AuthorStrasser, Mark P.

CONTENTS INTRODUCTION I. THE EVER-CHANGING FIGHTING WORDS DOCTRINE A. The Doctrine Announced B. Limiting Fighting Words to Exclude the Injury Prong? II. STATE APPLICATIONS A. State Courts with More Robust Fighting Words Exceptions B. State Courts with More Restricted Fighting Words Exceptions CONCLUSION INTRODUCTION

Fighting words doctrine is controversial (1) both with respect to its breadth (2) and even to whether it is still a live doctrine. (3) While the United States Supreme Court has occasionally cited the doctrine with approval in dictum, (4) the Court has not relied on it in any case since Chaplinsky V. New Hampshirein which the doctrine was announced. (5) That said, the Court has never overruled Chaplinsky, (6) and state courts continue to rely on the doctrine to uphold convictions. (7)

Part II of this article discusses the ever-changing fighting words jurisprudence. Regrettably, the Court has offered conflicting accounts of what the doctrine involves and which speech limitations are constitutionally permissible. (8) Part III discusses how some of the states have applied the fighting words doctrine. As might be expected, the United States Supreme Court's mixed messaging has resulted in different state approaches to which expressions constitute fighting words and are thus subject to regulation. (9) The article concludes that the Court's confused and confusing analysis has not only resulted in certain expressions being (federally) constitutionally protected in some states but not in others, but has also constrained the ability of states to effectuate public policy. The Court's commitment to free expression and to applying the law with integrity is undermined by its failure to clearly articulate a consistent approach to fighting words, and articulating such an approach will help prevent harms that will otherwise continue unabated and will help counteract the perception that the Court's commitment to free expression wavers depending upon the issues or individuals before it.


    In the very case in which the fighting words doctrine was recognized, Chaplinsky v. New Hampshire, (10) the Court offered mixed signals about when the doctrine could be invoked to uphold convictions. In subsequent cases, the Court has continued to offer contradictory indications about what kinds of fighting words limitations pass constitutional muster, ultimately leaving the impression that members of the Court either cannot agree about or do not understand what the fighting words doctrine is or when it can be applied.

    1. The Doctrine Announced

      In Chaplinsky v. New Hampshire, the Court upheld a conviction for disturbing the peace. (11) Chaplinsky had been distributing literature denouncing religion as a racket. (12) Citizens complained to the City Marshal, Bowering, (13) who replied that Chaplinsky was merely exercising his rights (14) but who also warned Chaplinsky that the crowd was growing restless. (15) Some hours later, the crowd "got out of hand and treated Chaplinsky with some violence." (16) A traffic officer escorted Chaplinsky to the station, likely to protect him. (17) The United States Supreme Court expressly noted that the traffic officer "did not inform [Chaplinsky] that he was under arrest or that he was going to be arrested," (18) at least implying that there was no basis for an arrest at that point. (19)

      Along the way, Chaplinsky and the officer ran into Bowering to whom Chaplinsky allegedly said, "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." (20) Chaplinsky claimed that his comments were made after Bowering had called Chaplinsky a damned bastard. (21) Chaplinsky was charged with and convicted of making comments that would likely bring about an immediate breach of the peace. (22)

      When reviewing his conviction, the New Hampshire Supreme Court understood that Chaplinsky was probably angry because he had been assaulted by the crowd and because he believed that the police had failed to protect him. (23) But, the New Hampshire court reasoned, even if it were true that Chaplinsky had been provoked, that would not excuse his having called Bowering names. (24)

      The purpose of the statute at issue was "to preserve the public peace, no words being 'forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.'" (25) When explaining the standard to determine whether particular expressions would count as fighting words, the New Hampshire Court explained that the "test is what men of common intelligence would understand would be words likely to cause an average addressee to fight." (26) There was no indication that the individual at whom the epithets were directed (Bowering) was even tempted to engage in fisticuffs, (27) but that did not matter--the New Hampshire Supreme Court reasoned that while there may be a time "when the words 'damned Fascist' will cease to be generally regarded as 'fighting words' when applied face-to-face to an average American, this is not the time." (28) The United States Supreme Court cited the New Hampshire court's interpretation with approval. (29) Because the statute at issue was limited to punishing individuals who had uttered fighting words, (30) the Court held that the application of the statute to Chaplinsky's comments did not violate First Amendment guarantees. (31)

      That Bowering was unlikely to engage in fisticuffs after being called a fascist (32) did not immunize Chaplinsky's conviction under the statute, given that the average person (at the time (33)) might well have responded with violence when called such a name. (34) This position helps cast light on the proper interpretation of Cantwell v. Connecticut, (35) decided two years earlier, which involved someone expressing offensive opinions about religious groups. (36)

      In a neighborhood known to have a high concentration of Catholics, (37) Jesse Cantwell stopped two individuals and asked them if he could play a phonograph record for them. (38) When they consented, he played a record highly critical of the Roman Catholic Church. (39) The two men, who were Catholic, (40) were "incensed" and "were tempted to strike Cantwell unless he went away." (41) Cantwell went away when told to do so. (42)

      The Court noted that there "was no evidence that [Cantwell] was personally offensive or entered into any argument with those he interviewed." (43) Further, there was no showing either that Cantwell's "deportment was noisy, truculent, overbearing or offensive" or that "he intended to insult or affront the hearers by playing the record." (44) Yet, the Court was not thereby implying that the record contents were innocuous--on the contrary, the record "naturally would offend not only persons of that persuasion [(Roman Catholics)], but all others who respect the honestly held religious faith of their fellows." (45)

      If indeed the comments were that offensive, their utterance might well have resulted in violence. Further, the Court was quite clear that "[w]hen clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious." (46) Nonetheless, the Court reversed Cantwell's conviction. (47)

      Commentators offer different theories as to why that conviction did not pass constitutional muster. (48) One interpretation of Cantwell is that the relevant standard regarding a clear and present danger of violence had not been met because the violence had not been imminent but would only have occurred if Cantwell had refused to leave. (49) But if that is why Cantwell's speech was protected, then the relevant constitutional protection does not seem very robust. Suppose that the two passersby had not told Cantwell to leave but instead had simply struck him. (50) In that event, the very speech on the record would seem to have been the cause of imminent violence. If that speech would then have been unprotected, then the constitutional protection afforded to Cantwell's speech would not only have depended upon its content but also on who happened to hear it. (51)

      Constitutional protections do not seem very strong if they depend upon the luck of the draw, e.g., who happens to be in the audience when particular comments are made. (52) That said, Cantwell is not a particularly good case to explore the connection between constitutional protections and chance. Cantwell had gone into a neighborhood known for having a high concentration of Catholics, (53) so it was not merely a matter of chance that the persons listening to the record were Catholic. (54) Arguably, playing a record making highly offensive comments about Catholicism would be even more likely to pose a clear and present danger of engendering violence if those hearing the comments were themselves (likely) Catholic (55) than would making such comments in front of an audience composed of individuals likely of a different faith. (56) In any event, it is somewhat difficult to believe that Cantwell's speech did not create a clear and present danger of violence (57) but that Chaplinsky's did, given that there was no suggestion that Bowering was even tempted to strike Chaplinsky. (58)

      The Chaplinsky Court discussed a few kinds of speech that do not trigger First Amendment protections, including "the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (59) According to the New Hampshire law that Chaplinsky allegedly violated, fighting words were those that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." (60) Yet if Bowering was the individual to whom the words were addressed and there was no indication that Bowering was even...

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