Supreme Court For Dummies by Lisa Paddock

Author:Lisa Paddock
Language: eng
Format: epub
Publisher: Wiley

Fighting words

Fighting words, like libelous statements, are not protected by the First Amendment. And, in fact, distinguishing between the two is sometimes hard: Both involve disparaging, even insulting remarks leveled at one person or group of persons by another. To the law, though, there is a difference. It seems to boil down to this: In cases involving fighting words, the context in which they are delivered matters, whereas libel is libel whenever it is published. And because fighting words are intended to provoke an immediate reaction, they also come awfully close to the constitutionally unprotected act of crying fire in a crowded theater. (See the section “Crying fire in a crowded theater,” earlier in this chapter.)

The definitive definition of fighting words can be found in the seminal Supreme Court case Chaplinsky v. New Hampshire (1942). Chaplinsky, a Jehovah’s Witness, was distributing religious pamphlets surrounded by a hostile crowd when he was interrupted by a city marshal. Chaplinsky responded by calling the officer a “racketeer” and a “Fascist.” The Supreme Court responded by denying First Amendment protection to fighting words, “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Chaplinsky was actually the last case in which the Supreme Court upheld a conviction for using fighting words against a public official. In Brandenburg v. Ohio (1969), the broadcast of a Ku Klux Klan rally in which the leader advocated racial strife led to his conviction under a criminal syndicalism law banning violent organization. Even though Brandenburg’s speech advocated (as opposed to incited) lawlessness, the Court found that it did not constitute fighting words, largely because of its political content. And in another free speech classic, the Court found that wearing a jacket emblazoned with “F*** the Draft” into court did not constitute the use of fighting words, despite their provocativeness.

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