Legal Definitions of Fighting Words

When courts find that a person has uttered combative words, they often point out that individuals harass, wave, spit on others or engage in other forms of unprotected behaviour. In Collin v. Smith (1978), the Nazis who wore swastikas and military uniforms marching through a community with a large Jewish population, including survivors of German concentration camps, did not use combat words. In 1972, the Court ruled that offensive and offensive language, even when addressed to specific persons, are not fighting words: it accurately reflects the original doctrine of «fighting words» and not as it is understood and applied today by the U.S. Supreme Court. [ref. Greenawalt argues that in the context of the First Amendment, the application of some of Chaplinsky`s original formula («words likely to provoke a fight by an average addressee»)[3] is problematic in many ways: as a result of these Supreme Court decisions, many state and state governments have amended their laws to severely limit the scope of verbal behavior that can be criminalized. Many state supreme courts have limited their laws to apply only to fighting words. Brennan noted that the law was not narrowly designed to prohibit disorderly behavior or words to fight. The Court found that the regulation «criminalizes a significant amount of constitutionally protected speech and gives police unconstitutional discretion in law enforcement.» The lower courts have had difficulty determining whether certain epithets constitute «fighting words.» At the very least, they have had incredibly inconsistent results. Consider the following situations where offensive statements are not fighting words: «fighting words.» Merriam-Webster.com Legal Dictionary, Merriam-Webster, www.merriam-webster.com/legal/fighting%20words. Retrieved 11 October 2022.

These cases occur in two basic attitudes. In the first type of case, a person is charged with misconduct based on offensive and offensive speech and attempts to make a First Amendment defense. The question arises as to whether the individual`s speech constituted unprotected «fighting words» or protected freedom of expression. In the decades since the Chaplinsky decision, the U.S. Supreme Court has ruled on a number of cases that further clarify which speech or actions constitute fighting words. Also in Cohen v. In California (1971), the court ruled that a man wearing a leather jacket marked «Fuck the Draft» in a courthouse could not be convicted of disturbing the peace. Thus, the Court submitted the charge using the doctrine of fighting words to that of Brandenburg v. Ohio (1969), which «required imminent illegal action and is likely to trigger or produce such actions.» Although the court appears to have restricted the doctrine of the word fighting in subsequent decisions, it has never overturned Chaplinsky, so it remains in force.

Not surprisingly, many scholars have questioned both the origins and logic of the doctrine of the word battle. Burton Caine, a law professor at Temple University, called the Chaplinsky decision a «tragedy» for the First Amendment Act and the battleword doctrine in a succinct 2004 article in Marquette Law Review as «ill-conceived,» «dismay,» and «a grave threat to speech that should merit first-class protection.» Justice Francis W. Murphy, writing for a unanimous court, noted that previous decisions sought a balance between free speech and public order, noting that Chaplinsky`s speech was outside the bounds of First Amendment protection. When confronted with «obscene and obscene, blasphemous, slanderous and insulting» or `combative` words – categories of speech that have no social value or contribute to the expression of ideas – the government could restrict the expression of its opinion to avoid disruption. Some critics of the court have argued that its continued narrowing of the doctrine of battle words since Chaplinsky has left the doctrine hollow. Government officials, however, constantly elevate the doctrine of fighting words to restrict certain types of speech – from threatening speech against police officers to protests at military funerals. The Supreme Court agreed. She accepted this shrunken construction and the concept of fighting words. Judge Frank Murphy wrote for a unanimous court: Chaplinsky also argued that the application of the law to him violated the First Amendment because the state had not demonstrated that the epithets he used were true «fighting words.» The court rejected this argument, writing that «arguments are not necessary to prove that the terms `damned blackmailer` and `damned fascist` are epithets likely to provoke retaliation for the average person and thus cause a breach of the peace.» In a series of decisions, the Tribunal limited the doctrine of fighting words expressed in Chaplinsky.

Before the end of the decade, the U.S. Supreme Court granted a controversial speaker in Terminiello v. City of Chicago. Arthur Terminiello, a former Catholic priest, was charged with misconduct after giving a racist and anti-Semitic speech to Christian Veterans of America in a Chicago auditorium. Justice Scalia disagreed; He explained that the city`s ordinance discriminated against viewpoints because it selectively targeted only certain burnt crosses and punished only certain forms of fighting words. In R.A.V. v. St. Paul (1992), the Court found that although St. Paul sought to use the doctrine of the word battle to prevent the burning of crosses, the by-law was unconstitutional because it did not subject other forms of speech or expression to the same standard. City officials argued that Terminiello could be punished because his speech was a fighting word. The city`s argument prevailed in one state court and two state appellate courts.

In May 1949, the United States Supreme Court overturned the conviction by a vote of 5 to 4. Justice William Douglas wrote for the majority that the lower courts had analyzed whether speech was fighting words under Chaplinsky. The Court noted that «while it is conceivable that some listeners were prompted to retaliate when they heard the complainant`s disrespectful words, we cannot say that the complainant`s remarks were inherently so inflammatory that they fell into this small category of `fighting words`. Two cases dealt with the last aspect of the doctrine of the word battle. Many years later, the Supreme Court also rejected the idea that a Texas flag desecration law could be justified under the combatant doctrine. In 5:4 Texas v. Johnson (1989), the majority of the court noted that Gregory Lee Johnson did not engage in words of combat when he burned an American flag at the Republican National Convention in Dallas, Texas. The Court has continued to uphold the doctrine, but has also gradually reduced the reasons why the words of combat apply.