Course: Introduction / Criminal Law
Fighting words are speech that is calculated to cause a violent response from their target, which is not protected by the First Amendment.
Fighting words are a category of speech that has been deemed unprotected by the First Amendment. They are defined as words that are likely to cause an immediate breach of the peace by inciting violence or a physical altercation. The fighting words doctrine was established in the landmark 1942 Supreme Court case Chaplinsky v. New Hampshire, which held that “fighting words” are not protected by the First Amendment.
The court in Chaplinsky defined fighting words as those “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” This means that speech that is likely to cause an immediate violent reaction from the listener is not protected by the First Amendment. However, the Supreme Court has narrowed the scope of the fighting words doctrine in subsequent cases, requiring that the speech in question be a direct personal insult rather than simply offensive or inflammatory.
The Supreme Court has also held that the fighting words doctrine only applies in situations where the speech is directed at a specific individual or group of individuals. In the 1971 case Cohen v. California, the Court held that a man wearing a jacket with the words “F*** the Draft” in a courthouse did not constitute fighting words because the speech was not directed at any individual or group.
In addition to the narrow scope of the fighting words doctrine, the Court has also held that speech that is merely offensive or provocative is protected by the First Amendment. In the 1969 case Brandenburg v. Ohio, the Court established a two-part test for determining when speech that advocates violence or illegal activity can be restricted. The test requires that the speech be directed at inciting imminent lawless action and that it is likely to produce such action.
The fighting words doctrine is often cited in cases involving hate speech or speech that is perceived as discriminatory or offensive. However, the Supreme Court has consistently held that offensive or hateful speech is protected by the First Amendment unless it falls within the narrow category of fighting words or meets the test established in Brandenburg v. Ohio.
The doctrine is a narrow exception to the protection of free speech under the First Amendment. Speech that is calculated to cause a violent response from the listener is not protected by the First Amendment, but the scope of the doctrine is limited to direct personal insults and situations where the speech is directed at a specific individual or group. Offensive or hateful speech, while often controversial, is generally protected by the First Amendment.
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Last Modified: 04/09/2023