9 Unprotected Categories: Fighting Words and Hate Speech

The Court Establishes “Fighting Words” as an Unprotected Category

In Chaplinsky, the Court defined fighting words as words that “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” As described in the introduction to this section, speech within unprotected categories 1) have no ideas that merit First Amendment protection and 2) causes harm the government should have the power to address. How do these rationales apply to fighting words specifically?

First, fighting words are envisioned as lacking any real content or ideas. “Fuck you,” for example, could be seen as an expression of distaste or hatred that has no ideas worth discussing or responding to. Under this criterion, fighting words are better classified as a form of “verbal assault” rather than an attempt to communicate.

As far as harm caused, the fighting words concept takes seriously the idea that words can be harmful. In the contemporary United States, the best such example is probably slurs based on race, gender, or other immutable characteristics, which attempt to dehumanize an individual or make clear they are not a genuine member of the political community. In Chaplinsky, the fighting words in question included “damned fascist,” a term which might resonate strongly in a time when we were at war with Nazi Germany.

Third, the fighting words category posits that words can be a trigger for violence. Similar to some of the logic in our early incitement cases, this doctrine initially allowed governments to punish the speaker if they feared such speech would lead to disorder or violence. This rationale is the name of the category itself—if someone says something they should know would lead another person to punch them in the face, they should be held liable for doing so.

Keep in mind that fighting words are analytically distinct from true threats or harassment (these categories and their definitions were fleshed out after Chaplinsky). True threats involve speech that is designed to frighten someone into believing the speaker will harm them; harassment involves the targeted repetition of injurious speech by a speaker against another individual. A single use of a racial slur, for example, while easily defined as a fighting word under Chaplinsky, would be neither a true threat (without more) nor an example of harassment.

While Chaplinsky is known for introducing the concept of unprotected categories, it is also a foundational case for the specific category of fighting words. Chaplinsky was a Jehovah’s Witness, a Christian denomination whose willingness to forcefully advocate for their First Amendment rights in court made them unusually influential in the development of civil liberties. Because they refused to salute flags (a practice they believed put country before God), they were often attacked as unpatriotic. Witnesses also took seriously their religious mandate to convert others to their religious beliefs, which often led to conflicts over solicitation or being approached in public places.

Chaplinsky’s own conviction came as a result of distributing his religious materials on a public street in Rochester, New Hampshire. A crowd of people gathered and engaged with Chaplinsky, during which he attacked other organized religions as “rackets” that deceived people. Angered at these remarks, some individuals fetched the city marshal, who warned Chaplinsky that his speech was causing a disturbance. Ultimately, someone threatened to attack Chaplinsky, at which point the marshal and other officers took Chaplinsky into custody. Chaplinsky—angry that he had been arrested—cursed at the marshal, calling him a “damned fascist” and a “God damned racketeer.”

Chaplinsky was charged, convicted, and fined under a state law that prohibited such utterances. He sued, arguing that the law and his arrest violated the First Amendment.

Chaplinsky v. New Hampshire

315 U.S. 568 (1942)

Facts: Chaplinsky, a Jehovah’s Witness, had been distributing religious literature. He got into an argument with a local crowd who disapproved of his speech, which attacked traditional organized religion as a racket. Police warned Chaplinsky that the crowd was getting restless. Ultimately, the town marshal moved to arrest Chaplinsky rather than disperse the crowd, after which Chaplinsky called the town marshal a “God-damned racketeer” and a “damned Fascist.” He was convicted of violating a state law that banned making “offensive, derisive or annoying” speech in public, as well as calling someone offensive or derisive names.

Question: Did New Hampshire’s ordinance violate the First Amendment’s free speech clause?

Vote: No, 9-0

For the Court: Justice Murphy

JUSTICE MURPHY delivered the opinion of the Court.

Appellant, a member of the sect known as Jehovah’s Witnesses, was convicted in the municipal court of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public Laws of New Hampshire:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.

The complaint charged that appellant,

with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat the words following, addressed to the complainant, that is to say, ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,’ the same being offensive, derisive and annoying words and names.

Upon appeal, there was a trial de novo of appellant before a jury in the Superior Court. He was found guilty, and the judgment of conviction was affirmed by the Supreme Court of the State.

By motions and exceptions, appellant raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite. These contentions were overruled, and the case comes here on appeal…

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those 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 truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality…

On the authority of its earlier decisions, the state court declared that the statute’s purpose was to preserve the public peace, no words being “forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.” It was further said:

The word ‘offensive’ is not to be defined in terms of what a particular addressee thinks… The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight… Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace… The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee … including profanity, obscenity and threats.

We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace…

Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace…