Fighting Words
The "fighting words" doctrine established a narrow category of
speech that falls outside of First Amendment protection. As you
will see, the category is quite narrow and requires not only
that the words be offensive, but also, that the words are said
in a context where the words constitute an immediate incitement
to violence.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Jehovah's Witness called a city marshall a "God damned racketeer" and a "damned Fascist". The confrontation resulted in a fight, and the arrest and conviction
of Witness.
"[W]ords...which by their very utterance inflict injury or tend
to incite an immediate breach of the peace. It has been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight social
value as a step to the truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order
and morality."
Cross Burning
Virginia
v. Black, 123 S. Ct. 153 (2003)
R.A.V. v. St. Paul
... we accept the Minnesota Supreme Court's authoritative statement
that the ordinance reaches only those expressions that constitute
fighting words within the meaning of Chaplinsky. 464 N. W. 2d,
at 510511. Petitioner and his amici urge us to modify the scope
of the Chaplinsky formulation, thereby invalidating the ordinance
as substantially overbroad, Broadrick v. Oklahoma, 413 U. S.
601, 610 (1973). We find it unnecessary to consider this issue.
Assuming, arguendo, that all of the expression reached by the
ordinance is proscribable under the fighting words doctrine,
we nonetheless conclude that the ordinance is facially unconstitutional
in that it prohibits otherwise permitted speech solely on the
basis of the subjects the speech addresses.
KKK v. Cincinnati, 72 F.3d 43, 1995 U.S. App. LEXIS 36548 (6th
Cir. 1995.)
A cross erected by the Knight Riders of the Ku Klux Klan in a
public park, bearing the words "John 3:16," is not fighting words....
Fighting words is a small class of expressive conduct that is
likely to provoke the average person to retaliate, and thereby
cause a breach of the peace. In other words, if a reasonable onlooker would regard the expressive
conduct "as a direct personal insult or an invitation to exchange
fisticuffs," it is not entitled to First Amendment protection....
In determining whether plaintiffs' cross constitutes fighting
words, we are required to consider carefully the actual circumstances
surrounding its display and ask whether "the expression 'is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action.'"
Hayward v. United States, 6 F. 3rd 1241 (7th Cir. 1993)
The court ruled that crosses burned in a private yard "portend
violence" and are therefore fighting words.
As the cases below demonstrate, the use of offensive and insulting
language, even when the speech is directed at specific individuals,
does not reach the level of fighting words.
Gooding v. Wilson, 405 U.S. 518 (1972)
[anti-war picketer to police officer - conviction under state
"abusive speech/disorderly conduct" statute - overbroad]
"White son of a bitch, I'll kill you"
Rosenfeld v. New Jersey, 408 U.S. 901 (1972)
At school board meeting: "motherfucker" [4 times addressing teachers, school board, town, country]
Lewis v. New Orleans, 408 U.S. 913 (1972)
to police officer: "god damn mother fucker"
Brown v. Oklahoma, 408 U.S. 914 (1972)
to police officers at meeting in university chapel:
"mother fucking fascist," "black mother fucking pig"
Gooding v. Wilson, 405 U.S. 518 (1972)
[anti-war picketer to police officer - conviction under state
"abusive speech/disorderly conduct" statute - overbroad]
"White son of a bitch, I'll kill you"
Rosenfeld v. New Jersey, 408 U.S. 901 (1972)
At school board meeting: "motherfucker"
[4 times addressing teachers, school board, town, country]
Lewis v. New Orleans, 408 U.S. 913 (1972)
to police officer: "god damn mother fucker"
Brown v. Oklahoma, 408 U.S. 914 (1972)
to police officers at meeting in university chapel:
"mother fucking fascist," "black mother fucking pig"
Collin v. Smith, 578 F. 2d. 1197 (1978)
Nazis displaying swastikas and wearing military-style uniforms
marching through community with a large Jewish population, including
survivors of German concentration camps, were not using "fighting
words."
"Peaceful demonstrations cannot be totally precluded solely because
[the symbols displayed] may provoke a violent reaction...A speaker
who gives prior notice of his message has not compelled a confrontation
with those who voluntarily listen."
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