The Supreme Court has held that some speech is not deserving of First Amendment protection—including obscenity, defamation, and fighting words—so that government can regulate it. The Court first articulated the fighting words doctrine in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), upholding a statute that prohibited the use of ‘‘offensive, derisive or annoying’’ language. The Chaplinsky decision defined fighting words as ‘‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace,’’ and concluded that statements such as those uttered by Chaplinsky—he called a city marshal a ‘‘damned racketeer’’ and ‘‘a damned Fascist’’—were of so little value that government could ban them to preserve order and morality. Although the Court continues to reaffirm the fighting words doctrine, it has not upheld any convictions for using fighting words since Chaplinsky. In subsequent cases, the Court has either held that the speech in question does not meet the definition of fighting words or concluded that the statute at issue could be construed to be overbroad or underinclusive.
The Court has subsequently narrowed the definition of fighting words to those that are likely to provoke immediate retaliatory violence. In Terminiello v. Chicago, 337 U.S. 1 (1949), the Court clarified that speech does not lose First Amendment protection merely because it causes anger. Terminiello’s speech enraged a large audience by criticizing various political and racial groups, but the Court held that it was protected unless it was ‘‘shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’’ Similarly, in Street v. New York, 394 U.S. 576 (1969), the Court held that the mere offensiveness of speech does not strip it of constitutional protection. Street was convicted of violating a New York state flag desecration statute because, in response to hearing about the murder of civil rights leader James Meredith, he burnt an American flag and said ‘‘If they let that happen to Meredith, we don’t need an American flag.’’ The Court reversed Street’s conviction because, although contemptuous, his speech was not ‘‘so inherently inflammatory as to come within that small class of ‘fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace.’’’
The Court further narrowed the definition of fighting words and expanded protection for offensive speech in Cohen v. California, 403 U.S. 15 (1971). Cohen, a Vietnam War protester, was convicted of disturbing the peace for wearing a jacket bearing the words ‘‘Fuck the Draft.’’ The Court held that the words on Cohen’s jacket were not fighting words, because they were not directed at an individual and so were not ‘‘personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.’’ The Court also recognized that both the emotive and the cognitive impact of Cohen’s expression were deserving of First Amendment protection.
In more recent years, the Court has overturned convictions for using fighting words on the grounds that the statutes prohibiting them were constitutionally overbroad. In Gooding v. Wilson, 405 U.S. 518 (1972), the Court cautioned that states must narrowly regulate fighting words so as not to chill protected speech. The Gooding court struck down a Georgia statute prohibiting ‘‘opprobrious words or abusive language, tending to cause a breach of the peace’’ because it concluded that the law had been broadly construed to proscribe speech that would not cause an immediate violent response. Similarly, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), the Court struck down an ordinance that made it illegal for ‘‘any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty,’’ concluding that the statute could be construed to prohibit offensive, but constitutionally protected, speech. Indeed, in City of Houston v. Hill, 482 U.S. 451 (1987), the Court reasoned that the fighting words doctrine ‘‘might require a narrower application in cases involving words addressed to a police officer, because ‘a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words.’’’
In its most recent fighting words case, the Court recognized for the first time that fighting words are not ‘‘entirely invisible to the Constitution.’’ In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court struck down as underinclusive a St. Paul, Minnesota, ordinance prohibiting the display of a symbol one has reason to know ‘‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’’ The defendants were charged with burning a cross on an African-American family’s lawn. Justice Scalia’s majority opinion reasoned that government regulation of fighting words cannot be based on hostility or favoritism toward any constitutionally protected message those words contain. Accordingly, even though the ordinance regulated only unprotected speech, it violated the First Amendment for the city to draw a content-based distinction between subsets of fighting words. Four concurring justices, disagreeing with the majority rationale, argued that the ordinance was constitutionally overbroad, because it prohibited expression that ‘‘causes only hurt feelings, offense, or resentment.’’
DENISE C. MORGAN
References and Further Reading