Judge Neeti Pawar, along with Judges Anthony Navarro and Sueanna Johnson, delivered their opinion on the case of People v. Hughes in the Colorado Court of Appeals. The case involved Hughes and his girlfriend, A.B., who had a tumultuous relationship marked by verbal abuse and destructive behavior. Despite being found guilty of criminal mischief and harassment, Hughes sought to have his conviction vacated on the grounds of First Amendment protection for his speech.
The harassment statute under which Hughes was convicted prohibits speech that is likely to provoke a violent response. However, the court found that the insults used by Hughes, while hurtful and derogatory, did not meet the criteria of “fighting words” that would incite immediate violence. The court also questioned the validity of the postconviction court’s findings regarding the circumstances of Hughes’ speech, as there was no evidence of threats or physical violence accompanying the insults.
Ultimately, the court determined that Hughes’ speech, while offensive and harmful, did not qualify as fighting words and therefore was protected under the First Amendment. The court emphasized that the category of speech considered fighting words is narrow and getting narrower, and that mere insults, no matter how hurtful, do not automatically provoke violence. Despite the toxic nature of Hughes’ relationship with A.B., his speech did not cross the line into unprotected territory.
The speech in question must surpass being simply “abusive” or “harsh [and] insulting” to fall outside the protection of the First Amendment. In a situation involving a verbally abusive and toxic relationship with allegations of infidelity, the use of words like “whore,” “slut,” and “bitch” would not likely incite an immediate and violent reaction from the average person. Therefore, these words do not meet the threshold for fighting words, and it is likely that Hughes’ use of them was protected by the First Amendment. For example, in the case of State v. Baccala (Conn. 2017), it was determined that calling someone names like “fat ugly bitch” and “cunt” was constitutionally protected speech.
Given the lack of a strategic reason for not filing a motion for Judgment of Acquittal (JOA) and the reasonable probability of success for such a motion, it is evident that Hughes received ineffective assistance from trial counsel. As a result, there is no need to address the related ineffective assistance claim concerning direct appeal counsel, as both claims seek the same outcome: the reversal of the section 18-9-111(1)(h) conviction.
While not all courts may agree with this decision, it is worth noting, especially considering the rarity of convictions being overturned on ineffective assistance grounds.
Adam Frank of Frank Law Office LLC is representing Hughes in this matter.
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