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In its 1942 decision, Chaplinsky v. New Hampshire, the Supreme Court of the United States articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.
Chaplinsky, a Jehovah's Witness, had said to a New Hampshire town marshall who was attempting to prevent him from preaching: "You are a God-damned racketeer" and "a damned Fascist" and was arrested. The Court upheld the arrest and stated:
- 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.
The Court has continued to uphold the doctrine, but despite this vigorous statement, it has also steadily narrowed the grounds on which fighting words are held to apply. In Street v. New York (1969), which overturned a statute prohibiting flag-burning, the Court held that mere offensiveness of fighting words was not enough, and that the threat of actual violence must be present. Similarly, in Cohen v. California (1971), the fact that Cohen had been arrested for wearing a jacket that said "Fuck the draft" did not constitute uttering fighting words since there had been no "personally abusive epithets".
Finally, in R.A.V. v. City of St. Paul (1992), the Court overturned a statute prohibiting cross burning on the grounds that governments could not prohibit speech based on its content or subjects addressed. The court went on to assign some free-speech value to fighting words (note: the court actually ruled that cross burning was not fighting words):
- It is not true that "fighting words" have at most a "de minimis" 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."
The court went on to say that while the government can regulate the mode of delivery of the ideas, it cannot regulate the ideas themselves.
In more recent decisions, the Court has held that fighting words must "reasonably incite the average person to retaliate" and risk "an immediate breach of the peace" or they could not be prohibited.
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