptr. 507 (Ct. App. 1975) (noting
fighting words cases must assess the context of the speech in question); State v.
Szymkiewicz, 678 A.2d 473, 478 (Conn. 1996) (explaining the addressee is not
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Challenging the fighting words doctrine and addressing catcalling as a
gender-specific injury will harmonize the First Amendment with the
equal protection clause of the Fourteenth Amendment.16
Part I of this Note introduces a working definition for “catcalls”
and describes how they fit as a subcategory within “street
harassment.”17 This section also summarizes the fighting words
doctrine by giving a brief history of the case law and describes the
legal approach foreign countries take in dealing with catcalls and
street harassment. Part II illustrates society‟s interest in maintaining
civility in speech and recommends that classifying speech as “fighting
words” should hinge on the speaker‟s actions, rather than the
addressee‟s reactions. Part II also proposes a departure from the
current law by expanding the types of speech and street expression
unprotected under the fighting words doctrine in order to address the
serious gender-specific harms of catcalling.
I. CATCALLS AND FIGHTING WORDS: A BRIEF OVERVIEW
AND HISTORY
Defining catcalls requires defining the overall concept of street
harassment because, while the two are closely related, the differences
are worth mentioning. For instance, the harms caused by typical
street harassment may not apply to the harms caused strictly by
catcalling. Whether the types of verbal expression used in catcalls
and street harassment may qualify under the fighting words doctrine
is better understood by providing a brief overview of its history.
Presently, in the United States, the First Amendment generally
protects most public speech, including catcalling and most street
harassment.18 Foreign countries, on the other hand, have passed
legislation that addresses catcalls and street harassment.19
required to engage in violent conduct, nor must the addressee react violently when
hearing the offensive language).
16. See Tuerkheimer, supra note 9, at 176 (noting in the modern era, and abusive
language, such as catcalls, often inflicts gender-specific injury to women).
17. See Micaela di Leonardo, Political Economy of Street Harassment, AEGIS,
Summer 1981, at 51-52 (including catcalls within the definition of street harassment).
18. U.S. CONST. amend. I.
19. See infra, Part I.D.
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A. Catcalls: A Subcategory within Street Harassment
Finding a precise definition of catcalling is a difficult task. For
the purposes of this Note, catcalling is the use of crude language,
verbal expression, and non-verbal expression that takes place in
public areas such as streets, sidewalks, or bus stops.20 Examples of
catcalling as verbal expression include name-calling, propositioning,
wolf-whistles, or comments evaluating physical appearance.21
Examples of catcalling as non-verbal expression include leers, winks,
physical gestures, or the use of signs to rate physical appearance.22
Catcalling does not require physical contact because where physical
contact is present, victims have adequate remedies stemming from
charges such as battery and assault.23
An important requirement of catcalling is that the harassments
take place in a public area. Most private areas, such as the workplace
or schools, have strict laws that prohibit this form of oral expression,
whereas public areas, such as parks and city streets, do not have laws
protecting against this harm.24 For example, in the employment
context, Title VII of the Civil Rights Act of 1964 makes it unlawful to
discriminate based on sex.25 Similar to the workplace, public schools
20. See Bowman, supra note 14, at 523-24 (defining “street harassment,” but not
catcalls specifically); see, e.g., Holly Kearl, Defining Street Harassment, STOP
STREET
HARASSMENT,
http://www.stopstreetharassment.com/streetharassment/
definitions.htm (last visited Mar. 25, 2011) (providing multiple definitions for street
harassment).
21. See Bowman, supra note 14, at 523.
22. See id.
23. See, e.g., CONN. GEN. STAT. § 53a-59 (1999) (stating criminal assault requires
“proof of intent to cause physical injury”); 720 ILL. COMP. STAT. 5/12-3 (1973)
(stating battery requires “bodily harm to an individual”).
24. Compare 42 U.S.C. § 2000e-2(a)(1) (2006) (describing illegal employment
practices related to discrimination based on race, color, religion, sex, and national
origin); and Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (holding a
public school can punish a student for giving a lewd and indecent speech at a school
assembly), with U.S. CONST. amend. I., which protects most public speech.
25. 42 U.S.C. § 2000e-2(a)(1). In response, courts have established genderspecific terms such as “bitch,” “slut,” and “cunt” as actionable in the workplace under
sexual harassment claims. Burns v. McGregor Elec. Indus., 989 F.2d 959, 964 (8th
Cir. 1993); see Christopher M. Fairman, Fuck, 28 CARDOZO L. REV. 1711, 1754-55
(2007) (providing examples under the “gender-specificity test” and explaining gender
neutral insults, such as asshole, will not support a sexual harassment claim). In
addition, sexual harassment claims can be based on the sexual nature of offensive
verbal statements. Id. at 1756 (describing the sexual nature test to evaluate verbal
harassment). In this situation the term “sexual” does not mean gender, it refers to
sexual activity. Jamie Lynn Cook, Comment, Bitch v. Whore: The Current Trend to
Define the Requirements of an Actionable Hostile Environment Claim in Verbal
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balance students‟ free speech rights against the school‟s interest in
teaching students socially appropriate behavior.26
Further, this Note will not address physical street harassment
because there are strict laws that prohibit this form of physical
expression.27 Catcalling represents a small subcategory that falls
under the overarching concept of street harassment.
Street
harassment includes catcalling, but also encompasses non-verbal
conduct and behavior such as grabs, pinches, groping, obstructing
walking paths, stalking, and physically threatening gestures.28 The
Model Penal Code provides criminal consequences for certain forms
of non-catcalling harassment.29 One violates the statute when acting
with a purpose to harass and “insults, taunts or challenges another in a
manner likely to provoke violent or disorderly response.”30
Harassment statutes do not apply to catcalling in the context of this
Note because harassment focuses on the addressee‟s violent reaction,
whereas catcalling allows its victims to react in a variety of nonviolent ways.31 Therefore, while an act may not be punishable as
harassment, it may still qualify as a catcall.
Another element of catcalling (and likewise of street harassment)
is a “forced communication” between the catcaller and his target that
restricts a person‟s behavior as she32 attempts to avoid further
interaction.33 The men who engage in this “forced communication”
Harassment Cases, 33 J. MARSHALL L. REV. 465, 479-80 (2000) (discussing the
sexual nature test). Under this sexual nature category, if a supervisor suggested a
female employee had a habit of performing oral sex for money, mocked her
pregnancy, or commented on her anatomy, the supervisor would be in violation of
Title VII. Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir. 1997).
26. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (holding a
school administration can suspend a student for using even non-obscene sexual
innuendos in a speech at a school assembly and finding public schools can exercise
discretion in restricting speech that is vulgar, lewd, indecent or plainly offensive);
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969) (holding
students could wear black armbands to protest the Vietnam War).
27. See e.g. MODEL PENAL CODE § 250.4(2), 3 U.L.A. 359-60 (1985) (including
examples of harassment such as offensive touching).
28. See Bowman, supra note 14, at 523 (explaining street harassment
encompasses a variety of behaviors).
29. MODEL PENAL CODE § 250.4(2).
30. Id.
31. See Bowman, supra note 14, at 537 (noting that ignoring the speaker can have
harmful effects while allowing the speaker‟s conduct to go unchallenged).
32. While catcalling victims may be male or female, for the purposes of this Note,
the author will discuss male perpetrators and female victims, unless otherwise noted.
33. STOP STREET HARASSMENT, supra note 20 (citing Leonardo, supra note 17, at
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are not just stereotypical construction workers,34 but any male
archetypes interacting in public.35
Similar to the non-verbal
expression of street harassment, the verbal expression of catcalling
objectifies, degrades, and subordinates women.36
The major distinction between catcalling and street harassment is
that catcalling, unlike other forms of street harassment, contains no
requirement of physical danger37—although threat of physical danger
may be present38—because the catcaller may be across the street, on
the other side of a fence, in a car, or on the second story of a building,
with no real access to the target.39 On the other hand, street
harassment often involves a sense of physical danger because the
harasser could be walking closely behind the target, in front of the
target obstructing her path, or invading her personal space.40 This
distinction is important because there are civil and criminal remedies
in the latter “sexual harassment” scenario41 and the overall problem of
street harassment is outside the scope of this Note.
51-52).
34. Sex and the City: The Drought (HBO television broadcast Aug. 16, 1998)
(illustrating how helpless and humiliated Miranda felt after being catcalled by
construction workers).
35. See Bowman, supra note 14, at 531 (noting catcallers come from all walks of
life no matter where, what religion, race, age, sex and class; however, this behavior is
most common in urban areas).
36. Tuerkheimer, supra note 9, at 167 (noting that when a man “asserts his right
to comment on her body or other feature of her person,” he “defin[es] her as an object
and himself as subject with power over her”); see Bowman, supra note 14, at 523-24.
37. See Sonja, Ride Far, Far, Away From Me, Creep, HOLLABACK.COM (Aug. 30,
2010 9:51 AM), http://www.ihollaback.org/blog/2010/08/30 (detailing the fear of
assault or rape associated with an encounter where a man stalked a young woman and
followed her on a city bus).
38. See Bowman, supra note 14, at 535 (proposing every woman must entertain
the possibility of rape when addressed by an unacquainted man).
39. See Katherine, Too good to talk to me, bitch?, HOLLABACK.COM (Aug. 16,
2010 9:30 AM), http://www.ihollaback.org/blog/2010/08/16 (demonstrating a
situation where the catcaller only made comments to his target as she walked by and
did not approach her as she stood at the opposite end of the bus stop).
40. See, e.g., Little, supra note 14 (demonstrating the fear and a sense of
helplessness that a woman felt when encountered by a street harasser); Gwenda Blair,
Street Hassling: Putting Up with Put Downs, MADEMOISELLE, July 1984, at 118, 119
(explaining a woman‟s understanding that the streets were a battle zone and each
woman was a “target”).
41. See, e.g., N.H. REV. STAT. ANN. § 632-A:2 Aggravated Felonious Sexual
Assault (2009); Sexual Assault in Columbia Heights, HOLLABACKDC! (Aug. 26,
2010),
http://hollabackdc.wordpress.com/2010/08/26/sexual-assault-in-columbiaheights/#comments (describing an incident where a woman was sexually assaulted
and where her friend pushed away the attacker).
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B. The Harm of Catcalling
Because catcalling affects far more women than men, it may be
hard for men to empathize with the pain caused by this genderspecific injury.42 Professor Debra Tuerkheimer states that treating
women‟s gender-specific injuries as “trivial, consensual, humorous,
participatory, subconsciously wanted, self-induced, natural,
biological, inevitable, sporadic, deserved, private, non-existent,
incomprehensible or legally predetermined—is more than
coincidental.”43 Tuerkheimer asserts that this sexual subordination
oppresses women based on gender.44 In a culture where women
generally lack equal status, men typically do not experience genderspecific harms, leaving these social and legal harms overlooked.45
Rather than informing the catcaller that his actions cause harm,
the most common reactions are unconstructive, as most women do not
respond to their catcaller, allowing the male speaker‟s bad behavior to
go unchallenged.46 For example, many females try to ignore the
situation entirely permitting men to continue their gender-harming
verbal conduct.47 Reasons for ignoring the situation may be
annoyance, not wanting to reward the catcaller with a response, or
embarrassment resulting from the speaker‟s degrading treatment.48
Internalizing these feelings of invasion, disempowerment,
humiliation, and fear can lead to repressed anger and depression.49
According to Professor Kimberly Fairchild, there is evidence that
42. Robin L. West, The Difference in Women‟s Lives: A Phenomenological
Critique of Feminist Legal Theory, 3 WIS. WOMEN‟S L.J. 81, 85 (1987); see
Tuerkheimer, supra note 9, at 171 (discussing “the implications of gender-specific
suffering in a culture dominated by men and defined by male norms” differ in two
ways: “women generally suffer more than men” and women are “injured in ways that
men are not”); see also Bowman, supra note 14, at 540 (explaining the consequences
of gender-specific harms include fear or psychological trauma and restrictions on
personal liberty).
43. Tuerkheimer, supra note 9, at 171-72.
44. Id. at 172.
45. Id.
46. Bowman, supra note 14, at 537.
47. Id.; see, e.g., Francine, Getting Used to It, CAT CALL APPALL (May 1, 2008
2:44 PM), http://catcallappall.blogspot.com (explaining that ignoring the catcall
problem “doesn‟t seem to do the trick”).
48. See Bowman, supra note 14, at 537 (noting that women will freeze or put on a
blank face in efforts to pretend nothing is happening).
49. See id.
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catcalling increases self-objectification and encourages women to
view themselves as body parts instead of as human beings.50
There are several reasons why men catcall or jeer women with
whom they are unacquainted. One study reveals that most men hassle
women to alleviate boredom and that the act of catcalling amongst
comrades is a form of “male-bonding.”51 The men from the study
believed the interactions were harmless and intended as
compliments.52 A minority of the study‟s participants, who also used
the most graphic remarks and threats, stated their purpose was to
anger or humiliate their targets.53 Regardless of the reasons men
catcall women in public, catcalling usually results in a forced and
unwanted intrusion.54
In general, men do not understand the impact catcalling has on
women, nor can they comprehend its objectifying nature.55 As stated
above, some men believe the purpose of the verbal act is to
compliment, and if the gender roles were reversed, they would
appreciate the catcalling.56 Some women take the compliment
50. Anna Jane Grossman, Catcalling: creepy or a compliment?, CNN.COM (May
14, 2008, 10:14 AM), http://www.cnn.com/2008/LIVING/personal/05/14/lw.catcalls/
index.html.
51. Bowman, supra note 14, at 542 (citing CHERYL BENARD & EDIT SCHLAFFER,
The Man in the Street: Why He Harasses, in FEMINIST FRAMEWORKS: ALTERNATIVE
THEORETICAL ACCOUNTS OF THE RELATIONS BETWEEN WOMEN AND MEN 70, 70-71
(2d ed. 1984) (documenting the responses of sixty men who harassed the authors on
the street and were chosen from a variety of different age groups)).
52. Bowman, supra note 14, at 543 n.123 (explaining even positive street remarks
violate typical compliment situations because they occur in public with unfamiliar
persons, and the remarks themselves frequently comment on private body parts);
Benard & Schlaffer, supra note 51, at 71.
53. Bowman, supra note 14, at 543 n.125 (citing Carol B. Gardner, Passing By:
Street Remarks, Address Rights, and the Urban Female, 50 SOC. INQUIRY 328, 348
(1980) (theorizing a low-risk situation and the fact the target is moving as the reason
men harass to displace anger and hostility towards unknown women)); Benard &
Schlaffer, supra note 51, at 71.
54. Thompson, supra note 2, at 318 (noting street harassment is an invasion of
privacy and personal space).
55. See Tuerkheimer, supra note 9, at 172-73 (explaining that gender is itself a
hierarchy where being male “confers power” and being female “confers
powerlessness”).
56. See, e.g., David Stehle, Comment to Cat calls, whistles and objectifying
statements?, 20 SOMETHING BLOGGERS (Apr. 8, 2010, 5:13 PM),
http://www.20sb.net/forum/topics/cat-calls-whistles-and?id=826191%3ATopic%
3A471156&page=2#comments (demonstrating some men view catcalling as harmless
or trivial and women should not take offense, even claiming if the situation were
reversed, they would be flattered); but see E.P., Comment to Cat calls, whistles and
objectifying statements?, 20 SOMETHING BLOGGERS (Apr. 8, 2010, 1:39 AM),
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approach and are grateful for the attention, no matter how lewd or
inappropriate.57 Regardless of whether women feel embarrassed or
complimented, men who catcall remind women that they are
constantly “subject to public scrutiny.”58 In other words, women who
venture out in public do so at their own risk knowing that at any time
strangers can judge their bodies.59
For example, in order to illustrate how being objectified relates
to unwanted feelings of anger and humiliation, a couple (a man and a
woman) switched roles for a day and disguised themselves as
members of the opposite sex.60 Immediately, the male, disguised as a
woman, observed, “being a woman means being continually noticed
and assessed.”61 After declining a street merchant‟s sales pitch, the
merchant commented, “Ooh, sexy voice!” and the male felt enraged
that their short interaction turned into something sexual.62 While
walking on public streets, the male decided to cover up his body with
a jacket after noticing “men‟s eyes drifting toward his breasts.”63 In
contrast, the female, disguised as a man, felt comfortable walking on
public streets undisturbed and “enjoyed the anonymity of not being
stared at for a change.”64 This experiment demonstrates the unwanted
effects and feelings brought on by catcalls.
http://www.20sb.net/forum/topics/cat-calls-whistles-and?id=826191%3ATopic%
3A471156&page=2#comments (explaining while catcalls may be meant to
compliment, “I always felt like a piece of meat those men were staring at”); Another
Anti-Street
Harassment
Cartoon,
HOLLABACKDC!
(Sept.
1,
2010),
http://hollabackdc.wordpress.com/2010/09/01/another-anti-street-harassment-cartoon
(showing a man telling his wife after she had been catcalled all day, “[i]f women on
the street said I look nice, it‟d make my day!”).
57. Grossman, supra note 50 (explaining that women take both sides on the issue
of catcalls; some find it unnerving and an invasion of space while others appreciate
the attention in certain cases); see, e.g., Harley, Comment to Cat calls, whistles and
objectifying statements?, 20 SOMETHING BLOGGERS (Apr. 8, 2010, 5:16 AM),
http://www.20sb.net/forum/topics/cat-calls-whistles-and?id=826191%3ATopic%
3A471156&page=2#comments (demonstrating some women love catcalling and take
it as a compliment).
58. Bowman, supra note 14, at 542 (citing Pam McAllister, Wolf Whistles and
Warnings, 6 HERESIES 37, 37 (1978)).
59. See McAllister, supra note 58, at 37.
60. Thompson, supra note 2, at 319 (citing Sheila McDevitt & Simon Brooking,
Trading Places: One Couple Tries a Sex-Role Switch, LADIES HOME J., Jan. 1994, at
90).
61. McDevitt & Brooking, supra note 60, at 92.
62. Id.
63. Id.
64. Id. at 93.
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Some argue that women present themselves, or parts of
themselves, for judging or evaluation through their manner of dress.65
While wardrobe choice may provide an explanation as to why women
are catcalled, believing that those who wear revealing clothing are
“asking for it” perpetuates the stereotype that men cannot control
themselves.66 To test this theory, Glamour magazine sent seven
women into the street, all wearing different styles of clothing (some
provocative and some not), and subsequently all were catcalled or
harassed.67 Provocative dress should not be a justification for
catcalling when women are catcalled, regardless of the type of
clothing they wear.68
While the scenarios discussed above involve women, men also
may experience feelings of anger and humiliation resulting from their
objectification.69 For example, in a sexual harassment lawsuit against
the city of San Diego, firefighters, while driving a city fire truck in a
gay-pride parade, endured genital exposure and simulated
homosexual gestures from parade spectators.70 Similar to females
who experience catcalls on a daily basis, these male firefighters felt
publicly objectified and embarrassed.71 Although female-to-male and
male-to-male catcalling and harassment occur less frequently, this
example demonstrates that catcalling (as verbal or nonverbal conduct)
can have adverse effects on either gender.
Those who are catcalled may feel enraged and compelled
towards confrontation but, in most cases, retaliation is met with
hostility.72 Even refusal to respond may result in hostility forcing
65. See Deirdre Davis, The Harm That Has No Name: Street Harassment,
Embodiment, and African American Women, 4 UCLA WOMEN‟S L.J. 133, 150 (1994)
(explaining some men do not believe they objectify women, more accurately women
present themselves as sexual objects through clothing choice).
66. Thompson, supra note 2, at 317.
67. Elizabeth Kuster, Don‟t “Hey Baby” Me: How to Fight Street Harassment,
GLAMOUR, Sept. 1992, at 310.
68. Thompson, supra note 2, at 317.
69. J. Harry Jones, Court Upholds Pride Parade Firefighters Verdict, SAN DIEGO
UNION-TRIBUNE (Oct. 16, 2010, 10:00 AM), http://www.signonsandiego.com/news/
2010/oct/16/appeals-court-upholds-verdict-pride-parade-firefig
(noting
the
firefighters won nominal damages).
70. Id.; Drew McKissick, San Diego firefighters win lawsuit over gay-pride
parade, CHRISTIAN COALITION OF AMERICA (Feb. 21, 2009, 12:53 PM),
http://www.cc.org/blog/san_diego_firefighters_win_lawsuit_over_gaypride_parade.
71. See Jones, supra note 69.
72. See Tuerkheimer, supra note 9, at 184 (describing situations where men are
offended when a woman responds negatively to a catcall “as if they were paying you
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those who ignore the catcalls to endure further antagonism.73 Since
confrontation, especially violent reactions, may have adverse effects,
it is not the appropriate solution in today‟s society. The fighting
words doctrine however, may present an adequate solution to such
confrontation.
C. The Evolution of the Fighting Words Doctrine
As early as the 19th century, courts recognized that insults or
defamatory words resulting in violence were actionable to prevent the
“barbarous custom of dueling.”74 In order to deter men from
accepting a challenge to fight in a duel, courts provided an attractive
legal remedy in the form of monetary damages.75 Still, these “antidueling” statutes had little effect because the type of men inclined to
duel would do so regardless of a sufficient legal remedy.76
In today‟s legal realm, breach of peace or disorderly conduct
statutes criminalize words only with a high probability of provoking
violence.77 To violate the Model Penal Code‟s section on disorderly
conduct, one must have the “purpose to cause public inconvenience,
annoyance or alarm” or recklessly make an “offensively coarse
utterance, gesture or display” or address “abusive language to any
person present.”78 While provisions for breach of the peace and
disorderly conduct exist, these prohibitions target verbal and nonverbal interactions resulting in violent reactions.79 For situations
where verbal and non-verbal interactions do not actually, but may
likely, result in violent reactions, courts look to the fighting words
doctrine.80
a compliment and it was rude of you not to say thank you”).
73. See Stumbling Forward, Cat calls, whistles and objectifying statements, 20
SOMETHING BLOGGERS (Apr. 7, 2010, 11:31 PM), http://www.20sb.net/forum/
topics/cat-calls-whistles-and?id=826191%3ATopic%3A471156&page=1#comments
(asking “why do guys seem to think that girls actually like getting cat called, and
when the girl doesn't respond, what is it with guys yelling stuff at them like 'F*** you
too!' ??????”).
74. Chaffin v. Lynch, 1 S.E. 803, 806 (Va. 1887).
75. See Magruder, supra note 13, at 1055.
76. Id. at 1054-55.
77. Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42
RUTGERS L. REV. 287, 294 (1990).
78. MODEL PENAL CODE § 250.2(1)(b), 3 U.L.A. 324-25 (1985).
79. Id.; Greenawalt, supra note 77, at 294.
80. Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942).
283
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Courts have used the fighting words doctrine to restrict the scope
of the First Amendment in situations where the danger of a violent
response is great.81 In Chaplinsky v. New Hampshire, the Supreme
Court established fighting words to be “what men of common
intelligence would understand would be words likely to cause an
average addressee to fight.”82 The Court explained that the
prevention and punishment of certain types of speech poses no
constitutional problem:
[F]ighting words-those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace... are no
essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
83
morality.
This concern for balancing social order with the “exposition of
ideas” led the Supreme Court to further narrow the fighting words
doctrine.84 In Cohen v. California, the Court overturned a conviction
of a man who wore a jacket with the written words “Fuck the Draft”
in a courthouse.85 The Court stressed the emotive elements of the
communication and their constitutional protection because the phrase,
a political comment, did not intend to personally insult any viewer.86
The Court constricted the definition of fighting words to include only
personally abusive epithets directed face-to-face but protected
communications that contribute to public discussion or political
commentary.87
Further narrowing the fighting words doctrine, in Texas v.
Johnson, the Court restated the definition of fighting words in
considering a flag desecration case.88 In assessing whether a
protester‟s act of burning an American flag fell within the fighting
words exception, the Court decided that the verbal and non-verbal
expression in question must be face-to-face and directed at a specific
81.
82.
83.
84.
85.
86.
87.
88.
Id.
Id.
Id. at 571-72.
See id.
See Cohen v. California, 403 U.S. 15, 20 (1971).
Id.; Greenawalt, supra note 77, at 295.
See Cohen, 403 U.S. at 20.
Texas v. Johnson, 491 U.S. 397, 409 (1989) (holding a protester‟s act of
burning an American flag was expressive conduct protected by the First
Amendment).
284
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person.89 In addition, the Court recognized that Johnson intended his
expression to be political in nature and agreed that his actions were
consistent with symbolic communication protected by the First
Amendment.90 The Court also stated that no reasonable onlooker
would have viewed Johnson‟s expression of dissatisfaction with the
government as an invitation to “exchange fisticuffs.”91 Thus,
expressive conduct, if not directed as a personal insult, cannot be
punished under breach of the peace statutes, no matter how unpopular
the viewpoint.92
The Supreme Court has also based several of its decisions on
other constitutional doctrines such as vagueness and overbreadth.93
The Court has stricken fighting words statutes in cases where the
expression in question would be clearly unprotected.94 In Gooding v.
Wilson, where a citizen clearly threatened U.S. Army personnel, the
Court held a Georgia statute was unconstitutionally vague and overbroad.95
Even though the threats themselves were clearly
unprotected, the Court explained that the Georgia statute, as written,
was easily susceptible to improper application and could not be
construed to be limited in application, as in Chaplinsky.96
Similarly, in Coates v. City of Cincinnati, the Court struck down
an ordinance making it unlawful for “three or more persons to
assemble, except at a public meeting of citizens, on any of the
sidewalks... and there conduct themselves in a manner annoying to
persons passing by....”97 The Court concluded the ordinance was
unconstitutionally vague and not based on any standard of conduct.98
Consequently, people of ordinary intelligence would have to guess at
its meaning because conduct that annoys some may not necessarily
89. See id. (“No reasonable onlooker would have regarded Johnson‟s generalized
expression of dissatisfaction with the policies of the Federal Government as a direct
personal insult or an invitation to exchange fisticuffs.”); see Cantwell v. Connecticut,
310 U.S. 296, 309 (1940).
90. Johnson, 491 U.S. at 406.
91. Id. at 409.
92. Id.
93. See Gooding v. Wilson, 405 U.S. 518 (1972).
94. Id. at 520 n.1 (explaining the defendant, while picketing outside the 12th
Corps Headquarters of the United States Army, said, “[w]hite son of a bitch, I‟ll kill
you . . . [y]ou son of a bitch, I‟ll choke you to death”).
95. Id. at 528.
96. Id. at 524.
97. Coates v. City of Cincinnati, 402 U.S.611, 611-12 n.1 (1971).
98. Id. at 614.
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annoy others.99 In addition, the Court explained the ordinance was
overbroad because the city, through reasonable and specified
ordinances, could prevent people from engaging in forms of antisocial conduct.100
Courts can also strike down fighting words statutes if the
proscription of the verbal or non-verbal conduct in question is
content-based.101 In R.A.V. v. City of St. Paul, the Court stated that
the ordinance was facially unconstitutional in that it proscribed
speech solely based on the ideas expressed.102 The Court explained
that those who use fighting words to express hostility in connection
with other disfavored topics—such as political affiliation, union
membership, or homosexuality—are not covered by the ordinance,
making the regulation content-based and thus facially
unconstitutional.103 Although R.A.V. did not narrow the scope of
fighting words themselves, it presents an obstacle for legislative
bodies who intend to prohibit racist or sexist expression.104
Understanding the boundaries and limitations posed by the
fighting words doctrine is the first step courts must take in gauging
whether catcalling should fall within this categorical exception. Other
countries have understood the harms caused by this type of speech
and have established safeguards against its use. Although not perfect,
this approach illustrates that the opprobrious words and abusive
language used in catcalling have no relevance in the marketplace of
ideas.
D. The International Approach
In contrast to the limitations posed by American law, legislative
bodies in other countries have been able to draw a legal distinction
99. Id.
100. Id.
101. R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382 (1992).
102. See id. at 391 (“Although the phrase in the ordinance, „arouses anger, alarm
or resentment in others,‟ has been limited by the Minnesota Supreme Court‟s
construction to reach only those symbols or displays that amount to „fighting words,‟
the remaining, unmodified terms make clear that the ordinance applies only to
„fighting words,‟ that insult, or provoke violence, „on the basis of race, color, creed,
religion or gender.‟”).
103. Id. at 391 (“Displays containing abusive invective, no matter how vicious or
severe, are permissible unless they are address to one of the specified disfavored
topics.”); see Simon & Schuster, Inc. v. Members of New York State Crime Victims
Bd., 502 U.S. 105, 116 (1991).
104. R.A.V., 505 U.S. at 395; see CHEMERINSKY, supra note 12, at 1002.
286
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between racial, ethnic, religious epithets, and other speech.105 The
Mexican city of Culiacán has made it illegal to shout “piropos”
(catcalls) to women on the street.106 Culiacán‟s law recognizes the
harm imposed on women by catcalling and promotes morality in the
city.107
Similarly, in Bangladesh, six men were arrested and sent to jail
for “eve-teasing,” a euphemism for sexual harassment in a public
place.108 The term “eve-teasing” refers to the public sexual
harassment or molestation of women by men; women are the “eves,”
and men tease them.109 Although laws exist to punish men for this
type of behavior, the street harassment victims themselves are
repeatedly blamed for walking alone or wearing “immodest”
clothing.110 Street harassment has become a serious problem in India,
Pakistan, and Bangladesh, with several women committing suicide as
a desperate alternative to the unwanted attention.111
In an attempt to inform the public on the seriousness of street
harassment, Bangladesh‟s High Court no longer acknowledges the
term “eve-teasing,” instead preferring to label the behavior as sexual
harassment.112 The Bangladesh High Court recognized that the
euphemism downplayed the severity of the harms by attaching a
romantic label to it.113 This small, but important, step informs the
105. See Greenawalt, supra note 77, at 302 n.46.
106. Jennifer Woodard Maderazo, Mexican City Outlaws Catcalls, VIVIRLATINO
(Mar. 17, 2009, 12:03 PM), http://vivirlatino.com/2009/03/17/mexican-city-outlawscatcalls.php.
107. See id.
108. Brittany Shoot, Six Bangladeshi Men Jailed for Street Harassment,
WOMEN‟S RIGHTS (May 15, 2010, 7:00 AM), http://womensrights.change.org/blog/
view/six_bangladeshi_men_jailed_for_street_harassment.
109. Sarah Menkedick, Eve-Teasing Threatens Women In India and Bangledesh,
WOMEN‟S RIGHTS (Feb. 16, 2010, 7:12 AM), http://womensrights.change.org/blog/
view/eve-teasing_threatens_women_in_india_and_bangladesh (describing “eve” as
the biblical Eve, the original temptress leading men to sin).
110. Id. (providing examples of “teasing,” including blatant groping in public,
stalking, verbally harassing and throwing acid).
111. Id.
112. Bangladesh says „eve-teasing‟ belittles sex crimes, SIFY NEWS (Jan. 27,
2011, 3:20 PM), http://www.sify.com/news/bangladesh-says-eve-teasing-belittlessex-crimes-news-international-lb1pucaiiaa.html (explaining the court took measures
after a class action lawsuit was filed following the recent teenage women committing
suicide).
113. No more „eve-teasing‟, DAWN.COM (Jan. 29, 2011) http://www.dawn.com/
2011/01/29/no-more-eve-teasing.html.
287
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public about women‟s rights and by taking this step, the Bangladesh
High Court hopes to change cultural attitudes and stereotypes.114
In taking another approach, Egypt has introduced legislation
banning sexual harassment at work and in public.115 Public sexual
harassment became highly publicized when Nouha Rushidi Saleh, a
young film director, won a legal case against a truck driver in
Cairo.116 The impending legislation, backed by the Egyptian Centre
for Women‟s Rights, demonstrates an important cultural shift in
Egypt that may change social attitudes, deter undesired behavior, and
provide remedies for public catcalling.117 This legislative action may
provide the United States with a blueprint to prevent catcalls.118
II. CATCALLS SHOULD FALL WITHIN THE FIGHTING
WORDS CATEGORY
Historically, the First Amendment has supported society‟s
interest in maintaining free speech; however, as Part II.A. discusses,
society‟s interest in maintaining civility in speech outweighs the little
social value catcalls provide. In addition, as Part II.B. states, the
fighting words standard deserves an adjustment to make the
assessment of “fighting words” hinge on the speaker‟s actions, rather
than the addressee‟s reactions. As discussed in Part II.C., because the
typical lack of violent reaction causes catcalls and street expression to
be protected under the First Amendment, an expansion of the fighting
words doctrine needs to include the types of speech and street
expression that cause the serious gender-specific harms of catcalling.
114. Id. (noting police would often dismiss offenses as harmless tomfoolery by
young men).
115. Holly Kearl, Street Harassment: A Real Problem that Requires Legal
Regulation, THE HUFFINGTON POST, Mar. 12, 2010, http://www.huffingtonpost.com/
holly-kearl/street-harassment-a-real_b_497334.html (indicating a cultural shift in
Egypt).
116. Samantha, The Social Phenomenon of Egyptian Sexual Harassment,
HARASSMENT IN EGYPT (Apr. 13, 2010) http://harassmentinegypt.wordpress.com/
2010/04/13/the-social-phenomenon-of-egyptian-sexual-harassment
(noting
the
Egyptian government remained silent on the issue for years).
117. Kearl, supra note 115 (providing evidence of a survey that revealed 83
percent of women had been harassed in public and over 60 percent of men admitting
to harassing women).
118. Id.
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A. Catcalls Have Little Social Value
Although modern society has moved past dueling for one‟s
honor, today‟s courts still recognize an important principle of “antidueling” statutes, namely that degrading and extremely offensive
speech has little social value.119 Strong insults and epithets have the
tendency to inflict harm and shock the target.120 By “forcing a
communication” between the speaker and his target, catcalling causes
the addressee to experience unavoidable upsetting words and
phrases.121 Often times, a catcaller‟s purpose, especially when crude
and vulgar language is involved, is to force the target into
communicating or to invoke a response when the target has no desire
to interact with the catcaller.122 Because forcing interaction upon an
unwilling communicant is not traditionally thought of as being a
valuable form of discourse, the type of verbal expression used in
catcalling has little to no social value.
In many Supreme Court cases discussing fighting words,
dissenters have expressed the need to punish speech with little social
value.123 In Lewis v. City of New Orleans, Justice Rehnquist criticized
the majority for striking down a breach of the peace statute based on
statutory construction, as opposed to assessing the nature of the
speech, which would clearly cause it to fall under an unprotected
category.124 Similar to the speech in Lewis, some catcalls are so
harmful and have such slight social value that the social interests in
order and morality outweigh what little societal benefit catcalls
provide.125 In Rosenfeld v. New Jersey, Justice Powell cautioned that
while the preservation of free speech is a high priority, the progress of
119. See Lewis v. City of New Orleans, 408 U.S. 901, 912 (1972) (Rehnquist, J.,
dissenting).
120. Greenawalt, supra note 77, at 291.
121. See Bowman, supra note 14, at 531 (citing West, supra note 42, at 106).
122. See, e.g., groovyrooster, Comment to Friday Question of the Day – Street
Harassment, PRINCE OF PETWORTH (Apr. 17, 2010 09:44 AM),
http://www.princeofpetworth.com/2009/04/friday-question-of-the-day-streetharassment (explaining the reason catcallers do what they do is because the target
responds).
123. See Lewis, 408 U.S. at 913 (Powell, J., concurring) (concluding, in the
majority opinion, the use of “God damn mother fucking police” directed at police
officers was considered “fighting words,” but a faulty statutory scheme prevented
violation as per statute).
124. Id. (citing Gooding v. Wilson, 405 U.S. 518, 521-22 (1972)).
125. Id. at 912 (noting the speech in question as having little social benefit).
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a civilized society suffers from a “disquieting deterioration in
standards of taste and civility in speech.”126
Another important reason to suppress catcalls is to temper longstanding feelings of social resentment and inequality.127
Constitutional Law Professor, Kent Greenawalt, suggests that strong
insults and epithets may result in “reinforce[d] feelings of prejudice
and inferiority and contribute to social patterns of domination.”128
According to psychologists, women who are publicly insulted on the
street experience a psychological toll from feelings of degradation,
embarrassment, and helplessness in addition to feeling shame about
their bodies.129
As it stands, the fighting words standard does not consider the
effects of catcalling on women because the male stereotype of two
men coming to blows over verbal insults forms the basis of typical
“fighting words.”130 Professor Cynthia Grant Bowman, a leading
scholar in feminist jurisprudence, explains that the fighting words
concept “presupposes an encounter between two persons of relatively
equal power who have been socialized to respond to insults with
violence.”131 Most women are not socialized to react to abusive
language by engaging in a physical fight.132 Women‟s lack of violent
socialization and their inherent physical disadvantages are factors that
contribute to women‟s hesitation to confront their catcallers.133
Professor Tuerkheimer explains the irony in the proposition that
women should aggressively confront harassers (similarly to men)
when women have been “socialized to keep silent (rather than
confront); to be polite (rather than rude); to get help from men (rather
than help [them]selves); to be passive (rather than be aggressive); and
to be weak (rather than be strong).”134 Although women often lack
126. Rosenfeld v. New Jersey, 408 U.S. 901, 909 (1972) (Powell, J., dissenting).
127. Greenawalt, supra note 77, at 302.
128. Id. at 302 (explaining slurs that perpetuate stereotypes about race, ethnic
groups, religion, sexual preference, and gender may trigger hostility and
psychological damage).
129. Bowman, supra note 14, at 538 (citing Carol Dana, Talking Back to Street
Harassers, WASH. POST, Aug. 19, 1986, at C5 (quoting Dr. Catherine Bernard)).
130. Bowman, supra note 14, at 560.
131. Id. at 560-61.
132. Id.
133. Id.
134. See Tuerkheimer, supra note 9, at 192.
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the socialization needed to fight, it does not follow that women are
less injured when insulted.135
When women work up the courage to confront their catcallers
with counter-aggression, their response may silence the catcaller.136
Conversely, using counter-aggression may instead escalate the
situation, exponentially increasing the risk of danger to a woman as
compared to a man in a similar position.137 By not responding, or by
reacting positively to catcalls, women condone this objectifying
behavior, rendering it less likely that the problem will cease.138
Courts must recognize that abusive language, like catcalling, produces
the same feelings of anger and humiliation in women as does abusive
language between two men likely to fight. Requiring proof of injury
with evidence of a violent reaction discriminates against women by
requiring women to have a reaction they are neither socially, nor
physically, programmed to have.139 By focusing on male-oriented
behavior, the current fighting words doctrine fails to address the
needs of women. As the male firefighter example above illustrates
that those who endure catcalls, even men (typically thought to be
thick-skinned), can experience anger and humiliation resulting from
their objectification.140
135. Greenawalt, supra note 77, at 299.
136. See e.g., Katie Baker, A Good
Man‟s Guide to Catcalling,
GOODMENPROJECT.COM (Dec. 23, 2010), http://goodmenproject.com/ethicsvalues/good-man-catcall-street-harassment-guys-guide (detailing an instance where
confronting a male-catcaller resulted in his sincere apology).
137. See, e.g., monkeyrotica, Comment to Friday Question of the Day – Street
Harassment, PRINCE OF PETWORTH (Apr. 17, 2010 06:32 AM),
http://www.princeofpetworth.com/2009/04/friday-question-of-the-day-streetharassment (explaining how easy it is for a “verbal reaction to „hey baby‟ to escalate
to a bunch of guys following you home”); u street girl, Comment to Friday Question
of the Day – Street Harassment, PRINCE OF PETWORTH (Apr. 17, 2010 08:48 AM),
http://www.princeofpetworth.com/2009/04/friday-question-of-the-day-streetharassment (noting how it sucks just to ignore, but “I value my safety more than a
witty comeback that likely won‟t teach them a lesson and will just get them more
angry”).
138. Samantha Greaves, The NYC catcall: The pros and cons of being harassed in
the street, THE EXAMINER.COM: NEW YORK (Apr. 1, 2010, 1:53 PM),
http://www.examiner.com/relationships-in-new-york/the-nyc-catcall-the-pros-andcons-of-being-harassed-the-street.
139. See Bowman, supra note 14, at 561.
140. See Jones, supra note 69; supra Part I.B.
291
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B. Measuring Fighting Words by the Speaker‟s Verbal Conduct, Not
the Addressee‟s Reaction
One reason that catcalls have not been categorized as fighting
words is due to the fighting words doctrine‟s concentration on the
likely reaction of the addressee.141 Courts have wrestled with whether
“the average addressee” would react violently, while courts should
instead modify the fighting words doctrine to examine the speaker‟s
actions in order to establish a more predictable and reliable
assessment. Because society will have to determine which insults and
epithets are degrading to particular ethnic groups or which phrases or
gestures cause gender-specific injuries, courts‟ analyses will be partly
subjective when evaluating the speaker‟s conduct. In this modern
world, however, the target‟s capacity to engage in violence should not
be an element of the speaker‟s crime.142
In addition to focusing on the speaker‟s actions as opposed to the
addressee‟s reaction, statutory construction plays an important role in
upholding future fighting words convictions. The Court uses the
vagueness and overbreadth doctrines to invalidate fighting words
statutes based on statutory construction, thus limiting the number of
fighting words cases that gain Supreme Court review.143 In Coates,
the Court concluded a city ordinance was unconstitutionally vague
and overbroad.144 In Gooding, the Court struck down a Georgia
statute because it was easily susceptible to improper application.145
Furthermore, neither conviction rejects the important principles of the
fighting words doctrine, nor do these cases overturn Chaplinsky.146
The results in both Gooding and Coates simply would not apply to a
properly constructed fighting words statute. In theory, a fighting
words statute could be upheld at the Supreme Court level if it was
narrowly drawn to achieve the state‟s compelling interest in the safety
of its citizens.
With the exception of Chaplinsky, the Court, in the convictions
mentioned above, was unwilling to uphold the respective fighting
141. See Bowman, supra note 14, at 559.
142. Greenawalt, supra note 77, at 299.
143. See Gooding v. Wilson, 405 U.S. 518, 528 (1972) (noting the speech in
question were clearly unprotected threats); Coates v. City of Cincinnati, 402 U.S.
611, 611-12 (1971).
144. Coates, 402 U.S. at 614.
145. Gooding, 405 U.S. at 528.
146. See id.; Coates, 402 U.S. at 614.
292
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words statutes for various reasons.147 If the Supreme Court reviewed
the right conviction involving a classic fighting words scenario and a
statute that was narrowly drawn, the Court would certainly uphold a
fighting words conviction. Some state courts have done exactly
that.148 In State v. Robinson, the Montana Supreme Court concluded
that the defendant‟s use of “fucking pig” and “fuck off, asshole” to a
police officer constituted fighting words and were not protected
speech under the United States and Montana Constitutions.149 The
court added that the First Amendment might have protected the
statements if they were made at a political rally or protest, but
“randomly goading” a police officer should not be considered
constitutionally protected political discourse.150 If a court could
uphold a classic fighting words conviction like Robinson, it would be
easy to imagine a similar scenario involving a catcalling case.
Upholding a fighting words conviction regarding catcalls would
bring civilized society towards the higher standard of tasteful speech
that Justice Powell (dissenting) spoke about in Rosenfeld.151
Maintaining this higher standard of tasteful speech starts with
assessing the speaker‟s verbal conduct. Thus, the addresee‟s reaction
need not influence the outcome of a fighting words case.
C. Reframing the Current Fighting Words Doctrine
In the United States, the social norm is to ignore speech that
seems harmful, and just walk away.152 People are free to switch their
dials when they hear offensive remarks on the radio or avoid
scenarios where the use of abusive language is likely. 153 Other
countries, however, have made a legal distinction between racist
speech and other speech.154 As discussed in Part I.D, Mexico,
147.
148.
149.
150.
151.
152.
See supra Part I.C.
Breaux v. State, 197 S.E.2d 695, 696-97 (Ga. 1973).
State v. Robinson, 82 P.3d 27, 29 (Mont. 2003).
Id. at 31.
Rosenfeld v. New Jersey, 408 U.S. 901, 909 (1972) (Powell, J., dissenting).
Cohen v. California, 403 U.S. 15, 21 (1971) (stating those exposed to
harmful insults “could effectively avoid further bombardment of their sensibilities
simply by averting their eyes”).
153. Greenawalt, supra note 77, at 301.
154. Id. at 302 n.46 (citing LEE C. BOLLINGER, THE TOLERANT SOCIETY 38-39
(1986) (“It seems a significant piece of corroborating evidence that virtually every
other western democracy does draw such a distinction in their [sic] law; the United
States stands virtually alone in the degree to which it has decided legally to tolerate
racist rhetoric.”); Public Order Act, 1986, c. 64, §18 (Eng.) (amending British
Parliament previous enactments to provide that “[a] person who uses threatening,
293
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Bangladesh, and Egypt are making efforts to tackle the problems
associated with catcalling.155 In light of the comparative examples
mentioned above, there is no reason that the United States cannot
make subtle adjustments to the current fighting words doctrine to
include catcalling.
Similarly to how some expressive conduct, as defined in
Chaplinsky, has little social value, the social interest in order and
morality clearly outweighs the harms caused by the verbal and nonverbal expression that make up catcalls. Emotions such as fear and
disgust, and harms such as psychological trauma and restrictions on
personal liberty triggered by catcalling are equally as troubling as the
emotions and harms triggered by two persons engaging in a brawl
after a heated exchange of words.
In examining whether catcalls fall within the fighting words
exception, focusing on the speaker‟s expression makes the likely
reaction of the addressee irrelevant and establishes a more predictable
and reliable assessment. Although this forces courts to be partly
subjective when evaluating the speaker‟s conduct, the addressee‟s
capacity to engage in violence should not be factored into the
speaker‟s crime. Adjusting the fighting words doctrine to include
catcalls is not a radical adjustment and would not serve as a blanket
prohibition on all sexist speech; in fact, the adjustment would apply
only to a limited number of scenarios.156 In addition, the adjustment
would not undermine the Constitution because First Amendment
protection would still exist for most racist and sexist speech. Instead,
removing catcalls from First Amendment protection would remain
faithful to the purposes and logic of the fighting words doctrine.
Equalizing the treatment of traditional fighting words and
catcalls would harmonize the First Amendment with the Fourteenth
Amendment‟s Equal Protection Clause.157 In the past, courts
assessing fighting words cases focused on whether the words would
provoke an inherently male, violent reaction, thus discriminating
abusive or insulting words or behavior, or displays any written material which is
threatening, abusive or insulting is guilty . . . if (a) he intends thereby to stir up racial
hatred, or (b) having regard to all the circumstances racial hatred is likely to be stirred
up thereby”)).
155. See supra Part I.D.
156. The limited scenarios would include use of lewd or vulgar language, usually
commenting on a person‟s appearance as two unacquainted people pass each other by
in a public area, for instance a street or a public park.
157. U.S. CONST. amend XIV, § 1.
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03.CHHUN.FINAL.DOC
2011]
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CATCALLS: PROTECTED SPEECH OR FIGHTING WORDS
based on sex. Reconsidering the existing male bias in analyzing
fighting words statutes and expanding the definition of “average
addressee” to recognize female reactions and harms caused by
catcalling will ensure the government does not intentionally
discriminate against women.
CONCLUSION
The Supreme Court has not upheld a fighting words conviction
since Chaplinsky.158 Since then, the cases presented before the Court
have not involved “classic” fighting words, but rather overbroad
statutes. Although fighting words statutes have evolved from their
early purpose of preventing 19th century male duels, the fighting
words doctrine needs an update to protect women against genderspecific injuries, like catcalling, that degrade and objectify.
Currently, the fighting words doctrine fails to address certain genderspecific harms. Expanding the fighting words doctrine to include
catcalling would correct the doctrine‟s inherent bias towards typical
male behavior.
Moreover, adjusting the fighting words doctrine to focus on the
speaker‟s expression makes the likely reaction of the addressee
irrelevant. Courts could then establish a more predictable and reliable
assessment in reviewing a fighting words case. Confronting the
limitations posed by free speech principles through an expansion of
the fighting words doctrine to include catcalls and related non-verbal
expression presents a plausible solution to this gender-specific harm.
Bunkosal Chhun 
158. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942).
 J.D., May 2011, Thomas Jefferson School of Law. I would like to thank my
incredibly loving wife Emily, for her unconditional support throughout the note
writing process, and for encouraging me to follow my dreams. I would also like to
thank the editorial board, especially Mehran Tahoori and Flavio Nominati for their
thoughtful advice and assistance on my Note. Lastly, I would like to thank Professor
Bryan Wildenthal and Professor Rebecca Lee for their wisdom and abundant
guidance.
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