Fighting words are words that by the very act of being spoken tend to incite the individual to whom they are addressed to fight—that is, to respond violently and to do so immediately, without any time to think things over. This doctrine is old, and for many observers, it has been so deeply contradicted by a number of later Supreme Court cases that it is considered essentially dead.
Walter Chaplinsky, a Jehovah’s Witness, stood on a street corner in Rochester, NH distributing materials and denouncing all religions as a “racket.” After people complained to the city marshal about Chaplinsky’s actions, the officer informed the crowd that he was allowed to be on the corner. As the crowd grew more restless, the marshal warned Chaplinsky of a riot, to which he replied “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky was arrested and convicted under a state statute, making it unlawful to “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.”
This case grew out of an address Terminiello delivered in an auditorium in Chicago under the auspices of the Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity with over eight hundred people present. Others were turned away. Outside of the auditorium a crowd of about one thousand people gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to maintain order; but they were not able to prevent several disturbances. The crowd outside was angry and turbulent. In his speech, Terminiello condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare. Terminiello was found guilty of disorderly conduct in violation of a Chicago city ordinance and fined.
Petitioner made an inflammatory speech to a mixed crowd of 75 or 80 black and white people on a city street. He made derogatory remarks about President Truman, the American Legion, and local political officials, endeavored to arouse the black people against the white people, and urged that the black people rise up in arms and fight for equal rights. The crowd, which blocked the sidewalk and overflowed into the street, became restless; its feelings for and against the speaker were rising, and there was at least one threat of violence. After observing the situation for some time without interference, police officers, in order to prevent a fight, thrice requested petitioner to get off the box and stop speaking. After his third refusal, and after he had been speaking over 30 minutes, they arrested him, and he was convicted of violating § 722 of the Penal Code of New York, which, in effect, forbids incitement of a breach of the peace.
Close to 200 peaceful protesters filed suit after they were arrested following a demonstration to end segregation at the South Carolina State House. The Supreme Court found that the protesters' First Amendment rights to freedom of speech, association, and petition were violated by the state.
A jury in Baltimore City Criminal Court convicted petitioners of violating Md. Ann. Code, Art. 27, § 123 (1967 Repl. Vol.), which prohibits "acting in a disorderly manner to the disturbance of the public peace, upon any public street . . . in any [Maryland] city . . . ." The prosecution arose out of a demonstration protesting the Vietnam war which was staged between 3 and shortly after 5 o'clock on the afternoon of March 28, 1966, in front of a United States Army recruiting station located on a downtown Baltimore street. The Maryland Court of Special Appeals rejected petitioners' contention that their conduct was constitutionally protected under the First and Fourteenth Amendments and affirmed their convictions. 3 Md. App. 626, 240 A. 2d 623 (1968). The Court of Appeals of Maryland denied certiorari in an unreported order. We granted certiorari, 396 U. S. 816 (1969). We reverse.
Paul Robert Cohen was convicted of violating California Penal Code § 415, which criminalizes "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket with the phrase "Fuck the Draft" printed on the back. Cohen wore the jacket in the Los Angeles County Courthouse, and argued that his display of the expletive was there to communicate the sincerity and depth of his feelings regarding the draft and the Vietnam War. Women and children were present in the hallway of the courthouse where Cohen was arrested, and their presence was used as justification for his arrest. Cohen argued that his conviction violated his First Amendment rights through the Fourteenth Amendment's incorporation of those rights against the states. His argument was unsuccessful in front of the state court of appeals, which upheld his conviction. The State of California had argued that wearing the jacket constituted conduct, not speech, and therefore the conviction was justified and did not violate the First Amendment. The Supreme Court of the United States disagreed, holding that wearing the jacket was, in fact, speech. Further, although expletives can be used as "fighting words," they must be directed at the listener, and Cohen's jacket was not. Potentially offended parties had the choice of looking away. Accordingly, California's statute as applied violated Cohen's First and Fourteenth Amendment rights, and the decision of the California Court of Appeals was reversed.
Appellee challenged a Georgia statute providing that "[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor," and had not been narrowed by the Georgia courts to apply only to "fighting" words "which by their very utterance . . . tend to incite an immediate breach of the peace," was on its face unconstitutionally vague and overbroad under the First and Fourteenth Amendments.
414 U.S. 2 (1973) PLUMMER v. CITY OF COLUMBUS. No. 72-6897. Supreme Court of United States. Decided October 15, 1973. ON APPEAL FROM THE COURT OF APPEALS OF OHIO FOR FRANKLIN COUNTY.PER CURIAM. The Court of Appeals of Franklin County, Ohio, in an unreported opinion, affirmed appellant’s conviction of violating Columbus City Code § 2327.03, which provides: “No person shall abuse another by using menacing, insulting, slanderous, or profane language.” The Ohio Supreme Court, in an unreported order, sua sponte dismissed appellant’s appeal to that court “for the reason that no substantial constitutional question exists herein.” We grant […]
Upon the Louisiana Supreme Court's reconsideration of this case in light of Gooding v. Wilson, 405 U. S. 518 (1972), pursuant to our remand, 408 U. S. 913 (1972), that court, three judges dissenting, again sustained appellant's conviction upon a charge of addressing spoken words to a New Orleans police officer in violation of New Orleans Ordinance 828 M. C. S. § 49-7, 263 La. 809, 269 So. 2d 450 (1972). We noted probable jurisdiction, 412 U. S. 926 (1973), and we reverse. We hold that § 49-7, as construed by the Louisiana Supreme Court, is overbroad in violation of the First and Fourteenth Amendments and is therefore facially invalid. Section 49-7 provides:
"It shall be 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 member of the city police while in the actual performance of his duty."
The Louisiana Supreme Court on remand did not refine or narrow these words, but took them as they stood: "The proscriptions are narrow and specific wantonly cursing, reviling, and using obscene or opprobrious language." 263 La., at 827, 269 So. 2d, at 456. Nonetheless, that court took the position that, as written, "it [§ 49-7] is narrowed to `fighting words' uttered to specific persons at a specific time . . . ." Id.,
at 826, 269 So. 2d, at 456. But § 49-7 plainly has a broader sweep than the constitutional definition of "fighting words" announced in Chaplinsky
v. New Hampshire,
315 U. S. 568, 572 (1942), and reaffirmed in Gooding
v. Wilson, supra,
at 522, namely, "those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace." That the Louisiana Supreme Court contemplated a broader reach of the ordinance is evident from its emphasis upon the city's justification for regulation of "the conduct of any person towards a member of the city police while in the actual performance of his duty . . . . Permitting the cursing or reviling of or using obscene or opprobrious words to a police officer while in the actual performance of his duty would be unreasonable and basically incompatible with the officer's activities and the place where such activities are performed." 263 La., at 825, 269 So. 2d, at 456.
At the least, the proscription of the use of "opprobrious language," embraces words that do not "by their very utterance inflict injury or tend to incite an immediate breach of the peace." That was our conclusion as to the word "opprobrious" in the Georgia statute held unconstitutional in Gooding
where we found that the common dictionary definition of that term embraced words "conveying or intended to convey disgrace" and therefore that the term was not limited to words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." 405 U. S., at 525. The same conclusion is compelled as to the reach of the term in § 49-7, for we find nothing in the opinion of the Louisiana Supreme Court that makes any meaningful attempt to limit or properly defineas limited by Chaplinsky
"opprobrious," or indeed any other term in § 49-7. In that circumstance it is immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance. We reaffirm our holding in Gooding
v. Wilson, supra,
at 520-521, in this respect:
"It matters not that the 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' . . . . This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression."
In sum, § 49-7 punishes only spoken words. It can therefore withstand appellant's attack upon its facial constitutionality only if, as authoritatively construed by the Louisiana Supreme Court, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Cohen
403 U. S. 15, 18-22 (1971); Terminiello
337 U. S. 1, 4-5 (1949); Gooding
v. Wilson, supra,
at 520. Since § 49-7, as construed by the Louisiana Supreme Court, is susceptible of application to protected speech, the section is constitutionally overbroad and therefore is facially invalid.
In mid-1990, a white juvenile in St. Paul was arrested for burning a cross inside the fenced yard of a black family. The juvenile was charged with violating St. Paul's Bias-Motivated Crime Ordinance, which prohibited the placement of any symbol on public or private party that aroused anger in others on the basis of race, color, creed, religion, or gender. The juvenile moved to dismiss this charge, claiming that it was overbroad and impermissibly content-based under the First Amendment. The trial court granted this motion. The Minnesota Supreme Court reversed, holding that the ordinance prohibited only "fighting words," which, since the United States Supreme Court's decision in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), had been deemed unworthy of any First Amendment protection.
Regulation of speech based on the content of the speech is presumptively invalid under the First Amendment. Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530 (1980). In some cases, however, such as "fighting words," defamation, and obscenity, the Court has held that the content of the speech is of such slight social value that the speech is unworthy of First Amendment protection. See, e.g., Roth v. United States, 354 U.S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words).
February 15, 2017
The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.”