The ‘Fighting Words’ Doctrine Turns 70

By March 9, 2012

Today is the 70th anniversary of the U.S. Supreme Court’s decision in Chaplinsky v. New Hampshire. That decision established the "fighting words" doctrine, which to this day remains one of the more vexing areas of First Amendment law. Our friends over at the First Amendment Center have a great piece today on the Chaplinsky decision, including some interesting background information and a discussion of the decision’s ongoing impact on First Amendment law.

One of my favorite tidbits from the article is an amusing insight into how our society has changed in the last 70 years. In the incident that sparked the court case, Walter Chaplinsky was arrested and charged with a breach of the peace for telling a police officer that he was "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." The article explains that

[Chaplinsky's lawyer] had argued that the New Hampshire law was too vague, as people would have to guess at what speech would be considered offensive or annoying. The New Hampshire high court disagreed: "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight."

The state high court examined Chaplinsky’s language: "If the time may ever come 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."

Although the Supreme Court has narrowed the "fighting words" doctrine over the years to include only face-to-face exchanges that are actually likely to provoke a reasonable person to violence, universities misuse the doctrine all the time to prohibit constitutionally protected speech. For example, it is very common for university policy to label certain categories of words—such as epithets or insults—as "fighting words" regardless of whether they are spoken face-to-face in a situation where violence is actually likely to result. Despite the dated feel of the decision, we see it continuing to impact free speech on campus to this day.