Also known as: unprotected speeches · unprotected expression
Written by attorneys · grounded in primary & secondary sources — see below
A category of expression that receives no First Amendment protection and may be regulated or punished consistent with the Constitution. Such categories include fighting words consisting of personally abusive epithets likely to provoke immediate violent retaliation when addressed face to face to an ordinary citizen. Government may not discriminate on the basis of content or viewpoint when regulating within these categories.
Uriel Urban stood a few feet from Councilmember Alicia Ortiz outside city hall and shouted obscene degrading names directly at her. Bystanders tensed and moved closer. Officers cited Urban under an ordinance banning face-to-face abusive insults likely to provoke a fight. The citation stands because the words qualify as fighting words that an ordinary addressee would likely meet with immediate physical retaliation.
Ursula Ureña enacted a statute barring stores from selling violent video games to minors. The law singled out depictions of violence as a new unprotected category. A court invalidates the statute because the games remain protected speech and the restrictions prove both underinclusive and overinclusive relative to any interest in shielding children.
Select any source to read its text and confirm it supports the definition.
Fighting words consist of personally abusive epithets addressed face to face to a specific person that are inherently likely to provoke immediate violent retaliation from an ordinary addressee. Robust criticism of government remains protected even if harsh or caustic. The distinction turns on the direct personal character of the insult and its objective tendency to trigger a breach of the peace rather than on the official status of the target.
Supporting sources
No. Even within an unprotected category such as fighting words the First Amendment forbids content or viewpoint discrimination. An ordinance that criminalizes insults tied to race religion or gender while leaving equally provocative insults about other traits unregulated is unconstitutional. The government must apply a neutral prohibition rather than favor or disfavor particular messages within the same category.
Supporting sources
No. The constitutional inquiry focuses on whether the words themselves are personally abusive epithets that an ordinary citizen would likely meet with immediate physical retaliation. No completed assault or gesture is required. The ordinance may punish the speech on the basis of its direct face-to-face character and objective tendency to provoke violence.
Supporting sources