The Boulder City Council will consider an amendment Tuesday to the city's fighting words ordinance after a Boulder District Court judge found the current ordinance unconstitutional.
Following the ruling Wednesday, attorneys for the city indicated that they would add language making it explicit that use of fighting words requires not just that another person be provoked, but that the speaker intended to provoke.
The lack of such language about intent was the crux of the ruling against the city.
"Under the heightened scrutiny afforded statutes implicating fundamental rights, both the 'intent' element and 'effect' element may be necessary to produce a statute which does not proscribe constitutionally protected speech," District Judge Bruce Langer wrote in his ruling upholding a 2013 decision by Judge Thomas Reed that found the fighting words ordinance unconstitutional.
In a written response to the ruling, Boulder City Attorney Tom Carr said the city has always interpreted the ordinance to require intent and the city would change the law to make that clear.
If you go
What: Boulder City Council
When: 6 p.m. Tuesday
Where: Boulder Municipal Building, 1777 Broadway
Info: To read the ordinance change and see the complete agenda, visit bit.ly/1fxZJ2n
The ordinance reads: "No person shall insult, taunt or challenge another in a manner likely to provoke a disorderly response."
The proposed new language released Thursday reads: "No person shall, with intent to harass, annoy or alarm another, repeatedly insult, taunt or challenge another in a manner likely to provoke a disorderly response."
Barry Satlow, chairman of the Boulder County chapter of the American Civil Liberties Union, said the addition of the words "intent" and "repeatedly" probably make the ordinance constitutional, though he would rather Boulder do away with the ordinance.
"I would prefer that we don't prosecute people for speech," he said.
In a memo to the City Council, Carr said the ordinance is an important tool for the police.
"The city and state have long had prohibitions against the use of 'fighting words,'" he wrote. "These restrictions help preserve public order by allowing police to intervene and, if necessary, cite a person who is provoking another before that behavior escalates to violence."