‘Fighting Words’ or Free Speech? Judge Reads Debate

The Westminster video store owner who displayed a Communist Vietnamese flag and photo of Ho Chi Minh at his business has no right to 1st Amendment protections because he taunted the Vietnamese American community with “fighting words,” argued attorneys for the landlord who evicted him.

After winning a temporary court order getting Truong Van Tran to remove the Communist memorabilia last month, the attorneys for property owner Danh Nhut Quach are now seeking a permanent injunction. They had successfully argued that Tran had violated his lease agreement by creating a public nuisance.

Tran’s display in Little Saigon, the home to many refugees who had fled a Communist regime, prompted five days of angry protests from hundreds of community members.

In documents filed Monday, Newport Beach attorneys Timothy Gray and Jonathan Slipp said that Tran had sent out letters on Jan. 15 to several community groups, along with Vietnamese media, telegraphing his plans to put up the memorabilia and stating explicitly: “Here, I dare all of you. . . . If you think you are so great, come over to close me out.”

Tran’s statements are the equivalent of fighting words, whose “very utterance inflicts injury or tends to incite a breach of peace,” the lawyers wrote. Fighting words, along with lewd, obscene or profane expressions, are a category of unprotected speech under the 1st Amendment, they said. Words that create a situation of clear and present danger of violence do not have protection, they argued.

In addition, the month-to-month lease Tran signed contractually constrains him from using the premises as a political forum for debate and demonstration. The property owner has the right to restrict activities on the premises, they said.

But the American Civil Liberties Union and Ron Talmo, a private attorney with longtime ties to the organization, argued against that stance in papers filed Friday. Prohibiting Tran from expressing his view simply because it would anger others is unconstitutional prior restraint, they wrote.

“Because freedom of speech holds such a high place in our system of constitutional values, every effort must be made to ensure it is given adequate breathing space,” they wrote. The government may not punish or restrict speech on the grounds that it is offensive to others, they said.

Citing classic 1st Amendment cases, Talmo and the ACLU attorneys say Tran’s display of the flag and photo is a form of political speech, which is entitled to the highest protection under the 1st Amendment.

For the other side to insist that the lease agreement Tran signed prohibits him from his right to freedom of expression is simply wrong, they said. California and U.S. courts have held that nuisance laws cannot be applied in a way that infringes on expression.

Even if Tran’s public expressions incite public anger, “the generally accepted way of dealing [with unprotected speech] is to punish it after it occurs, rather than prevent it from occurring. . . ,” they wrote. The ACLU filings did not address the issue of the Jan. 15 letters.

Orange County Superior Court Judge Barbara Tam Nomoto Schumann is scheduled to issue a tentative ruling Thursday.