Also known as: fighting word · Chaplinsky doctrine
Written by attorneys — see sources below.
A category of speech falling outside First Amendment protection that consists of personally abusive epithets which, when addressed to an ordinary citizen, are inherently likely to provoke immediate physical retaliation.
Frank Fisher stood inches from a city marshal on a public sidewalk and called him a God-damned racketeer and a damned Fascist. The marshal arrested Fisher under a statute punishing offensive or derisive words likely to cause a breach of the peace. The words qualified as fighting words because they were personally abusive epithets directed at an individual and inherently likely to provoke immediate retaliation.
Fabian Flynn shouted racial epithets at a passerby inside a store. The city ordinance punished only fighting words that insulted on the basis of race, religion, or gender. Flynn's conviction was reversed because the ordinance engaged in viewpoint discrimination by criminalizing only a subset of fighting words while leaving other equally provocative insults untouched.
Francisco Frost yelled fighting words at a victim before striking him. Prosecutors sought an enhanced sentence under a hate-crime statute that increased penalties when the underlying conduct was motivated by bias. The enhancement was upheld because it punished the conduct of assault rather than the content of the speech itself.
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View caseFumiko Fujimoto called a police officer a corrupt liar during a traffic stop. The officer sued for defamation. The claim failed because the statement concerned a public official and lacked actual malice, even though the words might otherwise have qualified as fighting words in a private context.
L. B. Sullivan is one of three elected Commissioners of the City of Montgomery, Alabama. He has duties including supervision of the Police Department. He brought this civil libel action against the New York Times Company and four individual petitioners who were Alabama clergymen. The suit sought $500,000 in damages based on a full-page advertisement entitled "Heed Their Rising Voices" that appeared in the New York Times on March 29, 1960. A jury in the Circuit Court of Montgomery County awarded Sullivan the full amount claimed against all petitioners. The Supreme Court of Alabama affirmed the judgment. The advertisement was signed by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. It described widespread non-violent demonstrations by Southern Negro students and an unprecedented wave of terror against them. Two paragraphs formed the basis of the claim. One alleged that after students sang on the State Capitol steps their leaders were expelled, truckloads of police ringed the Alabama State College Campus, and the dining hall was padlocked to starve students into submission. The other stated that Southern violators had bombed Dr. King's home, assaulted him, arrested him seven times, and charged him with perjury. The text appeared over the names of 64 persons. It was endorsed by the individual petitioners among others. Sullivan contended that the references to police referred to him in his supervisory capacity. Six Montgomery residents testified that they read the statements as referring to him. However, several statements were inaccurate. The students sang the National Anthem rather than "My Country, 'Tis of Thee." The expulsions were for a different incident. The dining hall was not padlocked. Dr. King had been arrested only four times. The bombings occurred before Sullivan's tenure with police efforts to apprehend the perpetrators. The Times published the advertisement for approximately $4800. It acted upon an order from a New York advertising agency. The agency provided a letter from A. Philip Randolph certifying authorization. The Times made no efforts to confirm its accuracy against its own news files. Sullivan served written demands for retraction on the petitioners pursuant to Alabama law. None of the individual petitioners responded as they had not authorized use of their names. The Times did not retract. It published a retraction only upon demand by Governor John Patterson after learning more facts. The Supreme Court granted certiorari to the separate petitions of the individual petitioners and the Times due to the importance of the constitutional issues involved.
View caseFelipe Figueroa displayed a sign in his store window containing personally abusive epithets aimed at a competitor. Regulators banned the sign under a commercial-speech rule. The ban was evaluated under intermediate scrutiny because the speech was commercial rather than pure fighting words directed at provoking immediate violence.
In December 1973, the Public Service Commission ordered electric utilities in New York State to cease all advertising that promoted the use of electricity because the interconnected utility system lacked sufficient fuel stocks for the 1973-1974 winter. The order rested on the Commission's finding that the system did not have sufficient fuel stocks or sources of supply to meet customer demands. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp. opposed the ban on First Amendment grounds. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses into promotional and institutional categories. It permitted informational advertising designed to encourage shifts of consumption from peak demand times to periods of low electricity demand. The Commission banned promotional advertising because additional electricity would be more expensive to produce and promotional advertising would give misleading signals to the public. Central Hudson challenged the order in state court. The order was upheld through the New York Court of Appeals. The Supreme Court noted probable jurisdiction and reversed.
View caseFatima Flores stood across the street from a funeral and shouted personally abusive epithets at the family of the deceased. The family sued for intentional infliction of emotional distress. The claim was barred because the speech occurred in a public forum on a matter of public concern and did not constitute fighting words directed at the listeners.
Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His father, Albert Snyder, arranged for the funeral to be held in Westminster, Maryland. Members of the Westboro Baptist Church, an unincorporated association founded by Fred Phelps, learned of the funeral through local newspapers and decided to picket it to communicate their belief that God punishes the United States for its tolerance of homosexuality. On the day of the funeral, Westboro members displayed placards on public land approximately 1,000 feet from the church where the service was held. The signs included messages such as "God Hates the USA," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You’re Going to Hell," and "God Hates Fags." The picketing took place for about 30 minutes before the funeral began. The funeral procession passed within 200 to 300 feet of the picketers. Church members also posted an online "epic" that discussed Matthew Snyder’s funeral and criticized his parents. Albert Snyder filed a diversity action in the United States District Court for the District of Maryland against Fred Phelps, his daughters, and the Westboro Baptist Church. The suit alleged claims for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury found for Snyder and awarded $2.9 million in compensatory damages and $8 million in punitive damages. The district court reduced the punitive damages award to $2.1 million but left the verdict otherwise intact. The Fourth Circuit reversed the judgment, holding that Westboro’s statements were protected by the First Amendment. The Supreme Court granted certiorari to review whether the First Amendment shields the church members from tort liability for their picketing speech.
View caseFighting words are personally abusive epithets addressed to an individual that are inherently likely to provoke immediate physical retaliation from an ordinary citizen. The words must be directed at a particular person rather than expressing a general idea or political view. Words that merely offend or provoke anger without tending to incite an immediate breach of the peace do not qualify.
Supporting sources
No. Even within the fighting words category, the government may not enact viewpoint-based or subject-matter-based regulations. An ordinance that punishes only fighting words insulting on the basis of race, religion, or gender while leaving other abusive epithets untouched is unconstitutional. The First Amendment forbids content discrimination inside an unprotected category.
Supporting sources
No. Speech that is offensive, vulgar, or expresses unpopular ideas remains protected unless it falls into the narrow fighting words category or another unprotected class. Words must be personally abusive epithets likely to cause an immediate violent response from the addressee. General political protest or symbolic expression does not qualify.
Supporting sources
Fighting words are face-to-face insults likely to provoke the listener to violence against the speaker. True threats convey a serious intent to commit violence against the target. Incitement urges imminent lawless action by third parties. Each category has its own test, but all fall outside First Amendment protection.
Supporting sources
…While our Court has held that some kinds of speech and writings, such as "obscenity," Roth v. United States, 354 U. S. 476, and "fighting words," Chaplinsky v. New Hampshire, 315 U. S. 568, are not expression within the protection of the First Amendment, freedom to discuss public affairs and public officials is unquestionably, as…