What is the Fighting Words Doctrine?

The fighting-words doctrine was first articulated in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky was convicted of violating a New Hampshire statute that prohibited the use of offensive, insulting language toward persons in public places after making several inflammatory comments to a city official. The Court, in upholding the statute as constitutional, set down those famous words:

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.

Tellingly, despite continued reaffirmation of the fighting-words doctrine, the Supreme Court has declined to uphold any convictions for fighting words since Chaplinsky.

In fact, in Terminiello v. Chicago, 337 U.S. 1 (1949), the Court immediately began a long process of narrowing and reshaping the broad scope of the original fighting-words doctrine. Terminiello was charged with breaching the peace after publicly insulting a group of adversaries. While not addressing whether Terminiello's speech constituted fighting words, the Court found that the breach of the peace statute in question was overbroad because it permitted convictions for both fighting words and constitutionally protected expression. Concluding that speech that merely causes anger or outrage does not amount to fighting words, the Court opined that speech is protected unless the expression is "likely to produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance." The Court explicitly stated that it would not assume that certain words inevitably provoke violent reactions by individuals. Rather, the Court's analysis focuses on the context in which the words were uttered, not merely the content of the words themselves.

The fighting-words doctrine was again reaffirmed in Street v. New York, 394 U.S. 576 (1969). After publicly burning an American flag and making defiant comments regarding the flag, Street was convicted of violating a New York statute making it a misdemeanor to "publicly mutilate, deface, defile, defy, trample upon, or cast contempt upon an American flag either by words or act." The Supreme Court reversed Street's conviction because his comments, considered a possible factor in his conviction, were constitutionally protected by the First Amendment. Emphasizing that the mere offensiveness of words does not strip them of constitutional protection, the Court again noted that fighting words must present an actual threat of immediate violence, not merely offensive content.

The Court further expanded its protection of offensive speech in Cohen v. California, 403 U.S. 15 (1971). Cohen was arrested and convicted for disturbing the peace after wearing a jacket bearing the words "F--- the Draft." The Supreme Court reversed the conviction, redefining fighting words as only those "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reactions." The Court reasoned that because Cohen's statement was not an insult directed toward a particular individual, it could not be regulated as fighting words.

In the two cases that followed Cohen, Gooding v. Wilson, 405 U.S. 518 (1972) and Lewis v. City of New Orleans, 408 U.S. 913 (1972), the Court declined to review the circumstances surrounding the challenged speech, opting instead to overturn the convictions by holding the statutes in those cases to be constitutionally overbroad. In Gooding, the defendant was part of a group picketing Army headquarters in protest of the Vietnam War. A conflict arose when the protesters refused to comply with police orders to cease blocking a building entrance. The defendant was subsequently convicted of violating a statute that prohibited the use of "opprobrious words or abusive language, tending to cause a breach of the peace." Finding that the statute restricted speech beyond fighting words, the Court invalidated it as constitutionally overbroad.

Similarly, in Lewis, an argument between the defendant and a police officer precipitated the defendant's arrest for violating a New Orleans ordinance that made it a crime to "curse ... or to use opprobrious language toward an on-duty police officer." The use of the term "opprobrious," which was deemed overbroad in Gooding, was likewise deemed unconstitutionally overbroad in Lewis.

It was not until 20 years later that the Court again had the opportunity to fully analyze the fighting-words doctrine. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court considered the constitutionality of a St. Paul, Minn., ordinance that prohibited fighting words on the "basis of race, color, creed, religion or gender." The defendant was one of several teen-agers to be charged with violating the ordinance after burning a cross on an African-American family's lawn. The Supreme Court determined that the ordinance was facially unconstitutional because it prohibited speech on the basis of its content. The majority reasoned that even if the ordinance reached only unprotected fighting words, the city still could not constitutionally regulate only certain types of fighting words on the basis of their content. By prohibiting not all fighting words but only those of a particularly offensive nature, the statute ran afoul of the Constitution.

Notably, the Court in R.A.V. admitted that fighting words sometimes have value as speech, stating:

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."

Explaining that fighting words do not express any particular idea but are merely a mode of communicating other ideas, the Court warned that if government regulates the content of ideas, rather than the mode of delivery, the Court will strike down the regulation, even if only "unprotected" speech is affected.

Recent lower-court opinions illustrate that the fighting-words doctrine is still a highly contentious area of litigation. In City of Garfield Heights v. Yaro, 1999 Ohio App. LEXIS 5688 (1999), for example, an Ohio appeals court held that a woman who cursed during a confrontation with a police officer could not be convicted of disorderly conduct because her speech did not constitute fighting words. Citing Chaplinsky, the court determined that the applicable test was whether the words used would "reasonably incite the average person to retaliate."

Similarly, in Commonwealth v. Hock, 556 Pa. 409 (1998), the Pennsylvania Supreme Court held that a "single profane remark" did not constitute fighting words. In Hock, the defendant's breach of the peace conviction was overturned after the court ruled that a jury could not reasonably determine that her single remark "risked an immediate breach of the peace."

Conversely, in City of Hamilton v. Johnson, 1999 Ohio App. LEXIS 5623 (1999), an appellate court in Ohio rejected a First Amendment defense of a man convicted of uttering profanities at police officers. In Hamilton, Mr. Johnson was convicted of violating a city ordinance that makes it unlawful to "verbally abuse or make derogatory remarks" to a police officer. While the court admitted that on its face the ordinance sweeps too broadly, it noted that it was nonetheless constitutional because it could be interpreted to apply only to fighting words.

Although from its very inception the fighting-words doctrine has been redefined and recharacterized, nearly 60 years of legal debate on the issue demonstrate that the doctrine continues to play a role in modern jurisprudence.