June 25, 2018 4:31PM

Fighting Words and Free Speech

On a Saturday afternoon in Rochester, New Hampshire, Jehovah’s Witness Walter Chaplinsky addressed the City Marshal as “a God damned racketeer” and “a damned Fascist.” He was convicted of violating a state law that prohibited offensive words in public. The United States Supreme Court upheld the conviction and identified certain categories of speech that could be constitutionally restricted, including a class of speech called “fighting words.”

Writing for the Court, Justice Frank Murphy stated that “fighting words” are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived by them is clearly outweighed by the social interest in order and morality.” In Hate: Why We Should Resist It with Free Speech, Not Censorship, Strossen explains the ‘fighting words’ doctrine that grew from Chaplinsky:

“Fighting words” constitute a type of punishable incitement: when speakers intentionally incite imminent violence against themselves (in contrast with third parties), which is likely to happen immediately. In the fighting words situation the speaker hurls insulting language directly at another person, intending to instigate that person’s imminent violent reaction against the speaker himself/herself, and that violence is likely to occur immediately (64).

The government could, consistent with the First Amendment, punish such speech.

With Chaplinsky v. New Hampshire (1942), the Court’s “fighting words” jurisprudence began. Since Chaplinsky, the Court has overturned every fighting words conviction that has been brought before it.

This unraveling began with Terminiello v. Chicago in 1949. Father Arthur Terminiello was arrested for “beach of peace” under a Chicago ordinance after delivering a speech in which he criticized various political and racial groups. The Court held that the ordinance unconstitutionally infringed upon Terminiello’s right to free expression. Justice Douglas explores the function of speech in the Court’s opinion:

It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenges. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute… is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Strossen argues freedom of speech “is essential for forming and communicating thoughts, as well as for expressing emotions,” and also “facilitates the search for truth” (21). When speech is provoking, it often spurs debate, followed by introspection and reassessment, conditions conducive to social and intellectual growth.

In 1971, the Court again limited the “fighting words” doctrine in Cohen v. California. A California statute prohibiting the display of offensive messages barred then nineteen-year-old Paul Robert Cohen from wearing a jacket embellished with the words “Fuck the Draft.” The Court ruled that the statute violated freedom of expression as protected by the First Amendment. Cohen limited fighting words to those that involved a “direct personal insult.”

In writing the opinion for Cohen, Justice Harlan also echoes Strossen’s concern that censorship unleashes government to silence certain ideas, therefore undermining liberty and democracy and subverting equality: “…we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

Finally, in R.A.V. v. St. Paul , the 1992 Supreme Court overturned St. Paul, Minnesota’s Bias Motivated Crime Ordinance, which prohibited the display of a symbol which one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Justice Scalia, writing the opinion of the Court, states that the ordinance prohibits protected speech only because of the subjects the speech addresses rendering it unconstitutional. Scalia explains: “the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects . . . St. Paul has no such authority to license one side of a debate to right freestyle, while requiring the other to follow Marquis of Queensberry rules.”  This decision indicates that the Court is unlikely to countenance government restrictions on hate speech.

In Chaplinsky, the “fighting words” were uttered directly into the face of the victim. On Twitter such abuse is shared among strangers separated by space and time. That might put the final nail into the coffin of the “fighting words” doctrine.  While some social media feuds may in some sense spur real world violence, the delay between online provocation and terrestrial reaction is more than sufficient to foreclose fighting words designations based on threats of imminent violence. Online fora also give Americans a chance to engage in thoughtful and ultimately productive “counter-speech,” which “encompasses any speech that counters a message with which one disagrees” (158).

However, it is important to note that “certain “hate speech” could satisfy even the current strict standard. Imagine, for example, a member of the Ku Klux Klan personally insulting a Black Lives Matter activist with racist epithets, or vice versa. Such individually targeted, deliberately provocative “hate speech” presumably could be punished under the fighting words doctrine” (64).

Nonetheless, the narrowing of the fighting words doctrine is ultimately a good thing. Government’s ability to identify new categories of speech to regulate often leads to dangerous mission creep. The health of our institutions depends on free expression, and we must be wary of attempts to enforce ideological conformity. Because, as Justice Harlan observes in Cohen, “…it is nevertheless often true that one man’s vulgarity is another’s lyric.”