The “it’s okay when we say it to each other” defense? Denied.

Jonathan Wicks was taken to court for calling the men ‘honky wannabe cops’…

He said: ‘I was outside the Oracle Shopping Centre and as a joke started pushing and rattling one of the bicycles that was locked up outside, as I’d had a few drinks.

‘The security guards told me to move on and that’s when I made the comment – I didn’t think about it, I just said it as a joke…

He said last night: ‘I admit I was being a bit cheeky, but I never meant to be offensive or racist at all.

‘Honky is a word that a lot of my black friends use to describe a white person, so I suppose that’s why I was charged with racial abuse. But it’s ridiculous that I was taken to court over it.

On his lawyer’s advice, he pleaded guilty to one count of attempted theft of a bicycle and one count of using “threatening, abusive or insulting words of behavior which was racially aggravated.” I knew they were headed towards a pure thoughtcrime model of hate crimes; I didn’t realize they were already there. Question for lawyers and law students: Would the “fighting words” exception to the First Amendment protect this statute in the U.S.? Per Scalia’s opinion in R.A.V. v. St. Paul, the answer pretty clearly is no — at least as the statute is currently written, encompassing not just threats but insults, abuse, and other emotional owies:

[T]he reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression – it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid…

What if the statute was rewritten to limit it exclusively to threats that are “racially aggravated”? Wicks would be off the hook in that case, but presumably the statute would still be unconstitutional because it’s targeting viewpoint, i.e. “messages of racial … intolerance.” Or would it? Elsewhere in the opinion, Scalia says, “What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause)…” I take that to mean that the statute would be constitutional if it was rewritten to ban threats not on the basis of their racial or gender viewpoint but whether they’re directed at minorities or women — which of course would have the practical effect of targeting based on viewpoint even though formally the law would apply to threats of all stripes. What am I missing?