Fighting Words

There are other exceptions to first amendment protections. The so-called fighting words exception allows states to prohibit provoking language directed at a particular person in a way likely to lead to violence. Two cases help illustrate the Court's evolving view of the fighting words exception.

In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) the Court affirmed conviction of Chaplinsky. Chaplinsky was distributing the literature of his religious sect on the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a 'racket'. Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later a disturbance occurred and the traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way, they encountered Marshal Bowering who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky who then stated to Bowering: 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists'. He was convicted of violating a local ordinance which stated: 'No person shall 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.'

The statute prohibited annoying language. How could it possibly be constitutional? In the realm of free speech, a vague and ambiguous statute presents special dangers, because it may be applied differently depending on whether the defendant expresses unpopular ideas. Consequently, statutes which prohibit both constitutionally and unconstitutionally protected speech may be struck down. But in Chaplinsky, the New Hampshire Supreme Court had already narrowed the meaning of the otherwise broad statute. And when a statute has been so narrowed, the Supreme Court ordinarily accepts the meaning of a statute given to it by the state's highest court. So, if a statute seems ambiguous on its face, the Court simply reviews the statute as it has been construed by the state courts, as if it had been amended by the legislature to read more narrowly. The Chaplinsky Court had the benefit of such a narrowing construction by the State Court, which had already limited the kids of speech prohibited by the statute:

• On the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being 'forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed'. It was further said: 'The word 'offensive' is not to be defined in terms of what a particular addressee thinks. ... The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. ... The English language has a number of words and expressions which by general consent and 'fighting words' when said without a disarming smile. ... Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. ... The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker-including 'classical fighting words', words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.'

The narrowing construction, then, played a critically important role in Chaplinsky. The Court, in effect, was reviewing a statute effectively amended by construction. It was this redefined statute which the Court found valid. The Court seemed to think that Chaplinsky's words were obviously fighting words:

• Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations 'damn racketeer' and 'damn Fascist' are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

Are the words "damn Fascist" still subject to prosecution? Was the problem that America was at war with Fascists at the time? Or was it important that the words were directed to officers who were trying to keep the peace?

In COHEN v. CALIFORNIA, 403 U.S. 15 (1971) Cohen was convicted of violating a California Statute which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The Court of Appeal attempted to narrow the statute in the same way which had led the Supreme Court to sustain Chaplinsky's conviction, and therefore held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction. But this attempt to narrow the statute did not save Cohen's conviction. The Supreme Court was not impressed by the argument that the jacket offended the decorum of a Courthouse, for the statute prohibited conduct anywhere in the State.

But weren't Cohen's words as offensive as Chaplinsky's? The difference apparently was that Cohen was displaying a point of view, rather than directing words at a particular person to provoke a fight:

• This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut, 310 U.S. 296, 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951); Terminiello v. Chicago, 337 U.S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result.

The Court recognized that its decision allowed Cohen to engage in offensive discourse. This was the price of first amendment freedoms. Nor was it important that Cohen's speech was not an exercise in eloquent discourse, the Court continued:

• To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U.S. 507, 528 (1948) (Frankfurter, J., dissenting), and why "so long as the means are peaceful, the communication need not meet standards of acceptability," Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).....It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed.