Case summaries

• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
• Terminiello v. Chicago, 337 U.S. 1 (1949)
• Street v. New York, 394 U.S. 576 (1969)
• Cohen v. California, 403 U.S. 15 (1971)
• Gooding v. Wilson, 405 U.S. 518 (1972)
• Lewis v. City of New Orleans, 415 U.S. 130 (1974)
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
• Houston v. Hill,   482 U.S. 451 (1987)
• Virginia v. Black,   01-1107 (2003)

Oct. 21, 1968

April 21, 1969

5-4

After learning that civil rights leader James Meredith had been shot, the accused took an American flag to a New York street corner and set the flag on fire. An audience formed, including a police officer, and the accused proceeded to make disparaging remarks about the flag. The accused was convicted of violating a New York statute making it misdemeanor "to publicly mutilate, deface, defile, defy, trample upon, or cast contempt upon an American flag whether by words or act." The conviction was affirmed by the appeals court.

Holding that the case was not moot, despite the expiration of the time period during which the accused's suspended sentence could have been replaced by an actual prison sentence, the Court proceeded to address whether or not the accused could constitutionally be punished for his words.

The Court concluded that the accused had a constitutional right to publicly express his feelings and opinions about the American flag, even if defiant or contemptuous. The verdict against Street was a general verdict, however, that the Court determined could have been based on his conduct, his words or both. Because of this, the Court held that even if the record "precludes the inference that Mr. Street's conviction might have been solely based on his words, we are still bound to reverse if the conviction could have been based both upon his words and his act." Such a ruling was dictated, the Court reasoned, to prevent the punishment of constitutionally protected speech.

"We cannot say that appellant's remarks were so inherently inflammatory as to come within that small class of 'fighting words' which are 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace.'"

Justice Harlan

Feb. 22, 1971

June 7, 1971

5-4

Cohen was arrested and convicted for disturbing the peace in violation of California Penal Code § 415, after wearing a jacket that bore the words "F--- the Draft" in a county courthouse. Specifically, the state argued that the four-letter expletive imprinted on the appellant's jacket was "offensive conduct" that might provoke others to violence against the appellant. The Supreme Court, however, disagreed and reversed the conviction.

Whether Cohen's expression constituted constitutionally protected speech, or fell within the unprotected fighting-words exception.

The Court recognized that "States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so called 'fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Despite this broad grant of discretion, the Court nonetheless held that Cohen's expression did not amount to fighting words. The Court reasoned that the epithet in question was not directed to the "person of the hearer" and that "no individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult."

"States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so called 'fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction."

Justice Harlan

Dec. 8, 1971

March 23, 1972

5-4

The defendant was engaged in a protest against the Vietnam War. When police officers attempted to intervene in the protest, the defendant made threatening and insulting remarks to the officers. Subsequently, he was convicted of violating a Georgia Statute making it a misdemeanor for any person , without provocation, to use to or of another, and in his presence, "opprobrious words or abusive language, tending to cause a breach of the peace."

Whether the Georgia statute, under which the Defendant was convicted, is unconstitutionally vague and overbroad in violation of the First and Fourteenth Amendments.

The Court held the statute was unconstitutionally overbroad, finding the dictionary definitions of the adjectives "opprobrious" and "abusive" to reach beyond mere fighting words. In reaching its conclusion, the majority reaffirmed the notion that words may not be banned simply because of their offensive or vulgar nature.

"Because the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed or punished is finely drawn, in every case, the power to regulate must be so exercised as not to, in attaining a permissible end, unduly infringe the protected freedom." Quoting I 310 U.S. 296, 304 (1940).

Justice Brennan

Dec. 10, 1973

Feb. 20, 1974

5-4

On a prior remand, the Louisiana Supreme Court upheld a statute making it unlawful and a breach of the peace "for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to" any city police officer serving in the line of duty, maintaining that it only prohibited fighting words. On appeal, the Supreme Court reversed.

Whether the Louisiana statute is overbroad in violation of the First and Fourteenth Amendment.

In light of Gooding v. Wilson, the Court concluded that the state court had not narrowly defined the words of the ordinance to limit its application to fighting words only. Moreover, the Court held that it was immaterial that the defendant's language in the case at bar might have been constitutionally punishable under a properly limited statute.

"It matters not that words appellant used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, … the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity."

Justice Brennan

Dec. 4, 1991

June 22, 1992

5-4

The petitioner was charged with violating the St. Paul Bias-Motivated Crime Ordinance, after burning a cross in the yard of an African-American family. The petitioner moved to dismiss the charge, arguing that the ordinance is overbroad and impermissibly content-based. The trial court granted the motion, but was reversed by the appellate court.

Whether the St. Paul Bias-Motivated Crime Ordinance is overbroad and impermissibly content-based in violation of the First Amendment.

The Court reversed the lower-court decision, concluding that even if the expression reached by the ordinance could be prohibited under the fighting-words doctrine, the ordinance was facially unconstitutional because it prohibited otherwise permitted speech based on the content it addressed. The Court reasoned that "just as the power to proscribe particular speech on the basis of a non-content element (e.g. noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe on the basis of other content elements."

"It is not true that "fighting words" have at most a "di minimus" expressive content, or that their content is in all respects "worthless and undeserving of constitutional protection"; sometimes they are quite expressive indeed. We have not said that they constitute "no part of the expression of ideas," but only that they constitute "no essential part of any expression of ideas."

Justice Scalia